Adventures of Larry Flynt
'Full of B.S.'
A three-judge panel of the United States Court of Appeals, Fourth Circuit, considered Flynt's appeal, but on August 5, 1986, refused to overturn the lower-court's decision in the Falwell case. Flynt was outraged. As he writes in his autobiography, "For the first time in a major case, the court upheld the concept that liability could be predicated on mere intent to inflict emotional distress, even though the published material was neither libelous nor an invasion of privacy." If this decision stood, the press would have to tread lightly when presenting material about public figures, and would have to withhold information to avoid defamation suits. Flynt was not about to let this happen, so he pressed on and exercised his right to request an en blanc hearing, in which all members of the Fourth Circuit Court of Appeals would hear his case, but the court decided by a one-vote margin not to rehear the case.
There was only one place left for Flynt to go: the Supreme Court, where his foul-mouthed antics the previous year had gotten him arrested for contempt of court. His attorneys filed a writ of certiorari to review the Court of Appeals' decision, and on March 20, 1987, it was granted.
William Rehnquist was now chief justice, and he had a record of voting against the press in First Amendment cases. Recognizing the importance of Flynt's case, the mainstream press — reluctantly at first — threw their support behind him. Friend-of-the-court briefs were submitted, first by the Richmond Times-Dispatch and the Richmond News Leader, then by the Times Mirror Company, the New York Times Company, the American Newspaper Association, the Magazine Publishers Association, the Virginia Press Association, the Association of American Editorial Cartoonists, the Authors League of America, the ACLU, HBO, and political satirist Mark Russell.
The courtroom was overflowing with spectators on the day that the Supreme Court heard Flynt's case. Both Falwell and Flynt were in attendance, but this time Flynt behaved and let his attorney, Alan Isaacson, do the talking. As is customary, each side was given 30 minutes to present its case, with the justices questioning the attorneys as they went along.
"There is public interest in having Hustler express its view that what Jerry Falwell says... is B.S.," Isaacson argued. "And Hustler has every right to say that somebody who's out there campaigning against it, saying... we're poison on the minds of America... is full of B.S."
The Court's decision was not published until a year later on February 24, 1988. It was unanimous — 8-0 — in favor of Flynt.
Chief Justice Rehnquist wrote in his opinion: "The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."
The decision made it clear that public figures who were presented in parodies and satires could not sue simply because their feelings were hurt.