Taking The Peril out of Parody

By Richard Lacayo

No one ever accused Hustler of good taste. Even so, it would require a tough hide not to be offended by the ad parody that it first ran in 1983. Taking off on a Campari Liqueur campaign that featured celebrities reminiscing about their "first time" -- with the drink, that is -- Hustler ran a spoof that portrayed the Rev. Jerry Falwell as a drunkard whose first sexual encounter was a tryst with his mother in an outhouse. Outrageous? Yes. Funny? Hardly. Plausible? No. But just in case, small print at the foot of the page warned the less discerning reader, "Ad parody -- not to be taken seriously."

Falwell took it very seriously. He sued the X-rated magazine and Publisher Larry Flynt for $45 million, charging them with invasion of privacy, libel and intentional infliction of emotional distress. In 1984 his privacy claim was thrown out by a federal judge, and a jury found no libel, believing no reasonable person could think that the spoof was being presented as factual. But the jury agreed with Falwell's complaint about emotional distress and awarded the televangelist $200,000. Despite the novelty of the verdict, an appeals court upheld the judgment. The jury's award to Falwell set off alarm bells among journalists, political cartoonists, comedians -- anyone who might poke fun at public figures.

They can rest easier now. Last week the U.S. Supreme Court unanimously rejected Falwell's argument in terms that decisively reaffirmed First Amendment protections. Falwell had argued that "outrageous" parody like Hustler's should not be given the protection that more conventional satire and cartooning deserved. But while acknowledging that the ad was "gross and repugnant in the eyes of most," Chief Justice William Rehnquist said for the court that to define and penalize the outrageous would require some very fine judgments, allowing jurors to award damages on the basis of their personal taste or "their dislike of a particular expression." Protecting vulgar parody may not be a pretty task, said Rehnquist, but it has to be done to give the First Amendment "breathing space."

The decision should also discourage a trend that has led plaintiffs who feel offended by the media to try to collect damages for injury -- to their right of privacy, for instance, or their feelings -- when they cannot make the more difficult case for libel. But the court said last week that even when public figures claim emotional injury, they still must meet the complex "actual malice" standard devised for libel in the landmark 1964 decision New York Times Co. v. Sullivan. In that case, the court said that a public figure must show that a publication knew its statements were false or had recklessly disregarded the possibility that they might be. Shot through as it was with unstinting references to Sullivan, last week's ruling should dampen speculation that the justices might be ready to reconsider that decision.

Falwell, of course, was none too happy. The court, he said, had "given the green light to Larry Flynt and his like to print what they wish about any public figure at any time with no fear of reprisal." Flynt, always a blunt instrument, has put it more inelegantly: "I think that the First Amendment gives me the right to be offensive." And, to protect more important things, it does.

With reporting by Anne Constable/Washington