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Falwell-Flynt defamation: an offensive label, but not libel

By CURTIS J. SITOMER / December 17, 1987



WHEN Jerry Falwell sues Larry Flynt for ``emotional distress,'' some might be tempted to pass off the whole thing as more storm than substance. In this situation, however, there are very serious issues involved - and the Rev. Mr. Falwell and Mr. Flynt are both right and both wrong.

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The television evangelist and former head of Moral Majority and the PTL Club has every reason to resent the degrading of the memory of his mother by an offensive and preposterous parody in Flynt's sordid Hustler magazine.

It is questionable, however, whether Falwell is entitled to $200,000 in damages for enduring such tasteless satire.

Flynt has not libeled Falwell. He clearly identified his mock advertisement as an ``ad parody - not to be taken seriously.'' The magazine publisher is entitled to stand on his First Amendment protection of freedom of speech without fear of reprisal from the court.

At the same time, there is such a thing as fair play - and Flynt's parody, although not legally defamatory, certainly stretches the bounds of common decency. The public, if not the courts, must find a way to convey that such satire is not funny, but disgusting.

Humor is an important element of a free society. Cartoonists must be free to lampoon political and other public figures - whether they are television preachers or presidential candidates.

Even a mean-spirited caricature is within the law. If the public objects to a particular depiction, it has every right to protest to an editor or publisher, perhaps even go so far as to boycott the publication.

The Falwell-Flynt matter is now before the US Supreme Court. It was originally a three-pronged libel, invasion-of-privacy, emotional-distress claim. Lower courts disposed of the first two charges, but a federal jury in Virginia awarded Falwell $200,000 damages for emotional distress. A panel of the United States Court of Appeals for the Fourth Circuit upheld this finding.

Now the nation's highest court must decide if this ruling should stand.

Flynt defenders say that if the justices don't nullify the cash award, the climate could be chilled for all political satirists and cartoonists.

Not so - say Falwell backers. They point out that the parody was loathsome and repulsive and a deliberate character assassination that is not worthy of First Amendment free-press protection.

Here again, both sides are both right and wrong. The monetary reparations are improper, because there is no libel. But dirty and offensive speech is not insulated from public censure. But like it or not, where public figures are involved, statement without malice is not subject to judicial censure.

In weighing this case, the justices might do well to heed the reasoning of another jurist in another defamation case.

There Ilse Koch, a California resident, spoke out sharply on CBS's ``60 Minutes'' against the position of a local mayor on the issue of rent control. After the broadcast, the municipal officer reminded a private group that her critic had the same name as a famous Nazi war criminal and suggested (probably facetiously) she might be one and the same.

Miss Koch, a German national, sued the mayor in federal court, claiming defamation of character. She also claimed that the mayor's remarks had caused her emotional distress. A trial court, however, saw the statement as opinion and dismissed the claim.

An appellate panel agreed, with Judge Anthony Kennedy - whose nomination to the Supreme Court is now being considered by the Senate Judiciary Committee - writing that ``although the alleged comment was reprehensible, rudeness and bad taste, regrettably, are not so uncommon in American politics that the statement reached the level of conduct necessary to state a claim for intentional infliction of emotional distress.''

Judge Kennedy added that ``in some instances speech must seek its own reputation without intervention by the courts. In this case, if the mayor chose to get in the gutter, the law simply leaves her there.''

Hear that, Messrs. Falwell and Flynt!

A Thursday column