It doesn't take a Woody Harrelson movie to realize that Larry Flynt and Jerry Falwell are the very embodiment of polar opposites. Mr. Flynt lacks the class of Hugh Heffner and the social humility of Al Goldstein while Mr. Falwell lacks the tawdriness of Jim Baker and the corruption of Al Sharpton. Mr. Falwell is a bible-thumping moralist bent on spreading the word of Jesus, while Mr. Flynt is a smut-peddling pornographer bent on spreading young women's legs. But when the two men faced off before the Supreme Court of the United States some 17 years ago this week, a funny thing happened: eight justices clothed in the dignity of black robes sided with the pornographer over the preacher, breathing Eden-esque life back into the First Amendment.
The facts of the case, formally titled Hustler Magazine v. Falwell, have become somewhat distorted between Courtney Love's trips to rehab. But the essential aspects are easily followed. Hustler Magazine ran an advertisement parodying a then-hip Campari campaign in which celebrities would discuss their "first time." In all of the liquor ads, it would soon become apparent that the anticipated moment was actually the sampling of Campari, not a sexual act.
But when Hustler doodled the parody, the person of note was Mr. Falwell and the "first time" was not only sexual, but involved his mother. This led to one of the most awkwardly-worded Supreme Court decisions of the modern era, as Chief Justice Rehnquist searched for family-friendly language to describe an all-too-family-friendly accusation, terming the cartoon's central act, "a drunken incestuous rendezvous with [Falwell's] mother in an outhouse." (The cartoon also involves some flies and a goat, but Mr. Rehnquist wisely shied away from attempting to describe their role.)
Of course, Mr. Falwell likely never had sexual intercourse with his mother, and if he had, the odds of the incident having occurred in an outhouse are unlikely. Still, the reverend claimed that the cartoon had caused not so much defamation to his reputable character — surely no reasonable person would believe the parody to be a statement of fact — but rather extreme emotional damage to him.
The court proved unsympathetic, however, scribing, "We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true." Since the cartoon could not "reasonably be understood as describing actual facts," Mr. Falwell could not be entitled to monetary damages.
In other words, since the reverend is a public figure, the First Amendment freedom of speech trumps his feelings.
And this was a crucial ruling. While it might be tempting to view the abhorrent humor of Hustler Magazine as a unique breed of tastelessness, the reality is that the parody gracing Mr. Flynt's publication was barely a step removed from the punch lines offered today by David Letterman, Jon Stewart and Mike Luckovich. At the root of much comedy is a sense of humorous escapism provided by the absurd, and should the court have sided with Mr. Falwell, the world would have become a far less comical place.
Perhaps more importantly, though, Hustler Magazine falls on such a hyperbolic end of the spectrum that any protections afforded its most lascivious content provide more than sufficient shelter to so-called mainstream publications. If Nazis can march in Skokie, then surely pro-lifers can picket in Washington, DC; if Arthur Sulzberger and Katherine Graham can run classified documents during wartime, then surely The Smoking Gun can publish Michael Jackson's grand jury transcripts; and if Larry Flynt can lewdly defame a preeminent national religious figure, then surely the mainstream editorial writers and cartoonists of America can go about their work unperturbed. The more radical the placement of legal boundaries, the more confident those with good intentions can be of their falling within the proverbial lines.
But on the anniversary of this momentous reaffirmation of First Amendment rights, it is equally important to note that journalists are once again under fire. A federal Circuit Court of Appeals has recently ruled that at least two journalists — including The New York Times' Judith Miller — may face jail time for their refusal to identify sources in the Valerie Plame affair. At the heart of this matter is Joe Wilson — husband of the CIA agent revealed in a Robert Novak column. And the irony is astounding — Mr. Wilson's rhetoric may well have been so misleading, distorted and borderline libelous toward the Bush administration so as to not fall within the Hustler Magazine v. Falwell zone of protection; and yet a witch-hunt still ensues for the identity of the government official who "outed" his wife's identity. (Bear in mind, Ms. Plame was "undercover" in Langley, Va., hardly a hotbed of danger.)
Regardless of the case's facts, though, the reality remains that the jailing of journalists for refusing to divulge sources' identities flies in the face of the First Amendment. There is no allegation here that the facts reported were wrong — Ms. Plame was in fact a CIA agent. The only matter of contention is the government's inability to properly plumb its own leak.
At the heart of journalism is an understanding between writers and sources that identities may, especially in contentious situations, remain anonymous. The First Amendment is a belief that the free flow of information trumps internal squabbling and governmental suppression of information. To forcefully apply coercive pressure on reporters who hold this relationship sacred — as any good fact-gatherer does — is to subtly chisel away at the lead entry of the Bill of Rights.
So as we take occasion to reflect on one of the Supreme Court's finer decisions this week, it is high time that the court continue its proud modern legacy of protecting free speech by keeping honest journalists out of prisons and in newsrooms.
After all, if Mr. Flynt can accuse Mr. Falwell of engaging in "a drunken incestuous rendezvous with his mother in an outhouse," it would seem that Ms. Miller and Mr. Novak should be allowed to report the truth.
Mac VerStandig ([email protected]) is a junior majoring in rhetoric.
