A question before the Supreme Court is whether Jerry Falwell can collect damages awarded him by a lower court for emotional suffering, and while this is a large question the decision will have to take account of the particular circumstances of this one case.
A parody ad in Hustler magazine, based on the Campari liquor ads in which celebrities tell about their "first time," purported to have Falwell tell about his first time.
Which, the ad went on, was when he was drunk and had sex with his mother in an outhouse. The "ad," which was of course not an ad at all, bore the label that it was a parody, not to be taken seriously.
Falwell suffered terribly, he has said. A jury awarded him heavy damages for his suffering, though it said he had not been defamed. Usually damages for suffering are given only in cases where defamation is claimed and proved. It is a great novelty for a court to say Falwell has not been libeled but is entitled to $200,000 for suffering all the same.
Larry Flynt, publisher of Hustler, argues that yes, the ad was in bad taste and that Falwell probably did not like it, but the First Amendment protects speech that is not libelous, however offensive to Falwell.
I do not for a minute believe Falwell suffered. The judgment, now on appeal before the high court, was undoubtedly nothing more than a jury's expression of distaste for Hustler and what it considers pornography in general.
Falwell, who himself is highly objectionable to probably millions of Americans, and certainly to me, has gone far out of his way to bleat on every street corner his views on politics, social policy, religion. He even took the chairmanship of PTL, the Jim Bakker outfit, when it was under attack for its financial methods and other things.
Question: If the ad had done the same thing, only with Henry Mitchell instead of Falwell, would it still be proper to publish it? Of course. I have never bought a copy of Hustler, but have read three issues of it over the years (when I did a piece on its publisher) and I am forever propounding, like Falwell, on Man's Place in the Cosmos, though with greater sense, I trust. I am an obscure target for a Hustler parody, but a fair one. I would think the ad in dreadful taste, and quite funny. And if anybody wants to laugh, bully for them.
But let's say Falwell is not like me at all (a thing I suspect is true) and that unlike me he saw nothing funny in the ad and was mad as hell. Well, he is always getting mad as hell, but however mad he gets he does not dictate the laws of the United States or its Constitution.
But wait -- suppose the ad did not parody Falwell or me or anybody else who jabbers to the public all the time, but said the same thing about Uncle Will, a quite private person who goes to his accounting office every day and whose only flashy involvement in public affairs is his chairmanship of the Community Chest of Bushbaby, Miss. Could he sue?
Does it make any difference if the target of the parody is a homebody minding his own business or whether it is a public figure shouting from the housetops on every conceivable topic? I think it might. Not on the basis of emotional suffering, but on the claim that a totally obscure person had been dragged without his consent into a national magazine for purposes of hilarity.
This also raises constitutional questions, but it may be analogous to the right to damages if an ad uses your picture to promote Wheaties or track shoes or whatever.
This right is settled, more or less.
But in cases of parody, however broad, when there is no libel, and when the target is a person who has widely commented on everything and who widely seeks controversy, it is surely against the good of the republic for the celebrity to come dashing up with the tenderest of skins, claiming distress.
The court should rule for Flynt and his Hustler. Maybe I should say that while I know neither man, I like Flynt and Hustler better than Falwell and his jabbering. I think Falwell, however low my opinion of him may be, has a constitutional right to holler all he likes. There were times when Falwell would have been burned at the stake with every blessing of the law. We have progressed since then, and now he may speak free.
This same progress benefits Larry Flynt. One thing you notice quickly about religious enthusiasts in general is that the minute they win freedom for themselves (however off-the-wall they would have been considered in the past) they start trying to trim the freedom of everybody else. Which is why Jefferson, among others, was so keen to separate religion and government.
Falwell told Ted Koppel on television that he had in mind President Reagan and George Bush, who were often parodied and vilified but could not answer back. The implication is that Falwell is striking a blow for all the poor abused helpless folk (like the president of the United States) who cannot defend themselves.
It is precisely the prospect that government officials could silence criticism that makes this case so interesting.
If you crack a joke about the boss, can he not only fire you but sue you for $200,000 because he is terribly sensitive, you know, and suffers dreadfully if anybody says he is a chowder head?
As for Falwell's alleged $200,000 worth of suffering from the Hustler howler, he should remember a servant of Christ may on occasion be required to endure pain even greater than the agony of being made fun of in Hustler.
Mitch Snyder, for example, who is the nearest thing to a saint I have run into lately, is ready to die for what he thinks are Christian principles. Right or wrong in his methods, he does not live in fancy compounds like the TV windbags; he often lives out on the streets with the homeless he concerns himself with. He is a man who might make a difference, but I cannot conceive of Falwell and his ilk making any difference whatever, except to chip away at the First Amendment. The high court will, I hope, not only find for Hustler, but will deliver a stinging rebuke to Falwell for bringing the case. As for his suffering, he would be better if he had a lot more of it.