In Hustler Magazine v. Falwell,' the Supreme Court ..., Exercises of Law

Download In Hustler Magazine v. Falwell,' the Supreme Court ... and more Exercises Law in PDF only on Docsity! HUSTLER MAGAZINE v. FALWELL AND THE ROLE OF THE FIRST AMENDMENT R. GEORGE WRIGHT* I. INTRODUCTION In Hustler Magazine v. Falwell,' the Supreme Court, through an opinion by Chief Justice Rehnquist, held with virtual unanimity2 that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one . . . at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.3 The publication at issue was a parody of a Campari Liqueur advertisement, the gist of which portrayed Reverend Falwell as having engaged in "a drunken incestuous rendezvous with his mother in an outhouse,"4 and as being a habitual drunk.5 The ad parody was accompanied by a disclaimer in- dicating that it was " 'not to be taken seriously,' "6 and the magazine's table of contents listed the parody as " '[fiction.' ".7 The plaintiff Reverend Jerry Falwell's atten- tion was drawn to the ad parody by a reporter,8 and Falwell shortly thereafter filed suit alleging libel, invasion of pri- * Associate Professor of Law, Cumberland School of Law, Samford University. A.B. 1972, University of Virginia; M.A. 1974, Ph.D. 1976, J.D. 1982, Indiana University. I 108 S. Ct. 876 (1988). 2 Justice White filed an opinion concurring in the judgment in which he appeared to broadly reject Chief Justice Rehnquist's approach to the case, while leaving to a more propitious moment the task of suggesting why the first amendment required Chief Justice Rehnquist's result. Hustler, 108 S. Ct. at 883 (White, J., concurring). Justice Kennedy had not joined the Court in time for argument and took no part in deciding the case. 3 Id. at 882. 4 Id. at 878. 5 Id. 6 Id. 7 Id. The ad parody was republished by the defendant during the course of the litigation, which might have gone to the issue of the defendant's intent had the Court reached this issue. See id. at 878 n. 1. 8 Falwell v. Flynt, 797 F.2d 1270, 1272 (4th Cir.), reh'g denied, 805 F.2d 484 (4th CUMBERLAND LA W REVIEW vacy, and intentional infliction of emotional distress. The defendants, Hustler Magazine and publisher Larry Flynt, were granted a directed verdict on the invasion of privacy claim and were found not liable on the libel claim, but the jury found both defendants liable for $100,000 compensa- tory damages and $50,000 punitive damages on the claim of intentional infliction of emotional distress. 9 The judgment entered on the jury's verdict on the emotional distress claim was affirmed by the Fourth Circuit, 10 but was reversed by the Supreme Court. The opinion for the Court drew, at least implicitly, a number of controversial conclusions. First, it is questiona- ble whether Flynt's ad parody should be treated as speech within the meaning, intent, or purposes and values of the first amendment. That is, it is unclear whether Flynt's par- ody is actually speech in the constitutional sense. " Second, assuming that Flynt's parody is speech in the constitutional sense, it is unclear why the Court gave this speech the high level or degree of protection that it did. The Court, as will be discussed in Section III, has frequently sought to distin- guish between "high-value" speech, or speech close to the core of the free speech clause, and "low-value" speech, or speech on the periphery of, if not entirely outside the pur- poses of, the free speech clause. This distinction is not un- problematic, but the Court has often suggested that low- value speech may be constitutionally subject to state regula- tion on any one of a variety of relatively undemanding, non- rigorous constitutional tests. It is unclear why the Court did not view Flynt's parody as being within one of the "low- value" speech categories or at least as being analogous to speech ordinarily within those categories. The Hustler Court's controvcrsial conclusions may be ex- amined primarily by reference to the broad range of pur- poses or values that might be thought to underlie the free Cir. 1986) (en banc), rev'd sub nom. Hustler Magazine v. Falwell, 108 S. Ct. 876 (1988). 9 Hustler, 108 S. Ct. at 878. Note that the jury finding of no defamation and per- haps the ratio of punitive to compensatory damages hardly bespeak ajury overborne by passionate enthusiasm for the plaintiff or antipathy for the defendant. 10 Falwell, 797 F.2d at 1270. I1 For the view that constitutional language is to be interpreted generally with reference to the scope of its purposes rather than merely through a dictionary based, ordinary language approach, see Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265, 269 & n.20 (1981). [Vol. 19: 19 1988] FIRST AMENDMENT- HUSTLER V FALWELL 23 conduct might be entitled to the same degree of constitu- tional protection without the elements of the torts, such as a false statement, being transferable between the torts in any non-arbitrary way. The torts of defamation and of inten- tional infliction of emotional distress plainly serve different purposes; the falsity of an assertion of fact is generally rele- vant, in principle, only to defamation. As one commentator has rightly observed, "[t]he emotional distress tort ...is designed to protect the victim's emotional well-being, as distinct from the reputational interests historically protected in defamation law."' 17 Intentional infliction of emotional distress is more in the nature of a kick or a punch and need not involve any true or false assertion of fact. This analogy between intentional infliction of emotional distress and the tort of battery impeaches the constitutional logic of Hustler at its deepest level. Most of us would be re- luctant to ever categorize any punch or kick as "speech" within the meaning of the first amendment, or to afford such action even a limited degree of constitutional protection. We are reluctant to classify a punch as "speech" even though some punches are provoked by the literal speech of one's political opponent. Arguably, the punch may be a re- action or a "response" to a political speech with which one heatedly disagrees; accordingly, we appreciate that pro- tected speech may take the form of action or symbolic conduct. 18 But if a punch or, for that matter, a merely negligent elbowing, does not amount to speech in the constitutional sense, why must "written speech" be treated as speech within the meaning of the Constitution if the "written speech" is nothing more than a surrogate for the punch? If, in a particular instance, "written speech" is demonstrably amendment considerations must be applied to an outrageous conduct claim as to defamation), cert. denied, 462 U.S. 1132 (1983). The Supreme judicial Court of Mas- sachusetts referred to and cited authority bearing upon this issue without deciding it in Godbout v. Cousens, 396 Mass. 254, 485 N.E.2d 940, 947 (1985) or in Fleming v. Benzaquin, 390 Mass. 175, 454 N.E.2d 95, 104 (1983). 17 Mead, Suing Media For Emotional Distress: A Multi-Method Analysis of Tort Law Evolution, 23 WASHBURN L.J. 24, 27 (1983). The full implications of this point were missed not only by ChiefJustice Rehnquist's opinion in Hustler, but also in Blatty v. New York Times Co., 42 Cal. 3d 1033, 728 P.2d 1177, 232 Cal. Rptr. 542, 551 (1986) (en banc), cert. denied, 108 S. Ct. 1107 (1988). 18 See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969). CUMBERLAND L4 W REVIEW intended to merely have the same functions and effect as a punch, shouldn't the law recur to substance rather than form?19 The free speech clause has been widely interpreted by commentators either as intended to serve a narrower20 or a broader2l range of purposes. Interpreted broadly, the free speech clause is thought to operate to protect the workings of a representative process of government, to promote the detection and dissemination of truth in the political realm, and to accommodate and promote the important value of individual self-realization.22 As a first approximation, a court should be reluctant to classify "written speech" as constitutional speech, where the utterance, apart from its popularity or unpopularity, cannot plausibly be construed as implicating any of the recognized purposes or functions of the first amendment. The Court in Hustler did not consider the relation between the ad parody and the purposes or functions of the first amendment presumably because it assumed that Flynt's par- ody, however distasteful and controversial, qualified as speech in the constitutional sense. Such an assumption seems warranted only if one focuses on the speaker and the addressee, both well-known, politically controversial public figures who are natural political adversaries, in a broad sense of the term "political." But if the focus is instead placed on the actual speech and its context, the Court's as- sumption seems more doubtful. Regardless of whether one accepts the view that "Hustler is not a bona fide competitor in the 'marketplace of ideas,' "23 it seems clear that the contents of the magazine, 19 For a sampling of the wide range of circumstances where the Court has explic- itly refused to exalt form over substance, see Bowen v. Gilliard, 107 S. Ct. 3008, 3019 (1987); Commodity Futures Trading Comm'n v. Schor, 106 S. Ct. 3245, 3259-60 (1986); Papasan v. Allain, 478 U.S. 265, 279 (1986); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). 20 See, e.g., A. MEIKLEJOHN, POLITICAL FREEDOM 26-27, 79-80 (1960); BeVier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 STAN. L. REV. 299, 300-01 (1978); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 23-25 (1971). 21 See, e.g. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.j. 877, 878-79 (1963); Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 193 (1983). 22 See, e.g., Emerson, supra note 21, at 878-79. 23 Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1026 (5th Cir. 1987) (Jones, J., concurring in part and dissenting in part), cert. denied, 108 S. Ct. 1219 (1988). But [Vol. 19:19 1988] FIRST AMENDMENT: HUSTLER V FALWELL 25 exclusive of any obscene material, cannot all be considered constitutional speech. In light of the recognized purposes of the free speech clause, one may wish to impose as a mini- mum requirement that for something to count as speech in the constitutional sense, it must itself embody or seek to convey some discernible social idea, where both "social" and "idea" are interpreted with reasonable breadth. 24 The Court has come close to endorsing this requirement in sev- eral cases such as the obscenity case of Paris Adult Theatre I v. Slaton,25 in which the Court concluded that "[w]here com- munication of ideas, protected by the First Amendment, is not involved .... the mere fact that, as a consequence, some human 'utterances' or 'thoughts' may be incidentally af- fected does not bar the State from acting to protect legiti- mate state interests."26 Chaplinsky v. New Hampshire27 established the classic "fight- ing words ' '28 category of "written speech" and at least ar- guably held such speech to be completely outside the meaning of the first amendment. The Court in Chaplinsky referred to fighting words as "no essential part of any expo- sition of ideas .... ,"29 thereby at least suggesting a linkage between constitutional protection and the presence of an idea of some unspecified sort. Requiring that constitutionally protected speech seek to convey some rudimentary social idea is consistent with most of the familiar rhetoric of the free speech case law. Protect- ing written speech that embodies the requisite social idea is perfectly consistent with protecting allegedly outrageous, cf S. BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 394-95 (1975) (por- nography characterized as antifemale propaganda). 24 See Wright, A Rationalefromj.S. Mill for the Free Speech Clause, 1985 Sup. CT. REV. 149, 156 (P. Kurland, G. Casper & D. Hutchinson eds. 1986). 25 413 U.S. 49 (1973). 26 Paris Adult Theatre 1, 413 U.S. at 67. Discouraging the intentional infliction of severe emotional distress would presumably count as a legitimate state interest. 27 315 U.S. 568 (1942). 28 See, e.g., L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-8, at 837 (2d ed. 1988); Schauer, supra note 11, at 268. For a discussion of the current unsettled status of the "fighting words" doctrine, see 3 R. ROTUNDA,J. NOWAK &J. YOUNG, CONSTITUTIONAL LAW § 20.40, at 198-99 (3d ed. 1986). See also Harry Kalven, Jr.'s reference to Chaplinsky as "a case which bespeaks the gentility of a bygone era." H. KALVEN, A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 78 (J. Kalven ed. 1988). 29 Chaplinsky, 315 U.S. at 572. Professor Kalven pointed out that the unanimous Court opinion in Chaplinsky, whatever its current authority, was joined by Justices Black and Douglas, whose sensitivity to free speech values seems clear. See H. Kalven, supra note 28, at 79. CUMBERLAND LAW REVIEW ticulate animosity, but a more particular message, perhaps along the lines of a hyperbolically formulated accusation of broad, unprincipled hypocrisy on the part of Reverend Falwell. If Flynt's language were reasonably susceptible of such a meaning, it would certainly meet the minimum re- quirements for speech in the constitutional sense. But Flynt's speech cannot genuinely sustain any such meaning. Initially, Flynt's speech appears to be speech in the constitu- tional sense, in that it expressly, or by reasonable inference, accuses or associates Falwell with drunken incest contrary to Falwell's pretensions. Flynt, however, wants to assert, for free speech purposes, that this sort of implication, was not meant seriously43 and could not be taken seriously by a rea- sonable audience, 4 4 which seems plausible if "reasonable" is defined restrictively. There is certainly no obvious reason why Flynt should be allowed inconsistent positions on this issue. However, if the "unprincipled hypocrisy" claim is not fairly attributable to Flynt's speech, no other cognizable so- cial idea remains, except that which unusually creative per- sons, or Flynt's attorneys, may gratuitously bestow upon the speech after the fact. Finally, one can easily envision deriving a great deal of personal gratification, if not individual self-fulfillment, from the speech in question, and individual self-fulfillment is often considered among the primary values underlying the free speech clause. 45 The problem with this view, even if we assume that Flynt's speech promoted his self-fulfillment as much as it might have impaired that of Falwell, is that not everything that promotes a value underlying the free speech clause is necessarily speech in the constitutional sense.46 Even if Flynt's ad parody promoted Flynt's self-fulfillment in 43 Hustler, 108 S. Ct. at 878. The true inanity of Flynt's language is recognized in Smolla, Emotional Distress and the First Amendment: An Analysis of Hustler v. Falwell, 20 ARIZ. ST. L.J. 423, 424 (1988) (Flynt's speech as "a bad, dirty joke"), but Professor Smolla then reinvests Flynt's speech with coherent cognitive meaning in id. at 425 (message of Falwell's alleged hypocrisy and Flynt's associated distaste for Falwell). 44 See id. Presumably, the jury took into consideration the possibility that there may be a difference in sophistication between the readership of Hustler and, say, that of The Review of Metaphysics. 45 See sources cited supra at note 21; see also Baker, Scope of the First Amendment Free- dom of Speech, 25 UCLA L. REV. 964 (1978); Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982). But cf. BeVier, supra note 20, at 322 (judgments as to what pro- motes self-realization perhaps best left to elected legislators rather than judges). 46 But cf Heins, supra note 36, at 590 (gutter racial invective "not wholly unre- lated" to self-fulfillment value). [Vol. 19:19 FIRST AMENDMENT HUSTLER V. FALWELL some relevant sense recognizable to Aristotle,4 7 or Rous- seau, 48 or John Stuart Mill, 49 which seems doubtful in the extreme, one might presumably derive comparable self-ful- fillment from a vigorous session of chopping firewood or from leading a scout troop on a hike. These latter are hardly speech in the constitutional sense, and Flynt's ad par- ody is only a marginally closer case. To put the point in perspective, one might note that Flynt's putative speech simply does not lend itself to classic free speech policy analysis. What would be the point, for example, of suggesting that Falwell's situation, or the wel- fare of the public generally, would be promoted by "counterspeech" or a rebuttal by Falwell of whatever asser- tions or opinions are thought to be conveyed by Flynt's speech? 50 Certainly, the public interest might be served by Falwell's reacting to Flynt's speech in a way that delegi- timizes Flynt's approach, but this is hardly the same as "an- swering" Flynt's speech on its own terms. Similarly, it would be impertinent to suggest that to avoid or minimize the injury, Falwell should have avoided "further bombard- ment" by averting his gaze from the ad parody. 5' Further- more, it would be genuinely odd to ask, for example, such questions as whether Flynt had available, at reasonable cost, sufficient alternative channels or means of conveying his "message" in undistorted fashion beyond the means he ac- 47 See generally Aristotle's ETHICS and POLITICS. 48 See generally Rousseau's DISCOURSE ON THE ORIGINS OF INEQUALITY. 49 See generally Mill's ON LIBERTY. Among contemporary writers, Professor David Richards interestingly suggests that the background right underlying freedom of speech is a fundamental "right to conscience," or a right to "interpretive indepen- dence of our twin moral powers of rationality and reasonableness." See D. RICHARDS, TOLERATION AND THE CONSTITUTION 166 (1986). Again, Flynt's parody only mini- mally, if at all, implicates this basic value even assuming that the speech did not tend as much to sabotage the moral independence of the target as exalt that of the speaker. 50 For the importance in other contexts of counterspeech, see Whitney v. Califor- nia, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring), overruled on other grounds, Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam); see also Dworkin v. Hustler Magazine, Inc., 668 F. Supp. 1408, 1421 (C.D. Cal. 1987). 51 Cf Note, First Amendment Limits on Tort Liability for Words Intended to Inflict Severe Emotional Distress, 85 COLUM. L. REV. 1749, 1749-50 (1985) (noting the possibility of a defendant's making it impossible for a public figure to avert her attention). But cf. Cohen v. California, 403 U.S. 15, 21 (1971) ("[t]hose in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes") (establishing, in parallel with a few cases involving dangerous canines, a "one bite" rule). 1988] CUMBERLAND LA W REVIEW [Vol. 19:19 tually chose.52 If Flynt had some cognizable social message to impart, he would, of course, have the resources and noto- riety to convey his message in ways not involving the inten- tional infliction of emotional distress. 53 If, on the other hand, Flynt intended neither to convey a social idea, nor to arbitrarily joke about a controversial public figure he dis- liked, but rather intended to inflict emotional distress on a designated victim, obviously no alternative means less sub- ject to governmental regulation were available to him. III. Low-VALUE SPEECH VERSUS HIGH-VALUE SPEECH FOR CONSTITUTIONAL PURPOSES A cold-eyed analysis suggests that Flynt's ad parody prob- ably does not bear classification as speech within the mean- ing of the first amendment. But even if Flynt's parody comes within the scope of the first amendment, if it can be classified, apart from its controversiality or unpopularity, as "low-value" and not "high-value" speech, it should be sub- ject to state regulation on grounds less stringent than those adopted by the Court in Hustler.54 The low- versus high-value speech distinction, perhaps traceable to Chaplinsky,55 assumes that in light of first amendment values, different types or categories of speech deserve different degrees of protection.56 Speech central to, or at the core of,57 the first amendment merits stringent pro- tection, while speech less central, or at the periphery of the first amendment, merits less protection.58 The low- versus 52 For the relevance of the availability of "ample alternative channels of communi- cation" in the context of time, place, and manner restrictions on the use of public forum, see Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (citing authority). 53 But cf Cohen, 403 U.S. at 25-26 (concluding that Cohen's "otherwise inex- pressible emotions" could not be conveyed in a way that did not fall afoul of the criminal statute under which Cohen was charged). For a sense of the complexities of the "ample alternative channels" analysis, see Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20, 43-45 (1975). 54 See Hustler, 108 S. Ct. at 882. 55 Chaplinsky, 315 U.S. at 572 (referring to certain categories of speech as being of only "slight social value as a step to truth"). 56 For a recent academic exposition, see Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 47 & nn.2 & 4 (1987). 57 For a recent reference to the concept of the "core" of the first amendment, see Boos v. Barry, 108 S. Ct. 1157, 1162 (1988) (the category of classic "political speech" as at the core). 58 For a recent example, see Curtis v. Thompson, 840 F.2d 1291, 1297-98 (7th FIRST AMENDMENT: HUSTLER V FALWELL Consideration of Professor Sunstein's four factors thus suggests that Flynt's speech should at best be classified as low-value speech and should not be given the practically ab- solute67 constitutional protection conferred on it by the Court. Flynt's parody is certainly entitled to no greater pro- tection than arguably offensive speech that constitutes an in- dependent common law tort. In the past, the Court has permitted state regulation of non-obscene but arguably of- fensive sexually oriented speech, based on its content, with- out imposing a demanding constitutional test. State regulation is allowed on the assumption that such speech is low-value speech 68 on the periphery of first amendment concerns. 69 In sexually oriented speech cases, the Court has recognized that it would be idle pedantry to suggest that regulating profanity in appropriate contexts imposes some appreciable burden or disadvantage on speakers who wish to convey a particular viewpoint,70 or even on those who wish to convey a particular speech "content." 71 As Justice Stevens has observed, "[a] requirement that indecent lan- guage be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language." 72 Some conceptions of what constitutes "core" or high- value speech are more expansive. One commentator has suggested, for example, that "[e]xpressions of dislike or dis- respect for another are precisely the type of ideological communications that are within the very core of the protec- tion accorded by the first amendment. " 73 Doubtless some from such a landmark case as Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814 (1926), as traced in Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 HARV. L. REV. 1033 (1936); Mead, supra note 17; Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 MICH. L. REV. 874 (1939). 67 See supra text accompanying notes 13-14. 68 See Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion). 69 See FCC v. Pacifica Found., 438 U.S. 726, 743 (1978) (opinion of Stevens, J.). The Court more recently took a similar approach in analyzing a school district's regu- lation of offensive or vulgar speech by a public high school student in Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3166 (1986). 70 See Stone, supra note 21, at 243-44. 71 See id. at 243; Pacifica Found., 438 U.S. at 743 & n.18. 72 Pacifica Found, 438 U.S. at 743 n.18. But cf Cohen v. California, 403 U.S. 15, 26 (1971) ("words are often chosen as much for their emotive as their cognitive force"). Of course, no one supposes that form and content are utterly separate and unrelated. 73 Gard, Fighting Words as Free Speech, 58 WASH. U.L.Q 531, 569 (1980); see also 1988] CUMBERLAND LA W REVIEW expressions of dislike or disrespect may qualify as high- value speech, depending, among other considerations, on the content of the speech. But some instances of speech conveying disrespect, as we may assume Flynt's does of Falwell, are so "open" and undifferentiated-essentially all that Flynt "says" of Falwell is immediately "retracted" by Flynt's disclaimer 74-that the values underlying the free speech clause are at best not strongly implicated. This con- clusion is independent of one's sympathy, or lack thereof, for Flynt or Falwell or the ideas ordinarily associated with either. Regardless of the identity or popularity of the speaker or the target, "few of us would march our sons and daughters off to war to preserve the citizen's right" 75 to commit the common law tort of intentional infliction of emotional distress by means of words or drawings that are, by admission, as devoid of any seriously intended meaning or public issue content as Flynt's were. 76 From the stand- point of the public interest, it seems appropriate to require, in exchange for granting immunity from liability for the tort of intentional infliction of emotional distress on a public fig- ure or public official, that the speaker at least take the trouble to attempt to reasonably convey some particular public interest-related idea. The Court thus had ample reason to classify Flynt's speech as low-value speech, at best, and accord it less than the practically absolute protection that it did. In addition, despite the important difference between the two torts, many of the individual and social costs of false and defama- tory speech about public figures and public officials that have been identified in the libel context 77 are also relevant in the context of the Hustler case. If the risk of defamation, or unprovable defamation, constitutes a disincentive to pub- lic service,78 so does the risk of speech like Flynt's that is Perry, Freedom of Expression: An Essay on Theory and Doctrine, 78 Nw. U.L. REv. 1137, 1149 (1983) (impossibility of separating "moral sensibilities" from "political sensibilities"). 74 Hustler Magazine v. Falwell, 108 S. Ct. 876, 879 (1988). 75 Cf Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion) (referring to the right to see sexually explicit non-obscene materials at a convenient local theater). 76 Hustler, 108 S. Ct. at 878. 77 See, e.g., Epstein, Was New York Times v. Sullivan Wrong?, 53 U. CHI. L. REV. 782, 797-801 (1986). 78 See id. [Vol. 19:19 1988] FIRST AMENDMENT: HUSTLER V. FALWELL 35 now essentially immunized by the Supreme Court. The arguments presented above do not rely in the slight- est on any putative social interest in maintaining or elevat- ing the level of public discourse or in promoting public civility. While such an interest has been given central im- portance by such champions of liberty as John Stuart Mill, 79 there seems to be little current enthusiasm for such an ap- parently anachronistic approach.8 0 This state of affairs may eventually change if the judiciary begins to conclude that the quality of public debate, particularly at the lower ranges, is tending to systematically deteriorate over time.81 It has been said that "[o]nly small men are afraid of small writings."82 Writers of the stature of Warren and Bran- deis, 83 however, have expressed reasonable fear of material less inanely virulent than Flynt's. Referring to personal gos- sip in general, Warren and Brandeis classically warned that Even gossip apparently harmless, when widely and persist- ently circulated, is potent for evil. It both belittles and per- verts. It belittles by inverting the relative importance of things, thus dwarfing.the thoughts and aspirations of a peo- ple .... Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the mis- fortunes and frailties of our neighbors, no one can be sur- prised that it usurps the place of interest in brains capable of other things. 84 If there is a public interest in diminishing the scope and per- vasiveness of mere idle gossip, there is an even more sub- stantial public interest in providing only limited constitutional protection for intentional infliction of severe emotional distress. Finally, it is possible to argue for relatively great constitu- tional protection for otherwise tortious intentional infliction 79 See the discussion of Mill's view in Wright, supra note 24, at 158-6 1. 80 One commentator has stated flatly that "[t]he societal interest in purifying or raising the level of discourse is not a sufficient justification for regulating speech. The abstract interest in civility is too weak to justify such explicit content regulation." Note, supra note 51, at 1762 n.71 (citing Cohen v. California, 403 U.S. 15, 25 (1971)). 81 See generally Wright, Judicial Responses to Long-Term Societal Decline, 30 ARiz. L. REV. 271 (1988). 82 Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341, 1360 n.58 (N.D. Tex. 1985) (quoting Pierre de Beaumarchais), aff'd, 799 F.2d 1000 (5th Cir. 1986), cert. denied, 107 S. Ct. 1295 (1987). 83 See Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). 84 Id. at 196; see also A. BICKEL, THE MORALIv OF CoNsErNr 61-75 (1975). CUMBERL4ND LA W REVIEW asserts that some or all Bs possess some objectionable qual- ity. Under this distinction, such speech would be protected even if the speech is addressed only to one of the members of B whom the speaker has no realistic hope of persuading.92 One might object that this approach protects the articulate or the reason-giving racist. The objection is correct, but it is a result that seems consistent with free speech values and purposes. And at least for the moment, the alternative ac- cepted by the majority of the Court, in the case of public officials and public figures, is more solicitous of even the most painful, inane racial invective as long as the speaker does not inadvertently make a false, but plausible, factual claim. 93 IV. LIMITING THE SCOPE OF THE TORT BY NON-CONSTITUTIONAL MEANS It would be perfectly sensible to have misgivings about re- ducing, if not eliminating, constitutional protection for Flynt's speech if the courts would, as a result, be left with insufficient means of controlling potential jury excesses in cases not involving the expression of any social idea. But this is not the case. The courts have at their disposal a number of nonconstitutional means of reducing the poten- tial for abuse of the tort of intentional infliction of emo- tional distress. The essential legitimacy of the tort of intentional inflic- tion of emotional distress is well established, 94 and Profes- sor Prosser suggested in his seminal article in 1939 that up until that time, the tort had been well policed and generally not used as an instrument of abuse.95 Recently, though, the fear has arisen that plaintiffs might use the tort of inten- 92 But see Delgado, Words That Wound: A Tort Action For Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 177 (1982). Otherwise protected speech directed only to implacably opposed listeners, or that is not even intended to convince that particular audience, should not for that reason alone lose its protected character. The value of free speech is not solely dependent upon the prospect of changing minds; one might seek instead to preserve one's integrity by taking a defini- tive stand on some controversial public issue, even to an unalterably hostile audi- ence, perhaps partly out of a desire to avoid hypocrisy or patronizing one's audience. 93 See Hustler Magazine v. Falwell, 108 S. Ct. 876, 882-83 (1988). For a brief dis- cussion of some of these issues, see L. TRIBE, supra note 28, § 12-8, at 838 n. 17. 94 See Yeager v. Local Union 20, Int'l Bhd. of Teamsters, 6 Ohio St. 3d 369, 453 N.E.2d 666, 670 (1983) (unanimity of adoption among the states). 95 Prosser, supra note 66, at 888-89. [Vol. 19:19 FIRST AMENDMENT: HUSTLER V FALWELL tional infliction of emotional distress to avoid short statutes of limitation, circumvent restrictions on punitive damage awards, unduly expand privacy concepts, or generally ap- peal to juror prejudice, among other potential abuses. 96 Each of these potential problems, however, can readily be controlled by insistence on appropriate common law restric- tions. One commentator has observed, for example, that"the strict requirements of the outrageousness standard" 97 may account for the paucity of successful emotional distress suits against media defendants. 98 The common law require- ment that the plaintiff show severe emotional harm99 and that the defendant's conduct was extreme and outrageous, over and above showing the defendant's intent, functions as an effective nonconstitutional limitation on the range of the tort. 10 0 Accordingly, a showing of defendant's intent does not substitute for a showing of outrageousness, and a showing of outrageousness does not substitute for showing the req- uisite intent.101 Similarly, neither intent nor outrageousness substitutes for a showing, perhaps even on a standard of "convincing" evidence,102 of the seriousness or gravity of the emotional harm inflicted.103 If, despite the possibility of 96 See Mead, supra note 17, at 25. 97 Id. at 53. 98 Id. 99 See Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1021 (1st Cir. 1988). 100 See, e.g., Ross v. Bums, 612 F.2d 271, 273 (6th Cir. 1980) (absence of "extreme and outrageous" conduct found as a matter of law); Cape Publications v. Bridges, 423 So. 2d 426, 428 (Fla. Dist. Ct. App. -1982) (same), cert. denied, 464 U.S. 893 (1983). But see Boos v. Barry, 108 S. Ct. 1157, 1164 (1988), in which the Court reiter- ated its view, adopted in Hustler, that an outrageousness standard would be too "in- herently subjective." It might be noted, however, that the Court continues to criminalize speech alleged to be obscene based on the no less inherently subjective standard of lack of "serious literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15, 24 (1973); Pope v. Illinois, 107 S. Ct. 1918, 1921 (1987) (citing Miller, 413 U.S. at 24). 101 See, e.g., Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1275 (3d Cir. 1979) (en banc); Godbout v. Cousens, 396 Mass. 254, 485 N.E.2d 940, 946 (1985) (not requiring a showing that the defendant's intention was to cause particu- larly severe emotional distress). 102 See Prosser, supra note 66, at 888. 103 See id.; see also Mead, supra note 17, at 48 ("[t]hough peace of mind is protected by the principles underlying both invasion of privacy and infliction of emotional dis- tress torts, it appears the disturbance to such mental tranquility must be far greater to support the latter action."). But cf Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 816 (1926) (no explicit requirement that the level of emotional distress actually suffered be severe). 1988] CUMBERLAND LA W REVIEW judicial supervision of the elements, further restrictions on the tort are necessary, the courts could simply limit or bar the availability of punitive damages. This limitation could perhaps be based on the theory that the legal distinction be- tween merely being liable for this tort, and appropriately be- ing subject to punitive damages, is essentially arbitrary. 0 4 As has been suggested in the libel area, the states might sim- ply impose a reasonable statutory maximum on the amount of total damages recoverable for intentional infliction of emotional distress.1o5 Finally, the tort can have a short stat- ute of limitations no longer than the period applicable to the most closely related torts.' 0 6 V. CONCLUSION The threat to the broadest plausible range of free speech values posed by the potential for tort liability of speech akin to Flynt's is quite minimal, especially if the courts and legis- lators adopt the available nonconstitutional means of re- stricting potential excesses. The Court in Hustler, of course, chose instead to protect almost absolutely, in a practical sense, language intended merely to inflict severe emotional distress on public figures and public officials. One reason for this approach, beyond our cultural enthu- siasm for any extension at all of the first amendment, may be the Court's prediction that such a course would help avoid subjecting the Court to superintending yet another stream of free speech cases. The problem is that it is probably not much easier to judicially identify public officials and public figures for such purposes than it is to tell whether particular language seeks to convey a cognizable social idea. For ex- ample, suppose a television reporter emotionally abused Jessica McClure, the toddler famous for falling into a well. Would the case really hinge on the presence or absence of a plausible false statement of fact, or would the court instead find a way to deny her public figure status? 0 7 This example suggests that public figure versus private figure status is 104 See the discussion in Chuy, 595 F.2d at 1277. 105 See, e.g., Epstein, supra note 77, at 815. 106 Cf Yeager v. Local Union 20, Int'l Bhd. of Teamsters, 6 Ohio St. 3d 369, 453 N.E.2d 666, 672 (1983) (intentional infliction of emotional distress as falling into the residual category of a four year limitations period in Ohio). 107 For one possible approach to judicially resolving the most difficult borderline cases of the related issue of what counts as speech that is on a matter of public inter- [Vol. 19:19