Falwell vs. Flynt: See you in court

Posted: May 23, 2007

THE SUDDEN demise of the Rev. Jerry Falwell recalls a Supreme Court case that I taught at Widener law school.

It's the 1988 decision in Hustler Magazine v. Falwell. I'm sure no reader of this highly respectable newspaper has ever purchased a copy of Hustler, but no doubt you know it by reputation.

Considered pornographic by many, Hustler was (and to some degree still is) equally reputed as a source of political satire and irreverent social commentary.

Its publisher, Larry Flynt, was (and remains) as iconic and controversial as the Rev. Falwell.

The Falwell-Flynt legal encounter occurred when Hustler's November 1983 issue led off on its inside front cover with a parody ad for Campari, the aperitif. Actual Campari ads of that era interviewed celebrities about their "first time," ostensibly referring to their first taste of the drink, but implying something else.

The Falwell parody had a spoof interview in which Falwell admitted to a drunken, incestuous relationship with his mother in the family outhouse. Unsurprisingly, Falwell took strong exception.

The litigation seesawed back and forth through the federal courts. The trial jury found against Falwell, concluding that any reasonable reader would recognize the ad as a joke. The appeals court reversed it, holding that the trial judge should have asked the jury to decide whether the parody was so outrageous as to intentionally inflict emotional distress on its target, Falwell.

The Supremes reversed the decision yet again, ruling that the First Amendment demands that the rights of free speech and a free press can't depend on jurors' sensibilities. Flynt 1, Falwell 0.

Flynt was far from a stranger to the Supreme Court. He was prosecuted on organized-crime and obscenity charges in Cincinnati in 1976, found guilty and sentenced to 7-25 years. The conviction was overturned with part of the case coming to the nation's highest court in 1981. He was back in 1983 after the girlfriend of the publisher of a rival girlie magazine sued him for publishing a derogatory cartoon. During this appearance, Flynt shouted "F--- this court!" Chief Justice Burger had him arrested.

Also in 1983, he appeared at another trial, for refusing to release surveillance tapes the FBI wanted. He wore an American flag as a diaper. He was jailed for desecrating the flag.

Although a 1978 assassination attempt left Flynt paralyzed from the waist down, he has managed to outlive his old nemesis, Falwell. Needless to say, he has his own Web site, larryflynt.com. Among the items posted there are the most recent parody ads, a Hustler feature that Flynt has never abandoned.

On the day of Falwell's death, Flynt reminisced on accesshollywood.com about his legal confrontation with the preacher.

"The Rev. Jerry Falwell and I were archenemies for 15 years. We became involved in a lawsuit concerning First Amendment rights and Hustler magazine. Without question, this was my most important battle - the 1988 Hustler Magazine Inc. v. Jerry Falwell case, where after millions of dollars and much deliberation, the Supreme Court unanimously ruled in my favor."

He added, "My mother always told me that no matter how much you dislike a person, when you meet them face to face, you will find characteristics about them that you like. Jerry Falwell was a perfect example of that.

"I hated everything he stood for, but after meeting him in person, years after the trial, Jerry Falwell and I became good friends. He would visit me in California and we would debate together on college campuses. I always appreciated his sincerity even though I knew what he was selling and he knew what I was selling."

Flynt continued to have run-ins with the law, as recently as 1998. Falwell became infamous for his unfeeling flubs, most notably blaming immoral Americans for bringing the 9/11 attacks down on the nation.

Eventually, perhaps, they both became parodies of themselves, albeit wealthy ones. But back when they were still enemies, they significantly shaped constitutional law and the national political agenda. *

Jim Castagnera is a Philadelphia lawyer.

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