Parodies of public figures which could not reasonably be taken as true are protected against civil liability by the First Amendment, even if intended to cause emotional distress. Fourth Circuit Court of Appeals reversed.
In the case, Hustler magazine ran a full-page parody ad against televangelist and political commentator Jerry Falwell Sr., depicting him as an incestuous drunk who had sex with his mother in an outhouse. The ad was marked as a parody that was "not to be taken seriously". In response, Falwell sued Hustler and the magazine's publisher Larry Flynt for intentional infliction of emotional distress, libel, and invasion of privacy, but Flynt defended the ad's publication as protected by the First Amendment.
In an 8–0 decision, the Court held that the emotional distress inflicted on Falwell by the ad was not a sufficient reason to deny the First Amendment protection to speech that is critical of public officials and public figures.[1]
Constitutional limits to defamation liability cannot be circumvented for claims arising from speech by asserting an alternative theory of tort liability such as intentional infliction of emotional distress.
Background
Hustler's parody, depicted above, includes the unauthorized use of a publicity photograph of Falwell and a near-exact duplicate of the typesetting used in a concurrent Campari advertising campaign.
Known for its explicit pictures of nude women, crude humor, and political satire, Hustler, a monthly magazine published by Larry Flynt, printed a parody ad in its November1983 issue[3] that targeted Jerry Falwell, a prominent Christian fundamentalisttelevangelist and conservative political commentator.[4]
The parody was mimicking the popular advertising campaigns that Campari, an Italian liqueur, was running at the time that featured brief contrived interviews with various celebrities that always started with a question about their "first time", a double-entendre intended to give the impression that the celebrities were talking about their first sexual encounters before the reveal at the end that the discussion had actually concerned the celebrities' first time tasting Campari.[3]
The Hustler parody, created by writer Terry Abrahamson and art director Mike Salisbury,[5] included a headshot photo of Falwell and the transcript of a spoof interview, where, misunderstanding the interviewer's question about his "first time", "Falwell" casually shares details about his first sexual encounter, an incestuous rendezvous with his mother in the family outhouse while they were both "drunk off our God-fearing asses on Campari." In the spoof interview, "Falwell" goes on to say that he was so intoxicated that "Mom looked better than a Baptist whore with a $100donation," and that he decided to have sex with her because she had "showed all the other guys in town such a good time." When the interviewer asked if Falwell ever tried "it" again, once again mistaking the interviewer's intention, "Falwell" responded, "Sure ... lots of times. But not in the outhouse. Between mom and the shit, the flies were too much to bear." Finally, the interviewer clarifies that he's asking if Falwell had tried Campari again, "Falwell" answered, "I always get sloshed before I go out to the pulpit. You don't think I could lay down all that bullshit sober, do you?"[6]
The ad carried a disclaimer in small print at the bottom of the page that said, "ad parody – not to be taken seriously", and the magazine's table of contents also listed the ad as: "Fiction; Ad and Personality Parody".[7]
Falwell sued Flynt, Hustler magazine, and Flynt's distribution company in the United States District Court for the Western District of Virginia for libel, invasion of privacy, and intentional infliction of emotional distress.[8] Before trial, the court granted Flynt's motion for summary judgment on the claim of invasion of privacy, and the remaining two charges proceeded to trial. A jury ruled against Falwell on the libel claim, stating that the parody could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated."[9] On the claim of intentional infliction of emotional distress, the jury ruled in favor of Falwell and awarded him $150,000 in damages.[9]
Flynt appealed to the Fourth Circuit. The Fourth Circuit affirmed, rejecting Flynt's argument that the actual-malice standard of New York Times Company v. Sullivan, applied in cases of intentional infliction of emotional distress where the plaintiff was a public figure, as Falwell concededly was.[10] The New York Times standard focused too heavily on the truth of the statement at issue; for the Fourth Circuit, it was enough that Virginia law required the defendant to act intentionally. After the Fourth Circuit declined to rehear the case en banc, the U.S. Supreme Court granted Flynt's request to hear the case.
Opinion of the court
"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions." The First Amendment envisions that the sort of robust political debate that takes place in a democracy will occasionally yield speech critical of public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large". In New York Times, the court held that the First Amendment gives speakers immunity from sanction with respect to their speech concerning public figures unless their speech is both false and made with "actual malice", i.e., with knowledge of its falsehood or with reckless disregard for the truth of the statement. Although false statements lack inherent value, the "breathing space" that freedom of expression requires in order to flourish must tolerate occasional false statements, lest there be an intolerable chilling effect on speech that does have constitutional value.
To be sure, in other areas of the law, the specific intent to inflict emotional harm enjoys no protection. But with respect to speech concerning public figures, penalizing the intent to inflict emotional harm, without also requiring that the speech that inflicts that harm to be false, would subject political cartoonists and other satirists to large damage awards. "The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events – an exploitation often calculated to injure the feelings of the subject of the portrayal". This was certainly true of the cartoons of Thomas Nast, who skewered Boss Tweed in the pages of Harper's Weekly. From a historical perspective, political discourse would have been considerably poorer without such cartoons.
Even if Nast's cartoons were not particularly offensive, Falwell argued that the Hustler parody advertisement in this case was so "outrageous" as to take it outside the scope of First Amendment protection. But "outrageous" is an inherently subjective term, susceptible to the personal taste of the jury empaneled to decide a case. Such a standard "runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience". So long as the speech at issue is not "obscene" and thus not subject to First Amendment protection, it should be subject to the actual-malice standard when it concerns public figures.
Clearly, Falwell was a public figure for purposes of First Amendment law. Because the district court found in favor of Flynt on the libel charge, there was no dispute as to whether the parody could be understood as describing facts about Falwell or events in which he participated. Accordingly, because the parody did not make false statements that were implied to be true, it could not be the subject of damages under the New York Times actual-malice standard. The court thus reversed the judgment of the Fourth Circuit.[2]
After The People vs. Larry Flynt appeared, Falwell and Flynt began meeting in person to discuss philosophy. They visited colleges to publicly debate morality and the First Amendment, and exchanged Christmas cards and family photos. After Falwell's death in 2007, Flynt wrote in the Los Angeles Times: "the ultimate result was one I never expected ... We became friends".[11]
See also
Caselaw
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) — "actual malice" standard for press reporting about public figure to be libel.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) — opinion is not libel; "actual malice" not necessary for defamation of private person if negligence is present.
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) — existing law sufficient to protect free speech without recognizing opinion privilege against libel claims.
1 2 Hustler Magazine v. Falwell,485U.S.46(1988). See also Deana Pollard Sacks, Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations, 120 Yale Law Journal Online 193 (2010).
Larry Claxton Flynt Jr. was an American publisher and the president of Larry Flynt Publications (LFP). LFP mainly produces pornographic magazines, such as Hustler, pornographic videos, and three pornographic television channels named Hustler TV. Flynt fought several high-profile legal battles involving the First Amendment, and unsuccessfully ran for public office. He was paralyzed from the waist down due to injuries sustained in a 1978 assassination attempt by serial killer Joseph Paul Franklin. In 2003, Arena magazine listed him at No. 1 on the "50 Powerful People in Porn" list.
The People vs. Larry Flynt is a 1996 American biographical drama film directed by Miloš Forman, chronicling the rise of pornographer Larry Flynt and his subsequent clash with religious institutions and the law. It stars Woody Harrelson, Courtney Love as his wife Althea, and Edward Norton as his attorney Alan Isaacman. The screenplay, written by Scott Alexander and Larry Karaszewski, spans about 35 years of Flynt's life, from his impoverished upbringing in Kentucky to his court battle with Reverend Jerry Falwell, and is based in part on the U.S. Supreme Court case Hustler Magazine v. Falwell.
Hustler is a monthly pornographic magazine published by Larry Flynt Publications (LFP) in the United States. Introduced in 1974, it was a step forward from the Hustler Newsletter, originally conceived by founder Larry Flynt as cheap advertising for his strip club businesses at the time. The magazine grew from an uncertain start to a peak circulation of around 3 million in the early 1980s; it has since dropped to approximately 500,000. Hustler was among the first major US-based magazines to feature graphic photos of female genitalia and simulated sex acts, in contrast with relatively modest publications such as Playboy. In the 1990s, Hustler, like several of its competitors, began featuring hardcore depictions of sexual penetration and oral sex.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for defamation. The decision held that if a plaintiff in a defamation lawsuit is a public official or candidate for public office, not only must they prove the normal elements of defamation—publication of a false defamatory statement to a third party—they must also prove that the statement was made with "actual malice", meaning the defendant either knew the statement was false or recklessly disregarded whether it might be false. New York Times Co. v. Sullivan is frequently ranked as one of the greatest Supreme Court decisions of the modern era.
Near v. Minnesota, 283 U.S. 697 (1931), was a landmark decision of the US Supreme Court under which prior restraint on publication was found to violate freedom of the press as protected under the First Amendment. This principle was applied to free speech generally in subsequent jurisprudence. The Court ruled that a Minnesota law that targeted publishers of "malicious" or "scandalous" newspapers violated the First Amendment to the United States Constitution. Legal scholar and columnist Anthony Lewis called Near the Court's "first great press case".
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), was a landmark decision of the US Supreme Court establishing the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.
Intentional infliction of emotional distress is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Some courts and commentators have substituted mental for emotional, but the tort is the same.
A parody advertisement is a fictional advertisement for a non-existent product, either done within another advertisement for an actual product, or done simply as parody of advertisements—used either as a way of ridiculing or drawing negative attention towards a real advertisement or such an advertisement's subject, or as a comedic device, such as in a comedy skit or sketch.
The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action.
Alan L. Isaacman is an American lawyer primarily famous for serving as attorney for publisher Larry Flynt. His past clients also include Geraldo Rivera, Kathy Griffin, Rock Hudson and CBS, Inc. He lives in Beverly Hills, California.
In US law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person's right to protection from publicity that creates an untrue or misleading impression about them. That right is balanced against the First Amendment right of free speech.
A public figure is a person who has achieved fame, prominence or notoriety within a society, whether through achievement, luck, action, or in some cases through no purposeful action of their own.
Cohen v. Cowles Media Co., 501 U.S. 663 (1991), was a U.S. Supreme Court case holding that the First Amendment freedom of the press does not exempt journalists from generally applicable laws.
Rodney A. Smolla, is an American author, First Amendment scholar and lawyer. He is currently the president of the Vermont Law School, and former dean of the Widener University Delaware Law School until spring 2022. He was the 11th president of Furman University. In 2015, it was announced that on 1 July of that year, Smolla would become the dean of the newly separate Delaware Law School of Widener University.
The origins of the United States' defamation laws pre-date the American Revolution; one influential case in 1734 involved John Peter Zenger and established precedent that "The Truth" is an absolute defense against charges of libel. Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the U.S. Supreme Court failed to use it to rule on libel cases. This left libel laws, based upon the traditional "Common Law" of defamation inherited from the English legal system, mixed across the states. The 1964 case New York Times Co. v. Sullivan, however, radically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only when they could prove the media outlet in question knew either that the information was wholly and patently false or that it was published "with reckless disregard of whether it was false or not". Later Supreme Court cases barred strict liability for libel and forbade libel claims for statements that are so ridiculous as to be obviously facetious. Recent cases have added precedent on defamation law and the Internet.
Snyder v. Phelps, 562 U.S. 443 (2011), is a landmark decision by the Supreme Court of the United States in which the Court held that speech made in a public place on a matter of public concern cannot be the basis of liability for a tort of emotional distress, even if the speech is viewed as offensive or outrageous.
In United States constitutional law, false statements of fact are assertions, which are ostensibly facts, that are false. Such statements are not always protected by the First Amendment. Often, this is due to laws against defamation, that is making statements that harm the reputation of another. In those cases, freedom of speech comes into conflict with the right to privacy. Because it is almost impossible for someone to be absolutely sure that what they say is true, a party who makes a false claim isn't always liable. Whether such speech is protected depends on the situation. The standards of such protection have evolved over time from a body of Supreme Court rulings.
Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657 (1989), was a case in which the Supreme Court of the United States supplied an additional journalistic behavior that constitutes actual malice as first discussed in New York Times Co. v. Sullivan (1964). In the case, the Court held that departure from responsible reporting and unreasonable reporting conduct alone were not sufficient to award a public figure damages in a libel case. However, the Court also ruled that if reporters wrote with reckless disregard for the truth, which included ignoring obvious sources for their report, plaintiffs could be awarded compensatory damages on the grounds of actual malice.
Opinion privilege is a protected form of speech, of importance to US federal and state law. The US First Amendment guarantees free speech, subject to certain limitations. One of these limitations is defamation, in various forms, notably libel. While federal precedent does not explicitly state that opinion is protected against prosecution under libel laws, the combined effect of several rulings is such as to effectively make such the case.
Hutchinson v. Proxmire, 443 U.S. 111 (1979), was a United States Supreme Court case in which the Court held that statements made by a Senator in newsletters and press releases were not protected by the Speech or Debate Clause.
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