Hustler Magazine published a parody ad of Falwell having incestuous relations with his mother. A small-print disclaimer said that the ad was not to be taken seriously. Falwell sued Hustler Magazine for libel, invasion of privacy, and intentional infliction of emotional distress.
Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications without showing in addition that the publication contains a false statement of fact which was made with “actual malice” or with reckless disregard as to whether or not it was true.
Hustler Magazine parodied the form and layout of a Campari advertisement featuring celebrities talking about their “first time” drinking the beverage with a sexual undertone to the meaning of “first time.” The ad included a fake interview of Falwell illustrating his “first time” of incestuous relations with his mother in an outhouse. Small print at the bottom of the page stated a disclaimer that the ad was not to be taken seriously, and the magazine’s table of contents listed the ad as “Fiction; Ad and Personality Parody.”
Falwell sued Hustler Magazine for libel, invasion of privacy, and intentional infliction of emotional distress.
May a public figure recover damages for emotional harm caused by the publication of an ad parody offensive to him and the general public?
No, a public figure recover damages for emotional harm caused by the publication of an ad parody offensive to him and the general public.
New York Times does not apply to this case because the jury found that the ad had no assertion of fact. However, the lower court’s ruling and penalization of the ad parody does not comport with the First Amendment.
The First Amendment recognizes the importance of the free flow of ideas an opinions on matters of public interest and concern. Robust political debate encouraged by the First Amendment will inevitably produce speech critical (sometimes vehemently so) of those who hold public office or public figures.
Under New York Times, a public figure may hold a speaker liable for damage to her reputation caused by publication of a defamatory falsehood only if the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. While false statements of fact do not contribute to the marketplace of ideas, prohibition of false ideas would have a chilling effect on speech relating to public figures. Freedom of expression requires “breathing space.”
Falwell argues that an “outrageousness” standard should apply to cases of intentional infliction of emotional distress, as compared to cases of defamation. The Court disagreed, noting that political caricatures have played a role in our political discourse over the decades.
While the Court noted that the caricature in this case was distasteful such that excluding it from protection would not result in great harm to the public discourse, the Court ultimately concluded that a standard based on “outrageousness” would req