Case Law: Hustler Magazine, Inc. v. Falwell

This week I am taking a break from talking about comic books to talk about freedom of the press for my Westchester Community College course. Specifically, an overview of the 1988 United States Supreme Court case “Hustler Magazine, Inc. v. Falwell.” The ruling was a landmark decision establishing interpretations of the First Amendment and the Fourteenth Amendment. If you’ve never heard of this trial before I will summarize the facts of the case.

Hustler is a pornographic magazine that debuted in 1974 via its publisher Larry Flynt. The magazine sought to distinguish itself from competitors like Playboy magazine with an attempt at raunchier and edgier content. Beyond pictorials this also included humor pieces, which often featured very dirty jokes.

Jerry Falwell, Sr. was a Southern Baptist pastor and televangelist who later became a conservative political activist. He is known for founding Liberty University, co-founding the Moral Majority political organization, and criticizing the Teletubbies as homosexual propaganda (this would occur much later).

The subject of the lawsuit was a satirical advertisement published in Hustler magazine, as shown above. In a parody of Campari’s “You’ll never forget your first time” ad campaign, the copy includes a fake interview with Falwell. The interview has him describing alcoholic behavior and sex with his own mother, who is also implied to have had sex with many other men.

The fake ad included a small disclaimer describing itself as parody, but Falwell felt entitled to compensation. He sued Hustler Magazine, Inc. on the grounds of libel, invasion of privacy, and intentional infliction of emotional distress. In the initial decision by a lower court he was awarded $150,000 in damages, but Hustler appealed.

The Supreme Court under Chief Justice William Rehnquist ultimately decided unanimously in favor of Larry Flynt. Their ruling rested on several grounds that would set important future precedent. Most importantly, Jerry Falwell was undeniably a public figure which entitled him to a different set of protections than the average citizen. The intentional infliction of emotional harm might have entitled a private citizen to compensation, but the First Amendment must take a greater interest in protecting speech against the powerful. This must necessarily include speech that some would find objectionable, as to decide otherwise would create a chilling effect that would be damaging to free speech.

In this case, Falwell also had to prove that the publication acted with “actual malice.” This wasn’t the first time the idea of “actual malice” was introduced. The 1964 Supreme Court decision in New York Times Co v. Sullivan held that a public figure could not recover damages from a defamatory falsehood unless it was made with actual malice, i.e. “with knowledge that it was false or with reckless disregard of whether it was false or not.” In this case, although the parody interview was obviously not real, the court determined that no reasonable person reading it would genuinely believe the information to be factual. Hustler Magazine was therefore legally in the clear.

This might seem like a trivial distinction, but its implications were important. This decision upheld the right of the press to criticize the powerful, and declared that the press could not be silenced simply because powerful men thought they were being mean. Hustler's cartoon wasn't exactly cutting edge political commentary, but this freedom has long been a cornerstone of our democracy. It's the same freedom that allowed cartoonist Thomas Nast to take down the corrupt political machine of Boss Tweed in the 19th century. A free press is not entitled to lie or make falsehoods about public figures, but they must be protected against the concern for emotional damages over reasonable public criticism.