Flynt Loses Another Court Test to the Moral Majority

The score now is Jerry Falwell and the Moral Majority, 2, Larry Flynt and Hustler magazine, 0, in courtroom competition.

U.S. District Judge Richard A. Gadbois Jr. ruled last week in favor of Falwell in a Los Angeles lawsuit filed by Flynt’s magazine. Flynt had charged that Falwell violated copyright laws by reprinting a Hustler advertising parody and sending it out with a letter soliciting funds.

Last December, a Roanoke, Va., jury ruled for Falwell in a libel case focusing on the same liquor advertisement parody. That jury awarded Falwell $200,000 after finding Flynt and Hustler liable for “intentional infliction of stress.”

Takeoff on Campari Ads

The ad parody features Falwell’s picture along with quotes saying that he frequently preached while drunk and that he had his first sexual experience in an outhouse with his mother. It was a takeoff on the Campari ads featuring interviews with famous people about their “first time” in drinking the aperitif.

The purported spoof appeared in Hustler’s November, 1983, edition and included a disclaimer in very small type that read: “Ad parody--not to be taken seriously.” As Judge Gadbois noted in his 30-page opinion in the copyright suit, Falwell’s response to the ad parody “included both swift legal action and a series of impassioned communications with his constituents.”

In last year’s libel trial, Falwell said he believed the ad was intended as fact, that it was a malicious attempt at character assassination and that it harmed his ministry. Flynt’s attorneys argued that the ad was an obvious parody and was a legitimate spoof of a man who they said had made himself a public figure.

Letter, Television Appeals

After filing suit, Falwell mailed a barrage of letters and made television appeals seeking funds to finance litigation against Flynt’s “tasteless and libelous attack on my mother and me.” Falwell sent mass mailings on Nov. 15, 1983, to Moral Majority members.

One set of letters, containing a description of the ad parody, went to 458,370 “rank-and-file donors,” seeking up to $50 from each. The other, which included a copy of the ad with several words edited out, went to 26,980 “major donors”; it asked for $500 contributions.

Three days later, Falwell sent another mailing of 725,586 to followers of the “Old Time Gospel Hour” radio and television programs. This time the appeal was for a “survival fund” to finance his television and radio network. On two December, 1983, telecasts of the “Old Time Gospel Hour,” Falwell continued his pitch for the “survival fund” and at several points held up a copy of Hustler, showing the offending pages.

More Than $700,000 Received

These combined appeals brought in more than $700,000, according to court documents. Flynt filed a suit of his own claiming that the reproduction by Falwell of hundreds of thousands of copies of the ad parody violated the copyright on the material held by Hustler.

In ruling against Flynt and the magazine, Gadbois stated that the “equitable rule of reason . . . tilts sharply in favor” of finding that Falwell’s distribution of the ad parody was a fair use of the material.

Gadbois, in granting the summary judgment against Flynt and the magazine, stated:

“The unique facts of this case make it plain that Falwell’s reproduction of the ad parody should not be put in the category of commercial use. It did not cause Hustler any competitive injury. Falwell was not selling copies of the ad parody to his followers, or in any commercial sense competing with Hustler. (It) was a satire about Falwell. He was entitled to use it as he did.”