Falwell Vs. Flynt By Smolla

Jerry Falwell vs. Larry Flynt: The First Amendment on Trial

Robert A. Smolla

For my presentation, I reported on the Falwell vs. Flynt lawsuit, which was based upon the extent to which Americans have freedom of expression. An important aspect of this case was the dissimilarity of the two men involved: Jerry Falwell and Larry Flynt. Jerry Falwell was an important religious leader of the time. He was a radio evangelist, leader of a religious group called the moral majority, and voted 2nd most influential person in America (the first being the president). Falwell represented a pure America, a decent society in which its members were committed to moral standards. Larry Flynt was his complete opposite. Flynt was editor of the infamous Hustler magazine and represented the darker side of America, one in which pornography and crudeness were tolerated. I found that the contrast between these two men made the case into a sort of battle between good and evil: Falwell, the religious role model, was being attacked by Flynt, the sleazy pornographer. Yet it is amusing that despite their differences, both believed that they would be protected under the same laws.

Falwell sued Flynt after finding a Campari ad parody using his name and likeness in Flynt's Hustler magazine. This "ad" included a photograph of Falwell and a fake interview in which Falwell supposedly states that he has had sex with his mother and regularly drinks before he preaches. Falwell was appalled by this parody. On one hand, he believed that the parody was purposely meant to hurt him. On the other hand, he did not want his reputation to be ruined if his followers saw the ad and associated him with pornography. Therefore, Falwell sued Flynt and his publisher of Hustler Magazine for invasion of privacy, libel, and intentional infliction of emotional distress.

The court initially ruled that they couldn't charge Flynt with a libel claim because it could not be proven that readers would assume the information in the parody was correct. Although I understand that it is obvious that information given in a parody, especially one found in a source such as Hustler magazine, cannot be read as the truth, I find it hard to believe that there is not some kind of punishment for publishing such information. I am also bothered by the fact that because the parody states that it is a parody - in tiny letters that would not be noticed by a reader simply glancing at the ad - Flynt is off the hook. However, the court did support Falwell's claim of emotional distress. I think this is fair because Flynt had obviously published the parody in order to express his feelings toward Falwell. Flynt believed Falwell was a hypocrite, and wanted other people to feel the same way.

Flynt appealed the court's decision because he felt that before Falwell could receive money to compensate his "emotional distress," the actual malice standard set in a previous case (New York Times Co. v. Sullivan) must be met. The court of appeals reaffirmed the ruling of the first court: the ad did not describe actual fact, and therefore was an opinion