ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Thursday, January 9, 1997 TAG: 9701100120
SECTION: EXTRA PAGE: 1 EDITION: METRO
SOURCE: MIKE HUDSON STAFF WRITER
The case of Jerry Falwell, evangelist and conservative activist, vs. Larry Flynt, porn-king and free-speech absolutist, was more than a libel suit.
It had the air of an apocalyptic battle, played out between Thanksgiving and Christmas 1984 in front of a jury of 12 men and women on the second floor of the Poff Federal Building in Roanoke.
Flynt had published a parody about Falwell having drunken sex with his mother in an outhouse. The Lynchburg minister wanted to punish Flynt - and make a statement about what he saw as the sleaze running wild in America.
Falwell's attorney, Norman Roy Grutman, put it just that way in his final words to the jurors.
"Certainly the eyes of the country are on Roanoke," he said. "And you are going to make a statement. And that statement that you are going to make from this courthouse is going to spread throughout the length and breadth of this land."
His voice rose.
"The nation is watching. The nation wants to know where the Constitution stands. Which way, America? Are you going to let loose chaos and anarchy? Are you going to turn America into the Planet of the Apes?"
That question is what Falwell wanted: A clear-cut case of Good vs. Evil. And a resounding verdict from a jury of average folks in America's Bible Belt.
But in the end, there was little that was clear-cut about the case of Falwell vs. Flynt.
The jurors deliberated for hours. They asked the judge questions. They negotiated. They compromised.
Finally they rejected Falwell's claim that Flynt had libeled him. Then they announced a surprising decision - a $200,000 verdict against Flynt for "intentional infliction of emotional distress."
Falwell could say the jury had sided with him.
But Flynt could say the jury had turned away Falwell's $45 million libel claim, and the $200,000 was a pittance compared to the size of Falwell's direct mail/broadcast empire and Flynt's publishing kingdom.
The final word came not from a jury in Roanoke but from the U.S. Supreme Court.
After years of appeals, the highest court in the land announced its decision: It sided with the pornographer over the preacher - voting 8-0 to throw out the $200,000 verdict.
Chief Justice William Rehnquist, the court's staunchest conservative, wrote the opinion upholding Americans' free-speech right to parody - even hurtfully so - those who seek the public eye.
The epic brawl produced a national media frenzy, a book by a noted legal scholar, and, now, a big-budget movie produced by Oliver Stone.
"The People vs. Larry Flynt" - which opens Friday in Roanoke - explores all the insanity and outrages of Flynt's life. But it ends on a triumphant note, with his dramatic First Amendment victory.
For Flynt and Falwell, the movie has renewed their public battle. "I think it's a struggle that's 6,000 years old," Falwell said.
Friday night he is scheduled to meet Flynt head-to-head in a debate on CNN's Larry King Live.
"I will attempt to give the other side of story," Falwell said. "I think that Oliver Stone and Hollywood are doing a great disservice to the children and women of America by reaching down under the rocks and pulling out a Larry Flynt as a hero."
Are there other factors at work in these two combatants' strange dance of antagonism?
Arthur Strickland, a Roanoke lawyer who worked on Flynt's defense team, wonders.
By providing the perfect foil for each other in the debate over sex and individual freedom, each helped the other rise to media prominence - and raise untold millions of dollars.
"It's like two sides of the same coin," Strickland muses. "To me, these guys almost needed each other. If Larry Flynt hadn't come along, then Jerry Falwell would have almost had to invent him - and vice versa."
The ad that started it
One day in the fall of 1983, the Rev. Jerry Falwell asked the chief executive of his Old Time Gospel Hour to go buy him a copy of Hustler Magazine.
It was an odd request. But Falwell had heard there was something he should see - something besides Hustlers' usual menu of naked photos and bathroom humor.
Falwell opened the magazine and, inside the front cover, found a photo of himself under this headline: "Jerry Falwell talks about his first time."
It looked like an ad for Campari liquor, in which movie stars talked about their "first time." The ad's double-meaning allowed readers to wonder whether they were talking about Campari or sex.
But this was not a Campari ad. It was a concoction by Hustler. "My first time was in an outhouse outside Lynchburg, Virginia," it began. From there, it had Falwell describe fornicating with his mom while drunk on Campari, ginger ale and soda.
"I always get sloshed before I go out to the pulpit," Falwell concluded. "You don't think I could lay down all that bullsober, do you?"
At the bottom, in small letters, there was a note: "AD PARODY - NOT TO BE TAKEN SERIOUSLY."
Falwell took it seriously.
He sued Flynt and Hustler in U.S. District Court accusing them of libel, infliction of emotional harm and other legal trespasses. He asked for $45 million.
Falwell's crusade
Jerry Falwell isn't a stranger to bare-knuckled public debate. He's clashed with presidents, publishers and even other evangelists - although he said he's always tried to treat his opponents with basic respect.
Falwell has "no problem" with caricatures of himself in the "legitimate media." He said, however, that someone must set limits when it comes to malicious personal attacks.
But detractors say Falwell hasn't always been a model of civility. Some have questioned his efforts to spread allegations that President Clinton conspired, among other crimes, in a series of murders in Arkansas. Falwell broadcast and sold "documentary" tapes, produced by an outside group, that even some Clinton critics call a mix of falsehoods and character assassination.
"We didn't validate the accuracy of every claim in the tapes," Falwell said. "We simply said that under First Amendment privilege that the people who produced these tapes had the right to be heard."
Back in 1984, Larry Flynt's attorneys argued that their client, too, had First Amendment protection. They said he had a right to ridicule a man who had sought the limelight as leader of the self-professed Moral Majority.
No one, they argued, could think Flynt was really saying Falwell had sex in an outhouse; Hustler was trying to make him look ridiculous, but it wasn't saying he had committed incest.
But Falwell said he feared some people might believe the "ad."
In pretrial testimony, he said "my mother is dead, and I think she is safe from this kind of thing as far as any damage to her successful future. But I am still here, and my future is very much at stake."
Flynt's legal team countered that Falwell couldn't prove real harm: He never missed a day of work because of mental trauma, and there was no evidence his ministry or political organization suffered.
They even claimed Falwell had benefited from the controversy.
Soon after he saw the parody, Falwell sent out mailings to more than 1.2 million supporters describing the Hustler parody and asking for money to pay the legal fees for his fight against "the billion-dollar porn industry." Some received a copy of the parody.
In the first 30 days, these mailings brought at least $700,000, according to pretrial evidence submitted by Falwell's organizations.
"If a person's libeled, well you don't mail it out all over the country," Strickland said recently. "The publicity that was generated by that suit was worth millions and millions of dollars for Falwell. It was 'Me vs. the Devil.'"
Falwell said it's "a fabrication" to suggest his groups benefited from the fund-raising. He said Grutman, his lead attorney, worked for free, but his organizations raised only enough to cover his attorneys' travel costs and other expenses. "Not one penny more," he said.
Flynt's revealing
past
To lead his crusade against Larry Flynt, Jerry Falwell hired the toughest lawyer he knew - Norman Roy Grutman.
Falwell knew Grutman because he'd lost once to Grutman in a federal courtroom in Virginia. Grutman, a high-profile New York attorney, had defended Penthouse in U.S. District Court in Lynchburg against a lawsuit Falwell had filed after two free-lance writers sold an interview with the minister to the skin magazine. Falwell claimed he'd been misled. Grutman convinced Judge James Turk that Falwell had no case.
Now Grutman was on Falwell's side. He was a cunning lawyer, one ex-opponent said, who "gave no quarter until his opponent was subdued, prostrate, and begging for mercy."
As Hustler's trial date approached, Flynt had more things to worry about than Grutman. He was in prison.
Larry Flynt's story is an odd one: Born into a family of Kentucky sharecroppers, he lied about his age and joined the Army at 14. Later he opened a string of strip joints in Ohio and turned a club newsletter into a slick magazine with circulation and profits in the millions.
Flynt honored his achievements by commissioning a statue of himself losing his virginity to a chicken on his grandmother's farm.
In 1977, President Carter's sister, Ruth Stapleton, convinced Flynt to accept Jesus. Flynt vowed to become "a hustler for the Lord."
As William and Mary law professor Rodney Smolla describes it in his book, "Jerry Falwell vs. Larry Flynt," Flynt turned Hustler into "a screwball mixture of sex and religion, a schizophrenic, porn-again, sex-for-Jesus grab bag."
The next year, during a break in a small-town Georgia obscenity trial, Flynt was shot and paralyzed by a would-be assassin.
The next few years, he fought pain and depression and withstood more legal wars - including brawls against Grutman and Penthouse. Soon after he published the Falwell parody, Flynt found himself in a federal prison in North Carolina, behind bars for contempt of court in another case.
It was there Grutman came to take the pretrial deposition of his old adversary. It was to be the fateful event of trial.
Flynt - handcuffed and screaming for medical help - identified himself for the record as "Jesus H. Flynt."
"Are you determined, Mr. Flynt, to make a mockery of this deposition?" Grutman asked.
Flynt nodded his head yes.
Flynt spewed curses at both Grutman and his own attorneys. He even claimed he had proof Falwell had had sex with his mother.
He said he published the parody to expose Falwell as a glutton, a liar, a hypocrite.
Grutman zeroed in: "Did you appreciate, at the time that you wrote, `Okay,' or approved this publication, that for Rev. Falwell to function in his livelihood he has to have an integrity that people believe?"
"Yeah."
"And wasn't one of your objectives, to destroy that integrity, or harm it, if you could?"
"To assassinate it," Flynt replied.
Eyes on Roanoke
The atmosphere surrounding the December 1984 trial was nothing if not overheated. Reporters staked out the airport on a tip Flynt was flying in on a Cincinnati-to-Roanoke commuter. He wasn't on it. He slipped in on a private jet, flanked by six bodyguards.
People waited in line to sit in the audience. Two dozen reporters hogged the spectators' seating.
Georgie Rakes had a front-row seat. It was the first time Rakes, who worked at the local Red Cross, had ever been called for jury duty. When she learned what the trial was about, "I thought, 'Oh, of all things in the world.' I was very, very nervous about it."
Grutman put Hustler on trial, waving 3-by-4-foot blowups of sexual photographs in front of the jurors.
He had Falwell thumb through the magazine and describe its contents.
"Does it contain pictures of lesbians?"
"It does."
"Full color?"
"Full color."
"Does it show naked women lewdly exposing themselves?"
"It does."
Then Grutman and Falwell dissected the ad parody, word-by-word.
"It is the most hurtful, damaging, despicable, low-type personal attack that I can imagine one human being can inflict upon another," Falwell said.
The centerpiece of the trial was the playing of the tape of Flynt's crazed deposition performance. His attorneys tried to keep it out, citing medical evidence he had been in the frenzied phase of manic-depressive illness. But Judge Turk allowed it in.
When it came time to testify in court, Flynt showed up in his gold-plated wheelchair and a conservative suit. He was calm, polite.
Grutman tried to bait him, reminding him of his pretrial verbal mayhem.
Flynt, teasingly calling Grutman "Norman," didn't bite. "I was sick when I was in North Carolina, and you know it," he said gently.
Rakes said that, in the end, Judge Turk made things easier by giving jurors clear instructions in the law.
Once inside the jury room, she said, they decided based on the law and facts rather than emotion. "It wasn't something that you just walked in and said 'This is what we want to do.' "
She said jurors understood Flynt had been mentally unbalanced during his pretrial testimony. And it was clear that the parody was just that - a parody, not a statement of facts.
As the judge had told them, libel against a public figure is the publication of false, damaging statements of facts with reckless disregard for the truth.
If no reasonable person could believe the parody, there was no libel.
But, based on the law the judge explained to them, the jurors did find Flynt guilty of infliction of emotional harm.
They hit Flynt up for $200,000.
"There is a line," Rakes said, "and I think he stepped over the line." At the same time, she said, she thought public figures have "to expect good and bad publicity."
High Court decides
After the trial, Flynt, sent autographed copies of the parody to federal court employees, addressing them "To my Friends in Roanoke."
He appealed the case to the Fourth Circuit Court of Appeals in Richmond. That court upheld the jury verdict.
It seemed a long shot to think the U.S. Supreme Court would accept an appeal from an infamous sleaze-king who had once been hauled out of its courtroom screaming and cursing at the black-robed justices.
Flynt said he wouldn't have appealed higher, but he heard Falwell on TV suggesting that AIDS was God's verdict on sinners. His fourth wife, Althea, had died of AIDS. Flynt decided to take his fight all the way.
The Supreme Court took his case. Media companies urged the justices to reverse the verdict as a dangerous attack on free speech - one that opened a back door for people without valid libel claims to punish unpopular speech.
The case was argued on a winter day in 1987. Flynt attorney Alan Isaacman, a California trial lawyer known for high-profile cases, told the justices that allowing all citizens to express their views was "one of the most cherished interests that we have in this country."
"Hustler has every right," he added, "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 out of wedlock, and don't drink alcohol - Hustler has every right to say that man is full of 'B.S.'''
Two months later, the court ruled.
Chief Justice Rehnquist spoke about the importance of political satire, such as Thomas Nast's 19th-century cartoons that had helped chase the corrupt "Tweed Ring" out of New York City government. True, he said, Hustler's satire was at best a distant cousin, "and a rather poor relation at that."
But he wrote that approving jury awards simply to punish outrageousness would invite jurors to act on their own tastes and prejudices. The court ruled that public figures could not collect damages from the media merely for emotional distress.
The movie
The controversy has been reborn with the release of "The People vs. Larry Flynt." The movie is generally true to the basics of the story, although it plays with some of the facts for dramatic effect. For example, Flynt's raving pretrial testimony is shown taking place during the trial in Roanoke.
The movie has earned several rave reviews, although some critics say it makes Falwell and Grutman (who died in 1994) appear pompous and sanctimonious, while glossing over Flynt's trail of sleaze.
Falwell, who said he won't see the movie, notes that Flynt's daughter has accused the porn king of molesting her when she was a child. Beyond that, Falwell said, Flynt's "salacious tabloids" have probably "been the instigator of many, many sex crimes against innocent persons."
Others say the movie shows Flynt in all his depravity, but it makes the point that raucous, rebellious speech is inevitable - and necessary - in a free society. They say Flynt may have been more interested in protecting his empire, but along the way he managed to win a victory for everyone who values the First Amendment.
"Free speech has its price," is the movie's slogan.
LENGTH: Long : 310 lines ILLUSTRATION: PHOTO: File/1987. 1. & 2. Jerry Falwell and wife, Macel (left),by CNBand a wheelchair-bound Larry Flynt leave the U.S. Supreme Court
Building in Washington after arguments before the justices. The
court later ruled that Flynt had the right to publish a parody of
Falwell in his magazine. Now a movie has brought their battle back
into the news. 3. The November 1983 edition of Hustler magazine
carried the ad parody that started a battle that would end in the
U.S. Supreme Court. color. 4. The major players in the real Jerry
Falwell vs. Larry Flynt case in 1984: lawyer Roy Grutman (right,
top) and his client, Falwell; 5. Flynt's attorney Alan Isaacman
(left, above); 6. and Flynt (right) at a press conference. 7. Larry
Flynt said he decided to appeal the verdict to a higher court after
hearing Falwell on TV suggesting that AIDS was God's verdict on
sinners. His fourth wife, Althea (above), had died of AIDS.