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LARRY FLYNT

Larry Flynt is no James Madison.

A typical issue of Hustler magazine contains well over 100 of what Flynt calls “pink shots,” close-up pictures of models’ vaginas, sometimes pried open with fingers. That does not make Flynt a First Amendment hero.

Flynt has been prosecuted in various states for publishing “obscene” material. But he has avoided being sent to prison, as the convictions have been overturned on appeal. That does not make him a First Amendment hero.

Every month, Hustler publishes an “Asshole of the Month” column, crudely excoriating a politician or other public figure. Several of Flynt’s targets have sued him for libel and other wrongs. He has won every suit. That does not make him a First Amendment hero.

On one of his trips to the Supreme Court, when he thought the argument his lawyer made had gone badly, he shouted at the justices: “You’re nothing but eight assholes and a token cunt!” Chief Justice Burger ordered him arrested. He has been held in contempt of court on several other occasions, once for wearing an American flag diaper to court. None of this makes him a First Amendment hero.

During the 2008 presidential campaign, Flynt produced a pornographic video called “Who’s Nailin’ Paylin,” featuring an “actress” resembling Republican vice presidential candidate Sarah Palin. The minimal dialogue, interspersed with sex acts, might generously be considered political satire. (Most of the dialogue is “Oh, yes!” and moans.) The “candidate” does say it’s “time to drill, baby, drill,” and asks, “What are you waiting for, congressional approval?” The “plot” includes a Bill O’Reilly look-alike presiding over “The Orally Factor” as well as a mènage-a-trois with “Hillary” and “Condi” actresses. The video ends with the candidate’s announcement: “I’m Serra Paylin, and I approved this message.”

Several Web sites put the first minute of the “Paylin” video online for free. When the Huffington Post tried to post more, it was prevented from doing so by Flynt’s copyright claim. That definitely does not make Flynt a First Amendment hero. If you’re making a political statement, you want as many people as possible to see it; you do not hide behind intellectual property claims. Flynt made half a million dollars on this opportunistic quickie.

In a way, Flynt’s life has been defined by the First Amendment. He has been prosecuted and sued for the speech he has published, has exposed politicians’ hypocrisy in the best First Amendment tradition, has criticized courts and mainstream media for not doing their job, and may be the only person who has literally “taken a bullet” for the First Amendment: He was shot in an assassination attempt during an obscenity trial, and his legs remain paralyzed. But much of his speech has been self-promoting, and virtually all of it has been profit-driven. He has amassed a fortune and lives the Beverly Hills life of the corporate CEO he is. Few would claim that the world’s leading pornographer should be considered an unalloyed real world hero. He remains a subject worth considering.

Understanding how Flynt has mostly avoided jail and ruinous civil liability requires some background on sexual speech and the First Amendment. “Pornography” is not a legal term. Except for child pornography, discussed below, labeling material “pornographic” has no legal consequences. The major legal restriction on sexual speech traditionally has been “obscenity.”

The Supreme Court finally settled on a definition of obscenity about the time Flynt began publishing Hustler. That seems to be coincidental. The Court had long struggled with identifying precisely what kind of sexual speech, both words and images, could be banned. The assumption had always been that obscenity could be prohibited. It was viewed as a category of speech that is outside First Amendment protection, not because it in fact causes harm but because it is deemed offensive to a civilized society. But the Court, in case after case in the 1950s and 1960s, found grave difficulty in separating in a principled way sexual content that might have some value to society from hard-core sleaze. The Court found it necessary to rescue literature like Fanny Hill and the movie of Lady Chatterley’s Lover from prosecution as obscene. The Court tentatively tried various formulations of the standards for deciding what was or was not obscene but had not come up with a standard that drew the elusive principled line. Justice Potter Stewart famously lamented that arriving at a meaningful definition of hard-core obscenity may not be possible, but he asserted, “I know it when I see it.”

In 1973, the Court decided Miller v. California. The Court laid down a three-part test for judging whether material is obscene. First, the material, “taken as a whole,” must appeal to the “prurient” interest. Second, its depictions of sexual acts must be “patently offensive” as judged by contemporary community standards. Third, the material must lack “serious literary, artistic, political, or scientific value.” The Miller test was meant to apply to material of all kinds: books, magazines, live performances, movies, and now videos and online communications. The Court has not altered the test in the intervening decades.

The test is not very satisfactory. It cannot be consistently applied. It contains so many subjective elements that it allows juries to punish speech and speakers that they dislike. Professor Kathleen Sullivan has paraphrased the first two parts of the test as material that “turns you on” and material that “grosses you out.” She calls these parts “incoherent,” requiring the audience to be turned on and grossed out at the same time. Even Justice Antonin Scalia has called for “reexamination” of the test, since whether material has literary or artistic value is a matter of taste, and “de gustibus non est disputandum.” The test’s reliance on “community standards” for judging offensiveness makes no sense as applied to Internet communication, which is available everywhere. Using local standards could subject online material to the standards of the most conservative, least tolerant community. The test is insufficiently protective of speech that may well have some societal value. Fortunately, there are not huge numbers of either federal or state prosecutions. Most of them involve the producers and sellers of raunchy, sometimes violent DVDs.

Instead of emphasizing the pursuit of obscenity prosecutions, in recent years the government has concentrated more on attempts to protect children from exposure to sexual speech and from abuse in the production of sexual material. The Federal Communications Commission (FCC) attempts to police “indecency” on the airwaves, and the Justice Department prosecutes anyone it can catch who possesses or distributes “child pornography.”

The FCC has long been empowered by Congress to regulate “indecent” material on radio and television. But it didn’t really try to enforce the law until the “family values” forces became a political factor and demanded that the commission prevent broadcasters from airing vulgar language or programs with sexual content at times when children might be in the audience. The commission’s constitutional authority to regulate dirty words or pictures was not tested until 1978, when the Supreme Court decided FCC v. Pacifica Foundation. One afternoon a Pacifica radio station aired comedian and satirist George Carlin’s famous monologue, “Seven Words You Can Never Say on Television.” In the recorded live performance Carlin, with wit and erudition, recited and repeated in various contexts the words that he said cannot be uttered on the airwaves: fuck, shit, cocksucker, motherfucker, piss, cunt, and tits. He analyzed their derivation and modern colloquial usage. While driving his boy home from school, a man heard the monologue and complained to the FCC. The Commission decided to reprimand the station for broadcasting “indecent” speech during hours when children might be in the audience.

Pacifica challenged the FCC action, contending that the Carlin monologue was not obscene and that the Commission was barred by the First Amendment from punishing mere “indecency” as opposed to “obscenity.” Alas, in a dark day for the First Amendment, the Supreme Court upheld the Commission’s position. The opinion was written by Justice John Paul Stevens when he was relatively new to the Court. Judging by his subsequently expressed First Amendment views, Stevens seems to have distanced himself from Pacifica. (For example, he wrote the decision invalidating the Communications Decency Act and opined in a later case that criminal prosecutions are an “inappropriate means” to regulate even obscenity.) But in 1978, Stevens’s opinion unleashed FCC enforcement against indecency. The opinion said that indecent speech “lies at the periphery of First Amendment concerns.” It also emphasized that, as established by earlier Court decisions, the broadcasting medium enjoys the least First Amendment protection (as compared, for example, to newspapers). Broadcasting, Stevens said, was “uniquely pervasive” and “uniquely accessible to children.” An administrative sanction, as contrasted with a criminal prosecution, was an appropriate way of protecting children from unwanted exposure to indecent material. Justice Stevens concluded: “We simply hold that, when the commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

During the administration of President George W. Bush, his FCC commissioners, encouraged and abetted by Congress, picked up Pacifica and ran with it. The commission used a regulation that outlawed airing “language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

Notice that this definition of indecency borrows one-third of the Miller definition of obscenity: the “patently offensive” (or “grosses you out”) part. It ignores the other two parts. Therefore, material can be found “indecent” even though it does not appeal to the prurient interest at all (saying “Shit!” for example), and even though the material may well have significant “literary, artistic, political or scientific value.” The fact that material deemed indecent by the commission may, like Carlin’s satirical monologue, have political, artistic, or other societal value makes the prohibition extremely problematical for First Amendment purposes.

The commission began to impose substantial fines on broadcasters who aired any of Carlin’s dirty words. In 2006, Congress increased tenfold the maximum fines that the commission could impose, to $325,000 per violation. The energized commission also abandoned its previous policy under which sanctions could be imposed only for “repetitive, deliberate” use of indecent words, and began imposing fines for the airing of a single “fleeting expletive.” Notoriously, the FCC fined CBS $550,000 for the split-second “wardrobe malfunction” revealing Janet Jackson’s breast during the 2004 Super Bowl half-time show. It announced the new “fleeting expletive” policy when Bono said, upon receiving a Golden Globe award, “This is really, really, fucking brilliant.” And it called Fox Television on the carpet when it aired Cher’s defiant statement at the Billboard Music Awards, confronting those who said she was washed up: “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So fuck ’em.” It again issued an order against Fox when Nicole Richie said at the next year’s Awards: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

On April 28, 2009, the Supreme Court upheld the FCC’s “fleeting expletives” policy shift without reaching the question whether it violates the First Amendment. Justice Scalia’s opinion squeamishly referred to Cher’s “F-word” and Richie’s “S-word,” and reported that Bono had exclaimed “f***ing brilliant.” The Court decided only that the FCC had not acted arbitrarily in suddenly adopting the fleeting expletives policy, postponing the First Amendment issue for another day. Justice Stevens dissented.

One hopes this ridiculous indecency enforcement will fizzle out, or the Court will revisit Pacifica and overrule it. The commission does not regulate indecency on cable (because cable is a subscription service that people pay for and does not use the limited broadcast frequencies available on the electromagnetic spectrum, and because the FCC thinks the Court would therefore not allow regulation of indecency on cable). Given the many opportunities for minors to be exposed to sexual material on the Internet, at school, and in life, there is no good reason for the government to be policing dirty words on radio and over-the-air television. We should cleanse the airwaves not of expletives but of censorship.

The government is actively prosecuting child pornography cases. The laws prohibit pictures of minors performing sex acts and the “lewd” exhibition of their genitals. Like the FCC indecency regulation, the laws do not require appeal to the prurient interest, and it doesn’t matter if the pictures arguably have artistic or scientific value. The Supreme Court has decided that sexually explicit pictures of real children do not need to be obscene to be illegal. The reason for this strict prohibition is that the production of the pornography is essentially child abuse—children are abused in the process of filming the pictures. Consequently, child pornography is legally toxic, even more than obscenity. While both obscenity and child pornography lack any First Amendment protection, a consumer cannot be prosecuted for having obscene material in the privacy of his home, but mere possession of child pornography is a crime.

Some editorial material and ads in Hustler magazine use young-looking models with captions saying they are, for example, “barely legal,” playing to readers’ interest in teenage temptresses. Flynt also publishes, among 25 other adult magazines, one entitled “Barely Legal.” But Hustler says it keeps records of its models’ ages as required by federal law, and it dutifully publishes the required statement that “all nude models are 18 years of age or older.” Child pornography seems to be a business for amateurs, not sophisticated publishers. Flynt himself believes child pornography should be banned as violating the rights of people not old enough to consent. But he says that among consenting adults, material involving sexuality should be their own business.

Alongside the dozens of pink shots in an issue of Hustler is some serious political writing. For example, a typical 2009 issue had full-page columns by Robert Scheer, Nat Hentoff, and Alex Bennett. It also had a vicious cartoon lampooning Rush Limbaugh, another cartoon in which God “tortures” George W. Bush to get the “truth” by urinating on him, and a tame but serious anti-war cartoon. (Flynt says war is what is obscene.) The Asshole-of-the-Month target was Congresswoman Jane Harmon, taken to task in vulgar terms over her attempt to get appointed chair of the House Intelligence Committee. The issue’s Publisher’s Statement by Flynt was “Is It Socialism?” a simplistic defense of President Obama’s health care and other programs. (The Flynt column was on a page facing a very graphic pink shot advertising phone sex.) All the political material was in the first 21 pages of the magazine.

The balance of the magazine consisted overwhelmingly of sexually explicit pictures and pornographic articles, interspersed with extremely blunt advertisements for sex toys and phone sex. Indeed, by far the biggest section of the issue was 28 straight full pages of phone sex ads, all luridly illustrated.

Flynt’s autobiography provides clues to his business strategy. According to Flynt, the “text” of adult magazines doesn’t “make a damn bit of difference,” as lonely men “read them with one hand.” Flynt’s magazines are more sexually explicit than men’s magazines like Playboy and Penthouse, and he doesn’t care if he frightens away advertisers because he charges $11.99 for the magazine. “The vulgar nature of our cartoons and features [is] a matter of editorial policy. We ... intentionally try to offend people,” he admits.

Flynt seems to try to avoid entanglement with the legal system by putting on the cover of each issue, in microscopic type, the following: “WARNING: Material is of an adult nature. This literature is not intended for minors, and under no circumstances are they to view it, possess it, or place orders for merchandise offered herein.” The “literature” referred to apparently is not the political material, for there is no reason why minors should be shielded from it. Rather, a cynic might conclude that claiming “literature” status is a transparent attempt to squeeze within the Miller obscenity definition’s allowance for literary value. In fact, the pages of political material probably insulate Hustler from obscenity prosecution because, under Miller, the work “taken as a whole” must be considered, and no court could conclude that a Hustler issue lacks political value.

The inside front cover of the November 1983 issue of Hustler featured a full-page parody of an advertisement for Campari liqueur. It was a takeoff on a Campari advertising campaign in which celebrities were interviewed about their “first time.” By the end of the interviews it was clear that the celebrities meant the first time they tried Campari, but the ads played on the sexual double entendre. Hustler’s version had a picture of the Reverend Jerry Falwell and was headlined “Jerry Falwell talks about his first time.” Falwell was of course the leader of the Moral Majority, a major figure in the religious right, a frequent critic of pornography, and a frequent target of Larry Flynt’s wrath. The fake Campari ad featured an “interview” with Falwell, who said his first time was with his mother in an outhouse. The ad “quoted” Falwell as saying, “I never really expected to make it with Mom, but then after she showed all the other guys in town such a good time, I figured, ‘What the hell!’” In the ad Falwell says: “We were drunk off our Godfearing asses.... Mom looked better than a Baptist whore with a $100 donation.” The parody concluded with Falwell claiming: “I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?” In tiny type at the bottom of the page was the disclaimer: “Ad parody—not to be taken seriously.”

The parody was not legally obscene and clearly not child pornography. Nor, not having been broadcast, could it be restricted as indecency. It was a vicious dirty joke, but Falwell took it seriously. He sued Flynt and Hustler, seeking $45 million in damages for libel, for using Falwell’s picture for commercial purposes, and for intentionally inflicting emotional distress. To win the emotional distress claim, Falwell would have had to prove that Flynt had a blameworthy state of mind in publishing the humiliating ad. Flynt cooperated in supplying that proof, for at his deposition he testified as follows:

FALWELL’S ATTORNEY: Did you want to upset Rev. Falwell?

FLYNT: Yes ...

FALWELL’S ATTORNEY: 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 Rev. Falwell was just as you characterized him, a liar?

FLYNT: Yeah, he’s a liar too.

FALWELL’S ATTORNEY: How about a hypocrite?

FLYNT: Yeah.

FALWELL’S ATTORNEY: That’s what you wanted to convey?

FLYNT: Yeah.

FALWELL’S ATTORNEY: Did you appreciate, at the time that you wrote “okay” to approve this publication, that for Rev. 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?

FLYNT: Yeah.

FALWELL’S ATTORNEY: And wasn’t one of your objectives to destroy that integrity, or harm it, if you could?

FLYNT: To assassinate it.

Falwell’s commercial-use-of-his-likeness claim was dismissed by the trial judge. In fact, Falwell himself had duplicated the ad thousands of times and included it in a mass mailing fund-raising plea to Moral Majority supporters around the country, apparently to demonstrate to them the depths to which pornographers can sink, and he netted about $800,000. While this might cast doubt on how much emotional distress the ad caused him, the claims of intentional infliction and libel proceeded to trial.

The jury found against Falwell on the libel claim, deciding that no reasonable reader of the magazine would conclude that any of the parody ad’s allegations was factual. Since no one could believe it was true that Falwell had sex with his mother in an outhouse, there could be no libel (a false statement of fact). But the jury found that Flynt had intentionally inflicted emotional distress on Falwell. This verdict depended on the jury’s finding that Flynt had acted intentionally, that his conduct offended generally accepted standards of decency or morality (or, in shorthand, was “outrageous”), and that his conduct actually caused Falwell severe emotional distress. The jury awarded Falwell $100,000 in compensatory damages and another $100,000 in punitive damages. Flynt took the case to the Supreme Court.

The Court handed down its decision on February 24, 1988. Ominously, the opinion was written by Chief Justice William Rehnquist. Always conservative and nearly always unfriendly to civil liberties claims, Rehnquist could not realistically have been expected to say anything to help Flynt’s cause. But in virtually the only good First Amendment opinion he wrote in his entire career, Rehnquist led a unanimous court to rule in Flynt’s favor. The opinion makes an important contribution to First Amendment freedoms for all of us.

Rehnquist framed the issue: “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.” The court acknowledged that the Hustler parody was both “patently offensive” and “intended to inflict emotional injury.” But then Rehnquist launched into a rhapsodic treatment of First Amendment values, even quoting Justice Oliver Wendell Holmes’s “marketplace of ideas” concept from his famous Abrams dissent. Rehnquist reminded everyone: “Robust political debate encouraged by the First Amendment is bound to produce speech that is critical [of public figures].” The question was whether the speech lost First Amendment protection because of the speaker’s bad motives.

At the argument in the Supreme Court, Rev. Falwell’s lawyer, Norman Grutman, began by asserting: “Deliberate, malicious character assassination is not protected by the First Amendment.” Rehnquist’s opinion confronted this argument by noting, “In the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.” The debate would be inhibited if the speaker had to run the risk that it might be proved in court that he spoke out of hatred. Rehnquist continued, “Even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.” So the intent to hurt someone’s feelings does not deprive the speaker of First Amendment protection.

Were the Court to hold otherwise, political cartoonists and satirists would be subjected to damages awards, Rehnquist said. A history buff, Rehnquist clearly was influenced by an amicus curiae brief filed by the Association of American Editorial Cartoonists. The brief included an appendix with a collection of famous and infamous political cartoons through American history, including Thomas Nast’s savage attacks on “Boss” Tweed, depicting Tweed and his cohorts as “vultures, tyrants, bloated opportunists, and boozy degenerates”; David Levine’s caricature of Senator Joseph McCarthy on a witch hunt; and Doug Marlette’s portrait of Interior Secretary James Watt in his office with a stuffed trophy head of Bambi adorning his wall. “Our political discourse would have been considerably poorer,” Rehnquist said, without this kind of “intentionally injurious speech.”

Falwell argued, however, that the fake Campari ad was so “outrageous,” as the jury found, as to distinguish it from more traditional political cartoons. Rehnquist acknowledged that the ad was “at best a distant cousin of the political cartoons described above, and a rather poor relation at that.” He said that if it were possible to lay down a “principled standard” to separate the two, public discourse probably would not suffer harm. “But,” he added, “we doubt that there is any such standard, and we are quite sure that the pejorative description ‘outrageous’ does not supply one.” Rehnquist said that outrageousness is inherently subjective and would allow a jury to award damages based on jurors’ tastes or views or dislike of the speech or speaker. (The same would seem to be true of the “patently offensive” standard used for obscenity or indecency, but that was not the issue before the Court.) Rehnquist concluded that an outrageousness standard thus ran afoul of the First Amendment principle first espoused in the Jehovah’s Witnesses cases that protects speech even though it “may have an adverse emotional impact on the audience.” Plucking a First Amendment jewel from the otherwise regrettable opinion in FCC v. Pacifica, Rehnquist emphasized: “The fact that society may find speech offensive is not a sufficient reason for suppressing it.”

The Court’s decision in Hustler Magazine v. Falwell is a charter of liberty for political cartooning and satire. It is also, in the world of litigation, an important protection for publishers because, if public figures or officials claim injury from published material, they must confront and clear First Amendment hurdles—regardless of the label a fertile-minded lawyer might put on their suit (“intentional infliction of emotional distress,” libel, or something else). Finally, the Court’s decision made it resoundingly clear that speech offensive to its target, and even to the public generally, is not without First Amendment protection. In many countries, publishing an insult of a public official or figure would land the publisher in jail. Not here.

Following the decision, Flynt himself became the subject of unflattering editorial cartoons. The Washington Times showed an outhouse with a Hustler sign and a robed judge calling to the occupant: “Good news, Mr. Flynt ... You won!” Pat Oliphant for the Los Angeles Times syndicate pictured Flynt as a fat, smelly pig in a wheelchair, with a note from the cartoonist stating: “Dear Mr. Flynt, in order to defend their constitutional freedom of expression, satirists are forced, from time to time, into reluctant association with people like you. In celebration of the excellent Supreme Court decision (Hustler v. Falwell), I trust you will accept the accompanying depiction of yourself as strictly satirical.”

In recent years a provocative sequence of loosely connected cartoons illustrates one of the points of Hustler v. Falwell. In September 2005 a small Danish newspaper, Jyllands-Posten, published 12 caricatures of the Prophet Muhammad. The most inflammatory one depicted him wearing a turban in the shape of a bomb with a lit fuse. News of the cartoons spread through the Islamic world. More than 100 people were killed in riots triggered by what some Islamic leaders called blasphemy, and a boycott of Danish goods was organized. (Historically, blasphemy and obscenity were related, and both were considered unprotected speech.) President Mahmoud Ahmadinejad of Iran then organized a “Holocaust Cartoon Contest” and invited Muslim cartoonists to submit cartoons ridiculing the Holocaust and the State of Israel. The winner showed Israeli construction equipment in the West Bank walling off a mosque, with a mural of Auschwitz painted on the wall. During the 2008 presidential campaign, the New Yorker ran a cover depicting Michelle Obama as a 60s-style Black Panther toting an AK-47, fist-bumping Barack Obama dressed as a Muslim in the Oval Office under a portrait of Osama bin Laden, with an American flag burning in the fireplace. The cover was apparently meant to satirize not the Obamas but the lunatic fringe who was saying such things about them, but this subtlety was lost on many. The Los Angeles Daily News responded with a cartoon satirizing the New Yorker one; it showed President Bush in the militant outfit fist-bumping Vice President Cheney dressed as a Muslim under a dark portrait of Richard Nixon, with the Constitution burning in the fireplace. Vanity Fair commissioned a cover showing John and Cindy McCain in the Oval Office, the candidate with a walker and Mrs. McCain with a handful of pills, under a portrait of Bush while the Constitution goes up in flames.

All of these caricatures were somewhat mean-spirited. All might be considered “outrageous” by many, and in poor taste. All would upset their targets and cause hurt feelings, as the Bay Times Hongisto cover did. And all of them, after Hustler v. Falwell, unquestionably are protected by the First Amendment.

Another Hustler case may make it harder to accept Larry Flynt as a First Amendment hero, but the court got it right. The August, 1981, issue included an article titled “Orgasm of Death.” It discussed the practice of autoerotic asphyxia: masturbation while hanging oneself to cut off temporarily the blood supply to the brain at the moment of orgasm, intensifying the orgasm. The article was part of a series on “Sexplay,” describing practices that have “remained hidden for too long behind the doors of fear, ignorance, inexperience, and hypocrisy,” presented to increase readers’ sexual knowledge, lessen their inhibitions, and make them “much better lovers.”

An editor’s note at the top of the article said that “Hustler emphasizes the often-fatal dangers of the practice of autoerotic asphyxia and recommends that readers seeking unique forms of sexual release DO NOT ATTEMPT this method.” The article began with an arresting description of the tragic results from trying the practice, saying that as many as 1,000 American teenagers die in this manner every year. The twopage article warned readers 10 different times that the practice is dangerous and deadly.

Troy D, a 14 year old in Houston, came into possession of the magazine and read the article. The next morning his best friend found Troy, nude, hanging by his neck in his closet, with a copy of the magazine opened to the “Orgasm of Death” article at his feet. Troy’s mother sued Hustler for damages for causing Troy’s death. The jury awarded damages totaling $182,000, and Hustler appealed.

Judge Alvin Rubin of the Fifth Circuit Court of Appeals began his analysis by noting that First Amendment protection is “not based on the naïve belief that speech can do no harm but on the confidence that the benefits society reaps from the free flow and exchange of ideas outweigh the costs society endures by receiving reprehensible or dangerous ideas.” Noting that there is “no such thing as a false idea,” Rubin said we correct pernicious ideas not by suppressing them but by the competition of other ideas: “We rely on a reverse Gresham’s law, trusting good ideas to drive out bad ones and forbidding governmental intervention into the free market of ideas.” Against the important social goal of protecting adolescents like Troy, the court must balance not just Hustler’s right to speak but also the danger that unclear standards of First Amendment protection may inhibit the expression of ideas by other speakers and “constrict the right of the public to receive those ideas.”

Troy’s mother’s case was based on the theory that the Hustler article constituted “incitement” and was therefore in a category of speech that has no First Amendment protection, like libel, obscenity, and “fighting words.” As noted in Chapter 7, Brandenburg v. Ohio held that “advocacy” of even hateful ideas was constitutionally protected, but speech “directed to inciting or producing imminent lawless action,” and likely to produce such action, was not. The Court thus distinguished between protected “advocacy” and unprotected “incitement.” (The difference in my mind is between an article articulating the writer’s reasons for favoring racial segregation [advocacy, even of bad ideas] and a demonstrator climbing on the barricades with a lighted torch screaming at the unruly mob behind him, “Let’s burn it down!” [incitement].)

Judge Rubin decided that the Hustler article on autoerotic asphyxia could not be considered incitement: “No fair reading of it can make its content advocacy, let alone incitement to engage in the practice.” He doubted that “written material might ever be found to create culpable incitement,” but was clear that this article, hedged as it was with multiple warnings and blunt advice not to try autoerotic asphyxia, was a far cry from incitement.

Judge Edith Jones filed a passionate dissent, contending that the majority had foreclosed the state from tempering “the excesses of the pornography business by imposing civil liability for harms it directly causes.” She said the court should protect children against “suicidal pornography,” and the court’s opinion degraded “the free market of ideas to a level with the black market for heroin.” She said, “No federal court has held that death is a legitimate price to pay for freedom of speech.”

Jones reasoned that “Hustler is not a bona fide competitor in the ‘marketplace of ideas.’ It is largely pornographic [in that] the principal function of this magazine is to create sexual arousal.” Its appeal is “non-cognitive,” and “the opposite of the transmission of ideas.” Furthermore, Jones said, “A significant portion of its readers are adolescent. Hustler knows this. Such readers are particularly vulnerable to thrill-seeking, recklessness, and mimicry.” She added that, for them, warnings and saying “No” or “Caution” are “invitations rather than taboos.” In other words, Hustler, as pornography, should not be protected by the First Amendment against liability for the harm it causes.

Tempting as it is to agree with Jones’s rhetorical flourish that the price of free speech should not be death, this is a false choice. To define “pornography” in a way that would not outlaw a significant amount of protected and even valuable speech is impossible. Just try. Once you go beyond the definition of obscenity and make illegal material that may have literary, artistic, or other value, you put a wide range of speech at risk. Moreover, under Judge Jones’s approach, speakers could never know when publishing truthful information, with or without warnings and disclaimers, might lead some reader to act in a way that harms himself or some other person. Publishers can’t be liable to the world at large—to anyone who might pick up the book or magazine, get a bad idea, and act on it, and to others who may be hurt by the reader—for publishing information that turns out to result in harm. We can’t shut down Hustler without impoverishing the store of information and ideas available to all of us.

After the oral argument in the Falwell case, Larry Flynt met with a crowd of reporters and onlookers on the steps of the Court building. Asked whether he thought he could win the case, he said, “If the Court will protect a scumbag like me, then it will protect all of you. Because I’m the worst.”