RICHMOND, Va. -- A federal appeals court Wednesday upheld a lower court decision that said the Rev. Jerry Falwell was not libeled by a profane parody in Hustler magazine but still deserved $200,000 for emotional distress.
The ruling by a three-judge panel of the 4th U.S. Circuit Court of Appeals was expected to be appealed by attorneys for Hustler publisher Larry Flynt on grounds that without libel, there can be no damages.
The ad, first published in November 1983, was a parody of a Campari liquor campaign in which celebrities talked of 'their first time.' In the Hustler parody, Falwell talked of getting drunk before sermons and having sex with his mother in an outhouse.
At the bottom of the page is a disclaimer: 'Ad parody, not to be taken seriously' and in the table of contents the page is listed as 'Fiction; Ad and Personality Parody.'
The appeals panel, noting 'a growing trend' of libel suits filed by public figures, suggested in its ruling that it may be easier to collect on emotional distress than to prove libel or invasion of privacy.
'The First Amendment will not shield intentional or reckless misconduct,' the panel wrote, 'or reckless conduct resulting in damge to reputation, and neither will it shield such misconduct which results in severe emotional distress.'
The jury in the case ruled the parody advertisement too unbelievable to be taken seriously, and Flynt's attorneys said it should be considered opinion and subject to libel standards outlined in the landmark case New York Times vs. Sullivan.
But the appeals court disagreed.
'The issue then becomes what form the First Amendment protection should take in an action for intentional infliction of emotional distress,' the court wrote. 'The defendants argue that Falwell must prove that the parody was published with knowing falsity or reckless disregard for the truth.
'We do not believe that the literal application of the malice standard ... is appropriate in an action for intentional infliction of emotional distress,' the court wrote.
In arguments before the panel, Flynt's attorneys contended it was much a parody of the liquor as of Falwell, a point the judges rejected.
Flynt's attorneys also lost an attempt to have a deposition by Flynt, in which he said he wanted 'assassinate' Falwell's integrity, thrown out on grounds that Flynt was mentally unbalanced at the time. The panel quoted part of the deposition in its opinion.
The panel rejected Flynt's arguments that Falwell had not sufficiently proved he suffered emotional distress. It quoted Falwell's testimony at the original trial -- 'I have never been as angry' -- and said the law does not require a person to have had a nervous breakdown to prove emotional distress.
Current law, the panel wrote, 'gives the press protection from honest mistakes, but it is not a license to lie.'
