U.S. Supreme Court

HUSTLER MAGAZINE v. FALWELL, 485
U.S. 46 (1988)

485 U.S. 46

HUSTLER MAGAZINE, INC., ET AL. v. FALWELL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 86-1278.

Argued December 2, 1987
Decided February 24, 1988

Respondent, a nationally known minister and commentator on politics
and public affairs, filed a diversity action in Federal District
Court against petitioners, a nationally circulated magazine and
its publisher, to recover damages for, inter alia, libel and
intentional infliction of emotional distress arising from the
publication of an advertisement "parody" which, among other things,
portrayed respondent as having engaged in a drunken incestuous
rendezvous with his mother in an outhouse. The jury found against
respondent on the libel claim, specifically finding that the
parody could not "reasonably be understood as describing actual
facts . . . or events," but ruled in his favor on the emotional
distress claim, stating that he should be awarded compensatory
and punitive damages. The Court of Appeals affirmed, rejecting
petitioners' contention that the "actual malice" standard of
New York Times Co. v. Sullivan, 376 U.S. 254, must be met before
respondent can recover for emotional distress. Rejecting as
irrelevant the contention that, because the jury found that the
parody did not describe actual facts, the ad was an opinion
protected by the First Amendment to the Federal Constitution,
the court ruled that the issue was whether the ad's publication
was sufficiently outrageous to constitute intentional infliction
of emotional distress.

Held:

In order to protect the free flow of ideas and opinions on matters
of public interest and concern, the First and Fourteenth Amendments
prohibit public figures and public officials from recovering
damages for the tort of intentional infliction of emotional
distress by reason of the publication of a caricature such as
the ad parody at issue without showing in addition that the
publication contains a false statement of fact which was made
with "actual malice," i. e., with knowledge that the statement
was false or with reckless disregard as to whether or not it
was true. The State's interest in protecting public figures
from emotional distress is not sufficient to deny First Amendment
protection to speech that is patently offensive and is intended
to inflict emotional injury when that speech could not reasonably
have been interpreted as stating actual facts about the public
figure involved. Here, respondent is clearly a "public figure"
for First Amendment purposes, and the lower courts' finding
that the ad parody was not reasonably believable must be
[485 U.S. 46, 47] accepted. "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, and
cannot, consistently with the First Amendment, form a basis for
the award of damages for conduct such as that involved here.
Pp. 50-57.

797 F.2d 1270, reversed.

REHNQUIST, C. J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and SCALIA,
JJ., joined. WHITE, J., filed an opinion concurring in the
judgment, post, p. 57. KENNEDY, J., took no part in the
consideration or decision of the case.

Alan L. Isaacman argued the cause for petitioners. With him on
the briefs was David O. Carson.

Norman Roy Grutman argued the cause for respondent. With him
on the brief were Jeffrey H. Daichman and Thomas V. Marino.
*

[
Footnote *] Briefs of amici curiae
urging reversal were filed for the American Civil Liberties
Union Foundation et al. by Harriette K. Dorsen, John A. Powell,
and Steven R. Shapiro; for the Association of American Editorial
Cartoonists et al. by Roslyn A. Mazer and George Kaufmann; for
the Association of American Publishers, Inc., by R. Bruce Rich;
for Home Box Office, Inc., by P. Cameron DeVore and Daniel M.
Waggoner; for the Law & Humanities Institute by Edward de Grazia;
for the Reporters Committee for Freedom of the Press et al. by
Jane E. Kirtley, Richard M. Schmidt, David Barr, and J. Laurent
Scharff; for Richmond Newspapers, Inc., et al. by Alexander
Wellford, David C. Kohler, Rodney A. Smolla, William A. Niese,
Jeffrey S. Klein, W. Terry Maguire, and Slade R. Metcalf; and
for Volunteer Lawyers for the Arts, Inc., by Irwin Karp and I.
Fred Koenigsberg.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Hustler Magazine, Inc., is a magazine of nationwide
circulation. Respondent Jerry Falwell, a nationally known
minister who has been active as a commentator on politics and
public affairs, sued petitioner and its publisher, petitioner
Larry Flynt, to recover damages for invasion of
[485 U.S. 46, 48] privacy, libel, and intentional
infliction of emotional distress. The District Court directed a
verdict against respondent on the privacy claim, and submitted
the other two claims to a jury. The jury found for petitioners
on the defamation claim, but found for respondent on the claim
for intentional infliction of emotional distress and awarded
damages. We now consider whether this award is consistent with
the First and Fourteenth Amendments of the United States Constitution.

The inside front cover of the November 1983 issue of Hustler
Magazine featured a "parody" of an advertisement for Campari
Liqueur that contained the name and picture of respondent and
was entitled "Jerry Falwell talks about his first time." This
parody was modeled after actual Campari ads that included interviews
with various celebrities about their "first times." Although
it was apparent by the end of each interview that this meant
the first time they sampled Campari, the ads clearly played
on the sexual double entendre of the general subject of "first
times." Copying the form and layout of these Campari ads,
Hustler's editors chose respondent as the featured celebrity
and drafted an alleged "interview" with him in which he states
that his "first time" was during a drunken incestuous rendezvous
with his mother in an outhouse. The Hustler parody portrays
respondent and his mother as drunk and immoral, and suggests
that respondent is a hypocrite who preaches only when he is
drunk. In small print at the bottom of the page, the ad contains
the disclaimer, "ad parody - not to be taken seriously." The
magazine's table of contents also lists the ad as "Fiction; Ad
and Personality Parody."

Soon after the November issue of Hustler became available to
the public, respondent brought this diversity action in the
United States District Court for the Western District of Virginia
against Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing
Co., Inc. Respondent stated in his complaint that publication
of the ad parody in Hustler entitled
[485 U.S. 46, 49] him to recover damages for
libel, invasion of privacy, and intentional infliction of
emotional distress. The case proceeded to trial.
1 At the close of the evidence, the
District Court granted a directed verdict for petitioners on
the invasion of privacy claim. The jury then found against
respondent on the libel claim, specifically finding that the
ad parody could not "reasonably be understood as describing
actual facts about [respondent] or actual events in which [he]
participated." App. to Pet. for Cert. C1. The jury ruled for
respondent on the intentional infliction of emotional distress
claim, however, and stated that he should be awarded $100,000 in
compensatory damages, as well as $50,000 each in punitive damages
from petitioners. 2 Petitioners' motion
for judgment notwithstanding the verdict was denied.

On appeal, the United States Court of Appeals for the Fourth
Circuit affirmed the judgment against petitioners. Falwell v.
Flynt, 797 F.2d 1270 (1986). The court rejected petitioners'
argument that the "actual malice" standard of New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), must be met before respondent
can recover for emotional distress. The court agreed that
because respondent is concededly a public figure, petitioners
are "entitled to the same level of first amendment protection
in the claim for intentional infliction of emotional distress
that they received in [respondent's] claim for libel." 797 F.2d,
at 1274. But this does not mean that a literal application of
the actual malice rule is appropriate in the context of an
emotional distress claim. In the court's view, the New York
Times decision emphasized the constitutional importance not
of the falsity of the statement or the defendant's disregard
for the truth, but of the heightened level of culpability
embodied in the requirement of "knowing . . . or reckless"
conduct. Here, the New York [485 U.S. 46, 50]
Times standard is satisfied by the state-law requirement,
and the jury's finding, that the defendants have acted
intentionally or recklessly.
3 The Court of Appeals then went on
to reject the contention that because the jury found that
the ad parody did not describe actual facts about respondent,
the ad was an opinion that is protected by the First Amendment.
As the court put it, this was "irrelevant," as the issue is
"whether [the ad's] publication was sufficiently outrageous
to constitute intentional infliction of emotional distress."
Id., at 1276. 4 Petitioners then filed
a petition for rehearing en banc, but this was denied by a
divided court. Given the importance of the constitutional
issues involved, we granted certiorari. 480 U.S. 945 (1987).

This case presents us with a novel question involving First
Amendment limitations upon a State's authority to protect its
citizens from the intentional infliction of emotional distress.
We must decide whether a public figure may recover damages for
emotional harm caused by the publication of an ad parody offensive
to him, and doubtless gross and repugnant in the eyes of most.
Respondent would have us find that a State's interest in
protecting public figures from emotional distress is sufficient
to deny First Amendment protection to speech that is patently
offensive and is intended to inflict emotional injury, even when
that speech could not reasonably have been interpreted as stating
actual facts about the public figure involved. This we decline to do.

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. "[T]he
[485 U.S. 46, 51] freedom to speak one's mind 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." Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 503-504 (1984). We
have therefore been particularly vigilant to ensure that individual
expressions of ideas remain free from governmentally imposed sanctions.
The First Amendment recognizes no such thing as a "false" idea.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). As Justice
Holmes wrote, "when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe the
very foundations of their own conduct that the ultimate good desired
is better reached by free trade in ideas - that the best test of
truth is the power of the thought to get itself accepted in the
competition of the market . . . ." Abrams v. United States,
250 U.S. 616, 630 (1919) (dissenting opinion).

The sort of robust political debate encouraged by the First Amendment
is bound to produce speech that is critical of those who hold public
office or those public figures who are "intimately involved in
the resolution of important public questions or, by reason of
their fame, shape events in areas of concern to society at large."
Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts,
388 U.S. 130, 164 (1967) (Warren, C. J., concurring in result).
Justice Frankfurter put it succinctly in Baumgartner v. United States,
322 U.S. 665, 673-674 (1944), when he said that "[o]ne of the
prerogatives of American citizenship is the right to criticize
public men and measures." Such criticism, inevitably, will not
always be reasoned or moderate; public figures as well as public
officials will be subject to "vehement, caustic, and sometimes
unpleasantly sharp attacks," New York Times, supra, at 270. "[T]he
candidate who vaunts his spotless record and sterling integrity
cannot convincingly cry `Foul!' when an opponent or an industrious
reporter attempts [485 U.S. 46, 52] to demonstrate
the contrary." Monitor Patriot Co. v. Roy,
401 U.S. 265, 274 (1971).

Of course, this does not mean that any speech about a public
figure is immune from sanction in the form of damages. Since
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), we have
consistently ruled that a public figure may hold a speaker
liable for the damage to reputation caused by publication of
a defamatory falsehood, but only if the statement was made
"with knowledge that it was false or with reckless disregard
of whether it was false or not." Id., at 279-280. False
statements of fact are particularly valueless; they interfere
with the truth-seeking function of the marketplace of ideas,
and they cause damage to an individual's reputation that cannot
easily be repaired by counterspeech, however persuasive or
effective. See Gertz, 418 U.S., at 340, 344, n. 9. But even
though falsehoods have little value in and of themselves, they
are "nevertheless inevitable in free debate," id., at 340, and
a rule that would impose strict liability on a publisher for
false factual assertions would have an undoubted "chilling"
effect on speech relating to public figures that does have
constitutional value. "Freedoms of expression require
"`breathing space.'" Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 772 (1986) (quoting New York Times, supra, at 272).
This breathing space is provided by a constitutional rule
that allows public figures to recover for libel or defamation
only when they can prove both that the statement was false
and that the statement was made with the requisite level of
culpability.

See also Street v. New York,
394 U.S. 576, 592 (1969) ("It is firmly settled that . . . the
public expression of ideas may not be prohibited merely because
the ideas are themselves offensive to some of their hearers").

Admittedly, these oft-repeated First Amendment principles,
like other principles, are subject to limitations. We recognized
in Pacifica Foundation, that speech that is "`vulgar,' `offensive,'
and `shocking'" is "not entitled to absolute constitutional
protection under all circumstances." 438 U.S., at 747. In Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942), we held that a State could
lawfully punish an individual for the use of insulting "`fighting'
words - those which by their very utterance inflict injury or tend
to incite an immediate breach of the peace." Id., at 571-572. These
limitations are but recognition of the observation in Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758
(1985), that this Court has "long recognized that not all speech
is of equal First Amendment importance." But the sort of expression
involved in this case does not seem to us to be governed by any
exception to the general First Amendment principles stated above.

We conclude that public figures and public officials may not
recover for the tort of intentional infliction of emotional distress
by reason of publications such as the one here at issue without
showing in addition that the publication contains a false
statement of fact which was made with "actual malice," i. e.,
with knowledge that the statement was false or with reckless
disregard as to whether or not it was true. This is not merely a
"blind application" of the New York Times standard, see Time,
Inc. v. Hill, 385 U.S. 374, 390 (1967), it reflects our considered
judgment that such a standard is necessary to give adequate
"breathing space" to the freedoms protected by the First
Amendment. [485 U.S. 46, 57]

Here it is clear that respondent Falwell is a "public figure"
for purposes of First Amendment law.
5 The jury found against respondent on
his libel claim when it decided that the Hustler ad parody could
not "reasonably be understood as describing actual facts about
[respondent] or actual events in which [he] participated." App.
to Pet. for Cert. C1. The Court of Appeals interpreted the jury's
finding to be that the ad parody "was not reasonably believable,"
797 F.2d, at 1278, and in accordance with our custom we accept
this finding. Respondent is thus relegated to his claim for
damages awarded by the jury for the intentional infliction of
emotional distress by "outrageous" conduct. But for reasons
heretofore stated this claim cannot, consistently with the First
Amendment, form a basis for the award of damages when the
conduct in question is the publication of a caricature such
as the ad parody involved here. The judgment of the Court of
Appeals is accordingly

Reversed.

JUSTICE KENNEDY took no part in the consideration or decision of this case.

Footnotes

[Footnote 1] While
the case was pending, the ad parody was published in Hustler
Magazine a second time.

[Footnote 2] The jury found no liability
on the part of Flynt Distributing Co., Inc. It is consequently
not a party to this appeal.

[Footnote 4] The court below also
rejected several other contentions that petitioners do not raise
in this appeal.

[Footnote 5] Neither party disputes
this conclusion. Respondent is the host of a nationally syndicated
television show and was the founder and president of a political
organization formerly known as the Moral Majority. He is also
the founder of Liberty University in Lynchburg, Virginia, and is
the author of several books and publications. Who's Who in
America 849 (44th ed. 1986-1987).

JUSTICE WHITE, concurring in the judgment.

As I see it, the decision in New York Times Co. v. Sullivan,
376 U.S. 254 (1964), has little to do with this case, for here
the jury found that the ad contained no assertion of fact. But
I agree with the Court that the judgment below, which penalized
the publication of the parody, cannot be squared with the First
Amendment. [485 U.S. 46, 58]