The Tully Center for Free Speech

Free Speech Zone

Hustler v. Falwell: 25 Years of Protected Satire

By Roy Gutterman, February 28, 2013

The landmark Supreme Court case Hustler v. Falwell turned 25 this week. When a Supreme Court precedent reaches this age, its legacy is either firmly developed or lost to the history books. Hustler v. Falwell’s scope continues to grow and the precedent helps not only to clarify important First Amendment principles, but to protect them as well.

The case involved polar opposites in the American political spectrum of the 1970s and 80s: Jerry Falwell, a respected reverend intent on pushing public policy to the religious right, and Larry Flynt, an irreverent pornographer with a chip on his shoulder and a profitable publishing empire, eager to push the envelope on everything from sex to politics.

An ad parody in Hustler magazine in 1983 sparked the lawsuit.  Modeled on a Campari liqueur ad campaign about celebrities’ “first time,” the Hustler ad depicted Falwell talking about his “first time,” except his took place in a drunken, incestuous rendezvous with his mother in an outhouse in Virginia, minus a goat. That’s the clean version.

It was all a joke. The ad, hilarious to some and repulsive to some, was the centerpiece of the civil lawsuit and trial, testing limits of the First Amendment and American tort law.

Falwell sued for libel, appropriation of his image and intentional infliction of emotional distress. The libel and privacy claims were dismissed, but a jury returned an intentional infliction award of $150,000. Thus, for the first time, a public figure who had injected himself into national politics could use basic tort law to essentially punish a publisher for publishing and disseminating offensive and potentially hurtful content.

On its face, the decision applied First Amendment principles to a public figure’s attempt to sue a publisher for hurting his feelings. But the decision had wider application and import. It took aggressive advocacy by Flynt and his lawyers to illustrate how this case was bigger than just an offensive ad parody and a jury’s award of tort damages against a pornographer. As a result, this case transformed Flynt, a self-professed “smut peddler,” into a First Amendment champion.

The lawsuit’s First Amendment implications are not always understood and appreciated, and many outside free speech advocacy circles fail to fully grasp the important democratic principles at play in this case. That is not uncommon with free expression cases, which often test our limits for accepting offensive ideas that are outside the mainstream.

“The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those 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,’” Chief Justice William Rehnquist wrote for the court.

The Hustler case also framed a history lesson in the art of political satire and its role in the marketplace of ideas. Deemed a “distant cousin” to political cartoons, the ad still enjoyed First Amendment protection, the court held. Political satire is as old as the country itself. In some ways, mocking leaders and power players is as American as apple pie.

Over the past 25 years, Hustler v. Falwell has become one of the most important First Amendment cases ever decided. Among the more than 20 Supreme Court and hundreds of lower court opinions applying and discussing the case, it has been influential in helping courts clarify protections on a range of speech issues. And not all that speech is pleasant, either: burning crosses, desecrating the American flag, parade permits for Nazis, lying about military honors and determining protected opinion.

One of the biggest, most controversial, free speech cases in recent years was the 2011 case Snyder v. Phelps, which involved a small church’s vocal and highly-offensive protests at funerals. Whether civil liability could be attached to the protests, which were accompanied by offensive signs and messages, was overridden by the protections under the First Amendment and concerns for the marketplace of ideas.

The Hustler case is what gives an entire spectrum of citizens, particularly comedians and satirists, the protection to do what they do—make fun of people, politicians and public policy. “Saturday Night Live,” Jon Stewart, Jay Leno, David Letterman, even Howard Stern owe Hustler and Larry Flynt a debt of gratitude. But so do all of us.

 

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.  The Tully Center will host Larry Flynt on March 5, when he will speak on “Fighting for the First Amendment.”