LARRY FLYNT UNCENSORED: A DIALOGUE WITH THE MOST CONTROVERSIAL FIGURE IN FIRST AMENDMENT JURISPRUDENCE I Clay Calvert and Robert Richards* I. INTRODUCTION by a number of the feminists whom he has lam- 7 basted in Hustler. Although the "C" in Larry C. Flynt stands for Flynt, indeed, has done many outrageous things 1 Claxton, it could just as easily represent contro- in his life since leaving his poverty-ridden Appa- versy. The publisher of pornographic magazines lachian birthplace of Lakeville in Magoffin 2 such as Hustler, Barely Legal and Chic has been County, Kentucky.8 He once sought nomination ' 3 called everything from "sleaze merchant and as the Republican Party candidate for president of "old slimemeister" 4 to "smut peddler"5 and "sul- the United States.9 He has sent free monthly sub- tan of smut."6 He has been sued, not surprisingly, * Professor Richards is an Associate Professor ofJournal- INGTON POST, Dec. 5, 1984, at A18. ism & Law and Founding Co-Director of the Pennsylvania 4 Hanna Rosin, Hustler,NEw REPuBLIC,Jan. 6, 1997, at 20. Center for the First Amendment at The Pennsylvania State 5 James J. Kilpatrick, When Freedom is Difficult to Live With, University. B.A., 1983, M.A. 1984, Communications, The NATION'S Bus., Apr. 1977, at 9. Pennsylvania State University; J.D., 1987, The American Uni- 6 CURRENT BIOGRAPHY YEARBOOK 1999, 199 (Clifford versity. Member, State Bar of Pennsylvania. Professor Calvert Thompson ed., 1999). is an Assistant Professor of Communications & Law and Co- 7 See Dworkin v. Hustler Magazine, Inc., 867 F.2d. 1188, Director of the Pennsylvania Center for the First Amendment 1190-91 (9th Cir. 1989) (involving a lawsuit filed by outspo- at The Pennsylvania State University. B.A., 1987, Communi- ken feminist and anti-pornography crusader Andrea Dworkin cation, Stanford University; J.D. (Order of the Coif), 1991, against Hustler based on the magazine's quite candid criti- McGeorge School of Law, University of the Pacific; Ph.D., cism of her); Leidholdt v. L.F.P., Inc., 860 F.2d 890, 892 (9th 1996, Communication, Stanford University. Member, State Cir. 1988) (involving a lawsuit filed by Dorchen Leidholdt, Bar of California.Professors Richards and Calvert thank Kelly described by the Ninth Circuit as a "vigorous opponent of Bradish of the Schreyer Honors College at The Pennsylvania pornography," against Hustler based on the magazine's State University for her excellent research assistance that description of Leidholdt and other women in its "Asshole of contributed to this article. the Month" feature as, among other things, a "frustrated I Claxton was the first name of Larry Flynt's father. LARRY group of sexual fascists"); Ault v. Hustler Magazine, Inc., 860 FLYNr, AN UNSEEMLY MAN 7 (1996) [hereinafter FLYNT]. F.2d 877, 879 (9th Cir. 1988) (involving a lawsuit for invasion 2 Arthur Kretchmer, an editor of another adult en- of privacy, libel, intentional infliction of emotional distress, tertainment publication, Playboy, once described Hustler "as trespass and conversion filed by Peggy Ault, founder of an shamelessly vulgar as its reputation suggests. It is not merely organization in Oregon opposed to an adult video store, sexually explicit, it is perverse; the magazine thrives on gross, against Hustler based on the magazine's recognition of her as racist and scatological humor. Its overt aim is to shock one its "Asshole of the Month" and the accompanying description and all." Arthur Kretchmer, My Turn: Justice For 'Hustler,' of Ault as "tightassed housewife" and "crackpot"). NEWSWEEK, Feb. 28, 1977, at 13. Hustleris known for, among 8 For background on Flynt's birthplace and early up- other dubious distinctions, publishing the first scratch-and- bringing, see FLYNT, supra note 1, at 1-23. sniff centerfold. Christine Bertelson, Hustler: 20 and Still Un- 9 Off and Hustling, WASHINGTON POST, Nov. 25, 1983, at repentant, ST. Louis POsT-DIsPATCH, May 17, 1994, at CI. A3. Flynt ran on a platform of fighting sexual repression and For his part, Larry Flynt once described Hustler-shortly keeping "Big Brother out of your bedroom." Id. When asked before he was shot in 1978-as "a satire. It is one big put-on." why he was running as a Republican, Flynt responded that The Bloody Fall of a Hustler, TIME, Mar. 20, 1978, at 20. "I'm wealthy. I'm white. I'm pornographic. And, like Ronald 3 Mary Battiata, Falwell Suit Against Flynt Opens in Va., Reagan, I've been shot for what I believe in." Hustling on the WASHINGTON POST, Dec. 4, 1984, at C5 (quoting television Hustings, WASHINGTON POST, Oct. 8, 1983, at A2. evangelist Jerry Falwell during a recess on the first day of the Not surprisingly, the ill-fated campaign involved a free civil trial involving Falwell's lawsuit against Flynt for libel and speech controversy when Flynt threatened to force television intentional infliction of emotional distress) [hereinafter Bat- stations to show campaign commercials featuring hard-core tiata]. Conversely, Flynt has also called Falwell "a liar, a hypo- sex acts. Martin Schram & James R. Dickenson, Ad Nauseam, crite, and a glutton." Mary Battiata, 'Felt Like Weeping, 'WASH- WASHINGTON POST, Dec. 2, 1983, at A3. COMMLAW CONSPECTUS [Vol. 9 7 scriptions of his flagship publication, Hustler, to cule public-figure Jerry Falwell, 1 turning back his the president, vice president, every member of claim for intentional infliction of emotional dis- Congress and all of the justices on the United tress 8 resulting from an ad parody published in States Supreme Court.10 Ironically, he was ar- Hustler in its November 1983 issue. The parody rested in the Supreme Court for screaming ob- suggested that Falwell, the founder of the Moral scenities-an unprecedented incident-at those Majority and a nationally known minister, had en- same justices. 1' He has been arrested as well in a gaged in "a drunken incestuous rendezvous with federal district court in Los Angeles on charges of his mother in an outhouse."' 9 The Court, revers- desecrating a flag for wearing an American flag as ing the decision of the United States Court of Ap- a diaper.' 2 He has gone from pornographer to peals for the Fourth Circuit, held that public born-again Christian and then back again to figures such as Falwell could not recover for inten- pornographer.' 3 He has seen himself portrayed tional infliction of emotional distress based on on the silver screen as an "unlikely American an- publications such as the Hustler ad parody without tihero" in the 1996 Milos Forman film, The People also proving actual malice, 20 a standard applicable 2 vs. Larry Flynt.1 4 More recently, in 1998, he pur- to public figures and officials in defamation law. ' chased a full-page advertisement in The Washing- While the Falwell case grabs all of the attention ton Post, offering $1 million to anyone who had in law school, it should be noted that Larry Flynt's proof of an adulterous affair with a member of actions on behalf of the First Amendment stretch Congress. 15 beyond protecting his pornographic publications. For all of this controversy, however, it is the For instance, after the United States invaded the United States Supreme Court's 1988 decision in tiny island nation of Grenada in October 1983 Hustler Magazine, Inc. v. Falwe116 that firmly plants and imposed a virtual blackout on the press there, Larry Flynt in First Amendment jurisprudence. Larry Flynt stepped up and filed a federal law- The Court protected the magazine's right to ridi- suit-Flynt v. Weinberger12-against Defense Secre- 10 Chuck Conconi, Personalities,WASHINGTON Posr, Sept. 18 See generally Karen Markin, The Truth Hurts: Intentional 20, 1983, at C3. Justice Sandra Day O'Connor reportedly was Infliction of Emotional Distress as a Cause of Action Against the the only justice to write back to Flynt, asking him to cancel Media, 5 COMM. L. & POL'V 469 (2000) (describing the tort of her subscription-a request that he refused to honor. Al intentional infliction of emotional distress and analyzing its Kamen & Ed Bruske, Lawyers, WASHINGTON POST, Oct. 24, viability as a theory of legal relief against the media). 1983, at D2. '9 Hustler, 485 U.S. at 48. 11 Flynt Pleads Innocent in Court Incident, WASINGTON 20 Actual malice, a fault standard adopted by the United POST, Nov. 24, 1983, at B6. States Supreme Court in N.Y. Times Co. v. Sullivan, 376 U.S. 12 Chuck Conconi, Personalities,WASHINGTON POST, Nov. 254, 279-80 (1964), can be found in the publication of a 18, 1983, at C2. statement with knowledge of its falsity or with a reckless disre- 13 See Rudy Maxa, 'Honey, There's More People Who Believe in gard for whether the statement is true or false. Reckless disre- God Than Porn,' WASHINGTON POST, Nov. 22, 1977, at BI gard for the truth, in turn, exists when a defendant "in fact (describing Flynt's brief turn to religion). Regarding his deci- entertained serious doubts as to the truth of his publication" sion to abandon his born-again status, Flynt once remarked: or acted with a "high degree of awareness of... probable I got over being a born-again Christian. I was fortunate falsity." St. Amant v. Thompson, 390 U.S. 727, 731 (1968); enough to seek help. In my opinion, people who are Garrison v. Louisiana, 379 U.S. 64, 74 (1964). The Supreme born-again Christians are nothing other than manic- Court also has observed that although a failure to investigate depressives. They get in a manic phase, and they do see information standing alone will not support a finding of ac- the visions, they do hear the voices, and it's nothing tual malice, "the purposeful avoidance of the truth is in a more than a chemical imbalance that causes it.