In 1983, pornography publisher Larry Flynt lampooned the Reverend Jerry Falwell in his Hustler Magazine. Hustler wrote a fake advertisement based on actual Campari Liquor ads, featuring celebrities talking about their first times the first time they tasted Campari liquor with the obvious double entendre of their first sexual experience.
The Hustler piece entitled Jerry Falwell talks about his first time said that Fal well’s first time was with his mother in an outhouse. The ad did not contain a disclaimer in small language at the bottom of the page that read: ad parody not to be taken seriously. The ad outraged Falwell, the president of the Moral Majority and a nationally known televangelist. Falwell sued Flynt in federal court under three tort theories invasion of privacy, defamation, and intentional infliction of emotional distress.
The judge threw out the invasion of privacy claim, but the lawsuit proceeded on the libel and infliction of emotional distress claims. A federal jury rejected the libel claim but awarded Falwell $200,000 on the intentional infliction of emotional distress claims. A federal appeals court affirmed the jury verdict, setting the stage for the United States Supreme Court.
In February 1988, the U.S. Supreme Court issued its decision in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), ruling that Falwell could not establish intentional infliction of emotional distress because the ad could not be interpreted as stating actual facts about Jerry Falwell. In his opinion for the Court, Chief Justice William H. Rehnquist compared the Hustler ad to political cartoons satirizing a broad range of public officials. Rehnquist warned the outrageousness was too subjective a standard when imposing liability on speech about public figures such as Jerry Falwell.
Rehnquist wrote: Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors tastes or views, or perhaps on the basis of their dislike of a particular expression. An outrageousness standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.
The famous battle between Larry Flynt and Jerry Falwell shows that there is a high constitutional bar to establishing an intentional infliction of emotional distress claim against a person for their speech about public affairs, public officials or public figures.
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