Falwell v. Flynt

Citation797 F.2d 1270
Decision Date04 November 1986
Docket NumberNos. 85-1417,s. 85-1417
Parties, 21 Fed. R. Evid. Serv. 401, 13 Media L. Rep. 1145 Reverend Jerry FALWELL, Appellee, v. Larry C. FLYNT; Hustler Magazine, Inc., Appellants, and Flynt Distributing Company, Inc., Defendant. Reverend Jerry FALWELL, Appellant, v. Larry C. FLYNT, Hustler Magazine, Inc.; Flynt Distributing Company, Inc., Appellees. (L), 85-1480.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
*

Alan L. Isaacman and David Carson (Cooper, Epstein & Hurewitz, Beverly Hills, Cal., Arthur P. Strickland, Strickland & Rogers, Roanoke, Va., on brief) for appellants/cross-appellees.

Norman Roy Grutman (Jewel H. Bjork, Jeffrey H. Daichman, Thomas V. Marino, Grutman, Miller, Greenspoon, Hendler & Levin, New York City, on brief), for appellee/cross-appellant.

Before HALL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

This lawsuit arises out of an "ad parody" that appeared in the November 1983 and March 1984 issues of Hustler, which is published by defendants Larry Flynt and Hustler Magazine, Inc. (Hustler), and is distributed by defendant Flynt Distributing Company (FDC). The subject of this parody was the Reverend Jerry Falwell, a well-known pastor and commentator on political issues. Falwell sued the defendants for libel, invasion of privacy, and intentional infliction of emotional distress. At the close of evidence, the district court dismissed Falwell's claim for invasion of privacy and sent the other two claims to the jury. The jury found against Flynt and Hustler on the emotional distress claim and against Falwell on the libel claim.

These defendants have appealed, and Falwell has filed a cross appeal. The issues before this court can be grouped into four categories: the constitutional issues, the common law tort issues related to intentional infliction of emotional distress, the evidentiary issues, and finally, Falwell's cross appeal, which claims that the district court erred in dismissing his claim for invasion of privacy.

I

The "ad parody" which gives rise to the instant litigation attempts to satirize an advertising campaign for Campari Liqueur. In the real Campari advertisement celebrities talk about their "first time." They mean, their first encounter with Campari Liqueur, but there is double entendre with a sexual connotation. In the Hustler parody, Falwell is the celebrity in the advertisement. It contains his photograph and the text of an interview which is attributed to him. In this interview Falwell allegedly details an incestuous rendezvous with his mother in an outhouse in Lynchburg, Virginia. Falwell's mother is portrayed as a drunken and immoral woman and Falwell appears as a hypocrite and habitual drunkard. At the bottom of the page is a disclaimer which states "ad parody--not to be taken seriously." The parody is listed in the table of contents as "Fiction; Ad and Personality Parody."

Falwell was first shown the ad parody by a reporter in the fall of 1983. Shortly thereafter, he filed suit against Flynt, Hustler and FDC in the United States District Court for the Western District of Virginia. Falwell alleged three theories of liability: libel, invasion of privacy under Va. Code Sec. 8.01-40 (1984), and intentional infliction of emotional distress. Hustler then republished the parody in its March 1984 issue.

In June 1984, Falwell's counsel took Larry Flynt's deposition, which was recorded on video tape. During the deposition Flynt identified himself as Christopher Columbus Cornwallis I.P.Q. Harvey H. Apache Pugh and testified that the parody was written by rock stars Yoko Ono and Billy Idol. It also contained the following colloquy concerning the parody:

Q. Did you want to upset Reverend Falwell?

A. Yes....

Q. Do you recognize that in having published what you did in this ad, you were attempting to convey to the people who read it that Reverend Falwell was just as you characterized him, a liar?

A. He's a glutton.

Q. How about a liar?

A. Yeah. He's a liar, too.

Q. How about a hypocrite?

A. Yeah.

Q. That's what you wanted to convey?

A. Yeah.

Q. And didn't it occur to you that if it wasn't true, you were attacking a man in his profession?

A. Yes.

Q. Did you appreciate, at the time that you wrote "okay" or approved this publication, that for Reverend Falwell to function in his livelihood, and in his commitment and career, he has to have an integrity that people believe in? Did you not appreciate that?

A. Yeah.

Q. And wasn't one of your objectives to destroy that integrity, or harm it, if you could?

A. To assassinate it.

[J.A. 901-902].

Trial began in December 1984. While the district court had initially granted the defendant's pretrial motion to suppress the deposition on the grounds that Flynt could not comprehend the obligation of the oath or give a correct account of events, the district court reversed itself on the first day of trial and permitted Falwell to introduce an edited version containing only those portions relevant to the instant lawsuit. The defendants then showed the jury the entire deposition, stating that the edited deposition was misleading. In spite of the defendants' strenuous objections, the district court also permitted the introduction of the two Hustler issues containing the parody and excerpts from prior issues that had lampooned Falwell.

At the close of evidence, the district court dismissed Falwell's invasion of privacy claim brought under Va.Code 8.01-40 (1984), which creates a cause of action for damages arising from the use of a person's name or likeness for purposes of trade or advertising without his consent. The district court ruled that although the parody used Falwell's name and likeness, the use was not for purposes of trade within the meaning of the statute.

The jury returned a verdict for the defendants on the libel claim, finding that no reasonable man would believe that the parody was describing actual facts about Falwell. On the emotional distress claim, the jury returned a verdict against Flynt and Hustler, but not F.D.C. The jury awarded $100,000 in actual damages, $50,000 in punitive damages against Flynt, and $50,000 in punitive damages against Hustler.

II

The defendants make two constitutional arguments. First, they assert that since Falwell is admittedly a public figure the actual malice standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) must be met before Falwell can recover for emotional distress. They argue that the actual malice standard has not been met. Second, the defendants contend that since the jury found that the parody was not reasonably believable, 1 the statements contained therein cannot be statements of fact but must be opinion and are, therefore, completely shielded by the first amendment.

The defendants maintain initially that since Falwell is a public figure, they are entitled to the same level of first amendment protection in an action for intentional infliction of emotional distress that they would receive in an action for libel. We agree. Once an action for libel was a plaintiff's sole remedy for a defamatory publication in a news medium. The last century has, however, seen the acceptance of the new emotional distress and invasion of privacy torts which may arise from the same underlying facts. Thus, while a tortious publication once gave rise only to an action for libel, it may now support the additional claims. There has been, of late, a growing trend toward pleading libel, invasion of privacy and intentional infliction of emotional distress in lawsuits arising from a tortious publication. Mead, Suing the Media for Emotional Distress: A Multi-Method Analysis of Tort Law Evolution, 23 Wash.L.J. 24 (1983). The instant case typifies this trend; Falwell asserted all three theories of liability.

In New York Times, the Supreme Court determined that libel actions brought by public officials against the press can have a chilling effect on the press inconsistent with the first amendment. Therefore, when a public official sues for libel based upon a tortious publication, the defendant is entitled to a degree of first amendment protection. This protection has been extended to cases in which the plaintiff is a public figure, Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and to actions of invasion of privacy for casting the plaintiff in a false light, Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), but not to cases in which the plaintiff is a private figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). It is not the theory of liability advanced, but the status of the plaintiff, as a public figure or official and the gravamen of a tortious publication which give rise to the first amendment protection prescribed by New York Times.

In the case at bar, Falwell is a public figure, and the gravamen of the suit is a tortious publication. The defendants are, therefore, entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in Falwell's claim for libel. To hold otherwise would frustrate the intent of New York Times and encourage the type of self censorship which it sought to abolish.

The issue then becomes what form the first amendment protection should take in an action for intentional infliction of emotional distress. The defendants argue that Falwell must prove that the parody was published with knowing falsity or reckless disregard for the truth. This is the actual malice standard of New York Times v. Sullivan. 2 While we agree that the same level of protection is due the defendants, we do not believe that the literal application of the actual malice standard which they seek is appropriate in an action for intentional infliction of emotional...

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18 cases
  • Dworkin v. Hustler Magazine, Inc.
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 25 de agosto de 1987
    ...or fictionalization of factual events or circumstances represented to be true. See Davis, 457 N.Y.S.2d at 315; Falwell v. Flynt, 797 F.2d 1270, 1278 (4th Cir.1986), cert. granted, ___ U.S. ___, 107 S.Ct. 1601, 94 L.Ed.2d 788 (1987) ("Falwell I"). In Pring, the court held that the First Amen......
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    ...claim, on the ground that "no reasonable man would believe that the parody was describing actual facts about Falwell." Falwell v. Flynt, 797 F.2d 1270, 1273 (4th Cir.1986), overruled on other grounds, Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). There were ......
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    ...for Falwell on his claim of intentional infliction of emotional distress, a judgment affirmed by the court of appeals. (Falwell v. Flynt (4th Cir.1986) 797 F.2d 1270.) The Supreme Court reversed, reasoning that although admittedly offensive, the parody was a type of political cartoon, and t......
  • New Times, Inc. v. Isaacks
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    ...Falwell damages for intentional infliction of emotional distress, and the Fourth Circuit Court of Appeals affirmed. Falwell v. Flynt, 797 F.2d 1270, 1278 (4th Cir.1986). The Supreme Court granted certiorari to "consider whether [the intentional infliction of emotion distress] award [was] co......
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2 books & journal articles
  • Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims
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    • Louisiana Law Review No. 73-2, January 2013
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    ...public figures. Erik Walker, Defamation Law: Public Figures—Who Are They? , 45 BAYLOR L. REV. 955, 960 (1993) (citing Falwell v. Flynt, 797 F.2d 1270 (4th Cir.1986), rev’d on other grounds sub nom . Hustler Magazine v. Falwell, 485 U.S. 46 (1987)). Times have changed since Waldbaum was deci......
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    • Federal Communications Law Journal Vol. 61 No. 3, June 2009
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    ...prevail in a suit for defamation"). (142.) See Hustler, 485 U.S. at 49. (143.) SMOLLA, supra note 136, at 158. (144.) Falwell v. Flynt, 797 F.2d 1270 (4th Cir. (145.) Id. at 1275. (146.) Id. (147.) Hustler, 485 U.S. at 52. (148.) Id. at 53. (149.) Id. at 53-54 (citing Garrison v. Louisiana,......

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