Review of Jerry Falwell v. Larry Flint: The First Amendment on Trial

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A Review of Jerry Falwell v. Larry Flint: The First Amendment on Trial

by Rodney A. Smolla

New York: St. Martin's

Review Copyright © 1988 by William A. Henkin

Originally published in Spectator



The Constitution of the United States was ratified September 17, 1787. Four years later ten amendments were appended to it, known collectively as the Bill of Rights. The very first of those amendments reads,


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


While the First Amendment may seem to be a clear statement that the government of the United States is not allowed to interfere with its citizens' religious practices or their self-expression, few assertions in American politics have raised as many questions for debate over the past 200 years as this single sentence, and few debates have been as charged with passion as those that sought to define its scope and meaning.

In part, these debates have stemmed from a split in Americans' understanding of what religion, freedom, and speech really mean. Does religion have to be about God, or may it include such diverse spiritual and philosophical churches as Buddhism and Scientology, or the evolution-minded secular humanism Jimmy Swaggart and Jim Bakker fear? Does my freedom to move my fist stop before, after, or exactly when it meets your nose? Does speech include radio and television broadcasts? How about songs? How about the printed word? How about pictures? And the Internet?

The split itself is a result of a division between two principal Calvinist doctrines practiced by the early European settlers on the shores of what would become New England. The Pilgrims, whose views were somewhat gnostic, believed people could find truth through personal, inner communion with God; hence, they preached and practiced religious tolerance (at least within the Protestant mores of their times), freedom of conscience, and a separation of church and state. The Puritans, in contrast, believed in a state church that would itself be the government and would therefore legislate morality.

A vital, modern example of the debate between people who advocate freedom of conscience and those who believe in freedom within the limits of moral legislation resulted in the 1988 Supreme Court decision that multimillionaire televangelist Jerry Falwell – founder and leader of the Moral Majority, and at that time the second most-admired man in America after President Ronald Reagan, according to a Good Housekeeping poll – could not collect damages from multimillionaire porn king Larry Flynt for the emotional distress Falwell claimed he suffered when Flynt's Hustler magazine published a parody of an advertisement in which Falwell was portrayed as having lost his virginity by having intercourse with his own mother in an outhouse while they both were drunk on Campari liqueur.

In the short run the Supreme Court decision was perhaps of minor importance to both Falwell and Flynt. Both men are as wealthy as crooks, and the award in question amounted to only $200,000. Both men are far too popular with their own constituencies for their reputations to be seriously damaged by the opinions of enemies such as each other. And neither man is a stranger to the courtroom. Flynt in particular has been such an ardent defender of First Amendment rights that he served prison time for contempt of court after screaming obscenities at the Supreme Court Justices during a trial in which he was a litigant. Falwell, for his part in this morality play, chose as his attorney one Norman Roy Grutman, who had previously represented Penthouse magazine in numerous lawsuits including several against Falwell himself.

But in the long run the final decision in Falwell v. Flynt was of tremendous importance – not only because it let the scurrilous, pugnacious Flynt publish a nasty satire of the strait-laced, white middle-class American daddy Falwell, but chiefly because these two mean-spirited men perfectly represent the extreme positions in American society regarding some of our nation's most fundamental freedoms. Moreover, when the Supreme Court made its decision in favor of Flynt's right to publish his satire over Falwell's right not to be lampooned, it did so unamimously; and the opinion exonerating Flynt was written by the court's least likely personality, Chief Justice William Rehnquist.

Prior to Falwell v. Flynt Rehnquist had voted against the press every time he had heard such a case before the Supreme Court. Nonetheless, in finding for Flynt he wrote, "At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.... The freedom to speak one's mind,'" he continued, quoting from another Supreme Court decision called Bose v. Consumers Union, "is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.'"

The process of this case from the original trial, which Falwell won, through the first appeal, which Falwell also won, to the Supreme Court decision took four years. Rodney Smolla, author of Jerry Falwell v. Larry Flynt, is a prominent law professor, an attorney, and expert in First Amendment matters who followed the case closely and also wrote an amicus curia brief in favor of Flynt. He does not seem to like Flynt very much, but as he points out over and over in his book, the importance of this case lies not in the personalities of the two highly visible contestants or their equally vociferous attorneys, but in the way it treats the First Amendment, and the way the First Amendment shall be viewed in the near future as a consequence of this trial. The conclusion to this case, he says, was a resounding triumph for the rights of free speech in a free society.


For many Americans, it is inconceivable that the First Amendment could be intended to protect Hustler Magazine and the type of crude, mean-spirited attack Flynt launched against Falwell. Surely, they think, Hustler is beneath the dignity of the First Amendment. Surely, freedom of speech is not an absolute license of licentiousness. Flynt's coarse speech is nothing but excrement, a form of moral pollution fouling the cultural environment.

For other Americans, Hustler is the quintessential example of what ought to be protected by the First Amendment. Tolerance is often nothing but indifference. It is easy to defend freedom of speech when the speech is bland, polite, and civilized. Tolerance is only meaningful when the speech is jarring to mainstream sensibilities.... Like the pilots in Tom Wolfe's The Right Stuff, who strain their planes to the breaking point to "test the envelope," Larry Flynt and Hustler constantly push us to the outer limits of our tolerance. If we are really to be a pluralistic and open culture ... we must be willing to embrace all speech, even speech at the extremes, for it is only by such toleration that we give meaning to the ideal of an open society.



For the most part Smolla's book alternates between chapters that provide legal and historical background on various aspects of the trial proceedings, and chapters that amount to little more than prècis of the actual trial records. Some chapters consist of several pages of dialogue among litigants, attorneys, and judges, while others explain the meaning and importance of fine points the participants raise. Partly because each of the 41 chapters is very short – only a couple are as long as 15 pages, and several are as short as three – Smolla's plan for the book works well, and enables him to keep the reader both informed and reasonably entertained. And while the book will not contribute much to the knowledge of experts in the field of Constitutional Law, it may make some of that law comprehensible to doctors, hookers, and other ordinary citizens.

I really had only two problems with Jerry Falwell v. Larry Flynt. First, while each of Smolla's chapters is devoted to a distinct, identifiable topic, none is named. Instead, the Table of Contents lists "Chapter 1," "Chapter 2," and so on down to "Chapter 41." Second, with as rich a story as this case contains, and with a cast of characters as highly colorful as these people are, I would have expected much more drama than Smolla offers on the page. The first problem is an editorial gaffe which presents an all but insurmountable problem for any reader trying to keep track of his or her progress through the text. This second is more a consequence of a mismatch between a writer and his subject.

A courtroom battle such as Falwell v. Flynt deserves the rhetoric of a great dramatist. Someone like Arthur Miller could write a terrific play about the case; William Styron might make a great novel of it. When Smolla aims for theatrical tension and the subtle innuendo of personalities playing off one another the pace of his writing stumbles and the power of his story fades. But when he confines himself to exposition he is not only a decent writer, he is also in his element and makes important points that provide for lay readers a great deal of what we need to know in order to understand just how and why the First Amendment is important to us.

As human beings Falwell and Flynt have "a great deal in common," Smolla observes, and proposes that they might be "selling different versions of the same thing." Both men "certainly seem to be hustlers," he says, and perhaps they "are not frauds, but true believers, hustling radically different versions of the American dream." Since neither Falwell nor Flynt is a stranger to First Amendment fights, Smolla finds it worth noting how "History reveals that, as often as not, the great First Amendment battles have been fought by our cultural rejects and misfits, by our communist-agitators, our civil rights activists, our Ku Klux Klanners, our Jehovah's Witnesses, our Larry Flynts."

And this observation lies at the heart of what is most valuable about Falwell v. Flynth, both for people who are not in America's cultural mainstream and for those who are. As Smolla writes, the United States is


the oldest constitutional democracy in the world. The great resiliency of the American Constitution is its capacity for growth, and that capacity is nourished by our abiding faith in tolerance, even for the intolerant. We have wagered our salvation not on our collective capacity to elevate public discourse by controlling it but on our collective capacity to discover truth through the free, unregulated trade of ideas.


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