Hustler Magazine, Inc. v. Falwell

485 U. S. 46

February 24, 1988

In 1983, the pornographic magazine Hustler published a fake ‘parody’ interview with Jerry Falwell where he admits to having drunk sex with his mother in a fly-ridden outhouse (for you young’uns out there, Falwell was a prominent socially conservative Baptist minister of the era). Falwell successfully sued Hustler for the tort of intentional infliction of emotional distress. In return, the magazine argued that, as a parody, the interview should be protected from such a suit under the First Amendment.

Rehnquist wrote for a unanimous Court (Kennedy did not participate), which set aside the emotional distress finding on First Amendment grounds. Rehnquist recited how free and open discourse about public figures like Falwell was critical for the health of a liberal democracy, and how highly exaggerated and fictionalized parodies of public figures were part and parcel of America’s commitment to free speech. Although the Falwell ‘parody’ was disgusting and outrageous, and had little redeeming quality, Rehnquist did not see how a bright line between it and a Thomas Nast cartoon could be drawn. Thus, magazines like Hustler should be able to publish without fear of expensive emotional distress suits.

White, concurring in judgment, took exception to the majority’s unnecessary and misleading mention of New York Times v. Sullivan and libel law. Myself, I would go further, and call the entire majority opinion sloppy and misguided. The Hustler ‘parody,’ unlike a political cartoon, made no actual political statement. It merely bullied a famous person in a crude and vicious manner. Much like the rest of the contents of Hustler, the Falwell ‘parody’ was simply obscene, and really doesn’t deserve First Amendment protection. As scholar John Kang put it in his half-joking/half-serious nomination of this ruling as the ‘Worst Case in the History of the World,’ the majority opinion was a sad blow against basic civility and human decency in American society.

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