Distressing

A new twist in media law

The fine print at the bottom of page 2 in the November 1983 issue of Hustler read, "Ad parody, not to be taken seriously." But Evangelist Jerry Falwell took it very seriously indeed. The raunchy magazine's lampoon of a Campari liquor ad, which normally features celebrities discussing their "first time," had the teetotaling leader of the Moral Majority saying that he always got "sloshed" before preaching and that he had lost his virginity in an outhouse with his mother. Falwell used the ad in a direct-mail solicitation to outraged supporters who raised $800,000, but he also sued Publisher Larry Flynt for both libel and "intentional infliction of emotional distress."

A federal court jury of eight women and four men in Roanoke, Va., decided that Falwell had not been libeled because the parody was patently unbelievable. Yet in a surprising twist, it found Flynt and his magazine liable on the emotional-distress charge, awarding Falwell $200,000 in compensatory and punitive damages.

Until now, the emotional-distress argument has been successfully used mainly by individuals seeking redress against such pests as harassing bill collectors and malicious pranksters; one case, for example, involved a cruel joker who falsely spread the rumor that a woman's son had hanged himself. Constitutional experts warn that its use by public figures against the press could erode First Amendment protections by circumventing the rigorous standards of proof for libel. New York Attorney Floyd Abrams believes the verdict will be reversed, but, if not, it could encourage "an end run around constitutional protections for people who want to bring libel suits but know they can't win."

The law that deals with emotional suffering is far looser than that governing libel. In general, all that is required is that the offending act be intentional, outrageous, and inflict serious emotional damage. By those measures, many political satires and cartoons could be targets. Declares Arthur Strickland, one of Flynt's attorneys: "Reagan could sue Art Buchwald. George Bush could sue Garry Trudeau. Bush could say, 'Whenever I read Doonesbury I'm a basket case for the rest of the day,' and have a cause of action. Where does it stop?" Flynt's lawyers plan to ask the judge this week to throw out the jury's finding. If he does not, legal scholars predict that the issue of emotional-distress suits against the press may ultimately have to be decided by the U.S. Supreme Court.