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