The mourning period that followed Ronald Reagan’s death three years ago, in which even his fiercest critics agreed to temporarily bite their tongues, clearly won’t apply to the recently deceased Rev. Jerry Falwell. His corpse had barely turned cold before the media erupted into a debate over the demagogue’s true legacy. But all of these retrospectives, from the various “good riddance” columns circulating the blogosphere to the flattering and selective obituaries featured in some Southern newspapers, neglected to mention one of the Falwell’s most important contributions to our country, albeit an entirely inadvertent one. I am referring, of course, to his loss in the case of Hustler v. Falwell – surely one of the most unequivocal and forceful First Amendment rulings in the Supreme Court’s history.
For those too young to remember the case: Falwell sued our favorite pornographer and free speech gadfly, Larry Flynt, along with Flynt’s Hustler Magazine, in the federal court in Virginia for libel, invasion of privacy, and intentional infliction of emotional distress. The trigger for this flurry of legal claims was a parody in Hustler’s November 1983 issue of a popular advertisement at the time for Campari Liqueur. The Campari ad campaign featured some well-known public figure being interviewed about what he (or she) remembers about his “first time” – a double entendre referring to the first time he drank Campari but also to possibly more intimate activity. The Hustler parody featured Rev. Falwell discussing what Chief Justice Rehnquist, writing for the full court, delicately described as Falwell’s “first time,” namely his “drunken incestuous rendezvous with his mother in an outhouse.” “The Hustler parody portrays [Falwell] and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk,” wrote the Chief Justice.
As the case wended its way through the courts during the mid-eighties, the libel claim fell away (because the parody obviously was not claiming that the orgy actually occurred), as did the invasion of privacy charge (since the parody was obviously not true, no privacy was invaded). But the “intentional infliction of emotional distress” claim – and jury verdict of $150,000 – survived until the case made its way to the Supreme Court. Flynt, after all, intended to inflict emotional distress upon the good reverend, and he apparently succeeded.
Criticism of public figures, noted the high court, need not be polite, even-handed, subtle, reasoned, nor moderate. The First Amendment protects criticism that is “vehement, caustic, and sometimes unpleasantly sharp.” The court noted that “in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.” The court predicted that were it to rule otherwise, “there can be little doubt that political cartoonists and satirists would be subject to damages awards.” Even the nastiest of such attacks is constitutionally protected, said the high court: “The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events…. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.” Such caricatures and exaggerations, noted the court, are “weapons of attack, of scorn and ridicule and satire.” They are effective to the extent they are vicious. “It is usually as welcome as a bee sting and is always controversial in some quarters.”
And so the good reverend’s major contribution to American liberty lay not in his sermons – indeed, he usually argued for less rather than more freedom – but rather in his most famous legal defeat. If today’s plague of censorship from both the intolerant culturally conservative right and the intolerant and politically correct left is defeated, it will be in large measure because of Rev. Falwell’s eponymous court case.
Falwell became more outrageous, it seemed, as the years passed. Most recently and famously, he attributed the terrorist attacks of September 11, 2001, to those whose lifestyles and politics he loathed, claiming that “the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way, all of them who have tried to secularize America. I point the finger in their face and say 'you helped this happen.'” This attack, for which he was forced (by outraged public opinion) to apologize, probably represented the low point of a career that spun steadily downward over the years.
When I heard that Falwell died, my mind turned immediately and reflexively to another pious but intolerant man of the cloth who left much damage in his wake, William Jennings Bryan. Although not as hateful a man as Falwell, Bryan too made a fool of himself and his cause when, toward the end of his life, he acted as prosecutor in the infamous “Scopes Monkey Trial” that convicted a Tennessee public school science instructor of teaching evolution. More specifically, I recalled the remarkable obituary of Bryan penned by H. L. Mencken, in which the acerbic journalist and essayist offered this assessment of the famous reverend: “Bryan lived too long, and descended too deeply into the mud, to be taken seriously hereafter by fully literate men, even of the kind who write school-books. There was a scattering of sweet words in his funeral notices, but it was not more than a response to conventional sentimentality. The best verdict the most romantic editorial writer could dredge up, save in the eloquent South, was to the general effect that his imbecilities were excused by his earnestness.”
Mencken concluded his homage to his antagonist with this tribute, which seems eerily applicable to our contemporary political culture engendered, in part, by Falwell and his allies: “Such is Bryan’s legacy to his country. He couldn’t be President, but he could at least help magnificently in the solemn business of shutting off the presidency from every intelligent and self-respecting man. The storm, perhaps, won’t last long, as time goes in history. It may help, indeed, to break up the democratic delusion, now already showing weakness, and so hasten its own end. But while it lasts it will blow off some roofs and flood some sanctuaries.”
History does indeed repeat itself.