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
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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
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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?
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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
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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
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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
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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
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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.
9 QUESTION: Well, do you think that finding by the
10 jury has opened for this Court to consider again de novo?
11 MR. ISAACMAN: No, we don't think it is. We don't
12 think it is because --
13 QUESTION: I thought you were suggesting that in the
14 First Amendment context, we'd have to consider those issues
15 again.
16 MR. ISAACMAN: Justice O'Connor, I suggest that in
17 the First Amendment context, when a determination is made by a
18 jury that's adverse to speech, and when a jury finds that the
19 speaker made statements that could be construed as statements
20 of fact and were knowingly false, then it is incumbent upon the
21 Court to take that review for the purpose of protecting the
22 speaker. And that's what the First Amendment says, that you
23 have to protect the speaker.
24 QUESTION: You think Bose is a one-way street, then?
25 MR. ISAACMAN: Your Honor, I do think it's a one-way
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1 street. Bose is intended to protect the speaker, it's not
2 intended to protect the emotionally distressed interest that
3 the State is seeking to protect in the area of intentional
4 infliction of emotional stress or in the area of libel. And
5 not only that, but we have a situation where there hasn't been
6 an appeal from the determination in the jury, so that's res
7 judicata yet.
8 QUESTION: This is all matter that isn't really
9 directly involved in your case. I mean, you have a favorable
10 determination from the jury.
11 MR. ISAACMAN: Yes, sir, that's correct.
12 Now, going on, we not only have the example of Letter
13 Carriers, but we have the example of Greenbelt v. Bresler where / 14 the plaintiff in that case was accused of being engaged in
15 blackmail. And the Court said that that can't be taken
16 literally because that was just intended to describe his
17 negotiating position, and that is hyperbole.
18 And we have ample lower court precedents on the
19 subject, such as the Pring case, which was a Penthouse article
20 about a Miss Wyoming which attributed certain sexual activities
21 on her part, and she sued for libel, intentional infliction of
22 emotional stress, and other causes of action. And the Tenth
23 Circuit, after an adverse jury determination to Penthouse, the
24 Tenth Circuit reversed and dismissed that case, saying that
25 that's rhetorical hyperbole. That article couldn't be
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1 perceived as describing actual facts about the plaintiff in 2 that case, or actual events in which she participated. Same
3 finding that the jury made in this case.
4 And the Court then went on to say that since it's
5 rhetorical hyperbole and protected by the First Amendment
6 against a libel claim, it's also protected against an
7 intentional infliction of emotional distress claim which there
8 was called outrage under Wyoming law because the same
9 constitutional defenses apply.
10 And earlier this year in the First Circuit in the
11 L.L. Bean v. Drake Publishers, the Court there said that parody
12 is protected speech, and even though the plaintiff in that case
13 complained about the sexual parody that occurred of L.L. Bean's
14 Catalog, that was protected speech and the case was found in
15 favor of the speaker in that situation.
16 Beyond that, Jerry Falwell as a public figure should
17 not be permitted to evade the First Amendment limitations that
18 have been set forth in New York Times v. Sullivan, and many
19 many other cases with respect to his claim for an allegedly
20 injurious falsehood. The California Supreme Court recently,
21 through Justice Mosc, determined in Blatty v. New York Times,
22 that where the gravamen of a complaint is allegedly injurious
23 falsehood, it doesn't matter what you call your claim, because
24 the First Amendment covers that area.
25 QUESTION: Mr. Isaacman, what the New York Times rule
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1 provides is not an absolute protection, but what a knowing
2 element, an element of specific intent to create a falsehood.
3 It doesn't give an absolute privilege to state falsehood. It
4 just says the falsehood is okay unless there's an intent.
5 Now, here we have a State Tort that is specifically
6 an intentional Tort. There must be an intent to create the
7 emotional distress, so it really is not quite the same category
8 of opening up that you're making it out to be. It's just the
9 issue is whether the intent element is enough to provide a
10 major exception from New York Times is also enough to make a
11 major exception for purposes of this tort action. Isn't that
12 right?
13 MR. ISAACMAN: Justice Scalia, we have a lot of cases
14 including New York Times v. Sullivan, including Garrison v.
15 Louisiana, and say it's not the intent to cause harm. It's not
16 the hatred, it's not the ill will, it's not the spite that the
17 First Amendment is directed at. It's intent to cause harm
18 through knowing falsehood or reckless falsehood. Garrison v.
19 Louisiana is a perfect example.
20 QUESTION: I understand you can draw the line there.
21 But all New York Times says is if you state falsehood with
22 knowledge of the falsehood intent to be false, the First
23 Amendment does prevent it. All I'm asking you is why can't
24 that principle be extended to say you can cause emotional harm
25 to your heart's content, just as you can state falsity to your
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1 heart's content, but where you intend to create that emotional
2 harm, we have a different situation.
3 Isn't that a possible line?
4 MR. ISAACMAN: I don't think that any reasonable
5 reader of any of the speech that has occurred in the cases
6 including New York Times v. Sullivan, Garrison and all the
7 other cases that have come down, Letter Carriers I gave as an
8 example, could ever say that the speaker did not intend to
9 cause harm.
10 When you say something that somebody has a corkscrew
11 soul and has tortured principles for a heart and is a traitor,
12 who can believe that person doesn't intend to cause harm.
13 People intend the natural consequences of their actions. And
14 they intend when they say something critical, they intend that
15 that's going to cause some harm or some distress. And that
16 speech has to be protected, or all we're going to have is a
17 bland, milquetoast kind of speech in this country.
18 QUESTION: That may well be. My only point is New
19 York Times, it seems to me, doesn't speak to it. New York
20 Times says intent is okay, is enough to get you out of it.
21 What you're saying is, this kind of intent shouldn't be enough,
22 intent to cause harm shouldn't be.
23 MR. ISAACMAN: That's correct. Knowing falsity may
24 be enough.
25 QUESTION: But even in the New York Times sense, if
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1 what the asserted facts here were known to be untrue, I mean,
2 one who knew nothing about Mr. Falwell or anything about the
3 background could read this and think there might be some
4 individual that this was a factually correct statement about.
5 So that these are statements that were knowingly false, so they
6 really satisfied the New York Times standard in that sense.
7 MR. ISAACMAN: Justice Stevens, the response to that
8 is really that there were no facts asserted.
9 QUESTION: Well, I understand what your argument is,
10 but to the extent that there are factual statements, they
11 satisfy the New York Times standard because everybody knows
12 they're false, including the speaker.
13 MR. ISAACMAN: If you change what this article means,
14 and you say this article's capable of being interpreted as an
15 assertion of fact, then you've kind of set the stage
16 differently from what it is, and from what the jury determined.
17 If you say that in Letter Carriers, that the person who made
18 that comment was really saying --
19 QUESTION: Really, all I'm suggesting is pretty much
20 the same thing Justice Scalia is. I'm not sure New York Times
21 speaks to the problem we have before us in this case.
22 MR. ISAACMAN: It speaks in a sense that a knowing
23 falsity, a reckless falsity is required. And that requires
24 that there be a false statement of fact. And the cases
25 indicate that. Garrison indicates that. Letter Carriers
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1 indicates that. Before there can be a false statement of fact,
2 there has to be a false statement, and without a false 3 statement, there can be no false statement of fact.
4 QUESTION: Well, that gets us back to Bose and 5 whether we have to reexamine this statement for ourselves to
6 determine whether it's a factual statement. 7 MR. ISAACMAN: Well, that brings me back to my
8 response, Justice O'Connor, that if there were an adverse
9 determination to the speaker, this Court would have an
10 independent obligation to examine.
11 QUESTION: I don't think Bose spelled it out that
12 way. I don't read that necessarily into Bose. So you may be
13 asking us to move on to another step beyond that case.
14 MR. ISAACMAN: Well, the only thing I would say is 15 the only case I saw that dealt with that is Brown v. KNB
16 Corporation, a Connecticut Supreme Court case decided 17 August 18, 1987. And my reading of that case is that the
18 independent review goes one way and it goes to review the 19 adverse determination against the speaker. It doesn't go to
20 review a finding that there was --
21 QUESTION: I suppose that Connecticut case isn't 22 binding on us.
23 MR. ISAACMAN: That's correct. That's correct. 24 QUESTION: Well, even accepting what the jury found,
25 that there was no reputational injury here because there was no
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1 believable fact asserted, for you to win, you have to say that
2 opinion or parody is never actionable, even though it's done
3 intentionally for the purpose of inflicting emotional distress.
4 That's your proposition, isn't it?
5 MR. ISAACMAN: Well, Justice White, my proposition is
6
7 QUESTION: Isn't it, or not?
8 MR. ISAACMAN: No, no. As you stated, Your Honor,
9 no, it isn't.
10 QUESTION: What is it, then?
11 MR. ISAACMAN: Because what that leaves out is
12 opinion or parody that does not contain anything that can be
3 reasonably understood as a statement of fact.
4 QUESTION: All right. I agree with that, because
5 that's what the jury found.
6 MR. ISAACMAN: The second thing that your
7 hypothetical left out, your proposition left out was that this
18 is a public figure who is bringing this action, somebody whdse
9 supposed to have a thick skin.
20 QUESTION: All right. Include that, and then you
21 say, parody or opinion about a public figure is never 22 actionable even though it's done intentionally for the purpose
23 of causing emotional distress, that's your proposition.
24 MR. ISAACMAN: And even though it contains nothing
25 that can be understood as a false statement of fact.
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1 QUESTION: Sure, sure.
2 MR. ISAACMAN: Including that, I agree, yes. That's
3 my proposition.
4 QUESTION: That's your proposition.
5 MR. ISAACMAN: You cross the line when you say
6 something that can be understood as a false statement of fact.
7 Otherwise, you're not going to have the uninhibited robust —
8 QUESTION: Well, I take it certainly it's arguable
9 that we must judge this case on the basis that there was no
10 fact involved. You say the jury said there wasn't.
11 MR. ISAACMAN: The jury said there was nothing that
12 could be perceived, could be understood as a fact.
13 QUESTION: If we judge the case on that basis, then
14 your proposition is there can't be any liability here at
15 all, --
16 MR. ISAACMAN: That's correct.
17 QUESTION: -- if there's a public figure involved.
18 Would you say if there wasn't a public figure involved, that we
19 could sustain this judgment?
20 Let's assume it was not a public figure. No
21 believable or nothing that was said that could be interpreted
22 as a fact, and so there would be no libel, no reputational
23 injury. If there was not a public figure involved, you would
24 say the judgment would stand, or not?
25 MR. ISAACMAN: Fortunately, that's not my case. But
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1 I will answer that. We don't have to deal with that case in
2 resolving this one.
3 QUESTION: Well, you haven't mentioned it, yet.
4 MR. ISAACMAN: I would say that if it does not
5 contain a false statement of fact, or something that can be
6 perceived as a false statement of fact, then even it's a
7 private figure, it's protected speech.
8 QUESTION: At common law, I suppose the exception was
9 just for fair comment, wasn't it?
10 MR. ISAACMAN: Common law in the?
11 QUESTION: In this tort of emotional distress, that
12 there was leeway for some kind of fair comment?
13 MR. ISAACMAN: Well, this tort of emotional distress
14 is really such a new tort that there is, to my knowledge, not a
15 lot of decisions on point. And in Virginia -- and I don't mean
16 to evade your question and I'll try to answer it -- but in
17 Virginia, itself, we found no case that allows intentional
18 infliction of emotional distress cause of action in this arena,
19 and we pointed that out in our brief.
20 And the only case we did find was this Mitchell v.
21 Dameron case, that indicated that you cannot sue for 22 intentional infliction of emotional stress when you're suing on
23 what is considered to be an allegedly injurious falsehood that
24 gives rise to a claimed libel action. Because that would make
25 that tort duplicative and would give the opportunity for
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1 plaintiff to get around the First Amendment limitations.
2 QUESTION: Mr. Isaacman, you puzzled me with your
3 answer to Justice White, and assuming there's no public figure
4 involved, and you've admitted there's a public interest in
5 protecting the citizenry from emotional distress, what's the
6 public interest in protecting speech that does nothing else?
7 MR. ISAACMAN: There is a public interest in allowing
8 every citizen of this country to express his views. That's one 9 of the most cherished interests that we have as a nation.
10 QUESTION: Well, what view was expressed by this?
11 MR. ISAACMAN: By this ad parody, or your example?
12 QUESTION: Well, either one, other than something
13 that just upsets the target of the comment? 14 MR. ISAACMAN: What view is expressed by the ad
15 parody is really a couple fold view, two views or more. In the
16 first place, we have to understand that we're talking about one 17 page out of 150 pages in the magazine. 18 QUESTION: I understand. 19 MR. ISAACMAN: So it's not a treatise or a novel
20 that's gone into a long development. It is a parody of a
21 Compari ad, number one, if it does that.
22 QUESTION: I understand.
23 MR. ISAACMAN: And that's a legitimate view for it to 24 express. And we all can understand how it parodied the ad.
25 It is also a satire of Jerry Falwell, and he is in
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1 many respects the perfect candidate to put in this Compari ad 2 because he's such a ridiculous figure to be in this ad.
3 Somebody who has campaigned against alcohol, campaigned against
4 sex and that kind of thing.
5 QUESTION: Well, is the public interest that you're
6 describing, you're building up here that there's some interest
7 in making him look ludicrous or is it just there's public
8 interest in doing something that people might think is funny?
9 What is the public interest?
10 MR. ISAACMAN: There are two public interests. With
11 respect to Jerry Falwell alone, there are two public interests.
12 One is there is a public interest in having Hustler express its
13 view that what Jerry Falwell says as the rhetorical question at
14 the end of the ad parody indicates is B.S. And Hustler has
15 every right to say that somebody who's out there campaigning
16 against it saying don't read our magazine and we're poison on
17 the minds of America and don't engage in sex outside of wedlock
18 and don't drink alcohol. Hustler has every right to say that
19 man is full of B.S. And that's what this ad parody says.
20 And the first part of the ad parody does, it puts him
21 in a ridiculous setting. Instead of Jerry Falwell speaking
22 from the television with a beatific look on his face and the
23 warmth that comes out of him, and the sincerity in his voice,
24 and he's a terrific communicator, and he's standing on a
25 pulpit, and he may have a bible in his hand, instead of that
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1 situation, Hustler is saying, let's deflate this stuffed shirt,
2 let's bring him down to our level, or at least to the level
3 where you will listen to what we have to say.
4 (Laughter)
5 MR. ISAACMAN: I was told not to joke in the Supreme
6 Court. I really didn't mean to do that.
7 QUESTION: That's the answer to the first half of my
8 question. What's the public interest in the case involving a
9 private figure?
10 MR. ISAACMAN: In the case of a private figure, the
11 public interest is admittedly less.
12 QUESTION: Less? What is it?
13 MR. ISAACMAN: There is still interest in expressing
14 your views, there's still an interest in people being able to
15 express their views, apart from the fact that the public may
16 not have any great interest in hearing those views.
17 QUESTION: Mr. Isaacman, to contradict Vince
18 Lombardi, the First Amendment is not everything. It's a very
19 important value, but it's not the only value in our society,
20 certainly. You're giving us no help in trying to balance it,
21 it seems to me, against another value which is that good people
22 should be able to enter public life and public service.
23 The rule you give us says that if you stand for
24 public office, or become a public figure in any way, you cannot
2 5 protect yourself, or indeed, your mother, against a parody of
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1 your committing incest with your mother in an outhouse.
2 Now, is that not a value that ought to be protected?
3 Do you think George Washington would have stood for public
4 office if that was the consequence? And there's no way to
5 protect the values of the First Amendment and yet attract
6 people into public service? Can't you give us some line that
7 would balance the two?
8 MR. ISAACMAN: Well, one of the lines was suggested
9 by a question earlier, and that is in the private figure of
10 public figure area, if the Court really wants to balance. But
11 somebody whose going into public life, George Washington as an
12 example, there's a cartoon in I think it's the cartoonist's
13 society brief, that has George Washington being led on a donkey
14 and underneath there's a caption that, so and so whose leading
15 the donkey is leading this ass, or something to that effect.
16 QUESTION: I can handle that. I think George could
17 handle that. But that's a far cry from committing incest with
18 your mother in an outhouse. I mean, there's no line between
19 the two? We can't protect that kind of parody and not protect
20 this ?
21 MR. ISAACMAN: There's no line in terms of the
22 meaning because Hustler wasn't saying that he was committing
23 incest with his mother. Nobody could understand it to be
24 saying that as a matter of fact. And what you're talking
25 about, Justice Scalia, is a matter of taste. And as Justice
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1 Scalia, you said in Pope v. Illinois, just as it's useless to
2 argue about taste, it's useless to litigate it, litigate about
3 it. And what we're talking about here is, well, is this
4 tasteful or not tasteful. That's really what you're talking
5 about because nobody believed that Jerry Falwell was being
6 accused of committing incest.
7 The question is is this in good taste to put him in
8 this, draw this image, paint a picture. If you charge a man
9 with a crime, Your Honor, and it's an assertion that he
10 committed a crime, --
11 QUESTION: If it's against a public figure, it's
12 okay.
13 MR. ISAACMAN: No.
14 QUESTION: No?
15 MR. ISAACMAN: If it's a knowing false statement of
16 fact, if you're charging him with a crime and it's perceived
17 that you're charging him with a crime, and you're doing it with
18 knowledge that that's false, it's not okay against a public
19 figure.
20 QUESTION: Well, isn't that this case?
21 MR. ISAACMAN: No, it isn't this case.
22 QUESTION: You say they didn't charge him with
23 incest?
24 MR. ISAACMAN: Justice Marshall, they did not charge
25 him with incest, and a jury determined --
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1 QUESTION: Why did they have him and his mother
2 together?
3 MR. ISAACMAN: They had him and his mother together
4 to what's called in literary forum, travesty, to put somebody
5 in a ridiculous unbelievable setting for purposes of effect.
6 They put him in this situation knowing nobody would really
7 perceive that that's what he's actually doing. But to say
8 we're going to deflate this man who is so self-righteous in the
9 area of sex and telling everybody else what to do, as well as
10 telling them what to read.
11 QUESTION: And what public purpose does that serve?
12 MR. ISAACMAN: It serves the same public purpose in a
13 sense of having Trudeau in Doonesbury call George Bush a wimp.
14 What public purpose does that have? It makes people look at
15 that and maybe think of George Bush a little bit differently.
16 And somebody who is out there telling other people how to live
17 and being very serious and sober about it and acting as though
18 he has more knowledge than they do about how they live their
19 lives, Hustler has a right to make comments about it and make 20 him look ridiculous as long as they don't state false
21 statements of fact knowingly or recklessly. 22 QUESTION: Well, it was a false statement of fact
23 that he was in the outhouse with his mother. That was a false
24 statement of fact.
25 MR. ISAACMAN: It was not a statement of fact, Your
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1 Honor, and the jury so found.
2 QUESTION: Well, what was it?
3 MR. ISAACMAN: What was it? It was hyperbole.
4 QUESTION: Hyperbole?
5 MR. ISAACMAN: Just as calling somebody a blackmailer
6 was not saying he's a blackmailer. It was saying that he was
7 engaged in --
8 QUESTION: If you charge somebody with say, if you
9 don't pay me money, I'll report you, that's blackmail.
10 MR. ISAACMAN: That's correct.
11 QUESTION: Well, that's the same as this was.
12 MR. ISAACMAN: That's correct. But in Greenbelt,
13 saying that somebody was a blackmailer --
14 QUESTION: Oh, you mean, they had to say that he was
15 guilty of incest, in quotes? Is that right? Is that right?
16 MR. ISAACMAN: No, it is not right, Your Honor.
17 QUESTION: How close would they have to get to that?
18 MR. ISAACMAN: They would have to say it in a way
19 that a reasonable reader would perceive that that's what
20 Hustler was saying, that he is guilty of incest. And this jury
21 that was certainly not a jury that came from Hustler's
22 background in any way, said that no reasonable reader could
23 perceive this as a statement of fact.
24 And in summing up, what I would like to do is say
25 this is not just a dispute between Hustler and Jerry Falwell,
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1 and a rule that's applied in this case is not just that Hustler
2 Magazine can no longer perform what it does for its readers,
3 and that is produce this type of irreverent humor or other
4 types of irreverent humor. It affects everything that goes on
5 in our national life. And we have a long tradition, as Judge
6 Wilkinson said, of satiric commentary and you can't pick up a
7 newspaper in this country without seeing cartoons or editorials
8 that have critical comments about people.
9 And if Jerry Falwell can sue because he suffered
10 emotional distress, anybody else whosp in public life should be
11 able to sue because they suffered emotional distress. And the
12 standard that was used in this case, does it offend generally
13 accepted standards of decency and morality is no standard at
14 all. All it does is allow the punishment of unpopular speech.
15 QUESTION: How often do you think you're going to be
16 able to get a jury to find that it was done with the intent of
17 creating emotional distress. I mean, there is that finding
18 here.
19 MR. ISAACMAN: Every time. Almost every time that
20 something critical is said about somebody, because how can any
21 speaker come in and say I didn't intend to cause any emotional
22 distress, and be believed. If you say something critical about
23 another person, and if it's very critical, it's going to cause
24 emotional distress. We all know that. That's just common
25 sense. So it's going to be an easy thing to show, intent to
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1 harm. That's why that's a meaningless standard. Incidentally,
2 it was a negligence standard in this case.
3 CHIEF JUSTICE REHNQUIST: Thank you, Mr. Isaacman.
4 We'll hear now from you, Mr. Grutman.
5 ORAL ARGUMENT OF NORMAN ROY GRUTMAN
6 ON BEHALF OF RESPONDENT
7 MR. GRUTMAN: Mr. Chief Justice, may it please the
8 Court.
9 Deliberate, malicious character assassination is not
10 protected by the First Amendment to the Constitution.
11 Deliberate, malicious character assassination is what was
12 proven in this case. By the defendant's own explicit
13 admission, the publication before this Court was the product of
14 a deliberate plan to assassinate, to upset the character and
15 integrity of the plaintiff, and to cause him severe emotional
16 disturbance with total indifference then and now to the
17 severity of the injury caused.
18 When the publication was protested by the bringing of
19 this lawsuit, the unregenerate defendant published it again.
20 Justice Scalia, I'd like to answer a question that you raised
21 with my adversary. How often are you going to be able to get
22 proof like this. I dare say, very infrequently, and I dare say
23 that the kind of behavior with which the Court is confronted is
24 aberrational. This is not the responsible publisher. This is
25 the wanton, reckless, deliberately malicious publisher who sets
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1 out for the sheer perverse joy of simply causing injury to
2 abuse the power that he has as a publisher.
3 QUESTION: Mr. Grutman, I guess there are those who
4 think that the conduct of certain newspapers in pursuing
5 Mr. Hart recently was of the same unwarranted character.
6 Should that result in some kind of liability?
7 MR. GRUTMAN: I don't think so in that case because
8 what was being done by the newspapers in that case was
9 reporting the truth, the truth about a public figure who was a
10 candidate for public office. The context in which the
11 publications about Gary Hart appeared cannot really be compared
12 favorably with what was done here.
13 QUESTION: So you would limit the recovery for the
14 tort of emotional distress to recovery for a falsehood?
15 MR. GRUTMAN: No.
16 QUESTION: No?
17 MR. GRUTMAN: Under the theory of the intentional
18 infliction of emotional distress, even the truth can be used in
19 such a way if it is used in some outrageous way, it must be
20 something which is so repellent --
21 QUESTION: And what if the jury were to determine
22 that what the newspapers did with regard to Mr. Hart fell in
23 that category? Is that recoverable?
24 MR. GRUTMAN: If the jury were able to find from the
25 evidence, Justice O'Connor, that the publication was outrageous
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1 -- I would doubt that they would find that because it is not
2 that kind of conduct -- reporting the truth.
3 QUESTION: But you would say it's open to a jury
4 determination?
5 MR. GRUTMAN: Only in a highly theoretical sense, if
6 the animating purpose behind the publisher was simply to
7 inflict intense and severe emotional distress upon Gary Hart.
8 But I think that's really not the issue. The focus in this
9 Court, which is not the Court of libel, the focus is on the
10 harm which is inflicted on the victim.
11 QUESTION: Well, do you think a vicious cartoon
12 should subject the drawer of that cartoon to potential
13 liability?
14 MR. GRUTMAN: Only in the event that the cartoon
15 constitutes that kind of depiction which would be regarded by
16 the average member of the community as so intolerable that no
17 civilized person should have to bear it. That's the definition
18 of the Court.
19 QUESTION: Well, Mr. Grutman, you're certainly posing
20 a much broader proposition than is necessary for you to win
21 this case.
22 MR. GRUTMAN: Indeed, but I was answering the
23 question of Justice O'Connor.
24 QUESTION: Well, the way you put it from the very
25 outset, you put it the same way. We're judging this case on
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1 the basis that the jury found that no one could reasonably have
2 believed that this was a statement of fact. That's the way we
3 judge this case.
4 MR. GRUTMAN: No. I'd like to address that point,
5 Justice White, because I think a kind of semantic conundrum has
6 been presented here when counsel says that there was no
7 statement of fact.
0 There was a statement of fact. Just as we argued in
9 our brief, you could state gravity causes things to fly upward.
10 That is a statement of fact. It's just a false statement of
11 fact. And if one consults the record --
12 QUESTION: What do you make out of the special
13 verdict the jury returned?
14 MR. GRUTMAN: I make out of it the fact that the jury
15 said that this was not describing actual facts about the
16 plaintiff or actual events in which the plaintiff participated.
17 That is a finding that what the statement was in the
18 publication was false.
19 Perhaps we should have appealed that. That's a
20 finding of falsity which is all that we needed to prove to
21 sustain libel. But we did not appeal that, and that question
22 is not before the Court.
2 3 But in answer to your question, I find that the
24 meaning of the answer to that question only goes to the issue
25 of whether the jury thought that Reverend Falwell --
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1 QUESTION: I don't know why you insist on this
2 because if there's anything factual about this statement, you
3 certainly have to contend with New York Times. And if there's
4 nothing factual about it, you don't have to contend with it at
5 all. All you have to say or all you have to win, which is
6 plenty, that using opinion or parody to inflict emotional
7 distress is not protected by the First Amendment, which is a
8 considerably different proposition than what you've been
9 pushing.
10 MR. GRUTMAN: I agree that parody or so-called
11 satire, whatever it calls itself, is not necessarily protected
12 speech when the purpose of the publisher is to inflict severe
3 emotional distress. And while the contention is made in the
4 argument that you've heard this morning that this was a parody,
15 I think that the jury could properly examine this and recognize
6 it for what it is. A fig leaf isn't going to protect this kind
7 of a publication from being recognized as the kind of behavior
8 with which the tort of the intentional infliction of emotional
9 distress is intended to deal.
20 QUESTION: But you would subject, though, the range
21 of political cartoonists, for example, to that kind of jury 22 inguiry, whether it was vicious enough to warrant recovery.
23 MR. GRUTMAN: No. Two things must conjoin. What
24 you have to have is an irresponsible intention on the part of
25 the defendant to inflict injury. That's only one half of it.
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1 The other is that what the cartoonist, the writer or
2 the speaker does, constitutes in the mind of the community, an
3 utterance of such enormity, such a heinous kind of utterance,
4 usually false, that nobody should have to bear that if the
5 purpose was to inflict severe emotional injury, and severe
6 emotional injury results.
7 QUESTION: What about a cartoonist who sits down at
8 his easel, or whatever cartoonists sit down at, and thinks to
9 himself, a candidate acts for the presidency as just a big
10 windbag, a pompous turkey and I'm going to draw this cartoon
11 showing him as such. You know, part of his intent, he enjoys
12 cartooning and just likes to make people look less than they
13 are, to show up the dark side of people. But he knows
14 perfectly well that's going to create emotional distress in
15 this particular person.
16 Now, does that meet your test?
17 MR. GRUTMAN: No. It does not, unless what he
18 depicts is something like showing the man committing incest
19 with his mother when that's not true, or molesting children or
20 running a bordello or selling narcotics.
21 QUESTION: What about the state of mind required from
22 the defendant?
23 MR. GRUTMAN: Well, the state of mind is precisely
24 what we're concerned with.
25 QUESTION: What about the state of mind I've
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1 hypothesized to you. Does that satisfy your test for the
2 constitutional, or not?
3 MR. GRUTMAN: No, it would not. If the man sets out
4 with the purpose of simply making a legitimate aesthetic,
5 political or some other kind of comment about the person about
6 whom he was writing or drawing, and that is not an outrageous
7 comment, then there's no liability.
0 QUESTION: Even though he knows it will inflict
9 emotional distress?
10 MR. GRUTMAN: It has to be -- correct, because you
11 cannot have emotional distress for mere slights, for the kinds
12 of things which people in an imperfect world have got to put up
13 with, calling somebody some of the epithets that were mentioned
14 in the opposing argument, blackmailer, or some other conclusory
15 and highly pejorative terms, an epithet, but when you say not
16 that you are some foul conclusory term, but when you depict
17 someone in the way in which Jerry Falwell was depicted with all
18 of the hallmarks of reality including the pirated copyright and
19 the pirated trademark so that the casual reader looking at it
20 could think this is for real, that rises to the level of —
21 QUESTION: That's a different argument.
22 QUESTION: Yeah, that doesn't go to the question of
2 3 intent.
24 What about a case in which another magazine publisher
25 today decided I think I could sell a lot of magazines by
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1 reprinting this very parody here because it's gotten so much
2 publicity and some people may think it's funny and so forth, I
3 don't care if it hurts Mr. Falwell, but it will cause precisely
4 the same harm as this one.
5 Is there recovery in that case or not?
6 MR. GRUTMAN: I do not think so, or it's a much
7 harder ca£e.
8 QUESTION: So it's free game now. Anybody can
9 publish this other than Mr. Flint?
10 MR. GRUTMAN: Justice Stevens, Mr. Flint republished
11 it for a third time after the jury verdict.
12 QUESTION: I understand. But what you're telling me
13 under your test, anybody else may publish it without incurring
14 liability.
15 MR. GRUTMAN: Liability requires an intent.
16 QUESTION: But you do agree with what I said?
17 MR. GRUTMAN: I do, I do Mr. Justice Stevens. I
18 agree that intent -- this is why this is such a rare tort.
19 This is, as I've suggested, an intersticial tort.
20 QUESTION: Mr. Grutman, you've given us a lot of
21 words to describe this: outrageous, heinous, --
22 MR. GRUTMAN: Repulsive and loathsome.
23 QUESTION: Repulsive and loathsome. I don't know,
24 maybe you haven't looked at the same political cartoons that I
25 have, but some of them, and a long tradition of this, not just
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1 ion this country but back into English history, I mean,
2 politicians depicted as horrible looking beasts, and you talk 3 about portraying someone as committing some immoral act. I
4 would be very surprised if there were not a number of cartoons
5 depicting one or another political figure as at least the piano
6 player in a bordello.
7 MR. GRUTMAN: Justice Scalia, we don't shoot the
8 piano player. I understand that. ( 9 QUESTION: But can you give us something that the
10 cartoonist or the political figure can adhere to, other than
11 such general words as heinous and what not. I mean, does it
12 depend on how ugly the beast is, or what?
13 MR. GRUTMAN: No, it's not the amount of hair the
14 beast has or how long his claws may be. I believe that this is 15 a matter of an evolving social sensibility. Between the 1700s
16 and today, I would suggest, that people have become more
17 acclimatized to the use of the kinds of language or the kinds
18 of things that had they been depicted at an earlier age would
19 have been regarded as socially unacceptable. And while that
20 evolutionary change is taking place, and it's a salutary thing,
21 there are certain kinds of things. It's difficult to describe
22 them.
23 This Court struggled for years to put a legal 24 definition on obscenity, and Justice Stewart could say no more
25 than, I know what it is when I see it.
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1 Well, this kind of rare aberrational and anomalous
2 behavior, whatever it is, whatever the verbal formulation that
3 the nine of you may come upon, clearly it can be condensed in
4 the form of words that I used, which are not mine -- they
5 belong to the oracles of the restatement -- who have tried to
6 say that it is for the jury to decide whether or not what is
7 being depicted is done is so an offensive, so awful and so 8 horrible a way, that it constitutes the kind of behavior that
9 nobody should have to put up with.
10 QUESTION: Well, Mr. Grutman, in today's world,
11 people don't want to have to take these things to a jury. They
12 want to have some kind of a rule to follow so that when they
13 utter it or write it or draw it in the first place, they're
14 comfortable in the knowledge that it isn't going to subject
15 them to a suit.
16 MR. GRUTMAN: I frankly think that it isn't too much
17 to expect, Justice O'Connor, that a responsible author, artist,
18 or anyone would understand that attempting to falsely depict as
19 a representational fact that someone is committing incest with
20 his mother in an outhouse and saying that she's a whore, and
21 that when the person involved is an abstemious Baptist 22 Minister, that he always gets drunk before he goes into the
23 pulpit, it isn't too much to say that anybody who would do that
24 ought to take the consequences for casting that into the
25 stream.
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1 QUESTION: Well, the say you put it, we don't need
2 any new law for that. That's just -- New York Times wouldn't
3 insulate any statement of fact like that.
4 MR. GRUTMAN: Justice White, I don't think this case
5 is governed by the New York Times rule. When I tried this
6 case, we were living in the heyday of Gertz and we had not yet
7 had this Court's decision in Dunn & Bradstreet or in
8 Philadelphia Newspaper v. Hepps. I would suggest to this Court
9 that we are covered by your decisions in those cases.
10 This is not speech that matters. This is not the
11 kind of speech that is to be protected. The New York Times
12 rule is not a universal nostrum. It is a rule that you
13 formulated to meet a constitutional crisis in which truth,
14 which is irrelevant here.
15 QUESTION: Well, if these were factual statements
16 like you mentioned, you could win under New York Times any
17 time.
18 MR. GRUTMAN: Yes, we could win under New York Times,
19 but I'm suggesting that as a jurist prudential matter, the New
20 York Times formulation of actual malice is inappropriate and
21 irrelevant for this tort for the reason that when you're
22 dealing with the tort of libel, the focus of inquiry, the
23 gravamen is on the issue of true or falsity in which facts
24 become the measure of what is true or false, or something which
25 has been dealt with recklessly.
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1 The gravamen of this, as I say, intersticial tort is
2 on the harm that was inflicted on the victim, and the
3 consitutional measure here is intentionality. It's what this
4 Court said in the dissent of Chief Justice Rehnquist, we're
5 really dealing with whether you call it, scienter or mens rea.
6 QUESTION: Well, Mr. Grutman, there's plenty of
7 malice here all right. I mean, I don't think that's your 8 problem. But the jury said this can't be reasonable viewed as
9 making a factual allegation.
10 MR. GRUTMAN: I disagree, Justice O'Connor, and if
11 you'll give me a moment -- that is the easy way of looking at
12 it, but that's not what they said.
13 The question answered is, can this be understood as
14 describing actual -- meaning truth -- actual facts about
15 plaintiff or actual events in which plaintiff participated.
16 And they said, no. That to me means that they said this is not
17 a true statement of fact, but it's nonetheless a statement of
18 fact for the purposes of New York Times or for the purposes of
19 this case.
20 QUESTION: Give me a statement that isn't a statement
21 of fact.
22 MR. GRUTMAN: Pardon?
23 QUESTION: Give me a statement that isn't a statement
24 of fact in your interpretation of what statement of fact means.
25 I mean, when you say, statement of fact, it means true fact, or
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1 it means nothing at all.
2 MR. GRUTMAN: No. That is the aristotelian
3 interpretation of a statement of fact as propounded by
4 Professors Wexler and Michael in their famous monograph, but in
5 the common parlance in which we speak, a statement of fact is
6 an utterance about either an event or a thing or a person which
7 can be proven either true or false. If it's true, then it's a
8 true fact, but if it's false, like gravity causes things to
9 float upward -- that's a statement of fact, but it's manifestly
10 false.
11 QUESTION: So there's no statement that is not a
12 statement of fact is what you're saying.
13 MR. GRUTMAN: That's correct. However, there may be
14 statements -- that's an interesting philosophical question that
15 we could explore endlessly, but --
16 QUESTION: Mr. Grutman, that's not the way the Fourth
17 Circuit interpreted the finding in this case. They interpreted
18 it, as I read their opinion, the majority, to mean that the
19 jury understood it was not a statement of factual statement
20 about him. They didn't admit that they thought the statement
21 was false. So you're urging on us, a meaning that's not been
22 accepted by any of the Courts that have had the case so far.
23 MR. GRUTMAN: Candidly, I must say that I do not
24 think that the Fourth Circuit made the point which I first
25 tried to make to Justice O'Connor, and which I am making to
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1 you: in retrospect, I believe we could have appealed this as a
2 proper basis for libel with that finding.
3 QUESTION: You could, but you didn't.
4 MR. GRUTMAN: But I didn't and that's therefore it
5 wasn't before the Fourth Circuit, and it's not before you now.
6 QUESTION: Not only that, but the purpose in the jury
7 instruction was to ask that question as a predicate to the
8 second question which related to malice which wouldn't have had
9 any purpose to it unless it's interpreted the way —
10 MR. GRUTMAN: That is the way it looks in the cold
11 light in the Supreme Court today. I remember that at the time
12 that those jury instructions were being fought over in the pit
13 of the trial, it really had to do with a certain contention the
14 Judge Turc was flirting with about the meaning of Prinq as to
15 whether or not what was done in Prinq constituted some basis -
16 QUESTION: Yes, but your second question all goes to
17 whether the New York Times malice standard, and that just isn't
18 even implicated unless it's a false statement of fact.
19 MR. GRUTMAN: Justice Stevens I agree that maybe I
20 should have done something different, but I thought at the time
21 that the damages we were seeking to recover were equally 22 recoverable under the intentional infliction of emotional
23 stress.
24 QUESTION: May I ask a different question that just
25 troubles me a little bit about the case. Your tort is one, I
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1 gather, that's founded on Virginia law. This is a diversity
2 case, is it not?
3 MR. GRUTMAN: This is a Virginia Tort.
4 QUESTION: And so the contours of this tort
5 presumably we would find in some Virginia decisions? 6 MR. GRUTMAN: Yes.
7 QUESTION: And the latest decision that's cited in
8 your opponent's reply brief is a lower court decision which
9 seems to say there's no tort of this kind at all. You didn't
10 comment on that.
11 MR. GRUTMAN: That case which I saw when I received
12 their brief I believe yesterday, I noticed was a Court of
13 inferior jurisdiction.
14 QUESTION: Right.
15 MR. GRUTMAN: I do not think that it is controlling
16 on this Court. I do not think that it is good law.
17 QUESTION: Well, if it correctly describes Virginia
18 law, it is controlling. In terms of what the Virginia law is,
19 we don't decide that.
20 MR. GRUTMAN: I understand that but I believe that
21 there are other cases in Virginia, which have been cited in our
22 brief, which support the validity of the proposition that we
23 are asserting that Virginia recognizes this as a separate and
24 independent tort. Now, that's a lower court case and it may be
25 appealed or it may not, but there are higher authorities within
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1 the State of Virginia which support the position that we're
2 advancing here.
3 QUESTION: Which are cited in your brief?
4 MR. GRUTMAN: Yes, they are, Justice Stevens.
5 Now, Hustler contends that the actual malice test of
6 libel law preempts the field and must be applied universally
7 and literally to all dignitary torts involving speech. And I
8 suggest that the Dunn & Bradstreet decision and the Hepps
9 decision reject that.
10 This Court has not treated that as a universal
11 nostrum. This Court has recognized differences in speech and
12 has granted less First Amendment protection, and sometimes no
13 First Amendment protection.
14 In this case, subjective awareness of falsity or
15 reckless disregard of truth are an appropriate way of examining
16 actual malice when the gravamen of the tort is falsity as in
17 libel. However, here with the intentional infliction of
18 emotional distress which has also been described as outrageous
19 conduct, --
20 QUESTION: Mr. Grutman, is libel, per se, recognized
21 in Virginia when you charge somebody with a crime?
22 MR. GRUTMAN: I believe so.
23 QUESTION: Well, nobody pays any attention to that at
24 all.
25 MR. GRUTMAN: No one pays it?
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1 QUESTION: Any attention to that fact.
2 MR. GRUTMAN: In this case?
3 QUESTION: Yes. 4 MR. GRUTMAN: In retrospect, I understand what you're
5 saying about that, Justice Marshall, but I was fighting in that
6 case, the suggestion that this was hyperbole or the expression
7 of an opinion, and Judge Turc would not accept the view that
8 the accusation of incest is a crime which constitutes libel per
9 se, and so I was unable to try the case in that posture.
10 As I was pointing out to the Court, the harm done to
11 the individual is the focus of this tort. It's not a new tort.
12 It's been in existence for a hundred years. 13 QUESTION: It's certainly a new tort when applied to 14 the press. 15 MR. GRUTMAN: No, it is not a new tort, because there
16 have been cases that have been decided in a number of States in 17 which the press has been held libel for this tort, not only for
18 the intentional infliction -- 19 QUESTION: Yes, but how recent are those cases? 20 MR. GRUTMAN: Well, the Florida case that I speak of
21 is a 1984 case.
22 QUESTION: What I said was it's only recently, isn't
23 it, that the courts have been bringing activities of the press 24 within this expanding tort of intentional infliction of
25 emotional distress?
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1 MR. GRUTMAN: To that extent, I agree with you, Mr.
2 Chief Justice. This is for this Court a tabula rasa, not
3 exactly, however, terra incognita because in this connection, 4 you are guided by the principles that the Court has developed
5 in constitutional interpretations certainly over the last 23
6 years when what has been described as the federalization of the 7 law of libel first began in a commendable context, and has now
8 spread to the point where I believe you are considering either
9 dismantling or discarding Gertz. And the reason for that is
10 that the press, the press that clamors here for a universal
11 exemption so that they should have license to do what these
12 people have done, and that it should be condoned and considered 13 just a trivial or trifling incident of being a public figure.
14 In Mr. Justice Powell's decision in Gertz, he talked 15 about protecting speech that mattered.
16 QUESTION: Wasn't that before — 17 MR. GRUTMAN: Yes, it was. But in the opinion that
18 Mr. Justice Powell wrote for the Court -- 19 QUESTION: Lawyers always personalize these opinions, 20 and they are Court opinions.
21 MR. GRUTMAN: I apologize to the other members of the 22 Court to whom I meant no slight, but it's an opinion I'm sure 23
24 QUESTION: Of course, I was in dissent. 25 MR. GRUTMAN: In my view, Mr. Justice White, that
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1 dissent either is or may become, or should become the law of
2 the land.
3 QUESTION: I doubt it. 4 MR. GRUTMAN: Because well, I don't know any place
5 else to suggest that it ought to be. But I do think that what
6 experience has shown us has been the unworkability of that
7 rule.
8 For example, in Time v. Hill, which was twenty years
9 ago, footnote 7, Justice Brennan quoting a Second Circuit case,
10 I think it's called the Sidis case, said speaking about even
11 true revelations may be so intimate and so unwarranted in view
12 of the victim's position as to outrage the community's notion 13 of decency. 14 So this is a problem that was foreseen more than 15 twenty years ago, and now the problem is with us.
16 QUESTION: Mr. Grutman, I think it would be a 17 different -- you know, if there were a Virginia statute saying, 18 you know, it's tortious to depict someone as committing incest,
19 then you know, the cartoonist knows that he's up against. But
20 just to say heinous and just leave it to the jury. You think,
21 for example, it isn't only the incest that offends you, you
22 think that portraying a Baptist minister as having taken a shot 23 or two before he went on to the pulpit, that that would qualify
24 in your notion as heinous?
25 MR. GRUTMAN: I think particularly it would satisfy.
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1 QUESTION: You don't think that's debatable? 2 MR. GRUTMAN: All these questions are debatable.
3 That's why they go to juries for determination. But I think it
4 is highly unrealistic that a legislature should sit down and
5 write a deck log or a catalogue of prohibitions to constitute
6 guidelines for people exercising free speech. 7 As a judge said in another case, the common law has
8 been sufficient not to muzzle the press, and the common law is
9 already --
10 QUESTION: The common law hasn't had this tort.
11 MR. GRUTMAN: This is a common law tort. Downton v.
12 Wilkinson was a common law tort.
13 QUESTION: Since 1984 as applied to this field do you 14 tell us? 15 MR. GRUTMAN: No. I said in 1984 when I started to
16 quote these cases to Mr. Chief Justice Rehnquist, there was a 17 Florida case in 1984, there was a Missouri case in 1982, there
18 was a case in Wisconsin in 1970, another in 1982, and there 19 have been cases in New Hampshire, Ohio and the District of
20 Columbia, including one in 1929, which is Perry v. Capital
21 Traction Corporation, in which this Court denied cert.
22 QUESTION: This isn't Blackstone I mean, this is
23 pretty new, all of it, isn't it? 24 MR. GRUTMAN: The memory of man runneth contrary
25 perhaps to a time when this was a tort. I think the tort
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1 originated in the early 1900s. It originated in England. It's
2 present here. It has been a subject of the Restatement First.
3 And a subject of the Restatement Second. Perhaps it's 4 something that becomes more prevalent in our society because of
5 the irresponsibility of certain aberrant publishers.
6 This is an established tort under the law of Virginia
7 and under most of the States. And I believe as a
8 constitutional rule, the protection of the individual's
9 interest in his own sense of worth and dignity and to be free
10 from this kind of gratuitous onslaught and damage to his
11 feelings is something that ought properly to be left to the
12 States. 13 Hustler and Judge Wilkinson argued that there is some 14 new kind of category that this Court ought to establish called
15 the political public figure. That is a figure unknown in any
16 other decision and certainly not in this Court, and I would 17 surely argue against it. Because this Court has said that by
18 becoming a public figure, a person does not abdicate his rights 19 as a human being.
20 And if libel will not protect someone who is
21 subjected to this utterly not dubious but worthless kind of
22 verbal assault, then the tort of the intentional infliction of
23 emotional distress which Virginia recognizes is a tort which 24 deserves support and endorsement in this case and in this
25 Court.
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1 This case is no threat to the media. It will be the
2 rare case indeed where this kind of behavior will ever be
3 replicated, but where it occurs, it deserves the condemnation 4 which the jury gave it, which the Fourth Circuit found, and
5 which I respectfully submit this Court should affirm.
6 Thank you.
7 CHIEF JUSTICE REHNQUIST: Thank you, Mr. Grutman.
8 The case is submitted.
9 (Whereupon, at 11:00 a.m., the case in the above
10 entitled matter was submitted.)
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\ REPORTER'S CERT
3 SOCKET NUMBER: 86-1278
4 CASE TITLE: Hustler Magazine and Larry C. Flynt v. Jerry Falwell 5 HEARING DATE: December 2, 1987 6 LOCATION: Washington, D.C. 7 I hereby certify that the proceedings and evidence 8 are contained fully and accurately on the tapes and notes 9 reported by me at the hearing in the above case before the 10 United States Supreme Court 11 and that this is a true and accurate transcript of the case. 12
13 Date: /Z/z/Vp 14
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