Hustler Magazine, the First Amendment, and the Power of the Provocateur

When it comes to free speech, it is not the friendly diplomats but rather the harsh provocateurs like Larry Flynt who test the boundaries of expression, preserving our rights in the process.

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Is Hustler Magazine founder Larry Flynt a depraved menace to society, or a civil rights hero? As the founder of a porn magazine notorious for its hardcore depictions of sex and its provocative cultural and political commentary, honoring Flynt with the title of civil rights champion may seem absurd to many.

But in the 1988 landmark case of Hustler Magazine v. Falwell, the Supreme Court reaffirmed and expanded the “actual malice” precedent set forth in 1964’s New York Times v. Sullivan, and Flynt’s win marked a historic leap forward in the progression of First Amendment civil rights. After Hustler Magazine published an ad satirically portraying famed religious leader, Jerry Falwell, as an incestuous drunk who slept with his mother, Falwell sued for libel, invasion of privacy, and the intentional affliction of emotional distress. Though Falwell initially won damages solely for emotional distress in the lower court, the Supreme Court shockingly sided with Hustler in a staggering 8–0 decision, stating how public figures cannot recover for the intentional affliction of emotional distress without proof of actual malice. In other words, unless a publisher knowingly made false statements or statements in reckless disregard for the truth, the court agreed that the utility of satire and the ability to criticize our public figures far outweighs the importance of any resulting emotional distress. Religious communities, conservative political leaders, anti-pornography activists, and countless other groups find a common enemy in Flynt for promulgating what they believe to be indecent and obscene filth. But regardless of one’s personal views on Flynt, his publications, or pornography in general, Flynt undoubtedly altered the course of First Amendment jurisprudence, the effects of which are just as relevant today as when the decision was made over thirty years ago. The court’s ruling to protect the satirizing of public figures proves invaluable in preserving the rights and voices of citizens as well as the free press, and in the present era, these rights directly prevent both the dangerous escalations of political and cultural debate as well as tyrannical speech suppression. Flynt may be an unlikely, as well as an unsavory civil rights champion; nevertheless, the famed pornographer rightly deserves to wear the title.

But how could a publisher having the legal right to portray a religious figure having sex with his mother and a goat in an outhouse have any sort of societal benefit or positive effect on civil rights? In his oral argument to the Supreme Court, Flynt’s attorney, Alan Issacman, was asked this question by Justice Marshall, who appeared skeptical of there being any public pur- pose served by allowing Flynt’s ridiculous portrayal of Falwell. The answer to this question lies not in the details of Flynt’s outrageous hyperbole, but rather in the substantive worth of having the freedom to publish that which is considered distasteful, critical, or offensive, especially when it comes to public figures. As Issacman explained to the court, the same rights that allowed Doonesbury cartoonist Garry Trudeau to depict President Bush as a wimp also allow Flynt to call out Jerry Falwell as a hypocrite through a grotesque and provocative ad, and this argument remains relevant today. What if Steve Colbert was fined or imprisoned for his biting and offensive satires of political figures, or the creators of SNL were sued by politicians for their caricatures? This idea would be unconscionable to most today, and Larry Flynt should be thanked for helping establish the legal precedent which prevents this oppressive scenario. The right to parody, mock, and offend public figures, especially politicians, religious leaders, and those with significant power and influence, inarguably remains the bedrock for a free society and the anecdote to tyrannical overreach.

Over thirty years have passed since Hustler v. Falwell, and the significance of that ruling proves more relevant than ever in America’s political and cultural climate today. With the current American President repeatedly threatening to sue news stations, publications, and even following through with lawsuits against comedians like Bill Maher for satires of him and his administration, Larry Flynt deserves credit for his part in preventing these ridiculous attempts to suppress satyrical speech, the brand of speech which is inarguably needed now more than ever. Political polarization permeates our country, the two major political parties more vehemently embattled against each other than at any other time in modern history. The ability to laugh while simultaneously exposing uncomfortable and appalling truths about our leaders aids in preventing violent or dangerous escalations in ideological debates and discussions. Flynt was able to convince the Supreme Court of how satire is like water to the fires of our political and cultural sphere, and without it, a greater threat exists for the entire system to burn.

When thinking about First Amendment heroes throughout history, perhaps the late Supreme Court Justice Oliver Wendell Holmes Jr. would come to mind before an infamous and outrageous smut peddler like Larry Flynt. But when it comes to free speech, it is not the friendly diplomats but rather the harsh provocateurs like Flynt who test the boundaries of expression, pre- serving our rights in the process. In an interview with CNN, Flynt once said, “free speech is only important if it’s offensive. If you’re not going to offend anybody, you’re not going to need the protection of the First Amendment.” The right to offend, and to offend public figures in particular, proves more vital now than ever before in protecting civil rights, and like it or not, society has the Larry Flynts of the world to thank for championing and upholding these liberties.

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