A federal judge in Virginia yesterday temporarily barred distribution of the March issue of Penthouse magazine, which contains an interview with the Rev. Jerry Falwell, founder of the Moral Majority. Falwell contends the interview was obtained by misrepresentation.
Judge James Turk granted the unusual order after hearing Falwell and his lawyers argue that the television evangelist would suffer irreparable harm from distribution of the article in a magazine that Falwell has called pornographic.
"I have never given interviews to smut magazines nor do I practice swimming in cesspools," Falwell said in a statement, in which he noted that he had in 1976 "personally criticized President Carter for giving an interview to Playboy magazine."
Falwell described the writers of the Penthouse article as "unprofessional and deceitful" and said he granted the interview, which appears between photographs of nude women, because one of the interviewers told him it would be used in a book on religion and politics.
The temporary restraining order, issued by Turk after an afternoon hearing in his chambers in Roanoke, is to remain in force until 1:30 p.m. Monday. Turk, chief U.S. District Judge for the western district of Virginia, said he scheduled a hearing in the matter for 9 a.m. Monday in Lynchburg, home of Falwell's huge Thomas Road Baptist Church and headquarters for his national television ministry.
Bob Guccione, the magazine's editor and publisher, said last night he expects Penthouse's lawyers to go to court today to quash the order, which he called unconstitutional.
It was unclear last night what effect the order would have on distribution of the magazine, which Guccione said would normally be delivered by wholesalers to retailers during the weekend or on Monday.
"The magazine is already in its distribution pattern," Guccione said in a telephone interview. "Whether or not we can stop it is another story. It may be beyond our ability."
However, he added, "we are perfectly confident and our lawyers are that we will have the [restraining order] set aside."
Calling Turk's order "an act of prior censorship that is not constitutional," he described Falwell as a public figure who has important things to say and asserted that the questions and answers in the published material are reproduced exactly and without editing.
According to Penthouse officials, one of the two free-lance journalists who interviewed Falwell at two different times was working on a book but told the evangelist he would try to sell the interview or part of it wherever he could. The other, according to Penthouse, told Falwell he was "basically doing the interview for a London paper and that he would try to sell it elsewhere in the U.S. if he could."
In neither instance did Falwell object, Penthouse spokesmen said.
Although Turk's order temporarily bars distribution of a publication, it did not appear to parallel exactly the 1979 Progressive magazine case, believed the first of its kind, in which a federal judge ordered the magazine not to publish an article on the hydrogen bomb.
That case, in which the government argued that publication would damage national security, hinged on the content of the disputed material.
The Penthouse case appears to center on the magazine's right to the material. Penthouse officials said they recalled at least one previous case in which distribution was temporarily enjoined in a similar dispute.
In an interview last night, Tom Phillips, one of Falwell's lawyers, said the evangelist had learned only Thursday that his "picture, name and the interviews" would appear in Penthouse.
The lawyer said that Falwell was never contacted concerning the use of his name, picture or interview and that Falwell "never consented in any fashion to any such use of his name."
Such use, according to the lawyer, would "call into question his integrity, sincerity and credibility" and would imply that he voluntarily gave the interview.
At one point in the interview itself, copies of which were sent to news organizations yesterday, Falwell was asked whether or not he was in the same business with individuals "who are not totally respectable . . . ."
In his printed reply, Falwell said that "while I oppose these people . . . I'd die for their right to do what they do . . . This question of censorship, it is so delicate . . . It is a fine, fine line."
In discussing pornography and whether some biblical passages might have been considered pornographic, Falwell cited the Song of Solomon and its references to love and physical affection.
"I don't object to that at all," he said, "I'd have no problem reading that, preaching from that as I do, in a mixed audience.
"I would certainly object, however, to taking that same story and cheapening it to a Playboy or Penthouse level, where four-letter words, vulgar applications, unholy relationships were applied."
In an introduction to the interview, Penthouse described Falwell as "a near-perfect example of the American Dream," who started with a handful of worshipers and built his church into a nationally renowned institution with 17,000 members.