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TRANSCRIPT OF PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES ^3ARY In the Matter of: ) SUPREME COURT, U.S. ) WASHINGTON, D.C., 20543 HUSTLER MAGAZINE AND LARRY C. FLYNT, ) ) Petitioners, ) ) v. ) No. 86-1278 ) JERRY FALWELL. Pages: 1 through 48 Place: Washington, D.C. Date: December 2, 1987 Heritage Reporting Corporation Official Reporters 1220 L Street. N.W. Washington. D.C. 20005 (202) 628-4888 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 --------------------------------------- x 3 HUSTLER MAGAZINE AND LARRY C. FLYNT, : 4 Petitioners, : 5 V. : No. 86-1278 6 JERRY FALWELL : 7 --------------------------------------- x 8 Washington, D.C. 9 Wednesday, December 2, 1987 10 The above-entitled matter came on for oral argument 11 before the Supreme Court of the United States at 10:01 a.m. 12 APPEARANCES: 13 ALAN I. ISAACMAN, ESQ., Beverly Hills, California; 14 on behalf of the Petitioners. 15 NORMAN ROY GRUTMAN, ESQ., New York, New York; 16 on behalf of the Respondent. 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 2 1 CONTENTS 2 ORAL ARGUMENT OF PAGE 3 ALAN L. ISAACMAN, ESQ. 4 on behalf of Petitioners 3 5 NORMAN ROY GRUTMAN, ESQ. 6 on behalf of Respondent 26 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 3 1 PROCEEDINGS 2 (10:01 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument first 4 this morning in No. 86-1278, Hustler Magazine and Larry C. 5 Flynt versus Jerry Falwell. 6 Mr. Isaacman, you may proceed whenever you're ready. 7 ORAL ARGUMENT OF ALAN L. ISAACMAN 8 ON BEHALF OF PETITIONERS 9 MR. ISAACMAN: Mr. Chief Justice and may it please 10 the Court: 11 The First Amendment protects all speech except for 12 certain narrowly drawn categories. For example, the First 13 Amendment does protect false statements of fact made with 14 requisite fault. The First Amendment doesn't protect obscene 15 speech. The First Amendment doesn't protect fighting words 16 made in the presence of the person to whom the words are 17 addressed and likely to incite violence. 18 This cases raises as a general question the question 19 of whether the Court should expand the areas left unprotected 20 by the First Amendment, and create another exception to 21 protected speech. And in this situation, the new area that is 22 sought to be protected is satiric or critical commentary of a 23 public figure which does not contain any assertions of fact. 24 QUESTION: Are you suggesting that would be a change 25 in our constitutional jurisprudence to protect that? Heritage Reporting Corporation (202) 628-4888 4 1 MR. ISAACMAN: Yes, sir, I ara. I am suggesting 2 that. 3 In a specific way, the guestion becomes: is 4 rhetorical hyperbole, satire, parody, or opinion protected by 5 the First Amendment when it doesn't contain assertions of fact 6 and when the subject of the rhetorical hyperbole is a public 7 figure. Another way of putting this case is, can the First 8 Amendment limitations which have been set out in New York Times 9 versus Sullivan and its progeny be evaded by a public figure 10 who instead of alleging libel or instead of alleging invasion 11 of privacy, seeks recovery for an allegedly injurious falsehood 12 by labeling his cause of action intentional infliction of 13 emotional distress. 14 In judging the publication that's at issue here, I 15 think it's important to look at the context in which it 16 appeared. The speaker of course was Hustler Magazine, and 17 Hustler Magazine is known by its readers as a magazine that 18 contains sexually explicit pictures, and contains irreverent 19 humor. As an editorial policy, it takes on the sacred cows and 20 the sanctimonious in our society. It focuses on three subject 21 areas primarily. It focuses on sex, it focuses on politics and 22 it focuses on religion. 23 Hustler Magazine has been the target of attacks and 24 critical commentary by Jerry Falwell for years and for years 25 prior to this ad publication. Hustler Magazine is at the other Heritage Reporting Corporation (202) 628-4888 5 1 end of the political spectrum from Jerry Falwell. On the other 2 hand, Jerry Falwell filling out the context of this speech, is 3 the quintessential public figure. It's hard to imagine a 4 person in this country who doesn't hold political office who 5 can has more publicity associated with his name than Jerry 6 Falwell. 7 Jerry Falwell is the head of the moral majority. 8 The moral majority, he testified at the trial, numbers some six 9 million people. It's a political organization, he indicates. 10 It was set up to advance certain political views. One of the 11 foremost views is to attack what he considers to be 12 pornography, and to attack kings of porn, in his words. And 13 foremost among those kings of porn in his mind is Larry Flynt. 14 He includes in that group others as well, such as Bob Guccioni 15 of Penthouse and such as Hugh Hefner of Playboy. 16 The moral majority and Jerry Falwell also attack 17 sexual conduct that they don't consider appropriate. He has 18 spoken on the subject of extramarital and premarital sex. He 19 doesn't approve of heterosexuals living together outside of 20 wedlock. He also doesn't approve and condemns homosexuality. 21 Now, these aren't private views he has kept to himself or just 22 shared with his family. These are views that he's gone on the 23 political stump and tried to convince other people about. 24 He has been known in his words, as he testified, by 25 the Good Housekeeping magazine which did a survey as the Heritage Reporting Corporation (202) 628-4888 6 1 second-most admired man in the United States, next to the 2 President. 3 QUESTION: Well, Mr. Isaacman, is the fact that you 4 claim Mr. Falwell is a public figure in dispute in this case? 5 MR. ISAACMAN: It isn't in dispute at all. 6 QUESTION: Well, then, I guess we could move on to 7 the arguments, because apparently your remarks are for the 8 purpose of demonstrating he's a public figure. Is that right? 9 MR. ISAACMAN: Justice O'Connor, it's to really to 10 fill out the political context and the fact that what we have 11 here are people who are at opposite ends of the political 12 spectrum, engaging in the uninhibited robust and wide open 13 debate in New York Times v. Sullivan. 14 QUESTION: Does the State have an interest in 15 protecting its citizens from emotional distress, do you 16 suppose? 17 MR. ISAACMAN: Clearly, the State has an interest in 18 protecting its citizens from emotional distress. 19 QUESTION: And perhaps that's an even greater 20 interest than protecting reputation. 21 MR. ISAACMAN: I would submit that it is not a 22 greater interest than protecting reputation, because in the 23 area of reputational injury, libel as we know it, for example, 24 when it's in written form, emotional distress is an element of 25 recovery as well as damage to reputation, and reputation Heritage Reporting Corporation (202) 628-4888 7 1 affects what other people think of you. It affects what goes 2 on in the minds of other people as well, and not just the minds 3 of one citizen. So reputation in a sense covers a lot more 4 territory than emotional distress does. 5 And the point of what I'm trying to make is that we 6 really have people who are engaging in political debate in a 7 way that involves vehement caustic and sometimes unpleasantly 8 sharp language, as the New York Times v. Sullivan used. 9 Now, this speech is protected as rhetorical 10 hyperbole, it's protected as satire and parody and as the 11 expression of opinion. 12 QUESTION: Would this be a different case if the jury 13 had found that the allegations could be considered factual? 14 MR. ISAACMAN: It certainly would be a different 15 case. It certainly would be a different case. 16 We think that even in that situation, this Court 17 should find that these allegations could in no way be perceived 18 as factual as a matter of law, and in exercising its obligation 19 under Bose, I think the Court would have to do an independent 20 review of the record to determine that constitutional fact, 21 that is to say, that there was no actual malice in this case 22 because this can't be perceived. 23 Just as in Letter Carriers v. Austin, calling the 24 plaintiffs there a traitor to their God, their country, their 25 family, saying they have a corkscrew soul, saying that instead Heritage Reporting Corporation (202) 628-4888 8 1 of a heart they have tortured principles, was considered by 2 this Court to be rhetorical hyperbole, and not to be taken 3 literally. 4 Similarly, there's nothing in this ad parody that can 5 be taken as a statement of fact. And we're in an unusual 6 situation where the jury has made that determination for us. 7 So we now know that even this jury, which should never have 8 been allowed to consider this.
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