tv Hustler Magazine Inc. v. Falwell Satire Case CSPAN May 29, 2018 11:23pm-12:25am EDT
children who enter from the border. be sure to watch c-span's washington border, at 7 am eastern, join the discussion. 30 years ago, the supreme court announced its decision in hustler magazine versus falwell. the court ruled unanimously for hosler. which had published a cartoon parity of jerry falwell, who sued to recover damages for libel, invasion of privacy, and emotional distress. next, a discussion of the landmark free-speech case, with editorial cartoonist coma and legal expert. this one hour event was part of a symposium on satire, held at the university of minnesota. >> i want to welcome you all to the state of our satirical union. this is the 30th anniversary of
our hustler magazine v. falwell decision by the court. i want to thank jane kirtley , what is the purpose of this symposium? why are we here? why do we persist? after all, they have all the money, power, and politicians. i remember somebody telling me, before the election, that if hillary won, wall street won. if trump one, -- won, wall street won. why do we persist? why are we doing this even though america decided to elect a malignant clown to be the leader. i think we are here because freedom of thought matters. we are here because we believe in freedom of speech. we are here because we believe in freedom of the press.
tonight, i have this theory. if you spend 5 minutes with me, you have heard this. it is the platonic ideal of the perfect cartoon. i think that a perfect cartoon is out there, at the right time, by the rate person in the right place, and it can bring down donald trump. because of hustler, -- and hustler magazine v. falwell, we have the freedom to do that. people can still see that. we have that possibility of making a difference. so, that is the purpose of this symposium. it is because we believe that this matters. we believe that we can make a difference. let me turn it over to jane kirtley, and thank you for being here. [ applause ] >> by the way, if you look at the program, or did not, pat bagley, who is the president of the association of editorial
cartoons, and you will hear from him again at various points, i have a couple of very quick housekeeping announcements to make. the first one is that as you have figured out, we are on tight time. we are going to have to end the table -- panel on -- on-time. please do not be offended if we cut you off. we have to keep on schedule. i was reminded to remind you that we do allow tweeting. we encourage tweeting. our hashtag is #satiricalunion. finally, i have many people to thank. i do not want to take a lot of time to do that. the main people i want to thank our the children who endowed the center and various events.
our other sponsors of this event are the journalism center and mass medication. without their generosity we would not be here today. finally, we do encourage you to participate, enthusiastic. -- enthusiastically. the one thing i have to warn you about is no food or beverages in here. please enjoy your breakfast and/or lunch out in the atrium. and, lunch break between 11:45 am and 12:45 pm, and we will have an author's book signing. we are doing it again during lunch break. again, we are doing our best to keep everything on schedule. as best we can. so, i do not have a lot to add to pat bagley's opening remarks. the main thing is to opening
-- introduce the opening panel. more specifically, the opening speaker, moderator, head honcho, roslyn. remember sitting in the u.s. court of claims, and she made an observation, she is a person of many interests. and, a lot of very interesting things that she does. she is fascinated with baseball. she is probably best known as the patron saint of cartoonists. it was her brainchild that led to the court brief that was filed in the hustler case, which in my opinion and the opinion of many others, which was central in turning the court in favor of supporting satire. i always tell my students that. on the website, for this event, her brief is accessible. if you choose to go online,
which you certainly may do, there are instructions on the back of the pamphlet on how to access the email, and you can take a look at that. in any event, with no further ado, i am going to introduce roslyn, who again has not only done this work for a very long time, and -- with grace and wisdom, but for free which is something to be noted in this commercial role, -- world with -- which we live in. take it away. [ applause ] >> thank you, jane kirtley. i must thank the silla center, the family, and all of those who have made us feel welcome at the university of minnesota. our first panel today, is
foundational. it is about the case. the case between jerry falwell and larry flynt. joining me are two outstanding cartoonists, precious national assets. along with all of the other cartoonists who are at the symposium. first, to my immediate right is ben sargent. been had the good fortune, and it was my good fortune to work with him 30 years ago, when he was president of a aec -- aaec. his work is noun -- now seen on a lone star state section of the texas observer. one of his editors said about him, do not be mistaken by this portly gentleman with impeccable manners. he brandishes, a weapon containing a blend of black ink,
arsenic, rattlesnake venom, and laughing gas. next to ben is mike peters. mike peters is the peter pan of cartooning. i can vouch for that because of the -- 25th anniversary at the dayton newspaper. he flew in, literally, in a superman costume. i will never forget it. he draws the full spectrum of cartoon art, lacerating political cartoon, and also the weird and charming world of mother goose and grimm. to set the stage this morning, i would like been to tell us how aaec became involved in the famous case. >> all right.
good morning, everybody, thank you, roslyn. i am benched -- ben sargent. i am pleased and privileged to be able to take part in this discussion of hustler magazine v. falwell, and proud to be around 30 years from the decision of the court, and to know that the case still stands as a pillar of free dis--- expression in these perilous times. was an editorial cartoonist for 35 years. president of the association of american editorial cartoonists at the time we took park -- part in the amicus brief. currently, staff cartoonist for the texas observer, and a career lifelong and many of the people. hustler magazine v. falwell, arose from an ad parity, in which the late televangelist jerry falwell reminisces about
an incestuous relationship with his mother in an outhouse. the minister sued the magazine for invasion of privacy. does that mean that it actually happened? and he did not want us to look in the outhouse? libel, and most important, a tort that in virginia with -- which was called intentional infliction of emotional distress. the trial judge turned on the privacy claim, and the jury turned down the libel claim. but it ruled in favor of falwell and the emotional distress claim. the federal court of appeals affirmed the decision, and up it went to the supreme court. the issues, as you will hear in the final appeal, were stark ones, for the american principle of free expression. if the court held that a public a -- figure could silence criticism just because it made him feel bad, the entire first amendment -- foundation of the first amendment speech protection would be rendered useless.
the case was argued in december 1987, and on february 24, 1988, the court, with the chief justice writing the opinion, decided unanimously in favor of hustler. and a continued health of free expression. chief justice rehnquist wrote, the fact that society may find speech offensive is not a sufficient reason for suppressing it. indeed, if it is the speakers opinion that gives offense, the consequence is a reason for according it constitutional protection. before this case, the aaec had not been active in first amendment litigation, despite the foundations that the constitution's free expression parts provide. rosalyn was a lawyer at the time, and was keenly interested in the case, and it's wide ranging implications. she knew that the son of the partner, was our friend and
colleague, a cartoonist for the miami herald. jim brought roslyn together with the aaec, and it's then- president at a home in her pro bono preparation of the amicus brief, in conjunction with the authors legal america, and it began. the amicus brief was focused directly on the? essential damage that a decision in favor of falwell would do to the satires of all -- satires of all sorts -- satirists of all sorts. satire cannot be suppressed without fatally injuring americans freely to speak and publish. since the 17th century, the foundation of english and freedom of thought and expression has been a free idea
and place. the english bill of rights incorporated the speed of that idea in the first amendment to the united states, and brought it to full and robust flower. the supreme court has gradually but steadily enlivened and strengthened the amendments language, and hustler is one of the crown jewels of one of those cases. we were very proud to be a part of that. mike, are you going to go next? i will go back to roslyn, now. thank you. [ applause ] >> thank you. here we are, looking at the offending ad parity. it is important to note that at the bottom, the original publication said ad parity, not to be taken seriously.
even in the table of contents, it was listed under fiction. nonetheless, reverend falwell sued and won. and then recounted. he sued for $15 million. and the jury awarded $100,000 in compensate or a damages -- compensatory damages and another $100,000 in punitive damages. the mainstream media was really perplexed about what to do with this case. chief justice rehnquist, justice scalia, and other justices were considered to be hostile to the first amendment based on their decisions in many cases over the years. the discussions of the media
were that maybe it would be safer to let the decision stand and maybe it would be a one off, or the very rare case where a plaintiff would win, and there would not be a broad holding. i was really worried about this case, because 50 different states, had different authorities for suing for emotional distress. if reverend falwell had prevailed, i could see a scenario where not only cartoonists but other satire us -- satirists could be hauled into court, and even if they prevailed, they could be driven to the poorhouse in defending these kinds of lawsuits. it would be a real threat to free speech. so, and talking with one or two people, and -- including jim moran, we saw a strategic opportunity that was a big risk. the big risk was to play our
argument to these justices, the most conservative on the court. the ones who are most hostile to the first amendment, and -- in their decisions. i had heard, just through normal conversation, among lawyers who practice before the court, that both chief justice rehnquist and scalia liked a good laugh. they were both serious students of american history. the idea emerged that our brief should focus on the long tradition and rich tradition an important tradition of political fire -- satire. not only in american history, but in western civilization. our brief consisted of two parts, the pros or narrative part -- the prose or narrative
part, that documented the case law we thought supported our position that reverend falwell's claim and the verdict could not stand in the face of a first amendment challenge. and the appendix that was equally as long as the pros of political -- prose of political cartoons going back to thomas nast. i am showing a few but the online version of the brief, you can see the full appendix of the political cartoons. we decided to not just show cartoons depicting american national political figures, but figures who were important, and state a local -- in state and local communities. there is walter kelley.
and sydni bulletin. we had one of her cartoons of the controversy surrounding a judge in her community. this is a cartoon i did not include. you may recall that is when justice rehnquist was the associate justice, and he was nominated to serve as the chief justice of the court, and had to go for the second confirmation hearing before the united date -- states that it. at that time, it was revealed that he had owned a home that had a deed with a restricted covenant. they had a boilerplate, edit restricted people of color, juice, and others. when that came to light, it created quite a kerfuffle. we have paul konrad drawing
associate justices valet, surrounding and asking, will you be wearing your hooded white or your black robe today? conrad sent me that cartoon, and high -- i had invited the cartoonists to send me the stuff, with a caveat that i wanted the cartoon to make the subject cry. that is a shorthand way of causing and depicting emotional distress. conrad sent me one cartoon, this was the one. i was nervous, and decided not to included. i must to share with you, that in 1991, years after the hustler decision, i had the good fortune to sit next to the chief justice at an event in williamsburg, celebrating the 200th anniversary of the deliverance. he was chitchatting, with his arms crossed, and said have you ever been before a court? i said only on one occasion. what was that? the hustler case. what was your role?
the cartoonist brief. he said, that was a powerful brief. i said i want to tell you about a cartoon that we did not include. i told him about the cartoon, and he remembered it, and said, you should have included it. you know. in hindsight, perhaps. just to give you a flavor of how hostile the chief justice had been in free speech cases. i will share this one statistic, courtesy of professors jeffrey stone and harry calvin junior. who determined that in 259 speech or free speech -- press cases in which rehnquist participated, he rejected the first amendment claim 80% of the time. so, that was the scenario we were dealing with when we were writing the hustler brief. the oral argument was that --
was thrilling. pat, the wonderful editorial cartoonist, who could not be with us today, who was involved in working on the brief with me, the day before the oral argument, he asked if he could come. we got him a press pass, and he joined me. i will show you some of his sketches in a moment. but, here is a bit of a flavor of the oral argument, and how our brief figured prominently in the discussion. this is the voice of chief justice rehnquist. >> what about a cartoonist who sits down at his easel, or whatever a cartoonist it's down it, and think to himself, a candidate asked for the presidency, is just a big windbag. a pompous turkey. and i am going to draw this
cartoon, showing him as such. you know, part of this -- this is that he enjoys cartooning. he likes to make people look less than they are. to show up the dark side of people. he knows that -- perfectly well that that is going to create emotional distress. does that meets the test? >> it does not, unless what he depicts is something like showing the man committing incest with his mother when that is not true. or molesting children. or running a report -- a bordello. >> what about the state of mind required from the defendant? >> the state of mind is what we are concerned with. throughout what about the state of mind that i hypothesize to you? does that satisfy your test? >> it does not. if the man sits out -- sets out with the purpose of making a legitimate, aesthetic, political or some other kind of comment about a person, with whom he is writing or drawing, then that is not an outrageous comment. there is no libel.
>> even though he -- >> okay. let's see. i think that is back to my -- all right -- i need help one more time. i am sorry. all right, and so, engaging with the lawyers, also, was justice scalia. i am going to play a little bit from him. but, i need help again, to get back to my -- i told you i needed you here. i'm going to go to this one. and i went down here. it did not move. >> there we go. >> okay, perfect, thank you. so, mr. gutman was
i would be very surprised if they were not a number of cartoons depicting one or another political figure that at least has a player piano in a bordello. >> we do not choose to be the piano player. >> can you give us something they cartoonist or political figure can adhere to instead of words such as heinous. >> this is a matter of evolving social sensibility.
>> all right. thank you. fortunately for us, pat brought his drawing pad. he depicted falwell's mother, here. here he is depicting jerry falwell with hurt feelings. here, is reverend falwell's lawyer, norman, as a horror health piano player -- whorehouse piano player. the court unanimously reversed the decision of reverend falwell. after talking about, and reading from the brief about the long tradition of political satire, he said from the
viewpoint of history it is clear that the political discourse would have been considerably poor without political cartoons. and ultimately, he said, outrageousness in the area of political and social discourse had inherent subjectiveness about it which would allow a jury to impose liability on the basis of a jurors views, or perhaps in the case of a dislike of a particular expression. and outrageousness standard runs afoul of our refusal to allow damages to be rewarded because of the speech in question may have -- which may have an adverse emotional effect on the audience. as we will hear in the course of the rest of the day, this decision has been cited in many many cases since 1980. there has been a trend on how the chief justice became the author on one of the
endorsements of the first amendment, given his back on. -- ground. thanks to the research by roger newman, this high school yearbook of the chief justice was discovered not many years ago. the entry for mr. rehnquist was the favorite pastime of bill in and out of school, is cartooning. so, i since learned that he was quite the doodler. hoping that somebody would look at his archive at stanford, and think that the hoover institution that has his materials -- and will have many more years to excavate the origin of his passion for political cartoons. but, we were fortunate that that was the case, and fortunate to have gone on this wonderful journey, endorsing the first amendment. the last slide i want to show you is the cartoon that pat
published afterwards. dear mr. flint, in order to defend the constitutional freedom of especially, satirists are forced from time to time into a reluctant association with people like you. in celebration of the excellence -- excellent supreme court decision, i trust you will find an except the accompanying fiction of u.s. strictly satirical. -- accompanying depiction of you strictly satirical -- satirical. i will turn it over to -- who will talk about computers and the environment of the moral majority and what it was like in the 1980s. this is mike peters. >> first of all, i think all cartoonists ought to have a
little picture of roslyn in their bedroom, and light incest -- incense and stuff. it is truly, truly -- satire, i mean, satire isn't something we live in. we sort of take it for granted, that, yes, we can do this. when roslyn was saying, rehnquist and these people were saying -- well, what do these people want to do? wake up in the morning and they want to make fun of elected officials? yes, that is exactly what we want to do. or most of us. mike ramirez is not here. but, that is what we do. i thought that nixon -- as a
great writer once said, he is our camelot. this is the greatest time for american satire is -- satirists. of course, until trump came along. we just surpassed that. we are having a great time. it is horrible for the country, but at the time, you guys, when the falwell thing was going on, when the hustler case was being brought to the supreme court, when roslyn and some of the other people were defending our right to be able to do what we believe and make fun of these people, or at least go out after them -- that satire was truly, you know, was truly under attack. at the time, i had to done a cartoon about -- i grew up a
catholic. i am not a very good catholic, right now, but at the time, when i was growing up, being catholic was a big deal. and, i was going to church, and all this kind of stuff, and doing what you are supposed to do as a catholic. and, i truly believed in the whole idea of jesus, and what jesus was saying. and i thought one of the things that i believed was that my job is supposed to be trying to, you know, be a backer of this. and so, okay, i need your friend. where is will? well, you are supposed to be sitting down there. okay, hit this, yes, where the cartoon is. right there. hit that. wherever that is. you hit -- you hit that.
good. and i had done that. thank you. if this man were a candidate, he would be healing the sick, caring for the poor, feeding the hungry. equal rights for all, and against capital punishment therefore he is unacceptable to the christian right, or the majority. this was by far the most -- the greatest cartoon for me, to get a response over. i had people writing in, i had demonstrators, one of the things i remember was that i had a teacher -- i had a teacher who wrote to me and she said -- had all of her kids, at the time, the kids read the newspaper and stuff. actually, they opened up the paper and look at the cart -- looked at the cartoons. and she had the kids write to me to explain what this cartoon meant.
i mean, how amazing is that? and, the kids wrote their little letters to me, explaining what this cartoon meant. and they saw the irony. they saw the irony in this. in this thing. at the time, this cartoon, i could not find the actual cartoon. it was unacceptable to the moral majority. i could not find this cartoon so i redrew this cartoon. my wife said, wait a minute. this still hold a. with this cartoon in the paper. so i did. -- this still holds up. put this cartoon in the paper. so i did. i am getting the most response from this cartoon that i have
in 38 years. it was this cartoon, and the kids -- the children told me that this was the cartoon, and it meant -- what it meant. it was such a great thing. such a great thing because they understood what i was trying to say using irony when this cartoon came out. some people wrote that, well, you have got to remember. you do not have anything in there about abortion. what i was saying for equal rights for all -- that is what i meant. i meant rights for all. i meant -- i went to an all boys military catholic academy. christians for the criminally insane. and so, one of these people are saying i am not talking about abortion. i am talking about abortions, equal rights for all. equal rights for all. i have done some cartoons and i do not know where they are. i will show you at some later time. if men became pregnant, if a man became pregnant, if a man became pregnant -- equal rights
for all. then abortion would be a sacrament. it would be chosen by our supreme court. by our congress to say, yes, abortion is something that we need. you know? equal rights for all. that women should be treated like men, and men should be treated like women. my mother had a tv show in st. louis where i grow up i grew up. -- where i grew up. it went from 1949-1973. she sang and danced, and had politicians argue to each other and stuff. it was exactly this. that we see something that we think is wrong, and we draw cartoons against it. and that is what roslyn and her compatriots were fighting for, that day. that week. that month.
that she was giving us our right to be able to say what we believed. and, i had not -- i did not know that we were allowed to go to the supreme court, or else i would have begged her to let me come at the same time. but like a fool, i did not know. i did not know rosalynn well enough to be able to ask her. but, truly, she is an amazing lady. she and her husband have pulled my butt out of the fire many times. as a cartoonist, i remember talking to paul konrad, one of the greatest cartoonists of our century he would wake up every morning. and his children would hear paul konrad walked down the stairs, open up the door, and
start cussing when he read the headline. like this, he would do this every day during nixon because that was our job. that is what we would do. go out after these people. and so, i have said just about all am going to say. what is that? okay, i can show you so many cartoons. will can show you so many. will,, peer. this first cartoon is -- thank you. they ride here. this -- this says, pick the super human being who works a 40 hour week, and then comes home and cleans the house, does the dishes, washes the clothes,
makes dinner, chauffeurs the kids, balances the budget, buys the groceries -- you know, that is lois. at the same time, during this period, the irs was being voted on. it was voted on by all of the states. it was a constitutional amendment, having all of the states voting that women -- the e.r.a. should have an equal rights amendment. not the ira. so i dug up this cartoon, which superman is one of my heroes. but i realized that lois was one of my heroes also. you are so wonderful. this was a little bit later. i had done this cartoon. a girl says i was born in the ghetto. unwanted. uncared for. abused. molested.
raped. now i am 14 and pregnant. tell me, when does life begin? i was a catholic and i went to church all of the time during this period. my newspaper was next to -- i want you to stand right here. do not move. okay. it was next to a church, called sacred heart church. it was behind my newspaper. i would go there at lunchtime, and here math. -- mass. i was going almost every day. there is a priest called father griese. i never met him. i met him one time in the congressional. i confessed that i was doing bad thing will -- things with my body. and he said, you what!? you are
too old for that. he did not even know me. he said, how dare you. people were looking at me. he is screaming. i did not kill anybody. i was just doing bad things with my body. one time i was sitting there, and father griese was doing a sermon. it was a sunday. and he stopped the sermon, and he says you -- you in the shorts. stand up! it was a girl with a baby. she stood up and she was wearing shorts. he said i do not allow shorts in my church. get out. this girl left the church for the last time in her life. she carried the baby, she had little shorts, she left, i was there, every wedding -- everybody was stunned. the next day i did a cartoon of the father griese saying you with the shorts, with jesus,