Hustler v. Falwell Protected Parody, and Conservatives Benefit From It Now

Here is the most awkward sentence a conservative will ever have to write: the best friend of the satirist who mocks your senator, your pastor and your favourite bill is a Supreme Court decision that grew out of a filthy magazine ad. Nobody picks that as the hill for a free-speech stand. Nobody gets to choose. The Constitution does not hold auditions for the cleanest plaintiff and the most dignified defendant, and thank goodness it does not, because if it did, the satire business would be out of work and so would a good many of our own columnists.

The case is Hustler Magazine v. Falwell, decided on February 24, 1988, and the Court was unanimous. Chief Justice William Rehnquist wrote it, and Rehnquist was no libertine. He was a buttoned-down jurist of the old school. If he concluded that the First Amendment protects even this, then folks, we ought to take a good look at why.

The facts, and they are not pretty

In the early 1980s, Hustler ran a parody of a famous liqueur advertising campaign. The real ads featured celebrities describing their "first time," a double meaning that the brand leaned into with a wink. The magazine's version used the name and picture of Jerry Falwell, the Baptist minister and founder of the Moral Majority, and presented a fictional "interview" in which he supposedly described a drunken encounter with his mother in an outhouse. It was crude. It was cruel. It was designed to wound a man who had made himself one of the most visible religious figures in public life.

A small print disclaimer at the bottom said the ad was not to be taken seriously, and the magazine's table of contents listed it as a parody. Falwell sued in federal court in Virginia for libel, invasion of privacy and intentional infliction of emotional distress. The jury threw out the libel claim, because it found that no reasonable reader would take the ad as a statement of actual fact. But the jury awarded damages on the emotional distress claim, and the Fourth Circuit upheld the award. The question that went to Washington was narrow and enormous at once: can a public figure collect for emotional distress caused by a parody, merely because the parody was outrageous?

The holding in plain English

Rehnquist said no. A public figure cannot recover for intentional infliction of emotional distress over a publication like this one unless he shows what the Court had first required for libel in New York Times v. Sullivan (1964): a false statement of fact made with "actual malice," meaning knowledge that it was false or reckless disregard of whether it was. Since the jury had already found that the ad could not reasonably be read as describing real facts, the claim was dead on arrival.

The reasoning matters more than the result, so follow it step by step.

1. Free debate needs breathing room. Rehnquist wrote that the First Amendment's protection of speech about public figures and public questions is meant to let debate be robust, and that robust debate inevitably produces speech that is unpleasant to its targets.
2. Motive cannot be the test. The law of emotional distress asks whether conduct was outrageous. Outrageousness, as the Court saw it, is a jury's reaction to taste and opinion, and a jury drawn from a community will tend to punish the speaker the community dislikes. Hand a jury the power to punish "outrageous" speech and you have handed the majority a club.
3. The history of caricature counts. The Court looked back at American political cartooning and said, in effect, that you cannot pretend the tradition was ever polite. Our democratic life has always included pictures of leaders that are unflattering, exaggerated and sometimes savage.
4. No clean line exists between the two. The opinion conceded that this ad was not much of a contribution to political discourse, and that it was a long way from the editorial cartoons of the past. But it asked how a court could ever sort the acceptable jab from the unacceptable one without relying on exactly the subjective judgment the First Amendment forbids.

That last point is the one I want you to carry out of this post. The Court did not say the ad was good. It said the government does not get to grade it.

The cartoonists in the record

Rehnquist's opinion leaned on the history, and the star of that history is Thomas Nast. Nast was a German-born illustrator for Harper's Weekly who, drew, in a campaign that peaked in 1871, a relentless series of cartoons against William "Boss" Tweed, the Tammany Hall chief who looted New York City. Tweed's machine skimmed millions from the construction of the county courthouse and other public works. Nast gave the corruption a face, a belly and a bag of money. Tweed's ring could handle editorials, because a large share of its voters could not read them. A drawing, however, needed no literacy. Tweed was convicted, escaped, was caught in Spain, and died in jail in 1878. Nast's work did not end the machine by itself, but it did a great deal to make the machine unpopular and unforgettable.

Nast also gave us the elephant as a symbol of the Republican Party, in an 1874 cartoon, and the Democratic donkey had been in circulation before that. Think about that for a moment. The symbols conservatives wear on lapels and bumper stickers come from the pen of a satirist whose job was to make powerful people look ridiculous.

The Court's survey did not stop with Nast. The opinion reached back into the history of the press and the pamphlet, to a time when Lincoln's features were caricatured without mercy, and when no one imagined that a congressman's bruised feelings were a cause of action. Americans in 1800, 1864 and 1884 would have thought it strange to be told that a caricature had to pass a civility test before it could be printed. They would have heard the proposal and laughed, which is, after all, the point.

Congress shall make no law ... abridging the freedom of speech, or of the press.

That is the First Amendment, and note what it does not say. It does not say "except when the target is a good man," and it does not say "except when the cartoon is in poor taste." It says no law.

Why this is a conservative case now

Let me tell you something about the people who cheer for censorship when it hits the other guy. They always forget who might hold the censor's pen next year.

Think about who writes satire in this country today. A great deal of the best sustained mockery of fashionable ideas comes from conservatives and from independents who have had it with the fashion. They make fun of corporate diversity memos, of university administrators with seven-figure salaries and nine-word mission statements, of agencies that issue a 400-page rule on how to peel a grape. They do it in memes, in videos, in columns, on the radio, and in cartoons. Some of it is gentle. Some of it would make Falwell's lawyers wince.

Now picture the rule that the Virginia jury in effect applied: if a public figure feels badly enough, and a panel of citizens finds the mockery outrageous enough, damages follow. Who do you think a jury in a university town, or a courthouse in a city where the powerful dominate, would find "outrageous"? The satirist who skewers the administrator, or the one who skewers the pastor? The institution gets protected, the dissenter gets billed. Hustler v. Falwell is the reason that a person with a laptop and a sense of humour can mock a billionaire, a governor, a network or a chancellor without first checking whether the target's feelings are in good order.

This is also why the decision was not a gift to the left. A unanimous Court, with a conservative chief justice writing it, announced that the question is whether a statement could be read as a false statement of fact, not whether the target was hurt. That rule protects the cartoonist who draws a senator of either party as a puppet, and the commentator who calls an agency head a bureaucrat who never met a rule he did not like. It protects the pastor's critics. It also protects the pastor's defenders when they push back, which they do.

The strongest objection, stated fairly

The best case against the decision runs like this. Falwell was a human being. He had a mother, who was a real person, and the ad invented a squalid scene about her. Words can wound, and the idea that the law may do nothing when a man is deliberately humiliated by a publisher who knew exactly what he was doing and who made money from it looks, to many fair-minded people, like a defect. Conservatives are supposed to care about dignity, family and the restraint that civilisation requires. Why should a magazine be allowed to treat a minister's family as a punch line?

I take that seriously, and here is my answer in four points.

One, the Court did not say the ad was acceptable. It said it was not actionable. Plenty of conduct is wrong and still not a legal wrong, and conservatives, who ordinarily insist that law is a blunt tool and that culture, church and family do the work of restraint, should be the first to say so.

Two, the dignity argument proves too much. The rule that would punish Hustler has no limit that a judge could police. A legal standard of "outrageous" will be applied to the cartoon of the senator, the satire of the mayor and the video that mocks the school board, and it will be applied by juries who share the powerful person's neighbourhood.

Three, the Constitution already has protection for private reputation where it matters. Falsehoods that damage a private person's name are still actionable, and public figures can still sue for libel if a false statement of fact was made with actual malice. The Falwell decision left that whole body of law standing. It simply refused to let the label "emotional distress" smuggle around the safeguards.

Four, the alternative is worse for the people the objection means to protect. The more the law polices tone, the more it empowers whoever controls the definition of tone. A movement that has spent years complaining that "hate speech" has been stretched to cover ordinary disagreement should not be asking for a tone police of its own.

What the coverage gets wrong

A word about the way this case is usually told, because it is a small masterpiece of framing. The story in some journalism classes is that a scrappy publisher defeated a censorious preacher, and that the right wants to muzzle comedians. The story in some church basements is that a pornographer won a victory over a godly man and that the Court should be ashamed. Both versions flatter the teller.

The record is duller and better. A minister was grossly insulted. He sued. The jury, to its credit, understood that no one reads an obvious spoof as news. The justices, to their credit, looked past the unpleasant parties to the rule, and found that the rule protected the very thing that a free country runs on: the right to laugh at the people who run it. And if that sounds as though I am defending Larry Flynt, I am not. I am defending the next cartoonist who is nothing like him, and who will need the same rule.

The real lesson was visible in 1988 and it is still there: a society that cannot tolerate being mocked is a society whose leaders have stopped worrying about what they deserve.

The Founders were not delicate

The Founding generation was a loud, vicious, pamphlet-slinging crowd. Newspapers in the 1790s accused Washington of monarchical ambitions, called Adams a monarchist, and called Jefferson an atheist and worse. The same generation passed the Sedition Act of 1798, which punished criticism of the government, and it went badly. You can read about it in The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell, and the lesson holds: when government decides which mockery is permitted, it ends up jailing a congressman who then wins re-election from his cell.

The Founders understood that unpleasant speech is the price of free speech. James Madison, the author of the First Amendment, wrote the Virginia Report of 1800, a response to the Sedition Act, in which he argued that some degree of abuse is inseparable from the proper use of every thing, and most of all the press. Giving the government the power to prune that abuse away is the very authority the Constitution was built to deny.

Hustler v. Falwell belongs in the same family as Texas v. Johnson, which protected flag burning, and Snyder v. Phelps, which protected hateful picketing at a funeral. Conservatives often find those results hard to swallow, and I understand why. You can read the longer argument in Texas v. Johnson Protected Flag Burning, and Conservatives Still Argue It and Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended. But notice the pattern: the cases that tempt us to carve out an exception are the ones where the speech is ugliest, and the Court has said, consistently, that the ugliness is not the test. The test is whether the government gets to decide.

A numbered case for keeping the ruling

Here is the argument in order, so nobody has to dig for it.

1. Public figures invite scrutiny. Anyone who steps into public life accepts criticism, including harsh and unfair criticism, as part of the job. A minister who runs a national political organisation is in public life.
2. Parody that no reasonable person takes as fact is not a false statement of fact. The jury found exactly that. Without a false assertion of fact, the libel framework has nothing to bite.
3. "Outrageous" is a verdict about taste, and taste is the wrong thing to give a jury. It rewards the unpopular plaintiff's opposite number every time.
4. A rule that protects the cartoonist protects the movement. Today's insurgent commentators sit where Nast sat, outside the establishment and pointing at it.
5. The remedy for bad speech is more speech, and for bad taste, a boycott. Readers and advertisers are allowed to walk away, and often do. That is the free market in ideas working as designed.

What the ruling asks of us

It asks for a certain thick skin. Conservatives who love to say "if you can't take a joke" had better be ready to hear it said in return. We are not asked to like the ad, or the magazine, or the man who published it. We are asked to remember that the law cannot be written for the one case we hate without being applied to the hundred cases we love.

It also asks us to keep the line where the Court drew it. If a publication states false facts about a person as facts, with knowledge that they are false, the courts remain open. That is not censorship, that is the oldest duty of the press. And if a satirist goes too far, the people have an answer that does not require a judge: they stop reading, stop buying, and say so.

The satirists of 1871 drew a political boss with a moneybag for a head and helped bring him down. The satirists of today draw administrators, regulators and celebrities, and they deserve the same protection that shielded Nast. If you value that, defend this case, even when the plaintiff in the story is someone you admire, and even when the defendant is someone you would not invite to dinner.

The case in brief

1. Hustler v. Falwell (1988) held, unanimously, that a public figure cannot win damages for emotional distress from a parody unless it states a false fact with actual malice.
2. The Court refused to let juries punish "outrageous" speech, because outrageousness is a judgement of taste that favours the powerful and the popular.
3. American satire, from the cartoonists of the Gilded Age to the commentators of today, depends on that protection.
4. Conservatives are now among the chief satirists of institutions, so the rule is a shield for us, not a gift to them.
5. The remedy for ugly parody is criticism, boycott and more speech, not a lawsuit.

What you can do: read the First Amendment's forty-five words aloud once, then read the opinion in Hustler v. Falwell at the Supreme Court's website and decide for yourself whether the rule it announced is one you would want in the hands of the other side.