Hustler Magazine and Larry C. Flynt,
Petitioners v. Jerry Falwell
No. 86-1278
SUPREME COURT OF THE
UNITED STATES
485
February 24, 1988,
Decided
REHNQUIST, C. J., delivered the opinion of the Court, in
which BRENNAN, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined.
WHITE, J., filed an opinion concurring in the judgment. KENNEDY, J., took no
part in the consideration or decision of the case.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Hustler Magazine, Inc., is a magazine of
nationwide circulation. Respondent Jerry Falwell, a
nationally known minister who has been active as a commentator on politics and
public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy, libel,
and intentional infliction of emotional distress. The District Court directed a
verdict against respondent on the privacy claim, and submitted the other two
claims to a jury. The jury found for petitioners on the defamation claim, but found
for respondent on the claim for intentional infliction of emotional distress
and awarded damages. We now consider whether this award is consistent with the
First and Fourteenth Amendments of the United States Constitution.
The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement
for Campari Liqueur that contained the name and
picture of respondent and was entitled "Jerry Falwell
talks about his first time." This parody was modeled after actual Campari ads that included interviews with various
celebrities about their "first times." Although it was apparent by
the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double
entendre of the general subject of "first times." Copying the form
and layout of these Campari ads, Hustler's editors
chose respondent as the featured celebrity and drafted an alleged
"interview" with him in which he states that his "first
time" was during a drunken incestuous rendezvous with his mother in an
outhouse. The Hustler parody portrays respondent and his mother as drunk and
immoral, and suggests that respondent is a hypocrite who preaches only when he
is drunk. In small print at the bottom of the page, the ad contains the
disclaimer, "ad parody -- not to be taken seriously." The magazine's
table of contents also lists the ad as "Fiction; Ad and Personality
Parody."
Soon after the November issue of Hustler
became available to the public, respondent brought this diversity action in the
United States District Court for the Western District of Virginia against
Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co. Respondent stated in his complaint
that publication of the ad parody in Hustler entitled him to recover damages
for libel, invasion of privacy, and intentional infliction of emotional
distress. The case proceeded to trial. At the close of the evidence, the
District Court granted a directed verdict for petitioners on the invasion of
privacy claim. The jury then found against respondent on the libel claim,
specifically finding that the ad parody could not "reasonably be
understood as describing actual facts about [respondent] or actual events in
which [he] participated." The jury ruled for respondent on the
intentional infliction of emotional distress claim, however and stated that he
should be awarded $ 100,000 in compensatory damages, as well as $ 50,000 each
in punitive damages from petitioners.
On appeal, the United States Court of Appeals for the Fourth Circuit
affirmed the judgment against petitioners. Given the importance of the
constitutional issues involved, we granted certiorari.
This case presents us with a novel question involving First Amendment
limitations upon a State's authority to protect its citizens from the
intentional infliction of emotional distress. We must decide whether a public
figure may recover damages for emotional harm caused by the publication of an
ad parody offensive to him, and doubtless gross and repugnant in the eyes of most.
Respondent would have us find that a State's interest in protecting public
figures from emotional distress is sufficient to deny First Amendment
protection to speech that is patently offensive and is intended to inflict
emotional injury, even when that speech could not reasonably have been
interpreted as stating actual facts about the public figure involved. This we
decline to do.
At the heart of the First Amendment is the recognition of the fundamental
importance of the free flow of ideas and opinions on matters of public interest
and concern. "The freedom to speak one's mind is not only an aspect of
individual liberty -- and thus a good unto itself -- but also is essential to
the common quest for truth and the vitality of society as a whole."
We have therefore been particularly vigilant to ensure that individual
expressions of ideas remain free from governmentally imposed sanctions …
The sort of robust political debate encouraged by the First Amendment is
bound to produce speech that is critical of those who hold public office or
those public figures who are "intimately involved in the resolution of
important public questions or, by reason of their fame, shape events in areas
of concern to society at large." Justice Frankfurter put it
succinctly when he said that "one of the
prerogatives of American citizenship is the right to criticize public men and
measures." Such criticism, inevitably, will not always be reasoned or
moderate; public figures as well as public officials will be subject to
"vehement, caustic, and sometimes unpleasantly sharp attacks."
Of course, this does not mean that any speech about a public figure is
immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, supra, we have consistently ruled
that a public figure may hold a speaker liable for the damage to reputation caused
by publication of a defamatory falsehood, but only if the statement was made
"with knowledge that it was false or with reckless disregard of whether it
was false or not...."
Here the State seeks to prevent not reputational
damage, but the severe emotional distress suffered by the person who is the
subject of an offensive publication. In respondent's view, and in the
view of the Court of Appeals, so long as the utterance was intended to inflict
emotional distress, was outrageous, and did in fact inflict serious emotional
distress, it is of no constitutional import whether the statement was a fact or
an opinion, or whether it was true or false. It is the intent to cause injury
that is the gravamen of the tort, and the State's
interest in preventing emotional harm simply outweighs whatever interest a
speaker may have in speech of this type.
Generally speaking the law does not regard the intent to inflict emotional
distress as one which should receive much solicitude, and it is quite
understandable that most if not all jurisdictions have chosen to make it
civilly culpable where the conduct in question is sufficiently
"outrageous." But in the world of debate about public affairs, many
things done with motives that are less than admirable are protected by the
First Amendment.
Thus while such a bad motive may be deemed controlling for purposes of tort
liability in other areas of the law, we think the First Amendment prohibits
such a result in the area of public debate about public figures.
Were we to hold otherwise, there can be little doubt that political
cartoonists and satirists would be subjected to damages awards without any
showing that their work falsely defamed its subject.
Webster's defines a caricature as "the deliberately distorted picturing or
imitating of a person, literary style, etc. by exaggerating features or
mannerisms for satirical effect." The appeal of the political
cartoon or caricature is often based on exploration of unfortunate physical
traits or politically embarrassing events -- an exploration often calculated to
injure the feelings of the subject of the portrayal. The art of the cartoonist
is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist
expressed the nature of the art in these words: "The political cartoon is
a weapon of attack, of scorn and ridicule and satire; it is least effective
when it tries to pat some politician on the back. It is usually as welcome as a
bee sting and is always controversial in some quarters."
Despite their sometimes caustic nature, from the early cartoon portraying
George Washington as an ass down to the present day, graphic depictions and
satirical cartoons have played a prominent role in public and political debate.
Nast's castigation of the Tweed Ring, Walt McDougall's characterization of
presidential candidate James G. Blaine's banquet with the millionaires at
Delmonico's as "The Royal Feast of Belshazzar," and numerous other
efforts have undoubtedly had an effect on the course and outcome of
contemporaneous debate.
Respondent contends, however, that the caricature in question here was so
"outrageous" as to distinguish it from more traditional political
cartoons. There is no doubt that the caricature of respondent and his mother
published in Hustler is at best a
distant cousin of the political cartoons described above, and a rather poor
relation at that. If it were possible by laying down a principled standard to
separate the one from the other, public discourse would probably suffer little
or no harm. But we doubt that there is any such standard, and we are quite sure
that the pejorative description "outrageous" does not supply one.
"Outrageousness" in the area of political and social discourse has an
inherent subjectiveness about it which would allow a
jury to impose liability on the basis of the jurors' tastes or views, or
perhaps on the basis of their dislike of a particular expression. An
"outrageousness" standard thus runs afoul of our longstanding refusal
to allow damages to be awarded because the speech in question may have an
adverse emotional impact on the audience.
Admittedly, these oft-repeated First Amendment principles, like other
principles, are subject to limitations. In Chaplinsky v.
The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed.