Porno king extraordinaire Larry Flynt, the
publisher of Hustler magazine, has been widely reviled
for peddling hard-core pornography, castigating his detractors
(even judges) with crude language, and committing outrageous acts,
such as "desecrating" the American flag by wearing it
as a diaper to court.1 The man once referred to as the "nightmare
version of the American dream"2 and "a Philistine Goliath"3
is now enjoying a personal renaissance with the publication of
his autobiography An Unseemly Man: My Life as Pornographer, Pundit, and Social Outcast
and the release of the movie The People vs. Larry Flynt.
The movie depicts Flynt's numerous battles (and there have been many) over First Amendment rights. Like him or not, Flynt has continually "challenge[d] the frontiers of free speech with sexually explicit political satire."4 He has fought obscenity charges, contempt charges, and numerous libel actions for pushing the limits of free speech. Flynt's vigorous criticisms and lampoons of individuals with whom he disagrees has often relegated him to the role of defendant. Hustler's notorious "Asshole crusaders Andrea Dworkin,5 Peggy Ault,6 and Dorchen Leidholdt7 have all sued Flynt after being branded with this dubious distinction. Gerry Spence8, the noted attorney who represented Dworkin, and Flynt's porn arch-rival, Penthouse publisher Bob Guccione,9 have also sued him.
Flynt's principal First Amendment battle pitted him against the Reverend Jerry Falwell, founder of the Moral Majority, in a case that reached the hallowed halls of the United States Supreme Court.10 Hustler Magazine v. Falwell was, in the words of law professor Rodney Smolla, not only a legal contest "destined to be an American classic," but also "a cultural battle."11 It was "the Pornographer vs. the Preacher", or "the Reprehensible vs. the Reverend."
The controversy began in November 1983 when Hustler ran a parody of Campari Liqueur ads which involved celebrities describing their "first times." Although "first times" ostensibly referred to the initial tasting of the liqueurs, as the U.S. Supreme Court noted, "the ads clearly played on the sexual double entendre of the general subject of 'first times.'"12
The Hustler parody depicted a drunken Jerry Falwell confessing that his "first time" was an incestuous fling with his mother in an outhouse. Soon after the release of the magazine, Falwell sued Hustler for $45 million in federal court, alleging invasion of privacy, libel, and intentional infliction of emotional distress for Flynt's "outrageous" speech. The federal trial judge dismissed the privacy claim and submitted the other two claims to the jury. The jury discounted the libel claim but awarded Reverend Falwell $200,000 for intentional infliction of emotional distress. The United States Court of Appeals for the Fourth Circuit upheld the jury's award.13
However, the United States Supreme Court unanimously reversed and dismissed the damages award.14 The Court, in an opinion authored by Chief Justice William Rehnquist, ruled that the First Amendment protected speech that "could not reasonably have been interpreted as stating actual facts about the public figure involved."15 The Court ruled that a public figure could not recover damages for emotional distress unless he or she shows that the publication contains a false statement of fact which was made with actual malice, or reckless disregard for the truth.
Rehnquist noted that the ad was "not reasonably believable" and could not be believed to convey any actual facts. The Court dismissed the damages award because the Court found a reasonable person would know the ad was a caricature. According to the Court, if public figures like Jerry Falwell were allowed to recover on emotional distress claims, then "political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject."16 The Court also warned that determining if speech is outrageous enough to constitute intentional infliction of emotional distress is an inherently subjective inquiry.17
The Court's decision protected parody, even highly offensive parody, from censorship. Flynt has described his U.S. Supreme Court victory as "the most important First Amendment case in the history of this country."18 Though Flynt's statement is unabashed hyperbole, the Court's opinion strongly reaffirms the vitality of the First Amendment. Smolla expands on the case's importance:
The Supreme Court's opinion in Falwell v. Flynt is a triumphant celebration of freedom of speech. Far from signaling the disintegration of America's moral gyroscope, the opinion reaffirms the most powerful magnetic force in our constitutional compass: that essential optimism of the American spirit, an optimism unafraid of wild-eyed, pluralistic, free-wheeling debate.19
Many contend that Flynt's autobiography and the upcoming movie wrongfully portray the Hustler publisher as a First Amendment warrior risking his liberty to protect the free speech and press rights of all Americans, rather than as a First Amendment struggles have arguably made it safer for others to speak more freely. Laura Pulfer, a reporter for the Cincinnati Enquirer, recently wrote a column acknowledging that Flynt's ceaseless First Amendment struggles have made it easier for mainstream media to avoid having their free speech and press rights chilled by libel actions. She concludes: "He's not my hero by any means, but I probably owe him a thank-you note. Maybe we all do."
The United States Supreme Court has stated
that a "bedrock principle" of the First Amendment is
the protection of ideas that are "offensive or disagreeable."20
Larry Flynt has personified the battle to protect offensive,
challenging speech. Perhaps Flynt sums it up best himself: "If
the First Amendment will protect a scumbag like me, then it will
protect all of you. Because I'm the worst."21
By David L. Hudson, Jr., Legal Department
______________________________________1See United States v. Flynt, 756 F.2d 1352, 1357 at n. 4-5 (9th Cir. 1985)
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