A Roanoke jury's award of $200,000 to evangelist Jerry Falwell from Hustler magazine publisher Larry Flynt was unusual, libel specialists say, because the jury found that a parody using Falwell's picture was not libelous, but had been intended to cause him "emotional distress."
If the verdict is upheld, those experts say, it could provide a new and troubling precedent by allowing public figures to collect damages without proving libel.
"The emotional distress claim is very new when applied to media or to expression in general," said New York libel lawyer Floyd Abrams of Saturday's federal jury verdict. "I think this is the first case where a 'libel' claim has failed and the 'intentional emotional distress' claim succeeded anyway."
Abrams and others said that for legal purposes the Hustler magazine parody, which depicted Falwell as an incestuous drunkard, could be compared to any political cartoon, and that the verdict could allow disgruntled public officials to quash dissent.
"Are we really going to allow a public figure like Falwell, or former president Richard M. Nixon to sue someone else for a cartoon on grounds that their feelings were hurt?" asked Marc Franklin, a professor of libel law at Stanford University Law School.
The Falwell verdict came at the end of a week-long $45 million libel trial. Falwell had sued Flynt, his sex magazine Hustler and Flynt's magazine distributing company over a liquor advertisement parody in which Falwell was quoted as saying that he often preached drunk, and that his first sexual experience had been in an outhouse with his mother and a goat.
Falwell's lawyers presented little evidence of emotional distress, relying mostly on Falwell's testimony that the parody had been highly offensive, had "besmirched" the memory of his deceased mother and made him "feel like weeping."
Lawyers for both sides had portrayed the trial as an epic confrontation between the forces of good and evil. A strident opponent of sexually explicit publications, Falwell said that he had filed the suit to "teach Larry Flynt a lesson."
Flynt said that the ad was an obvious parody, labeled as such, and that Falwell had profited from the parody by enclosing censored copies of it in a direct-mail solicitation that raised more than $800,000 for Falwell's Moral Majority Inc. and "Old Time Gospel Hour."
Falwell sued on three counts each of libel, invasion of privacy and intentional infliction of emotional distress.
Judge James C. Turk dismissed the privacy claim, ruling that there was insufficient evidence for it, and sent the other two counts against each defendant to the jury. They are separate offenses, but lawyers say it is rare to have a jury deliver no verdict backing the libel charge and then find evidence for "intentional infliction of emotional distress."
"I do think there have been previous attempts," said David Anderson, professor of law at the University of Texas law school. "This is the first one that succeeded."
Under First Amendment rulings, statements about a public figure are protected unless they are shown to have been published with malice or reckless disregard for the truth. The jury found no basis for libel in the Hustler parody, saying there was neither evidence of malice nor likelihood that a reasonable reader could have mistaken the one-page spoof as fact.
The jury awarded $200,000 to Falwell as compensation for "intentional infliction of emotional distress," an offense that requires evidence of harmful intent as well as statements that the jury finds to be "outrageous."
That the jury could find no evidence of malice, but still made a sizable award for harmful intent, is troubling to legal observers, as is what they say is the muddying of First Amendment rights with offenses as subjective as "emotional distress." "Libel is content, not effect," said one lawyer. "The elusive character of the word 'outrageous' itself suggests the problem," said Abrams. "What is 'outrageous'? How is the jury to decide? Is it simply a feeling on the part of the jury that something shouldn't have been said?
"It's no answer to say, 'Let the jury decide.' What the Constitution protects us against is a jury punishing unpopular or disagreeable ideas or persons," Abrams said.
The subjective nature of emotional harm, too, poses problems in media cases, according to Stanford professor Franklin. "It's a danger to free speech because it means you can publish something that is legal, and if Jerry doesn't like it and concludes that it has hurt him he can go to court and possibly win millions of dollars in damages."
Falwell had said that only an award of $500,000 or more in punitive damages would be sufficient to keep Flynt from publishing similar parodies. He had vowed to take the case all the way to the Supreme Court.
Yesterday, he and his attorney, Norman Roy Grutman, said they planned to appeal the verdict. "I think that libel was a valid claim," Falwell said. "In principle we won, but anything less than a million dollars will not ring his bell."
Flynt was surprised and delighted by the jury's finding. "I thought being in his Falwell's back yard and being in the Bible Belt area, we wouldn't fare well," said the Kentucky-born Flynt. "We're very excited. We're not happy about the $200,000 . . . but we feel we have a very good case for appeal."
Flynt's attorneys have filed a motion asking Turk to set aside the "emotional distress" award. Turk is entitled to overturn the verdict, but he will not decide on the matter for at least two weeks. If it is not overturned, said Flynt lawyer Alan L. Isaacman, Flynt will appeal.