97-11-07: PREACHER AND PORNOGRAPHER REHASH SUPREME COURT CASE By Rebecca Arrington "It's not a pretty sight" warned College of William & Mary law professor Rodney A. Smolla in his opening remarks Nov. 1 to an overflow crowd in Caplin Auditorium. The author of Jerry Falwell v. Larry Flynt: The First Amendment on Trial, Smolla gave an overview of the case and the two men involved before the principal parties took center stage and amiably faced off. Their appearance was part of the third annual Virginia Cases Conference Series, sponsored by the Thomas Jefferson Center for the Protection of Free Expression Describing the minister of Thomas Road Baptist Church and chancellor of Liberty University in Lynchburg, Va., Smolla said, "Falwell believes in truth; that it's knowable. He believes in righteousness, according to his definition, and many agree with him. He feels it's his Christian duty to enter into the civil and political arenas to do God's work. "Larry Flynt. Where do we start? He is the quintessential American entrepreneur. He took a few strip joints and turned them into a multimillion-dollar venture," Smolla said. "Hustler was the vehicle he used to drive his business. ... It was the magazine where no holds were barred." The case arose from a full-page parody of a Campari liqueur ad that ran in a 1983 issue of Hustler. The ad campaign "took high-profile individuals and compared how, like sex, Campari got better the more you tried it," Smolla said. The parody claimed Falwell's first sexual experience was with his mother in an outhouse in the presence of a goat. Outraged, Falwell made thousands of copies and distributed them to his following, Smolla said. "In a matter of weeks he raised over $700,000 for his legal case" -- a $45 million lawsuit against Hustler and Flynt on the grounds of libel, misappropriation of his name and likeness, and intentional infliction of emotional distress. Hustler countersued Falwell for copyright infringement. Eventually argued before the U.S. Supreme Court, the resulting 1988 decision extended First Amendment protection to works of satire and parody and has had profound implications for political speech, artistic expression, and what one person may legally say about another. A reenactment of the oral arguments in the case by two law students -- Elizabeth D. Evans of William & Mary and Rahul Keshap of U.Va. -- and the actual attorneys for both parties, David O. Carson, Jeffrey H. Daichman, Alan L. Isaacman and Thomas V. Marino, posing as Supreme Court justices, set the stage for the plaintiff and defendant. The Rev. Jerry Falwell and publisher Larry Flynt sat next to each other in the question-and-answer session that followed with moderator Tony Mauro, Supreme Court reporter for USA Today. Commenting on the case, Flynt said, "We were happy with the outcome. ... If there's a tragedy, it's that freedom isn't free. You pay a price, and the price is tolerance. You have to tolerate the Larry Flynts and Jerry Falwells of the world. ... I think adults can read anything they want without being corrupted. ... Was Falwell offended by the ad? Yes. But if the first amendment gives us any right at all, it gives us the right to be offensive. ... Publishers especially need the first amendment. "At the monthly editorial meetings, we would ask: Who haven't we offended," Flynt said. "At those meetings, was there ever a line drawn?" Mauro asked. "I doubt it," Falwell quipped. Flynt responded, "If I regret anything, it's the cartoon portraying Betty Ford, following a double mastectomy." However, "I thought the Falwell ad was hilarious," he said, turning to face his foe-turned-friend and pastor. "The ad was not meant to be taken seriously. We also ran the Pope and president talking about their first times, and they didnąt seem to mind," he joked. "What was your first reaction?" Mauro asked Falwell. Outrage, responded Falwell, who first learned of the ad from a reporter while waiting for a flight out of Washington, D.C. "If Larryąd been in good health then, we'd have settled the matter behind the barn like all Campbell County boys do." (At the time, Flynt, who has been confined to a wheelchair since 1978 due to a gunshot wound, had fallen ill while serving five-and-a-half months in prison for refusing to reveal his source in another case.) "The goat didnąt bother me. The Campari didn't bother me, my father drank. What bothered me was the attack on my then-recently-deceased mother, who was the guiding force in my life," Falwell said. Had she not been in the ad, "I wouldnąt have given it a second thought." 'If the ad had run in Mad or any other magazine, I doubt you would have sued," Flynt countered. "Probably not," Falwell conceded. Did you ever consider settling? Mauro asked. Both said no. "It was too important" Flynt said. "If I had lost this case, no other individual would have to prove libel. "As a public figure, you give up certain rights. Fame has a price. That price is scrutiny by the media. I donąt think you'll ever get a consensus on censorship ‹-- what's admissible and what's not. Just because the material is offensive doesn't mean it should be suppressed." "We have very few disagreements regarding the first amendment issue," Falwell said. "I think Larry could get along without assassinating the characters of public figures, though." Flynt agreed with the first part of that statement, adding, "If anything should be protected by the first amendment, it should be cartoons and satire." Flynt described Falwell as a "wonderful spiritual adviser." Falwell called Flynt one of his "rebellious parishioners. An L.A. Times reporter asked when Larry was going to speak at my church. And I said as soon as I baptize him, which will be as soon as he quits publishing Hustler." Questions and Answers Following their talk, they answered questions from audience members and the press. Q: Do you think you'll ever be recognized for your legal battles? Flynt: Not in my lifetime, but perhaps in a century or so. Q: A VCU student thanked both men for taking on the case and asked who should do the censoring. Falwell: I'm not asking someone to censor. I expected legislation to determine that. ... Consumers should make the decision now. Q: Do you feel the struggle was worth it? Flynt: Everyone wants to make a difference with their life. Falwell: Yes. It's our duty as Christians. The abolitionist movement, civil rights, they were lead by church people. Q: Have you considered taking this on the road? Falwell: We've been on 'Larry King Live.' [Then turning to Flynt, he said,] If you'll attend church, I'll go on the road with you. Flynt: He's just afraid I'll convert him. Q: What's the future of obscenity trials? Flynt: I hope we'll see an end to them. ... Pornography is the highest art form. ... I see no difference between a vagina and an earlobe. ... If the human body is obscene, we should complain to the manufacturer. Falwell: The manufacturer would advise them to wear clothes. Q: Do you see each other often? Flynt: We've established a relationship. I like him very much and believe he's very committed to his tasks. Summing up his experiences from the case, Flynt closed the session saying, "What we need more than anything else is dialogue." No Money, Just Tokens Neither Falwell nor Flynt were paid to speak at the third annual Virginia Cases Conference Series, sponsored by the Thomas Jefferson Center for the Protection of Free Expression, a non-profit, non-partisan institution. At the close of the debate, Josh Wheeler, attorney and director of programs for the center, thanked both for participating and bestowed tokens of gratitude. At the suggestion of Falwell's assistant, toys will be given to his five grandchildren, and Flynt received a Liberty University sweatshirt. Flynt on Film Saturday was Flynt's birthday. He turned 55. In addition to the Law School debate, the birthday boy answered questions following the Virginia Film Festival screening of "The People vs. Larry Flynt." When news of his birthday was announced, the sold-out crowd spontaneously burst into a rousing rendition of "Happy Birthday." QUOTE "What we need more than anything else is dialogue." Larry Flynt, Publisher, Hustler magazine