For those of you fighting CPS and are threatened with jail because of your pages, blogs, facebook etc, here is the proof they can not prosecute you for speaking out. You Are protected!
The First Amendment’s Glass Half Full
Those who believe — like we do — that the First Amendment really means there can be “no law … abridging the freedom of speech” had to be overjoyed Monday when the Supreme Court of the United States struck down a Vermont campaign finance law.
After all, the Vermont law not only unconstitutionally imposed campaign contribution limits, but it also restricted campaign expenditures, too. In other words, the law abridged the free speech and association rights of citizens by limiting contributions to the candidate or political party of their choice, and then did the same to those candidates and political parties by restricting how much they could spend. But those limits are history now.
Nevertheless, while Monday’s decision was a big step in the right direction for the High Court’s First Amendment and campaign finance jurisprudence, the glass is still only half full.
The six justices who voted to strike down the Vermont law could not agree on how far the First Amendment really goes in protecting what has always been the core of its protections — political free speech.
The lead opinion — written by Justice Stephen Breyer and joined in full by Chief Justice John Roberts and for the most part by Justice Samuel Alito — refused to protect political speech categorically and completely. Instead, it concludes that Vermont’s campaign finance law went “too far,” “understand[ing] that many … campaign finance regulations impose certain … burdens to some degree.” Thus, in striking down the Vermont law, those three justices reasoned it “burden[ed] First Amendment interests in a manner that is disproportionate to the public purposes [for which it was] enacted to advance.”
As we have stated time and time again, such balancing of core First Amendment rights does not do anyone but those presently before the High Court any favors. After all, when there are slightly different limits tomorrow or years from now, how will anyone know whether “they impose burdens upon First Amendment interests that (when viewed in light of the statute’s legitimate objectives) are disproportionately severe,” as the three justices found Monday.
Indeed, this blurred and incomprehensible constitutional line was precisely the objection raised by the other three justices who voted to strike down Vermont’s restrictions. And, even among those three, there was both a subtle request for a better framework and a blunt repudiation of the ad hoc standard.
Justice Anthony Kennedy took the polite approach, noting his “own skepticism regarding” the “universe of campaign finance regulation [that] this Court has in part created and in part permitted by the course of its decisions.” He explained that the High Court’s decision “may cause more problems than it solves” since “the present system requires us to explain why $200 is too restrictive a limit while $1,500 is not.” And, he observed that the justices’ “own experience gives [them] little basis to make these judgments, and certainly no traditional or well-established body of law exists to offer guidance.” Thus, retaining the high ground, Justice Kennedy “concur[red] only in the judgment.”
On the other hand, Justice Clarence Thomas, joined by Justice Antonin Scalia, was far more direct. From the very outset, Justice Thomas stated that Monday’s decision — along with the rest of the High Court’s campaign finance decisions — “provide[d] insufficient protection to political speech, the core of the First Amendment.” As a result, Justice Thomas and Scalia would start anew and replace the entirety of the Supreme Court’s campaign finance jurisprudence “with a standard faithful to the First Amendment.”
There can be little doubt that Justices Thomas and Scalia are correct in their criticism that Monday’s “decision offers nothing resembling a rule at all.” After all, as Justice Thomas explains, the plurality’s independent judicial “determination that this statute clearly lies on the impermissible side of the constitutional line gives no assistance in drawing the line” since their “feeling does not amount to a workable rule of law.” But it’s important to remember that constitutional change comes slowly at the High Court, and it was only two terms ago that five justices allowed perhaps the greatest abridgement of political speech in the history of the republic by upholding the McCain-Feingold law.
Thus, Monday’s decision marked a tipping point. Three justices (Kennedy, Thomas, and Scalia) are now on record willing to enforce the First Amendment’s command that there shall be “no law … abridging the freedom of speech.” And, two others (Roberts and Alito), left themselves open to such a possibility, not taking that step now but not shutting that door either. So the First Amendment’s glass is no longer half empty, it is half full and ready to be refilled.
Hustler Magazine and Larry C. Flynt, Petitioners v. Jerry Falwell
SUPREME COURT OF THE UNITED STATES
485 U.S. 46
February 24, 1988, Decided
REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, O’CONNOR, and SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment. KENNEDY, J., took no part in the consideration or decision of the case.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation claim, but found for respondent on the claim for intentional infliction of emotional distress and awarded damages. We now consider whether this award is consistent with the First and Fourteenth Amendments of the United States Constitution.
The inside front cover of the November 1983 issue of Hustler Magazine featured a “parody” of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled “Jerry Falwell talks about his first time.” This parody was modeled after actual Campari ads that included interviews with various celebrities about their “first times.” Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of “first times.” Copying the form and layout of these Campari ads, Hustler’s editors chose respondent as the featured celebrity and drafted an alleged “interview” with him in which he states that his “first time” was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, “ad parody — not to be taken seriously.” The magazine’s table of contents also lists the ad as “Fiction; Ad and Personality Parody.”
Soon after the November issue of Hustler became available to the public, respondent brought this diversity action in the United States District Court for the Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co. Respondent stated in his complaint that publication of the ad parody in Hustler entitled him to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The case proceeded to trial. At the close of the evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy claim. The jury then found against respondent on the libel claim, specifically finding that the ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” The jury ruled for respondent on the intentional infliction of emotional distress claim, however and stated that he should be awarded $ 100,000 in compensatory damages, as well as $ 50,000 each in punitive damages from petitioners.
On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against petitioners. Given the importance of the constitutional issues involved, we granted certiorari.
This case presents us with a novel question involving First Amendment limitations upon a State’s authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State’s interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.
At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. “The freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole.” We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a “false” idea. As Justice Holmes wrote, “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .”
The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Justice Frankfurter put it succinctly when he said that “one of the prerogatives of American citizenship is the right to criticize public men and measures.” Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to “vehement, caustic, and sometimes unpleasantly sharp attacks.”
Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, supra, we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not….”
Here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. In respondent’s view, and in the view of the Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State’s interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.
Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently “outrageous.” But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.
“Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.”
Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.
Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster’s defines a caricature as “the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.” The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events — an exploration often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: “The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters.”
Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast’s castigation of the Tweed Ring, Walt McDougall’s characterization of presidential candidate James G. Blaine’s banquet with the millionaires at Delmonico’s as “The Royal Feast of Belshazzar,” and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth, and Franklin D. Roosevelt’s jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.
Respondent contends, however, that the caricature in question here was so “outrageous” as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.
“The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”
Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), we held that a state could lawfully punish an individual for the use of insulting ” fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” But the sort of expression involved in this case does not seem to us to be governed by the exception to the general First Amendment principles stated above.
The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,” and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by “outrageous” conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed.
Falwell v Flynt Trial