While all of us were having a good time over the holidays, our eight Supreme Court justices were hard at work boning up on one of the most complicated First Amendment cases in history.
The issue concerns Larry Flynt of Hustler magazine (Boooo), who lost a lower court decision to Jerry Falwell (Yayyyyy) for causing the good reverend emotional distress by parodying him in a fake advertisement.
A lower court ruled that the ad, which said Falwell had sexual relations with his mother in an outhouse, did not libel him, but hurt Mr. Falwell's feelings to the tune of $200,000.
Let the Supreme Court record show I am not a reader of Hustler magazine, nor do I stand at the magazine racks sneaking looks at it when no one is around. The only thing I have in common with the publication is that we're both protected by the First Amendment.
As Justice Oliver Wendell Holmes wrote in one of his famous opinions many years ago, "I never saw a purple cow, I never hope to see one. But I can tell you, anyhow, I'd rather see than be one."
It has to be granted that ludicrous exaggeration is a tricky business and if done properly can inflict great pain and suffering on the intended victim.
That is why Supreme Court Justice Louis Brandeis once said in a footnote, "Parody can sometimes be truer than truth and righter than rain."
If Falwell gets his $200,000, how many others will file suit claiming they have been made sick to the stomach by some creator of burlesque?
It isn't the money we worry about -- most cartoonists and funny men make between $800,000 and $900,000 a year -- but the chilling effect that a decision in Falwell's favor will produce among publishers and editors, who have never been too sure whether they wanted satire in their papers in the first place.
Without a "Doonesbury," our publications would take on the ugly gray, dull look of a Pravda. John Marshall, our fourth chief justice, had this in mind when he told the graduating class of the Harvard Law School, "The Founding Fathers warned us that if you can't make fun of Jerry Falwell, then how can anyone send up Tammy Bakker?"
What do I want the present Supreme Court to do? I want them to compromise.
There are solutions that would satisfy everyone. It means fooling around with the Constitution a little bit, but no court ever minded that. I suggest the following:
The Supreme Court should order people dealing in parody, satire and humor to be licensed by the federal government and placed under court supervision.
Let us say Ed Meese objects to a Herblock cartoon because Herb has made Ed look like a barnyard animal.
Meese, if he gets emotionally sick, can demand the immediate withdrawal of Herb's license for a period of 10 days, or the rest of his term as attorney general -- whichever comes first.
Under these conditions Block would think twice about putting jowls on Ed Meese's cheeks.
It isn't easy being on the same side of an issue as Larry Flynt. But a lot is at stake here. As Justice Hugo Black tried to tell the court years ago, "You have to defend cheap sleazy magazines to protect the constitutional rights of the expensive sleazy ones."
I believe it is the role of the parodist to make fun of every well-known figure in this country, regardless of position, sex, pay scale or standing in the community -- with one excep- tion. They would have to first beat me with a rubber hose before I made light of the eight freedom-loving justices who smile down on all of us from the highest court in this land.