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Hustler Magazine v. Falwell Turns 26

falwell_flynt

By now, PJ Media readers have likely heard about climatologist Michael "Hockey Stick" Mann's lawsuit against National Review and its star columnist Mark Steyn.

In the summer of 2012, millions of non-football fans first learned of the existence of one Jerry Sandusky, the once revered (and then disgraced) Penn State football coach.

So on July 15 of that year, Steyn repeated blogger Rand Simberg's recent observations that Penn State's roster of employees also included Michael Mann:

In the wake of Louis Freeh’s report on Penn State’s complicity in serial rape, Rand Simberg writes of Unhappy Valley’s other scandal:

"I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet."

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.

If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.

Speaking of jokes, Mann duly sued over Steyn's and Simberg's quips.

Of course, this isn't Mark Steyn's first lawfare rodeo; my first articles for PJ Media covered his battle against (and eventual victory over) belligerent Muslim censors in the kangaroo courts of Canada's human rights commissions.

This time, the circumstances are different:

He's facing a real American court, not a pretend Canadian one, and real American libel law instead of Canada's flakier (and now, thanks in large part to his efforts, defunct) laws against "hate speech."

Many observers are already calling Steyn v. Mann "the Scopes Trial of the 21st century."

That makes me nervous.

Somewhat incredibly, Edward J. Larson won a Pulitzer Prize for demonstrating, in Summer for the Gods, that much of what we (think we) know of that infamous courtroom (I almost wrote "cartoon"...) standoff -- immortalized in the blockbuster play and film Inherit the Wind -- is bunk on stilts, almost on par with either creationism or evolution itself, depending upon your worldview.

For instance: Liberal hero, Scopes the schoolteacher, lost you know? No?

And the "progressive" with a capital "P" in the Scopes case was in fact the prosecution attorney/villain (and perennial Democratic presidential candidate) William Jennings Bryan, falsely portrayed as a backward, brain-dead Bible-thumper.

You might even call that portrait libelous...

At every turn, we find ambiguity and artifice. Garry Wills has called the Scopes case a nontrial over a nonlaw, with a nondefendant backed by nonsupporters, its most famous moment consisting of nontestimony by a nonexpert, which was followed by a nondefeat.

The trial reminds us that appearances can be deceiving.

I'm not sure whether or not it's a good thing that Mann's case against Steyn reminds me much more of Hustler Magazine vs. Falwell, which the Supreme Court decided -- in Hustler publisher Larry Flynt's favor -- 26 years ago this month:

The controversy began in November 1983 when Hustler ran a parody of Campari Liqueur ads which involved celebrities describing their "first times." Although "first times" ostensibly referred to the initial tasting of the liqueurs, as the U.S. Supreme Court noted, "the ads clearly played on the sexual double entendre of the general subject of 'first times.'"

The Hustler parody depicted a drunken [Moral Majority leader and televangelist] Jerry Falwell confessing that his "first time" was an incestuous fling with his mother in an outhouse.  Soon after the release of the magazine, Falwell sued Hustler for $45 million in federal court, alleging invasion of privacy, libel, and intentional infliction of emotional distress for Flynt's "outrageous" speech. The federal trial judge dismissed the privacy claim and submitted the other two claims to the jury. The jury discounted the libel claim but awarded Reverend Falwell $200,000 for intentional infliction of emotional distress. The United States Court of Appeals for the Fourth Circuit upheld the jury's award.

However, the United States Supreme Court unanimously reversed and dismissed the damages award. The Court, in an opinion authored by Chief Justice William Rehnquist, ruled that the First Amendment protected speech that "could not reasonably have been interpreted as stating actual facts about the public figure involved." The Court ruled that a public figure could not recover damages for emotional distress unless he or she shows that the publication contains a false statement of fact which was made with actual malice, or reckless disregard for the truth.

Rehnquist noted that the ad was "not reasonably believable" and could not be believed to convey any actual facts. The Court dismissed the damages award because the Court found a reasonable person would know the ad was a caricature. According to the Court, if public figures like Jerry Falwell were allowed to recover on emotional distress claims, then "political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject." The Court also warned that determining if speech is outrageous enough to constitute intentional infliction of emotional distress is an inherently subjective inquiry.

In fact, Flynt successfully argued that he had more than a right: he had a civic duty to satirize Falwell.

After all, America had been founded by people who dared to mock their powerful "betters" -- even when, as with the case of a notorious 1789 cartoon of George Washington,  those betters being targeted were the Founders themselves.

Thanks to the movie The People vs Larry Flynt, that 1988 case is the one people are most familiar with in terms of what you can say about a famous person in America, particularly if you're working in the genre of parody.

And the answer was: you can say a whole hell of a lot, however mean-spirited and even sexually charged.

The case was decided in the late 1980s, but culturally, it seems very "seventies."

The national post-Watergate mood was still one of irreverence, especially toward powerful political figures.

The term "political correctness" was unknown outside Communist inner circles.

True, feminist anti-porn sentiment was then at its pre-internet peak. On the left and right, Larry Flynt was widely derided as "classy" Hugh Hefner's uncouth, embarrassing white-trash vestigial twin.

Yet the average American -- nay, Westerner -- nevertheless clung to a noble, romantic "Atticus Finch"/"let the heavens fall" ideal of justice.

One was more likely then than now to hear someone declare, almost primly, their willingness to "defend to the death" another's offensive speech.

A lot has changed since 1988.

Before Mark Steyn's first brushes with the speech-chillers in 2008, I'd naively presumed -- having come of age in the seventies and eighties created by Flynt and his fellow liberals (and seen the movie version of his case win great acclaim) -- that every smart, right-thinking individual still felt that way.

Instead, I heard an endless stream of idiots -- some of them in positions of authority, God help us -- drag out today's cliche of choice, that "you can't yell 'fire' in a crowded theater."

I had the pleasure of watching Steyn using his rapier wit and knowledge of American history to crush a Toronto politico who foolishly employed that tired "argument."

Yet what struck me was how unaffected this moron was by Steyn's evisceration; he just droned on brainlessly for another minute or so.

(Amusingly, Oliver Wendell Holmes, who coined that idiotic "crowded theater" line, also famously wrote in a pro-eugenics argument that "three generations of imbeciles are enough." Having watched David Zimmer sputter impotently and ignorantly while he questioned Steyn, I'm reluctantly inclined to agree that there really are altogether too many morons cluttering up the joint...)

Now, back to the Mann situation: one is supposedly guaranteed a jury of one's peers, which in Steyn's case is cause enough for pessimism.

But bear in mind that Steyn's first judge was so stupid that she got the defendants mixed up.

In 1988, Flynt was the "liberal"/good guy and Falwell the "conservative" bad guy.

Today, in brain-dead, conformist, politically correct America, I fear Steyn will be viewed as the "Falwell" of the case even though he's (technically) the "Flynt."

Plus it was easy for Larry Flynt to play the outrageous, courageous "free speech" hero, and not just because he was, temperamentally, a daredevil and a brat.

In the first place, he was a millionaire many times over.

(I haven't been able to determine whether Flynt's lawyers represented him pro bono, on principle, and invite clarification in the comments.)

And secondly, all his trials and re-trials didn't take much out of him because there was nothing to take:

A fellow with little risk aversion to begin with, Flynt had been shot and paralyzed outside another courthouse by the time his case reached the Supreme Court; legal and illegal drugs helpfully damped down any residual physical or mental sensations like worry and fear.

Whereas even some supporters in the legal community have warned Steyn that he risks coming across as "an unlikable foreigner with a funny accent," and he should play nice and stop calling his stupid judge stupid, and so forth.

(I presume that if Damian Penny has seen documentaries about the Chicago Seven then, being a good little lawyer, he sympathizes with Judge Hoffman...)

I dread Mann's case against Steyn ending up before the Supreme Court that brought you Kelo, don't you?

When it comes to even the most basic conceptions of free speech and robust public debate, 1988 might as well be 260 years ago, never mind twenty-six.

So don't rent The People vs. Larry Flynt to glean any useful insight as to how the Mann/Steyn "Scopes Trial of the 21st century" might play out.

Especially since the film leaves out what may be the coolest part of the whole story:

That, being a Christian, Jerry Falwell felt obligated to forgive Larry Flynt, and the two of them wound up being quite friendly until the former's death.

Frankly, I think that would make a much better movie.

But on those and so many other matters, as I've learned to my dismay these past few years, I'm clearly in the minority.