Outrageous Speech and the Constitution: Thoughts on Hustler Magazine v. Falwell

Outrageous Speech and the Constitution: Thoughts on Hustler Magazine v. Falwell

Democracy, as everyone knows, requires freedom of speech so that public opinion, which is sovereign, may freely be formed to direct its servant, which is the government. As a matter of constitutional history, the First Amendment began effectively to safeguard freedom of speech only in the second third of the twentieth century. From the perspective of democratic theory, this rapid unfolding of First Amendment doctrine reads like an unabashedly Whiggish triumph of liberty and enlightenment. But from other, equally important, perspectives, the story appears darker and more complex.

Take, for example, the recent United States Supreme Court decision in Hustler Magazine v. Falwell. The case concerned the attempt of Larry Flynt, the enfant terrible of the pornographic set, to “assassinate” the integrity of Jerry Falwell, then leader of the Moral Majority. Flynt published in Hustler magazine a parody of the well-known Campari Liqueur advertisements, which featured celebrities reminiscing, with a strong undercurrent of sexual innuendo, about their “first time” tasting Campari Liqueur. Flynt’s parody featured a thoughtful Jerry Falwell, who recalled that the first time he drank Campari he was having sex with his mother in an outhouse, among the feces, flies, and goats:

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Duggan | University of California Press Gardels