Hustler-Falwell Case Enlivens High Court

With the Rev. Jerry Falwell and Hustler magazine Publisher Larry Flynt looking on in the courtroom, the Supreme Court Wednesday struggled with a difficult First Amendment question: May the target of a vicious, but not libelous, parody sue and collect damages for “emotional distress”?

The nation’s cartoonists, comics and satirists are hoping that the justices will overturn a lower court opinion that upheld a $200,000 judgment in favor of the television evangelist and former head of the Moral Majority and the PTL club.

In 1983, Hustler published a mock interview with Falwell, patterned after a Campari liquor ad, in which he discussed his “first time” sexual experience--an encounter with his mother in a Virginia outhouse. A Virginia jury concluded that the ad parody was so obviously false that it could not be considered libelous or defamatory, but it said that Falwell deserved a money award for the anger and humiliation it had caused. Last year, a divided appeals court in Richmond upheld that judgment.

In a lively set of exchanges Wednesday, justices said that they were trying to draw a line--if possible--between the First Amendment’s protection of free speech and common law’s recognition of the right of an aggrieved party to seek civil compensation for emotional distress.

Several justices said that, in balancing fair satire against character assassination, they wanted to protect a cartoonist who might portray a politician as “a big windbag or a pompous turkey,” as Chief Justice William H. Rehnquist put it. Others defended the right of cartoonist Garry Trudeau to portray Vice President George Bush, for example, as a “wimp.”

Flynt’s attorney, Alan L. Isaacman of Beverly Hills, Calif., said that the nation has a long and proud history of sharp, even vicious, political satire, noting that George Washington was once portrayed on a donkey by a cartoonist who wondered which was the “ass.”

“I can handle that. I think George could handle that,” interjected Justice Antonin Scalia, adding amid laughter: “That’s a far cry from committing incest with your mother in an outhouse.”

Falwell’s attorney, Norman Roy Grutman of New York City, said that Flynt’s magazine went far beyond the bounds of decency. He called the supposed Falwell interview “repulsive and loathsome” and a “deliberate, malicious character assassination,” and he said that such attacks do not deserve protection under the Constitution’s free press clause.

But Isaacman countered that sharp, humorous and even tasteless satire regarding public figures is entirely in keeping with the tradition of a feisty, free press.

“Hustler has every right to say that man (Falwell) is full of b.s.,” Isaacman said. “Hustler is saying: ‘Let’s deflate this stuffed shirt . . . and bring him down to our level,’ ” a comment that caused several justices to collapse in laughter.

A subdued Flynt sat in the back of the courtroom in his gold-plated wheelchair and, afterward, said that he “felt very badly” that the case could end up hurting the nation’s press.

Four years ago in the same courtroom, Flynt, watching arguments on a libel case involving his magazine, was dragged away by marshals after he shouted obscenities. And, at the Falwell trial in Virginia, Flynt proved to be his own worst enemy by testifying that he intended to “assassinate” the evangelist’s character.

“I think it is time I started behaving myself,” he told reporters outside the court.

The high court is expected to announce its decision on the case (Hustler vs. Falwell, 86-1278) in several months.

On the court steps, Falwell said that a ruling in his favor will give “some long overdue protection” to persons in the public spotlight and will deal a blow to “the kind of sleaze merchandising that Larry Flynt typifies.”

According to the court’s rulings on libel, a public figure may not collect damages unless he can prove that statements made about him were false and were published with “actual malice,” a standard that is rarely met.