My favourite case: protection for satire or parody upheld in famous ruling

The US right to free speech allowed a porn magazine to write a satirical piece about a televangelist’s sex life

Simon Carty

Simon Carty

Mon, Jul 15, 2013, 01:00

What is your favourite case?
My favourite legal case is Hustler Magazine v Falwell, a United States Supreme Court decision from 1988.

The case is probably best known as the climax to the biopic The People v Larry Flynt.

The opposing parties, Jerry Falwell and Larry Flynt, were notorious characters and total opposites.

Mr Falwell was a charismatic Christian and a televangelist. Mr Flynt was a self-made millionaire publisher mainly of pornographic magazines; the most famous being Hustler.

In the late 1970s Hustler magazine printed a satirical piece, which was a parody of an advertisement for the alcoholic drink Campari, in which various celebrities talk about their “first time” with the intentional double-entendre implying the article relates to their first sexual experience, when in fact it discussed their first time drinking Campari.

In the parody Hustler took a swipe at Falwell by indicating his first time was not just of an alcoholic nature but also incestuous with his mother who, they said, passed out drunk. Falwell sued for defamation.

A successful defamation case is notoriously difficult to achieve in the United States because of the constitutional protection of freedom of speech guaranteed by the First Amendment. If the defendant can show an absence of malice, the plaintiff’s case will fall.

In the lower courts Falwell was able to convince the judge and jury that, because of the nature of the satire used in the Hustler magazine – that the publisher, ie Flynt, had taken a deliberate step to cause him (Falwell) both personal distress and harm – it showed malice in the publication of the satire.

Flynt was found liable in front of the jury and appealed, first to the Court of Appeal and then to the Supreme Court.

The Supreme Court held in favour of Flynt and Hustler magazine. The court stated that Falwell was a public figure and relied on his public characteristics, particularly his religious outlook, to further his business and, as such, was open to satire and ridicule, which should be protected by the constitutional guarantee on freedom of speech.

So, parodies of public figures, which could not reasonably be taken as true, are protected against civil liability by the First Amendment, and any intention to cause emotional distress was irrelevant.

The issue of malice did not arise. Hustler had a right to say whatever it liked, no matter how unpleasant, as long as it was clearly satirical and about a public figure.

In other words, the protection of freedom of speech extended to jokes about public figures.


Why is this your favourite case?
The reason this case is a favourite of mine is not really because of the business regarding freedom of expression, but it’s more because of the two major figures involved namely Falwell and Flynt.

Flynt, in particular, is extremely easy to admire but very difficult to like. He is a genuine self-made man (albeit in the world of pornography) and has always understood both his rights and the process.

Flynt has spent much of his life in a wheelchair after having been shot by a white supremacist serial killer who allegedly disliked some of the inter-racial nature of the pornography that was published by Flynt.

Occasionally acting as his own counsel, usually because his lawyers refused to act for him, Flynt would aggressively defend every action against him or his publications.

In later years Flynt and Falwell became close friends, both regarding what the other did for a living as being anathema to their own way of life but both having the respect of each other as men of faith and commitment albeit taking polar opposite positions.


Is the case still relevant?
For people in countries outside the US, the protection of the First Amendment’s right to free speech, applying to a parody, might seem strange, but this issue is why I like this case.

The fact that comedy, satire or parody is protected in law is a great boost for the entertainment industry.

If Falwell had won this case then the output of US comedians could have been much more guarded and we may not have had some of the brilliant routines that we’ve seen over the years on the likes of shows like Saturday Night Live, from talk-show hosts like Jay Leno, actors such as Will Ferrell or the many US comedies that are too numerous to name.

It’s ironic that the subject of a legal action by a televangelist against a pornographic magazine did not relate to pornographic content but instead related to a satirical advert.

We’ll probably never know if Falwell accidentally came across his parody while he was reading the magazine but, in the end, this was not a victory for the pornography industry, it was victory for comedy.


Simon Carty is the principal of Simon Carty Solicitors and a member of the production team on the TV comedy Mrs Brown’s Boys.

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