A federal judge in Virginia today refused the request of television evangelist Jerry Falwell that he permanently block distribution of an interview with Falwell appearing in the March issue of Penthouse, a magazine known for its full-color photographic displays of nude women.
U.S. District Judge James Turk, turning aside claims by Falwell, head of the conservative Moral Majority, that the interview was obtained through deception and would cause him irreparable harm in the eyes of his followers, ruled that the interests of the magazine's 10 million readers far outweigh those of Falwell.
"The scales tip decidedly in favor of the public," Turk said.
Turk, who blocked distribution of the magazine temporarily last Friday, noted this morning that expiration of that order at 1:30 p.m. today would give Falwell time to appeal the ruling to a federal appeals court in Richmond if he desired. Falwell declined.
A spokesman for Penthouse, Rich Jachetti, said company officials were delighted with the ruling. "We never had any doubts," he said. "We knew we could depend on the basic constitutional law of the land to rule in our favor." c
Publicity resulting from the suit, Jachetti said, "could only help increase sales. I don't think we ever expected this interview to make the media splash that it has. I think we can thank Rev. Falwell for that."
Falwell said today he will pursue his $10 million suit against the magazine, which has a national circulation of about five million. Jachetti said Penthouse plans to counter Falwell's civil action with a suit of its own.
In Los Angeles, British journalist Andrew Duncan, one of two authors of the disputed interview, also threatened to sue Falwell for remarks attributed to the preacher since the suit was filed. Duncan said there were no condition placed on the use of his interview with Falwell, a point Falwell disputed on the witness stand here today.
"When conditions are made, I'll stick to them," Duncan said. "I interviewed the Shah shortly before he left Iran. I could have made a fortune off of that. But he stipulated that it could only be used for the book I was working on."
Duncan said Falwell "knew [the interview] was being done for a book and that the book was being excerpted to any number of places."
Today's hearing was marked by verbal sparring inside the courtroom and later outside between Falwell, head of the 18,000-member Thomas Road Baptist Church here and a nationally syndicated gospel program, and Penthouse's New York attorney, Roy Grutman.
After the hearing, Grutman responded to a question from Falwell with the biblical quotation, "Ye shall know the truth and the truth shall make ye free [John 8:32]."
"That's a masterful evasion," said Falwell.
"Coming from a master, I consider that an extreme compliment," Grutman shot back.
"They know what they've done is wrong," Falwell said later. "We now have the mammoth job of going out and repairing the damage Penthouse has done to our ministry."
Tom Phillips, Falwell's attorney and a personal friend of 25 years, said, "I've never seen him so upset."
Turk's ruling concluded two hours of arguments in a packed courtroom that saw Falwell's credibility challenged and heard him recall the attack he launched against Jimmy Carter after the former president's controversial "lust in my heart" interview appeared in Playboy magazine.
Falwell, wearing a three-piece navy blue suit, sat in the witness stand for nearly half an hour, smiling sardonically and trading biblical anecdoted with Grutman. The resulting verbal fencing match left the preacher visibly perturbed.
Falwell testified it was not the text of the interview he objected to, but the means by which it was obtained and used. "I do not think it in any way damaged what I had to say," he said. "There would be no problems if they had just said it was stolen. I may have fussed a little, but we wouldn't be in court at all."
He complained that "the people who support our work stand where we do and if they believe we gave such an interview, it will damage our financial standing." t
He acknowledged speaking to both writers, neither of whom attended the court proceedings. With the understanding that both were free-lance journalists, he said he told them "eyeball to eyeball" that the material was not to appear in such "salacious, pornographic" publications as Penthouse or Playboy. When Falwell said he had checked the background of one of the writers, Grutman asked, "Was his journalistic pedigree confirmed?"
"I was just checking him to make sure he wasn't writing for you," Falwell replied.
Grutman argued that basic freedoms of the press are at stake in the case. Again quoting scripture, he said, "Where the spirit of liberty is, there is the Lord. I don't think it [liberty] should start retreating in Lynchburg."
Falwell responded that the issue was not one of censorship. "I never object to what is written about us. I know we're open game. If we had the right or authority, I would never use that authority to eliminate Penthouse or Playboy from existence. You don't know who's going to censor who next."
But, he continued, "I have a right to be silent and to pick my own forums."
Falwell's attorneys maintained that by selling the interviews to Penthouse, the two writers had violated a "common law copyright."
Grutman, wiping his brow with a red bandana, called Falwell "an admitted public figure who craves the limelight." He termed Falwell's lawsuit "a media event created by Falwell to complain to his constituency about his distaste that it appeared in Penthouse."
To Falwell's claim that both writers understood that use of the interview was restricted, Grutman said, "We're not prepared to believe that every time Dr. Falwell gets on the radio, what he says has to be taken as the gospel."
Emerging from the courthouse to face waiting reporters and cameramen, Falwell said, "There's been a terrific amount of negative reaction" to the interview. "People are shocked that we would do that kind of thing. I have an obligation to every minister in America to see that they don't get away with this."