How Larry Flynt beat Jerry Falwell and expanded legal protections for parody

Larry Flynt in 2009. Photo (cc) by Glenn Francis.

Larry Flynt, who took mainstream pornography to a new low, was an unlikely champion of the First Amendment. Then again, most First Amendment champions are unlikely. As Oliver Wendell Holmes Jr. put it, it’s “freedom for the thought that we hate” that needs protecting, not anodyne statements that offend no one.

Flynt, who died Wednesday at 78, many years after surviving an assassination attempt that left him partially paralyzed, achieved freedom-of-speech immortality because of a parody that he published in his magazine Hustler. It took up a full page and was meant to look like an ad, although the words “Ad Parody — Not to Be Taken Seriously” did appear at the bottom. The fake ad was a takeoff on a series of a real ads for Campari liqueur in which various celebrities talked about their “first time.” The idea was to make it appear they were discussing the first time they’d had sex, only to reveal at the end that they were talking about the first time they drank Campari.

The Hustler parody starred the Rev. Jerry Falwell, founder of the Moral Majority, a leader of the first wave of right-wing television evangelists and a figure of revulsion among liberals. Among other things, Flynt’s Falwell spoke about the “first time” he’d had sex with his mother in an outhouse.

Falwell sued for libel and the intentional infliction of emotional distress, arguing on the latter count that the parody met the legal standard for “outrage.” The case, Hustler Magazine v. Falwell, decided by the U.S. Supreme Court in 1988, established two important principles.

First, on the libel claim, Falwell contended that the parody was false and defamatory. Since he was a public figure, he also had to establish that Hustler published it knowing or strongly suspecting that it was false. A federal appeals court had thrown out the libel count on the grounds that there were no statements in the ad that could be subjected to a true-or-false test. In other words, no reasonable person could possibly believe that Falwell had sex with his mother in an outhouse and had then talked about it for a liqueur ad. The Supreme Court upheld the lower court’s ruling.

Second, the Supreme Court overturned the appeals court’s ruling on the emotional-distress allegation. In so doing, the high court imposed the Times v. Sullivan “actual malice” libel test to claims of emotional distress: in order for a public official or public figure to win such a suit, they would have to show that the offending material contained a false statement of fact — again, with the knowledge that it was false or strongly suspecting it was false. The ruling established a significant new protection for parody and satire.

The unanimous decision, written by Chief Justice William Rehnquist, compared the parody to previous work by Thomas Nast about the corrupt Tweed ring in New York, vicious cartoons about George Washington, and other political and public figures. Rehnquist wrote:

There is no doubt that the caricature of respondent [Falwell] and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.

Whenever I teach our First Amendment course, I assign my students to write about a major case of their choosing. Inevitably, half the papers are about Hustler v. Falwell, nearly always accompanied by a copy of the ad — just in case I’d forgotten what it looked like, I suppose.

And if you ever get a chance to see the 1996 movie “The People v. Larry Flynt,” you should. It’s a rollicking good portrayal of the whole affair.

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The pros and cons of charging Trump with incitement to violence

Donald Trump in 2016. Photo (cc) by Gage Skidmore.

Suzanne Nossel, the chief executive of PEN (Poets, Essayists and Novelists) America, is concerned that the second impeachment of Donald Trump could be used to weaken the legal standard for convicting someone of incitement to violence. I differ with her New York Times op-ed, and in fact I think criminal charges could be brought against Trump without doing any harm to the First Amendment.

Nossel, a lawyer, rightly differentiates between the impeachment proceedings, which are based on a layperson’s definition of incitement, and the legal definition. By any reasonable measure, Trump whipped a mob into a frenzy on Jan. 6 and pointed it in the direction of Capitol Hill, a reckless action that led to five deaths, including that of a police officer.

The legal standard, as Nossel explains, is much more narrow, based on the 1969 case of Brandenburg v. Ohio, in which a Ku Klux Klan leader, Clarence Brandenburg, was convicted of incitement under Ohio state law after telling those attending a rally that they should take “revengeance” upon Black and Jews. The Supreme Court overturned the conviction, ruling that Brandenburg’s threat wasn’t imminent or specific enough.

The Brandenburg decision was the culmination of a series of court rulings going back to Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. offered his famous metaphor that the law does not protect falsely shouting “fire” in a crowded theater. The standard the court arrived at was that speech could be banned if it presented a “clear and present danger.”

The Schenck decision is often reviled as repressive today, but it was a step forward at the time. For the next 40 years, the court sought to refine and narrow what was meant by a clear and present danger, finally arriving the Brandenburg standard. As Nossel explains, the legal definition of incitement is based on the idea that the language in question was intended to cause violence; that the threat of violence must be imminent; and that the language must be likely to result in violence.

I read the transcript of Trump’s remarks, and it seems to me that they could support an incitement conviction. First of all, there is the context. Trump lies, at great length and in fine detail, about the outcome of the election. You’ve heard it all before, but right near the beginning he says this:

All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.

Now you might say Trump actually believes this. But over the weekend it was reported that Trump, in the White House, has railed about his defeat with associates. According to Axios, he has gone so far as to say, “Can you believe I lost to that fucking guy? That fucking corpse?” So he knows. He’s lying. And though that lie doesn’t amount to incitement, it prepares the crowd for what follows.

The most incendiary language comes at about the 18-minute mark:

After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.

Trump immediately follows up with what could be considered exculpatory language: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” But we’ve heard him do this many times over the years. If you’re on the jury, would you let him off the hook because, in course of an hour-long speech aimed at stirring up a frenzy, he used the word “peacefully” — once?

Later in his speech, he says, “We got to get rid of the weak congresspeople, the ones that aren’t any good, the Liz Cheneys of the world, we got to get rid of them. We got to get rid of them.” Again, maybe there’s just enough ambiguity here — that sentence is preceded by “a year from now, you’re going to start working on Congress.” That sounds like he could be referring to primary challenges. But Cheney and other Republicans who voted for impeachment are receiving death threats, The Daily Beast reports, and it’s hard to make the case that Trump’s words didn’t have more than a little something to do with it.

I think we also need to keep in mind that Trump took part in a rally at which his son Donald Trump Jr. and one of his lawyers, Rudy Giuliani, spoke even more recklessly than he did. Giuliani spoke of a “trial by combat,” which he ludicrously claimed later was a reference to “Game of Thrones.” Trump Jr., among other things, said:

It [the gathering on the National Mall] should be a message to all the Republicans who have not been willing to actually fight, the people who did nothing to stop the steal. This gathering should send a message to them: This isn’t their Republican Party anymore. This is Donald Trump’s Republican Party.

Again, Junior could, at least in theory, have been referring to primary challenges. But he was speaking to an angry mob, not a gathering of precinct captains. We have to look at what he had to know the effect of his words would be. There’s no reason we have to interpret what he said in a light most favorable to him.

In other words, it’s possible that Giuliani and Trump Jr. could be in legal jeopardy. And it’s also possible that a jury could use what they said to clarify the president’s own statements.

Would it be wise to prosecute Trump for incitement once he’s out of office? Probably not. This is a close enough call that there’s a good chance he’d be acquitted, which would make the case against him look like a politically motivated attack by his enemies. The best route, it seems, is to hope that the Senate convicts him by the necessary two-thirds vote followed by banning him from holding office in the future, which only requires a majority.

In any case, a possible incitement prosecution is likely to be the least of Trump’s concerns once the clock hits 12:01 p.m. on Wednesday. He faces financial ruin and endless legal problems, both civil and criminal. If he pardons himself, that will be challenged in court. If he prevails, he still faces trouble in a number states, which are not bound by a federal pardon.

But an incitement prosecution is an interesting thought exercise. It could well be that Trump went further than Clarence Brandenburg, sheets and all, in unleashing mob violence. That’s quite a distinction.

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