THE SUPREME COURT doesn't usually get a book of cartoons to consider as part of the documentary submissions in a constitutional case. But last week, the court heard argument in a suit where this kind of material was offered as an appendix to a brief submitted by the Association of American Editorial Cartoonists. The drawings are all political and all scathing, perhaps revolting, to their subjects. Here is Boss Tweed depicted as a vulture, Pat Buchanan as a rattlesnake, and Sen. Jesse Helms as a small dog standing in a puddle of his own making. James Watt is shown admiring a stuffed head of Bambi over his fireplace. Bert Lance is stealing from the collection plate. Sen. Edward Kennedy is in a car being driven off a bridge. And a naked Gov. George Deukmejian is being accused of vetoing a strip-and-search bill.
None of this could have been a lot of fun for the public figures depicted. It was of, course, not intended to be. And some may indeed have suffered emotional distress. But this kind of no-holds-barred satirical assault has been part of the American scene from the beginning, and before that it enjoyed a healthy life in Europe. Now, the Rev. Jerry Falwell, understandably displeased by the yecchy satirical material published about him in Hustler magazine, threatens to impede the whole tradition with a lawsuit. He won $200,000 in damages against Hustler not for libel -- the material did not purport to portray factual reality -- but for "intentional infliction of emotional distress." There is no dispute that the satirical drawings and text concerning Rev. Falwell are surpassingly gross. Why, then, shouldn't his lawsuit succeed?
Those who publish and write for newspapers have an interest, of course, in protecting themselves from harassing, even crippling litigation. And most Americans would miss the laughs, the gasps of recognition or shock and even the occasional anger they experience when turning to the daily editorial cartoon, the columns of political humor and the satirical reviews of the kind "Saturday Night Live" does so well. But these considerations don't interest the courts. The justices who heard argument in the Falwell case last week have to decide the constitutional question: In the absence of libel, does the First Amendment protect the publication of satirical material concerning public figures even if that material causes emotional distress? Surely it must, for if the Constitution does not protect satire, then it does not protect free speech.
If public officials and others prominent in American life can crush criticism -- even cruel satire -- when their feelings are hurt, that will be the end of criticism. There is no way to encourage political speech while suppressing some part of it that offends some people. Because it is impossible fairly to set a subjective standard for denying constitutional protection of speech, the First Amendment must be interpreted broadly. If it does not protect satirical comment that is rude, provocative, mocking and -- yes -- tasteless, if it allows for exceptions when public figures are made uncomfortable, then it is a sham