Monday, January 19, 2015

Supreme Court, "You can't take a joke, can you?"

This is one of my favorite cases. I was brought up in all Catholic schools and was thus a member of organized religion until I went to college. There I parted company with organized religion in any form, never to return. I am the most tolerant of people in believing you should be able to practice whatever religion you choose, as long as you don't try and convert me to it. Jerry Falwell, as the chief religious right figure for the GOP, over many decades, made a specialty of trying to loudly and publicly convert others to his views. His views were intolerant of just about anything not espoused by the GOP or the religious right. Larry Flynt, publisher of "Hustler", thus found Falwell an ideal candidate to parody in his magazine. Most religious zealots are lacking in one key character trait: humor. This was to be Falwell's Achilles' Heel. If ever there was a time to turn the other cheek and carry on with good humor, this was it, and Falwell missed it by a country mile.
The Campari liquor ad was run in adult magazines on a regular basis as an advertisement. Falwell's parody is on the below left. Jill St. John, being paid for advertising Campari, is shown in one of the real ads, right. The idea was that Campari tastes better and better as you drink more of it, just like sex improves after the first time.
The Falwell "ad" is too difficult to read. So here is the text of that "ad" in readable print:       start of parody

Falwell: My first time was in an outhouse outside Lynchburg, Virginia.

Interviewer: Wasn't it a little cramped?

Falwell: Not after I kicked the goat out.

Interviewer: I see. You must tell me all about it.

Falwell: I never really expected to make it with Mom, but then she showed all the other guys in town such a good time, I figured, 'What the hell!'

Interviewer: But your Mom? Isn't that a bit odd?

Falwell: I don't think so. Looks don't mean that much to me in a woman.

Interviewer: Go on.

Falwell: Well, we were drunk off our godfearing asses on Campari, gingerale and soda - that's called a fire and brimstone - at the time. And Mom looked better than a Baptist whore with a $100 donation.

Interviewer: Campari in the crapper with Mom... how interesting. Well, how was it?

Falwell: The Campari was great but Mom passed out before I could come.

Interviewer: Did you ever try it again?

Falwell: Sure, lots of times, but not in the outhouse. Between Mom and the shit, the flies were too much to bear.

Interviewer: We meant the Campari.  

Falwell: Oh yeah I always get sloshed before I go out to the pulpit. You don't think I could lay down all that bullshit sober, do you?"            end of parody

Reverend Falwell brought suit based on invasion of privacy, libel and intentional infliction of emotional distress because Hustler Magazine had run a “ad” which was a parody of Falwell’s position. The Supreme Court held that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them. Thus, Hustler magazine's parody of Jerry Falwell was deemed to be within the law, because the Court found that reasonable people would not have interpreted the parody to contain factual claims. The jury verdict in favor of Falwell was reversed. It had awarded him $150,000 in damages in the lower court. It was widely interpreted that the Supreme Court was telling Falwell in legal language that his problem with this case is that he couldn't take a joke and jokes about public figures are protected speech under the First Amendment. If this were not true, just think of all the lawsuits our last two Presidents could have brought. The best selling ecards online have been jokes and parodies of Bush and Obama.

The magazine’s parody was protected under the First Amendment. Parody of a public figure is not libel. Public figures must prove actual malice to receive damages for intentional infliction of emotional distress. This is just about impossible to prove which means you must learn to put up with a lot of heat if you elect to become a public figure. After Falwell's death, the ad was revived for a gay version of it. It is still for sale online in all sorts of souvenir ways. This is it:
The reason Falwell was ripe for a gay version is because of his infamous teletubbies' rant. He attacked these cartoon creatures, who appeared on a PBS children's show, as hidden gays who were trying to corrupt innocent youth. If he thought the jokesters would leave that one alone, he was sadly mistaken. 
If you are feeling sorry for Falwell, you need to keep one distinction in mind. He chose to become a public figure. Another Supreme Court case involved Mrs. Firestone who claimed that in her divorce from a wealthy man, with no other claim to public life, she did not become a public figure. So the media did not have its public figure protection. The Supreme Court agreed with her. She was not a public figure so she did not have to prove actual malice by the press to prevail in a libel suit. If we choose to become public figures, in short, all bets are off. Falwell made that choice a long time ago and now he had to live with its consequences.  If you love living in the limelight, as he did, you don't get to pick and choose when the spotlight turns on and off.

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