Written as a Speech in April 2002
The Constitution of the United States was ratified September 17, 1787. Four years later ten amendments were appended to it, known collectively as the Bill of Rights. The very first of those amendments reads,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
While this may seem to be a clear statement that the government of the United States is not allowed to interfere with its citizens’ religious practices or their self-expression, few assertions in American politics have raised as many questions for debate over the past 200 years as this single sentence, and few debates have been as charged with passion as those that sought to define its scope and meaning. Does my freedom to move my fist stop before, after, or exactly when it meets your nose? Does speech include radio and television broadcasts that could create a panic, or reveal a national secret? How about a song that tells its listeners to get a gun and kill, kill, kill? How about the printed word? How about pictures? Let’s not even start on the internet! These questions have continuously been asked throughout the history of the US. And the debate between the right one has to put forward an idea, verses the degree to which the law must protect the emotional well being of others has been raging from day one of the first amendment.
A vital, modern example of the debate between people who advocate freedom of conscience and those who believe in freedom within the limits of moral legislation resulted in the 1988 Supreme Court case of Hustler Magazine, Inc vs Jerry Falwell. In the one corner was: Larry Flynt, the founder, CEO and editor in Chief of Hustler Magazine was and still is a multimillionaire porn king and a coinsurer of poor taste, and in the other corner: leader of the Moral Majority, and at that time the second most-admired man in America after President Ronald Reagan, according to a Good Housekeeping poll – Jerry Falwell.
It all started in 1987 when Larry Flynt approved a piece for the inside front cover of Hustler Magazine. The piece was a parody of a well known Campari advertising series where celebrities would talk about their “first time”. The ads contained a sexual innuendo, leading up to the fact that they were actually talking about their first time drinking Campari. The Hustler version depicted Jerry Falwell actually talking about his first sexual encounter, which Hustler claimed was in an out house with his mother.
Falwell sued Hustler for liable and causing emotional distress, but while on the stand testifying in a Virginia court room, Falwell admitted to the fact that no one could have taken the parody seriously. Because of this admission, the jury decided that the liable suit had to be dropped, but the conservative Virginian court convicted Flynt of causing emotional distress, and fined him $150 000. Flynt actually counter sued Falwell for copy right infringement because his Church had copied the parody and sent it to fund raisers to gain support for his campaign. But the main issue was that Flynt appealed the ruling and lost again in the Federal Appeals court. The Court of Appeals affirmed, rejecting the contention that the “actual malice” standard of New York Times Co. v. Sullivan, must be met before respondent can recover for emotional distress. But after petitioning, the case was eventually accepted but the Supreme Court in 1987.
In the short run the Supreme Court decision was perhaps of minor importance to both Falwell and Flynt. Both men are as wealthy as crooks, and the award in question amounted to only $200,000. Both men are far too popular with their own constituencies for their reputations to be seriously damaged by the opinions of enemies such as each other. And neither man is a stranger to the courtroom. Flynt in particular has been such an zealous defender of First Amendment rights that he was actually in a psychiatric prison at the time of the first case for throwing oranges at a judge while wearing a diaper fashioned from an American flag.
But in the long run the final decision in Falwell v. Flynt was of tremendous importance – not only because it let the scurrilous, pugnacious Flynt publish a nasty satire of the strait-laced, white middle-class American daddy Falwell, but chiefly because these two mean-spirited men perfectly represent the extreme positions in American society regarding some of this nation’s most fundamental freedoms. Furthermore, when the Supreme Court made its decision in favor of Flynt’s right to publish his satire over Falwell’s right not to be lampooned, it did so unanimously; and the opinion exonerating Flynt was written by the court’s least likely personality, Chief Justice William Rehnquist.
Prior to Falwell v. Flynt Rehnquist had voted against the press every time he had heard such a case before the Supreme Court. Nonetheless, in finding for Flynt he wrote, “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern…. The freedom to speak one’s mind,'” he continued, quoting from another Supreme Court decision called Bose v. Consumers Union, “is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.'”
What this means is that anyone can say anything they want to about a public figure, as long as it is their opinion, and not stated as fact. That once you enter the public arena, you give up your right to claim for emotionally distressing statements made about you. Does that sound harsh or unfair? Well, imagine a world were Jay Leno gets sued ever night, where South Park, the Daily Show or any other satirical media can not afford to be produced because liable suits would run rampant. But most importantly, be aware that even though you may not like Larry Flynt, or what he does, he proved that if the law will protect the rights of the self proclaimed “King of Bad Taste”, “Mr. Scum-bucket” and the “Worlds Greatest Pig”, then it will protect your rights as well.