It was theater rarely seen at the Supreme Court: the Rev. Jerry Falwell battling sex magazine publisher Larry C. Flynt over an advertisement parody that portrayed Falwell as a drunkard having sex with his mother in an outhouse.
The television evangelist on one side of the courtroom, with the Hustler magazine publisher in his gold-plated wheelchair on the other, asked the eight justices to decide whether someone who is not libeled can nevertheless recover damages for sarcastic parodies that cause them emotional distress.
A Roanoke jury gave Falwell, founder of the Moral Majority, a $200,000 judgment against Flynt for the raunchy 1983 parody, a takeoff on an advertising campaign for Campari aperitifs in which celebrities talk about their "first time."
The jury said the parody was not libelous because it clearly could not be believed. But the jury assessed damages on the grounds that Flynt could be held liable for "intentional infliction of emotional distress." The 4th U.S. Circuit Court of Appeals upheld the award.
"If Jerry Falwell can sue for intentional infliction of emotional distress," argued Flynt's lawyer, Alan L. Isaacman, "then anyone can." He compared Hustler's depiction of Falwell to the Doonesbury comic strip portraying Vice President Bush as a "wimp." Such parodies must be protected, Isaacman argued, "or all we are going to have is bland, milquetoast" speech."
One of Falwell's goals "is to attack kings of porn like . . . Flynt," Isaacman said, adding that Falwell has "gone on the stump to espouse his views." The First Amendment gives Hustler the right to say "let's deflate this stuffed shirt, let's bring him down to our level," Isaacman argued.
Justice Antonin Scalia asked if society did not "need to draw a line . . . so that good people should be able to enter public life." He said the law does not say "you cannot protect yourself or redeem your mother from a parody that you committed incest in an outhouse."
"Would George Washington have stood for public office?" Scalia asked.
Washington, Isaacman said, was the target himself of numerous nasty cartoons, including one calling him an ass.
"I could handle that," Scalia said. "I think George could handle that. But that's a far cry from committing incest with your mother."
Falwell's lawyer, Norman Roy Grutman, argued: "Deliberate, malicious character assassination is not protected by the First Amendment."
"Do you think a vicious cartoon should subject the drawer to liability?" asked Justice Sandra Day O'Connor.
"Only if the cartoon is so intolerable that no civilized person should be expected to bear it," Grutman said. "This case is no threat to the press," he argued, because the parody was an aberration, "outrageous, heinous, repulsive and loathsome."
"This court has said that by becoming a public figure one does not abdicate his rights as a human being," Grutman said. "This is the kind of behavior that no one should have to contend with."
"What if a cartoonist . . . says 'I'm going to show up this person . . . as a windbag . . . a pompous turkey?' " asked Chief Justice William H. Rehnquist. Would that subject the artist to liability for damages?
No, Grutman said, it "has to be outrageous," and such a cartoon "doesn't depict incest, child-molesting or running a bordello."
In response to O'Connor's question about whether news media coverage of the relationship between model-actress Donna Rice and former senator Gary Hart (D-Colo.) could be the basis of a similar claim of intentional infliction of emotional distress, Grutman said it could not because it was truthful reporting.
Outside the court, Falwell said he would not have sued Flynt if the publisher had simply called him a drunkard. "But when he suggested my mother was a whore, a prostitute," Falwell said, "I can't imagine any red-blooded male in the world not being incensed by that."
Flynt was subdued as he spoke to reporters outside the courthouse. In November 1983, while sitting at the back of the courtroom, he screamed obscenities at the startled justices and was charged with demonstrating in a courtroom.
A ruling in Hustler Magazine Inc. v. Rev. Jerry Falwell is expected by July.