On Fourth of July weekend, recalling an epic First Amendment battle

James Castagnera: Falwell v. Flint ... Recalling the Confrontation of Pop Cult Icons

SOURCE: News of Delaware County. (5-23-07)

[Jim Castagnera, a Philadelphia lawyer and writer, writes a weekly newspaper column, “Attorney at Large.”]

The sudden demise last week of the Reverend Jerry Falwell recalled to me a U.S. Supreme Court case that at one time I taught, when on the faculty of the Widener Law School. The 1988 decision is Hustler Magazine v. Falwell. I’m sure no reader of this highly respectable newspaper has ever purchased a copy of Hustler Magazine, but no doubt you know it by reputation. Considered pornographic by many, Hustler was (and to some degree still is) equally reputed as a source of political satire and irreverent social commentary. Its publisher, Larry Flint was (and remains) as iconic and controversial as the Reverend Falwell.

The Falwell-Flint legal encounter occurred when Hustler’s November 1983 issue led off on its inside-front cover with a parody ad for Campari Liqueur. Actual Campari ads of that era interviewed celebrities about their “first times,” ostensibly referring to their first taste of the liqueur, but implying something else. The Falwell parody presented a spoof interview with Falwell in which he allegedly admitted to a drunken, incestuous relationship with his mother in the family’s outhouse. Not surprisingly, the Reverend Jerry took strong exception to the joke.

The litigation seesawed back and forth through the federal courts for five years. At trial a jury found against Falwell, concluding that any reasonable reader would recognize the ad to be a bad joke. The court of appeals reversed, holding that the trial judge should have asked the jury to decide whether the parody was so outrageous as to intentionally inflict emotional distress on its target, i.e., Falwell. The Supremes reversed the decision yet again, ruling that the First Amendment demands that the rights of free speech and a free press cannot depend upon jurors’ tastes and sensibilities. Flint one, Falwell zero.

By 1988 Flint was far from being a stranger to the Supreme Court. He was first prosecuted on organized crime and obscenity charges in Cincinnati in 1976, found guilty and sentenced to 7-25 years. The conviction was overturned with one part of the case coming to the nation’s highest court in 1981. He was back before the Supremes in 1983, after the girlfriend of the publisher of a rival girlie magazine sued him for publishing a derogatory cartoon. During this appearance, Flint shouted “F_ _ _ this court!” Chief Justice Burger had him arrested.

Also in 1983, a banner year for Flint, he appeared at another trial, this one for refusing to release surveillance tapes the FBI wanted, wearing the American flag as a diaper. He was jailed for desecrating the flag.

Although a 1978 assassination attempt left Flint paralyzed from the waste down, he has managed to outlive his old nemesis, Falwell. Needless to say, he has his own website, www.larryflynt.com. Among other items posted there are the most recent parody ads, a Hustler feature that Flint has never abandoned.

On the day of Falwell’s death, Flint reminisced on www.accesshollywood.com about his legal confrontation with the mega-preacher.

"The Reverend Jerry Falwell and I were arch enemies for fifteen years. We became involved in a lawsuit concerning First Amendment rights and Hustler magazine. Without question, this was my most important battle – the l988 Hustler Magazine, Inc., v. Jerry Falwell case, where after millions of dollars and much deliberation, the Supreme Court unanimously ruled in my favor.” He added, “My mother always told me that no matter how much you dislike a person, when you meet them face to face you will find characteristics about them that you like. Jerry Falwell was a perfect example of that. I hated everything he stood for, but after meeting him in person, years after the trial, Jerry Falwell and I became good friends. He would visit me in California and we would debate together on college campuses. I always appreciated his sincerity even though I knew what he was selling and he knew what I was selling.”

Flint continued to have run-ins with the law as recently as 1998. Falwell became infamous for his unfeeling flubs, most notably blaming immoral Americans for bringing the Nine/Eleven attacks down on the nation. Eventually, perhaps, they both became parodies of themselves, albeit very wealthy ones. But back when they were still “arch enemies,” they significantly shaped our Constitutional law and the national political agenda.