American Studies (24 page)
Authors: Louis Menand
Wallace was as successful a populist as the postwar era produced, and the Kennedy administration was undoubtedly the incarnation of the modern liberal mentality as Lasch conceives it. There is something slightly chilling about the confrontation, as there is when you watch any ancient and deeply rooted thing smoothly and expertly obliterated by the forces of “progress.” But Kennedy and Katzenbach were right, and Wallace was wrong.
T
he People vs. Larry Flynt
opened on Christmas Day, 1996. It is the story of a free-spirited entrepreneur who dares to flout every canon of piety and taste. Though his irreverence is ratified by an enormous commercial success, he is persecuted incessantly by hypocritical bluenoses, convicted of absurd charges, imprisoned for contempt, and paralyzed by a would-be assassin’s bullet. Confined to a wheelchair and in constant physical pain, he sinks into drugs, despair, and near-madness, but he never quits, and in the end his perseverance is rewarded by a unanimous Supreme Court victory in a suit brought against him by the most sanctimonious moralizer of the day. Through it all, he is sustained by the great soul-love of his wife, a woman who has overcome poverty and abuse through indomitable spunk, but she dies tragically on the eve of his triumph, and his moment of vindication is made bittersweet by the memory of the more precious thing he has lost. Still, thanks to this man’s determination to stand on his rights when all around
him, even his attorney, were ready to give him up, we live in a freer country today.
he People vs. Larry Flynt
opened on Christmas Day, 1996. It is the story of a free-spirited entrepreneur who dares to flout every canon of piety and taste. Though his irreverence is ratified by an enormous commercial success, he is persecuted incessantly by hypocritical bluenoses, convicted of absurd charges, imprisoned for contempt, and paralyzed by a would-be assassin’s bullet. Confined to a wheelchair and in constant physical pain, he sinks into drugs, despair, and near-madness, but he never quits, and in the end his perseverance is rewarded by a unanimous Supreme Court victory in a suit brought against him by the most sanctimonious moralizer of the day. Through it all, he is sustained by the great soul-love of his wife, a woman who has overcome poverty and abuse through indomitable spunk, but she dies tragically on the eve of his triumph, and his moment of vindication is made bittersweet by the memory of the more precious thing he has lost. Still, thanks to this man’s determination to stand on his rights when all around
him, even his attorney, were ready to give him up, we live in a freer country today.
Well, this was certainly one way to tell the story of Larry Flynt, the publisher of Hustler magazine and the victor in the famous Supreme Court case of
Hustler v. Falwell
. “It’s a Capra movie with porn!”
1
was the reaction the movie’s screenwriters, Scott Alexander and Larry Karaszewski, said they got when they first pitched the idea to Columbia Pictures, and they were able to attract an exceptional team of filmmakers who evidently shared the sentiment, including the director Milos Forman, who had not made a movie since 1989, and the producers Oliver Stone, Janet Yang (who produced
The Joy Luck Club
), and Michael Hausman (who produced
Silkwood
). Larry Flynt is played by Woody Harrelson as a charming, “gotta be me” good ol’ boy who just happens to love the ladies, and who, no matter how much he is made to suffer for it, is simply incapable of inhibition or deceit. His wife, Althea, is played by the rock star Courtney Love—the personal choice for the part, Forman let it be known, of Mr. and Mrs. Václav Havel. The young actor Ed Norton is Alan Isaacman, Flynt’s straight-arrow attorney, and small parts are played by James Carville (against type) as Simon Leis, the Cincinnati prosecutor who got Flynt convicted, briefly, on pandering, obscenity, and organized crime charges, and Donna Hanover, then still the wife of Rudolph Giuliani, as Ruth Carter Stapleton, Jimmy Carter’s evangelical sister, who got Flynt converted, also briefly, to Christianity. The real Larry Flynt himself appears in the role of William Morrissey, a Cincinnati judge who once sentenced Flynt to seven to twenty-five years in prison (he served six days). The screenplay adapts Flynt’s story beautifully to the classic threeact bio-pic format (he’s up, he’s down, he’s up), and the courtroom scenes are both plausible and entertaining, which is an extremely rare coincidence in motion picture history. The movie is of course laced with nudity, obscenity, and tastelessness, but it is all, as it were, in the best of taste. Apart from fleeting glimpses of a few well-known images, such as the notorious
Hustler
cover picturing a woman being fed into a meat grinder, nothing remotely repulsive or titillating is shown. The story may be smutty, but the film is so clean it practically squeaks.
Hustler v. Falwell
. “It’s a Capra movie with porn!”
1
was the reaction the movie’s screenwriters, Scott Alexander and Larry Karaszewski, said they got when they first pitched the idea to Columbia Pictures, and they were able to attract an exceptional team of filmmakers who evidently shared the sentiment, including the director Milos Forman, who had not made a movie since 1989, and the producers Oliver Stone, Janet Yang (who produced
The Joy Luck Club
), and Michael Hausman (who produced
Silkwood
). Larry Flynt is played by Woody Harrelson as a charming, “gotta be me” good ol’ boy who just happens to love the ladies, and who, no matter how much he is made to suffer for it, is simply incapable of inhibition or deceit. His wife, Althea, is played by the rock star Courtney Love—the personal choice for the part, Forman let it be known, of Mr. and Mrs. Václav Havel. The young actor Ed Norton is Alan Isaacman, Flynt’s straight-arrow attorney, and small parts are played by James Carville (against type) as Simon Leis, the Cincinnati prosecutor who got Flynt convicted, briefly, on pandering, obscenity, and organized crime charges, and Donna Hanover, then still the wife of Rudolph Giuliani, as Ruth Carter Stapleton, Jimmy Carter’s evangelical sister, who got Flynt converted, also briefly, to Christianity. The real Larry Flynt himself appears in the role of William Morrissey, a Cincinnati judge who once sentenced Flynt to seven to twenty-five years in prison (he served six days). The screenplay adapts Flynt’s story beautifully to the classic threeact bio-pic format (he’s up, he’s down, he’s up), and the courtroom scenes are both plausible and entertaining, which is an extremely rare coincidence in motion picture history. The movie is of course laced with nudity, obscenity, and tastelessness, but it is all, as it were, in the best of taste. Apart from fleeting glimpses of a few well-known images, such as the notorious
Hustler
cover picturing a woman being fed into a meat grinder, nothing remotely repulsive or titillating is shown. The story may be smutty, but the film is so clean it practically squeaks.
The movie was screened in October 1996 at the close of the
New York Film
Festival, and the immediate response was enthusiastic. Frank Rich, in the
New York Times
, called it “the most timely and patriotic movie of the year,”
2
and his column was reprinted, complete and unabridged, in advertisements for the film. Soon after, though, there was a liberal backlash. The
Times
itself ran a long story, by Nina Bernstein, headed “A Hero of Free Speech? It’s Not So Simple,” in which prominent liberals such as Cass Sunstein and Burt Neuborne, a former legal director of the American Civil Liberties Union who had a small part in the movie as Jerry Falwell’s attorney, criticized the film as one-sided on the free speech issues, and the
New Republic
ran an article by Hanna Rosin which criticized the film as one-sided on pretty much all the issues. “This Christmas,” as she put it, “pond scum is intellectually chic.”
3
New York Film
Festival, and the immediate response was enthusiastic. Frank Rich, in the
New York Times
, called it “the most timely and patriotic movie of the year,”
2
and his column was reprinted, complete and unabridged, in advertisements for the film. Soon after, though, there was a liberal backlash. The
Times
itself ran a long story, by Nina Bernstein, headed “A Hero of Free Speech? It’s Not So Simple,” in which prominent liberals such as Cass Sunstein and Burt Neuborne, a former legal director of the American Civil Liberties Union who had a small part in the movie as Jerry Falwell’s attorney, criticized the film as one-sided on the free speech issues, and the
New Republic
ran an article by Hanna Rosin which criticized the film as one-sided on pretty much all the issues. “This Christmas,” as she put it, “pond scum is intellectually chic.”
3
There were several distinct questions in this response. The first had to do with the verisimilitude of the movie itself. It was not impeccable. Alexander and Karaszewski, in their introduction to the published screenplay, admitted to a few emendations. Contrary to what is shown in the movie, they confessed, Alan Isaacman was not Flynt’s attorney in all his cases. Nor were the editors of
Hustler
the same group of people from the start. In real life, Flynt used many lawyers and fired his editorial staff regularly. The screenwriters argued, reasonably, the need to avoid confusion in a picture meant to cover fifteen years of a man’s life. But there are many episodes in the movie that depart from even the account Flynt himself provided in
An
Unseemly
Man,
an autobiography published to accompany the film.
Hustler
the same group of people from the start. In real life, Flynt used many lawyers and fired his editorial staff regularly. The screenwriters argued, reasonably, the need to avoid confusion in a picture meant to cover fifteen years of a man’s life. But there are many episodes in the movie that depart from even the account Flynt himself provided in
An
Unseemly
Man,
an autobiography published to accompany the film.
In the opening scenes of the movie, for instance, we are shown ten-year-old Larry—“bursting with a Huckleberry Finn industriousness,” as the screenplay puts it (I think they mean “a Tom Sawyer industriousness”; Huckleberry Finn was distinctly not the industrious type)—peddling moonshine in his native backwoods Kentucky. But Flynt never sold moonshine. When he was sixteen or seventeen, he tells us in
An Unseemly Man,
he made some money driving liquor from a neighboring wet county into the dry county where his family lived—also illegal, but less adorable. In the movie’s account of Flynt’s first meeting with Althea, she seduces him within three
minutes right in his office (“So how come you haven’t tried to ball me?” she says), and they have sex there until he pleads exhaustion. The autobiography, by comparison, is positively chivalrous. Flynt asks Althea out after work (“She was coy about it,”
4
he reports) and they spend much of the night just talking. In the movie Althea proposes marriage to Flynt after a bout of group sex in a hot tub; in the autobiography, they are driving somewhere together in a car.
An Unseemly Man,
he made some money driving liquor from a neighboring wet county into the dry county where his family lived—also illegal, but less adorable. In the movie’s account of Flynt’s first meeting with Althea, she seduces him within three
minutes right in his office (“So how come you haven’t tried to ball me?” she says), and they have sex there until he pleads exhaustion. The autobiography, by comparison, is positively chivalrous. Flynt asks Althea out after work (“She was coy about it,”
4
he reports) and they spend much of the night just talking. In the movie Althea proposes marriage to Flynt after a bout of group sex in a hot tub; in the autobiography, they are driving somewhere together in a car.
In the movie, Flynt is initiated into the business of “adult” publishing by a local printer who explains that he can’t just print photographs of naked women without some sort of text as a legal “beard.” But this story does not appear in the book, nor is there any suggestion there that it was ever Flynt’s intention, in launching
Hustler
, to publish only photographs of naked women, or that he was naive about anything except the amount of work involved in putting out a magazine. And when Althea dies, by drowning in a bathtub, the movie has Flynt alone with her in his bedroom, tragically unable, because of his paralysis, to help her or to get help. In the book we learn that there was a nurse in the room the whole time.
Hustler
, to publish only photographs of naked women, or that he was naive about anything except the amount of work involved in putting out a magazine. And when Althea dies, by drowning in a bathtub, the movie has Flynt alone with her in his bedroom, tragically unable, because of his paralysis, to help her or to get help. In the book we learn that there was a nurse in the room the whole time.
Then there are those facts of Flynt’s life, magazine, and legal adventures that are simply elided. Hanna Rosin points out, for instance, that viewers are not told that Althea was actually the fourth of Flynt’s five wives, or that Flynt has fathered five children, none of whom have lived with him, or that
Hustler
routinely runs cartoons lampooning black people and prints pictures of naked three-hundred-pound women, women with penises, women with diarrhea whose feces are shown running down their legs, and so on. The legal history is similarly selective. Viewers would not know, for example, that
Hustler v. Falwell
, decided in 1988, was not Flynt’s first encounter with the Supreme Court. In 1984, the Court heard arguments in a suit against
Hustler
by Kathy Keeton, who was the wife of the publisher of
Penthouse
, Bob Guccione, and whom
Hustler
had portrayed in a cartoon suggesting that she had contracted venereal disease from Guccione. As the justices adjourned, Flynt, whose request to represent himself in oral arguments had been denied, shouted from the audience, “You’re nothing but eight assholes and a token cunt!”
5
He was arrested, though the charges were eventually
dropped. In a movie whose director has claimed that “the hero [is] the Supreme Court of the United States,”
6
this would seem a relevant episode.
Hustler
routinely runs cartoons lampooning black people and prints pictures of naked three-hundred-pound women, women with penises, women with diarrhea whose feces are shown running down their legs, and so on. The legal history is similarly selective. Viewers would not know, for example, that
Hustler v. Falwell
, decided in 1988, was not Flynt’s first encounter with the Supreme Court. In 1984, the Court heard arguments in a suit against
Hustler
by Kathy Keeton, who was the wife of the publisher of
Penthouse
, Bob Guccione, and whom
Hustler
had portrayed in a cartoon suggesting that she had contracted venereal disease from Guccione. As the justices adjourned, Flynt, whose request to represent himself in oral arguments had been denied, shouted from the audience, “You’re nothing but eight assholes and a token cunt!”
5
He was arrested, though the charges were eventually
dropped. In a movie whose director has claimed that “the hero [is] the Supreme Court of the United States,”
6
this would seem a relevant episode.
If completeness and verisimilitude were the standards, of course, no movie or novel based on “real-life” events would ever pass the test. A movie isn’t supposed to reproduce the facts; it’s supposed to dramatize them, and the question for the viewer is substantially the same in the case of a movie claiming to be based on historical events as it is in the case of a movie that concerns a topical subject but is otherwise fictional. It is whether the essence of the movie experience somehow squares with, or “gets at,” the essence of the lived experience. It’s a mistake, I think, to assume that what we’re meant to be “getting at” in
The People vs. Larry Flynt
is the real Larry Flynt. That was the way the filmmakers sometimes talked about what they tried to do, and the movie does have a biographical structure. But this is mostly because a movie about a person is much easier to get people interested in seeing than a movie about an issue. What matters isn’t whether the real Larry Flynt is a smut peddler with a heart of gold or merely a smut peddler with a wheelchair of gold, something that is probably indeterminable anyway. What matters is how we are led to think about the phenomena with which Larry Flynt’s life happened to intersect in the period covered by the movie, which runs from 1972, when Flynt was operating a string of striptease clubs in Ohio, to 1988, when the Falwell opinion was handed down—that is, pornography, the religious right, and First Amendment law.
The People vs. Larry Flynt
is the real Larry Flynt. That was the way the filmmakers sometimes talked about what they tried to do, and the movie does have a biographical structure. But this is mostly because a movie about a person is much easier to get people interested in seeing than a movie about an issue. What matters isn’t whether the real Larry Flynt is a smut peddler with a heart of gold or merely a smut peddler with a wheelchair of gold, something that is probably indeterminable anyway. What matters is how we are led to think about the phenomena with which Larry Flynt’s life happened to intersect in the period covered by the movie, which runs from 1972, when Flynt was operating a string of striptease clubs in Ohio, to 1988, when the Falwell opinion was handed down—that is, pornography, the religious right, and First Amendment law.
The emphasis of the movie is almost entirely on the development of First Amendment law, and especially on the legal matter at issue in
Hustler v. Falwell
—which explains the enthusiasm of commentators like Frank Rich. On the subject of pornography,
The People vs. Larry Flynt
seems to have nothing more to say than that it’s a harmless amusement which some people have a taste for and some people don’t, and that the people who actively seek to suppress it are a good
deal more dangerous than the people who produce it. On the subject of the religious right, the movie regards Jerry Falwell as a smug pomposity, but it is careful not to cast him in a particularly lurid light—a treatment it reserves instead for Charles Keating, who, before he became famous for his involvement in the savings-and-loan scandal, was once a vigorous antipornography crusader, and was Flynt’s real-life nemesis in Cincinnati back in the 1970s.
Hustler v. Falwell
—which explains the enthusiasm of commentators like Frank Rich. On the subject of pornography,
The People vs. Larry Flynt
seems to have nothing more to say than that it’s a harmless amusement which some people have a taste for and some people don’t, and that the people who actively seek to suppress it are a good
deal more dangerous than the people who produce it. On the subject of the religious right, the movie regards Jerry Falwell as a smug pomposity, but it is careful not to cast him in a particularly lurid light—a treatment it reserves instead for Charles Keating, who, before he became famous for his involvement in the savings-and-loan scandal, was once a vigorous antipornography crusader, and was Flynt’s real-life nemesis in Cincinnati back in the 1970s.
This emphasis on the law rather than the pornography is arguably warranted by the fact that
Hustler v.Falwell
was not an obscenity case; it was a defamation case. The fact that Flynt was the publisher of a raunchy magazine had no bearing on the legal issues involved. The case arose from a parody of a Campari ad. Campari used to market its product with advertisements featuring celebrities who spoke, in a mock interview format, about their “first time”—meaning their first drink of Campari, but suggestive of their first sexual experience. In 1983,
Hustler
published a parody of this ad that featured Falwell, who was made to disclose that his “first time” had been with his mother, and that the memorable event had taken place in an outhouse. He was also made to admit that he often preached while drunk. The piece was listed as “fiction” in the table of contents, and underneath the ad, in small type, were the words “Ad parody—not to be taken seriously.”
Hustler v.Falwell
was not an obscenity case; it was a defamation case. The fact that Flynt was the publisher of a raunchy magazine had no bearing on the legal issues involved. The case arose from a parody of a Campari ad. Campari used to market its product with advertisements featuring celebrities who spoke, in a mock interview format, about their “first time”—meaning their first drink of Campari, but suggestive of their first sexual experience. In 1983,
Hustler
published a parody of this ad that featured Falwell, who was made to disclose that his “first time” had been with his mother, and that the memorable event had taken place in an outhouse. He was also made to admit that he often preached while drunk. The piece was listed as “fiction” in the table of contents, and underneath the ad, in small type, were the words “Ad parody—not to be taken seriously.”
Falwell sued in United States District Court for the Western District of Virginia, his home state. His complaint listed three grounds for recovery: invasion of privacy (that is, the appropriation of his name and face for commercial purposes), libel, and the intentional infliction of emotional distress. After a raucous trial—featuring a surreal deposition of Flynt, who, heavily medicated and in prison on an unrelated contempt citation, began by giving his full name as Christopher Columbus Cornwallis I. P. Q. Harvey H. Apache Pugh, and proceeded to offer, over Isaacman’s objections, a considerable quantity of uncensored and self-damaging testimony—the jury found for Flynt on the invasion of privacy claim (since the appropriation was not made for purposes of trade) and the defamation claim (since no one could be expected to believe the ad), but for Falwell on the third count, intentional infliction of emotional
distress, and it awarded him $200,000 in damages. The verdict was upheld on appeal in 1986, and the case went before the Supreme Court in the following year, where, in a unanimous opinion written by Chief Justice Rehnquist, the emotional distress judgment was finally reversed.
distress, and it awarded him $200,000 in damages. The verdict was upheld on appeal in 1986, and the case went before the Supreme Court in the following year, where, in a unanimous opinion written by Chief Justice Rehnquist, the emotional distress judgment was finally reversed.
It would be misleading to say that
Hustler v. Falwell
extended the scope of First Amendment speech protections. What the Supreme Court did, essentially, was to preserve the scope that already existed, which they did by rejecting an effort by the Appeals Court to allow a public figure, absent a finding of libel, to recover on a claim of emotional distress. The Appeals Court had conceded that Falwell’s defamation claim was ruled out by the landmark case of
New York Times Co.v. Sullivan
(1964), which held that a public official cannot recover from a newspaper for libel unless he proves “actual malice” on the part of the paper, and by the subsequent decision in
Curtis Publishing Co. v. Butts
(1967), which extended the rule to cover “public figures” (not just “public officials”) generally. The constitutional logic in these cases involves the concept of “breathing space”: the Court felt that the press requires some leeway in matters of fact if public debate is to be uninhibited, as the First Amendment presumably intends it to be. Public figures are people who, although they do not hold public office, have made themselves participants in public debate, a definition that clearly applied to Falwell. (An effort to extend the protection to cover the unintentional defamation of private citizens in stories relating to matters of public interest was rejected by the Court in
Gertz v. Robert Welch, Inc.
[1974].) But the appellate court did conclude that a public figure’s claim of emotional distress could survive a failure to prove “actual malice” under the
New York Times
standard. So long as
Hustler
acted recklessly and with an intention to inflict emotional distress (as Flynt essentially conceded that it had), Falwell was entitled to damages.
Hustler v. Falwell
extended the scope of First Amendment speech protections. What the Supreme Court did, essentially, was to preserve the scope that already existed, which they did by rejecting an effort by the Appeals Court to allow a public figure, absent a finding of libel, to recover on a claim of emotional distress. The Appeals Court had conceded that Falwell’s defamation claim was ruled out by the landmark case of
New York Times Co.v. Sullivan
(1964), which held that a public official cannot recover from a newspaper for libel unless he proves “actual malice” on the part of the paper, and by the subsequent decision in
Curtis Publishing Co. v. Butts
(1967), which extended the rule to cover “public figures” (not just “public officials”) generally. The constitutional logic in these cases involves the concept of “breathing space”: the Court felt that the press requires some leeway in matters of fact if public debate is to be uninhibited, as the First Amendment presumably intends it to be. Public figures are people who, although they do not hold public office, have made themselves participants in public debate, a definition that clearly applied to Falwell. (An effort to extend the protection to cover the unintentional defamation of private citizens in stories relating to matters of public interest was rejected by the Court in
Gertz v. Robert Welch, Inc.
[1974].) But the appellate court did conclude that a public figure’s claim of emotional distress could survive a failure to prove “actual malice” under the
New York Times
standard. So long as
Hustler
acted recklessly and with an intention to inflict emotional distress (as Flynt essentially conceded that it had), Falwell was entitled to damages.
The Supreme Court regarded this as an attempt to make an end run around
New York Times
. The lower court decision meant that a public figure who cannot establish that he has been defamed can still argue that he has been distressed. In rejecting this theory,
Rehnquist drew an analogy between the Campari parody and a political cartoon. It is in the nature of satire and parody, he said, to wound, and “in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.”
7
If Falwell had been a private figure—or, presumably, if the communication of the insult had been private—there might have been a tort. But in the public realm, the Constitution washes the insult clean.
New York Times
. The lower court decision meant that a public figure who cannot establish that he has been defamed can still argue that he has been distressed. In rejecting this theory,
Rehnquist drew an analogy between the Campari parody and a political cartoon. It is in the nature of satire and parody, he said, to wound, and “in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.”
7
If Falwell had been a private figure—or, presumably, if the communication of the insult had been private—there might have been a tort. But in the public realm, the Constitution washes the insult clean.
The classic analysis of
Hustler v. Falwell
is by Robert C. Post, in an article which appeared in the
Harvard Law Review
in 1990 and which he reprinted in his book
Constitutional Domains.
8
The case, as Post demonstrates in penetrating detail, represents a collision between two types of legal claims—a claim of personal injury made by Falwell versus a constitutional claim of free speech asserted by Flynt—which represents in turn a collision between two radically different theories of civil society Falwell sued on the basis of the so-called dignitary torts: defamation, invasion of privacy, and emotional distress. We allow individuals to recover for these injuries to their dignity not because we wish to chill or restrict public debate, but because we wish to
foster
that debate by sanctioning expressions which have no purpose except to wound or intimidate other speakers. In the case of the infliction of emotional distress, the standard for determining when speech becomes tortious is the standard of outrageousness, which is, necessarily, a community standard. Behavior is outrageous, as the second
Restatement of Torts
helpfully explains, when “the recitation of the facts to an average member of the community would … lead him to exclaim, ‘Outrageous!’”
9
Hustler’s
Campari ad parody is clearly justiciable under such a standard.
Hustler v. Falwell
is by Robert C. Post, in an article which appeared in the
Harvard Law Review
in 1990 and which he reprinted in his book
Constitutional Domains.
8
The case, as Post demonstrates in penetrating detail, represents a collision between two types of legal claims—a claim of personal injury made by Falwell versus a constitutional claim of free speech asserted by Flynt—which represents in turn a collision between two radically different theories of civil society Falwell sued on the basis of the so-called dignitary torts: defamation, invasion of privacy, and emotional distress. We allow individuals to recover for these injuries to their dignity not because we wish to chill or restrict public debate, but because we wish to
foster
that debate by sanctioning expressions which have no purpose except to wound or intimidate other speakers. In the case of the infliction of emotional distress, the standard for determining when speech becomes tortious is the standard of outrageousness, which is, necessarily, a community standard. Behavior is outrageous, as the second
Restatement of Torts
helpfully explains, when “the recitation of the facts to an average member of the community would … lead him to exclaim, ‘Outrageous!’”
9
Hustler’s
Campari ad parody is clearly justiciable under such a standard.
Flynt’s defense against Falwell rests, as Post sees it, on a different theory. The First Amendment law on which Flynt relied posits a realm of “public discourse,” populated by “public figures” like Falwell and Flynt and operating through media like
Hustler
(and the
New York Times
), in which community-based norms of civility, such as its notion of outrageousness, do not apply. In extending First Amendment protections, the Court has generally argued that in a diverse society, a society of many values and tastes, one man’s outrage
is another man’s sincere opinion. The realm of “public discourse” is thus not only characterized by immunity from liability for giving offense; one might even say that it is
defined
by that immunity. The paradox is this: by extending the protections of the First Amendment we seek to ensure the fullest possible participation in the democratic determination of communal norms and values, but we simultaneously prevent ourselves from using those norms and values to regulate expression which we consider, as a community, detrimental.
Hustler
(and the
New York Times
), in which community-based norms of civility, such as its notion of outrageousness, do not apply. In extending First Amendment protections, the Court has generally argued that in a diverse society, a society of many values and tastes, one man’s outrage
is another man’s sincere opinion. The realm of “public discourse” is thus not only characterized by immunity from liability for giving offense; one might even say that it is
defined
by that immunity. The paradox is this: by extending the protections of the First Amendment we seek to ensure the fullest possible participation in the democratic determination of communal norms and values, but we simultaneously prevent ourselves from using those norms and values to regulate expression which we consider, as a community, detrimental.
Post has put his finger on what is unsettling, for many people, about the opinion in the
Falwell
case, and on what is also unsettling, for many people, about pornography of the kind Flynt has made a fortune purveying; and the conflict he articulates is what accounts for the liberal backlash against
The People vs. Larry Flynt
. In celebrating the constitutional triumph, the movie seems oblivious of the cultural damage. The movie has an easy time of it by virtue of the fact that the plaintiff in
Hustler v. Falwell
was a man regarded by many Americans, and by most liberals, as a self-righteous and meddlesome proponent of illiberal policies—in other words, a slightly dangerous man. But Falwell’s views and personality are irrelevant to the constitutional issues in his suit, and one can put what is at stake in those issues much more starkly by asking whether, if the butt of
Hustler’s
parody had been, say, Martin Luther King, Jr., Oliver Stone and Milos Forman would have made a movie about it.
Falwell
case, and on what is also unsettling, for many people, about pornography of the kind Flynt has made a fortune purveying; and the conflict he articulates is what accounts for the liberal backlash against
The People vs. Larry Flynt
. In celebrating the constitutional triumph, the movie seems oblivious of the cultural damage. The movie has an easy time of it by virtue of the fact that the plaintiff in
Hustler v. Falwell
was a man regarded by many Americans, and by most liberals, as a self-righteous and meddlesome proponent of illiberal policies—in other words, a slightly dangerous man. But Falwell’s views and personality are irrelevant to the constitutional issues in his suit, and one can put what is at stake in those issues much more starkly by asking whether, if the butt of
Hustler’s
parody had been, say, Martin Luther King, Jr., Oliver Stone and Milos Forman would have made a movie about it.
The question the
Falwell
case poses (as Post analyzes it) is whether a principle of free speech can be devised which is firm enough to protect dissident and unpopular opinion but not so inflexible that it protects hatemongers and speech bullies along with it. Many intelligent people, in the years since
Hustler v. Falwell
was decided, have tried to formulate such a principle, although the task seems doomed by the impossibility of coming up with a general standard that would allow courts to parse unerringly the difference between hate speech and flag-burning, or between Larry Flynt and Robert Mapplethorpe. Protect one type of speech offensive to some and it is hard not to protect all. For people who have concluded that the social costs of a general protection are smaller than the social
costs of a more elaborate and discriminating approach,
Hustler v. Falwell
(or even the hypothetical
Hustler v. King
) is an easy case.
Falwell
case poses (as Post analyzes it) is whether a principle of free speech can be devised which is firm enough to protect dissident and unpopular opinion but not so inflexible that it protects hatemongers and speech bullies along with it. Many intelligent people, in the years since
Hustler v. Falwell
was decided, have tried to formulate such a principle, although the task seems doomed by the impossibility of coming up with a general standard that would allow courts to parse unerringly the difference between hate speech and flag-burning, or between Larry Flynt and Robert Mapplethorpe. Protect one type of speech offensive to some and it is hard not to protect all. For people who have concluded that the social costs of a general protection are smaller than the social
costs of a more elaborate and discriminating approach,
Hustler v. Falwell
(or even the hypothetical
Hustler v. King
) is an easy case.
But reduced to legal terms like this, the really significant things in most actual cases—the things that make the issues matter to us in the first place—tend to drop out, and this seems to be what has happened in
The People vs. Larry Flynt.
The anthropology of the story is a lot more interesting than the jurisprudence. For what is notable, as a cultural matter, about most speech cases is the symbiosis of the two sides. Orthodoxy depends upon heterodoxy, victimization requires persecution, good taste creates bad taste: the observation is perfectly obvious, but it is precisely what drops out in a legal analysis. In legal terms, Jerry Falwell and Larry Flynt represent opposed interests, each out to bring down, or at a minimum to chill, the other side. But in cultural terms, the Falwells and the Flynts are mutually reinforcing entities. They acquire their definitions from each other, and what is fascinating about them is not that they ended up in court together, but that they arose together, they fell together, and their worlds constantly interpenetrated one another—were, at bottom, the same world.
The People vs. Larry Flynt.
The anthropology of the story is a lot more interesting than the jurisprudence. For what is notable, as a cultural matter, about most speech cases is the symbiosis of the two sides. Orthodoxy depends upon heterodoxy, victimization requires persecution, good taste creates bad taste: the observation is perfectly obvious, but it is precisely what drops out in a legal analysis. In legal terms, Jerry Falwell and Larry Flynt represent opposed interests, each out to bring down, or at a minimum to chill, the other side. But in cultural terms, the Falwells and the Flynts are mutually reinforcing entities. They acquire their definitions from each other, and what is fascinating about them is not that they ended up in court together, but that they arose together, they fell together, and their worlds constantly interpenetrated one another—were, at bottom, the same world.
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