A federal judge dismissed one of three complaints today in Jerry Falwell's $45 million libel suit against sex magazine publisher Larry Flynt and admonished lawyers for both sides in preparation for closing arguments and jury deliberation tomorrow.
In an uncharacteristic burst of anger, soft-spoken U.S. District Judge James C. Turk threatened to dismiss lawyers on each side if they continued to display open animosity toward each other.
"If this conduct on both sides keeps up, I'm going to disqualify all out-of-state counsel and let the local representatives handle it . . . we don't do it that way here," Turk said exasperatedly after Falwell's flamboyant New York attorney, Norman Roy Grutman, called Flynt's boyish Beverly Hills attorney, Alan L. Isaacman, "absolutely outrageous." Isaacman responded, "Your honor -- this is the way he refers to me in front of a jury? I object!"
Falwell, leader of the conservative Moral Majority political organization and star of a multimillion-dollar television and radio ministry, is suing Flynt and his magazine distributing company over the publication of a liquor advertisement parody that appeared twice on the inside cover of Hustler magazine.
In that parody, Falwell is quoted as saying that he always gets "sloshed" before preaching and that his first sexual experience took place in an outhouse with his mother and a goat.
Flynt's lawyers have contended all through the week-long trial that the page in question -- which included a one-sentence disclaimer saying that it was "not to be taken seriously" -- was an obvious parody.
Falwell has said that he believes that malice was intended and he is suing for libel, invasion of privacy and intentional infliction of emotional distress. Today, Turk ruled that the parody did not meet legal requirements for invasion of privacy. Under Virginia law, an unauthorized use of someone's face or name cannot be held an invasion of privacy unless it was used for trade or commercial purposes.
The trial has attracted the avid interest of Roanoke residents as well as national network television crews and student journalists from Falwell's Liberty Baptist College in Lynchburg.
Libel experts watching the case say that the recent trend of large damage awards by juries to libel plaintiffs may work in Falwell's favor. Geography, too, may be a factor.
The trial was moved from Lynchburg to Roanoke at the request of Flynt's lawyers earlier this year, and although Roanoke is considered a liberal pocket in generally conservative Southwest Virginia, Falwell's attorneys say the eight-woman, four-man jury is entirely Protestant, with an average age of 50, and contains few readers of sexually explicit magazines.
Although the issue in the trial is libel and not obscenity, Falwell lawyer Grutman has introduced sexually graphic cartoons as evidence and repeated in stentorian tones obscene language that drew shocked gasps from one female juror.
Grutman has also shown the jury a three-hour videotaped deposition in which a bearded and angry Flynt lies on his back on a prison hospital gurney and testifies that he has photographic evidence to show the parody was true.
Flynt, who has been paralyzed from the waist down since he was shot by an unknown assailant in 1978, was in jail for contempt of court at the time of the deposition.
Flynt, his psychiatrist and his younger brother, Jimmy Flynt, have testified that the videotape should be disregarded because it was taken when Flynt was in the throes of a manic-depressive disorder that has since been treated effectively.