LYNCHBURG, Va. -- The television preacher who founded Moral Majority lost a bid Monday to halt sales of Penthouse magazine because its March issue contains an interview with him he claims was obtained under false pretenses.
The ruling against the Rev. Jerry Falwell was issued by U.S. District Judge James C. Turk, who said the constitutional right of free speech outweighed any potential damage to the Baptist minister that may result from the interview.
Turk refused to grant a preliminary injunction extending his previous order temporarily banning distribution of the men's magazine, which features color photographs of nude women and graphic accounts of sexual relations.
'The scales tip decidedly in favor of the public interest,' the judge said. He defined the public as the estimated 10 million people who read the 5 million copies of Penthouse circulated each month.
Turk said if Falwell wanted to pursue the issue he should sue the magazine for damages rather than try to prevent its distribution.
'It is a First Amendment case,' he said.
Turk's ruling was hailed by Jack Landau, director of the Reporters' Committee for Freedom of the Press. Landau, reached in Washington, said Turk 'did the right thing, three days too late.' He said the judge should never have issued the temporary order Friday holding up distribution of the magazine.
The order expired at 1:30 p.m. Monday. The judge said the three-day delay was designed to to give both sides a chance to be heard.
Falwell did not dispute the accuracy of the interview, which included criticism of Jimmy Carter for granting an interview to Playboy before he became president in 1976.
Rather, he complained it was obtained under false pretenses and then billed by Penthouse as an exclusive.
Falwell said he would not appeal the decision because distribution of the magazine was apparently already out of Penthouse's control. But he said he would pursue a $10 million damage suit against Penthouse and freelance writers Andrew Duncan and Sashti Brata.
'I have an obligation to every minister in America to see that they don't get by with that kind of thing,' Falwell said. 'What they have done is deceptive, dishonest, there's no question that they know that.'
The broadcast evangelist founded Moral Majority two years ago and the religious-political action group was credited with contributing to the large conservative turnout that helped elect Ronald Reagan president and gave Republicans control of the Senate.
Falwell testified that Brata and Duncan told him the interviews would be used in a book and a London newspaper and would not be sold to 'pornographic' magazines.
'If they (Falwell's followers) are left believing that we gave such an interview, it will damage irreparably our financial support,' Falwell said. 'There'd be no problem here if they had said, 'we stole this interview. Rev. Falwell knew nothing about it.''
Roy Grutman, the New York attorney representing Penthouse, said the writers 'categorically deny' making any such promise to Falwell.
He said what was at stake was $14 million in revenues from the sale of the March issue, plus the 'good will' of all Penthouse customers.
'I really do think that what we have is an effort by Rev. Falwell to use the court as a forum to disavow his approbation for the medium in which his message appeared,' Grutman said outside court.
Bob Guccione, Penthouse publisher, said he was 'delighted' about the decision and would be prepared to defend the publication in Falwell's damage suit.
'If he's willing to take that chance, you can say that I openly challenge him to sue me,' Guccione said in an interview from New York. 'We are also very seriously considering a countersuit.'
In the lengthy interview Falwell criticizes Carter for 'lending the credence and the dignity of the highest office in the land to a salacious, vulgar magazine' by granting the interview to Playboy in which he made reference to the 'lust in my heart' he had suppressed as a married man.
