THE WORTH OF FALWELL'S FEELINGS
By HENRY MITCHELL
Column: HENRY MITCHELL
Friday, December 4, 1987
; Page D02
A question before the Supreme Court is whether Jerry Falwell can collect
damages awarded him by a lower court for emotional suffering, and while this
is a large question the decision will have to take account of the particular
circumstances of this one case.
A parody ad in Hustler magazine, based on the Campari liquor ads in which
celebrities tell about their "first time," purported to have Falwell tell
about his first time.
Which, the ad went on, was when he was drunk and had sex with his mother in
an outhouse. The "ad," which was of course not an ad at all, bore the label
that it was a parody, not to be taken seriously.
Falwell suffered terribly, he has said. A jury awarded him heavy damages
for his suffering, though it said he had not been defamed. Usually damages for
suffering are given only in cases where defamation is claimed and proved. It
is a great novelty for a court to say Falwell has not been libeled but is
entitled to $200,000 for suffering all the same.
Larry Flynt, publisher of Hustler, argues that yes, the ad was in bad taste
and that Falwell probably did not like it, but the First Amendment protects
speech that is not libelous, however offensive to Falwell.
I do not for a minute believe Falwell suffered. The judgment, now on appeal
before the high court, was undoubtedly nothing more than a jury's expression
of distaste for Hustler and what it considers pornography in general.
Falwell, who himself is highly objectionable to probably millions of
Americans, and certainly to me, has gone far out of his way to bleat on every
street corner his views on politics, social policy, religion. He even took the
chairmanship of PTL, the Jim Bakker outfit, when it was under attack for its
financial methods and other things.
Question: If the ad had done the same thing, only with Henry Mitchell
instead of Falwell, would it still be proper to publish it? Of course. I have
never bought a copy of Hustler, but have read three issues of it over the
years (when I did a piece on its publisher) and I am forever propounding, like
Falwell, on Man's Place in the Cosmos, though with greater sense, I trust. I
am an obscure target for a Hustler parody, but a fair one. I would think the
ad in dreadful taste, and quite funny. And if anybody wants to laugh, bully
for them.
But let's say Falwell is not like me at all (a thing I suspect is true) and
that unlike me he saw nothing funny in the ad and was mad as hell. Well, he is
always getting mad as hell, but however mad he gets he does not dictate the
laws of the United States or its Constitution.
But wait -- suppose the ad did not parody Falwell or me or anybody else who
jabbers to the public all the time, but said the same thing about Uncle Will,
a quite private person who goes to his accounting office every day and whose
only flashy involvement in public affairs is his chairmanship of the Community
Chest of Bushbaby, Miss. Could he sue?
Does it make any difference if the target of the parody is a homebody
minding his own business or whether it is a public figure shouting from the
housetops on every conceivable topic? I think it might. Not on the basis of
emotional suffering, but on the claim that a totally obscure person had been
dragged without his consent into a national magazine for purposes of hilarity.
This also raises constitutional questions, but it may be analogous to the
right to damages if an ad uses your picture to promote Wheaties or track shoes
or whatever.
This right is settled, more or less.
But in cases of parody, however broad, when there is no libel, and when the
target is a person who has widely commented on everything and who widely seeks
controversy, it is surely against the good of the republic for the celebrity
to come dashing up with the tenderest of skins, claiming distress.
The court should rule for Flynt and his Hustler. Maybe I should say that
while I know neither man, I like Flynt and Hustler better than Falwell and his
jabbering. I think Falwell, however low my opinion of him may be, has a
constitutional right to holler all he likes. There were times when Falwell
would have been burned at the stake with every blessing of the law. We have
progressed since then, and now he may speak free.
This same progress benefits Larry Flynt. One thing you notice quickly about
religious enthusiasts in general is that the minute they win freedom for
themselves (however off-the-wall they would have been considered in the past)
they start trying to trim the freedom of everybody else. Which is why
Jefferson, among others, was so keen to separate religion and government.
Falwell told Ted Koppel on television that he had in mind President Reagan
and George Bush, who were often parodied and vilified but could not answer
back. The implication is that Falwell is striking a blow for all the poor
abused helpless folk (like the president of the United States) who cannot
defend themselves.
It is precisely the prospect that government officials could silence
criticism that makes this case so interesting.
If you crack a joke about the boss, can he not only fire you but sue you
for $200,000 because he is terribly sensitive, you know, and suffers
dreadfully if anybody says he is a chowder head?
As for Falwell's alleged $200,000 worth of suffering from the Hustler
howler, he should remember a servant of Christ may on occasion be required to
endure pain even greater than the agony of being made fun of in Hustler.
Mitch Snyder, for example, who is the nearest thing to a saint I have run
into lately, is ready to die for what he thinks are Christian principles.
Right or wrong in his methods, he does not live in fancy compounds like the TV
windbags; he often lives out on the streets with the homeless he concerns
himself with. He is a man who might make a difference, but I cannot conceive
of Falwell and his ilk making any difference whatever, except to chip away at
the First Amendment. The high court will, I hope, not only find for Hustler,
but will deliver a stinging rebuke to Falwell for bringing the case. As for
his suffering, he would be better if he had a lot more of it.
Articles appear as they were originally printed in The Washington
Post and may not include subsequent corrections.
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