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NOV 25 - DEC 03, 2014

Skrlin Points to Falwell Case Against Flynt as Proof He Can Legally Make Unpopular Cartoons

November 25, 2014

Artist Gerald Skrlin

One can certainly argue that the cartoon featuring City Controller Maria Brown and others created by artist Gerald Skrlin are offensive and crude.

But are they illegal?

Consider, if you will, a cartoon more crude than any Skrlin has produced which the Supreme Court deemed not only legal but immune to civil action.

It was published in 1983 by Larry Flynt's Hustler magazine. An “ad parody,” - which closely mimicked Campari liqueur advertisements of the time, featured a fictional interview with Rev. Jerry Falwell in which "Falwell" describes his first sexual encounter as having occurred "with Mom" in an outhouse while both were "drunk off our God-fearing asses on Campari."

"Falwell" goes on to say that he was so intoxicated that "Mom looked better than a Baptist whore with a $100 donation;" that he decided to have sex with his mother since she had "showed all the other guys in town such a good time"; and, when asked if he drank Campari since, "Falwell" answered, "I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?"

The Hustler parody carried a disclaimer in small print at the bottom of the page, reading "ad parody—not to be taken seriously."

Falwell sued Flynt and Hustler for libel and infliction of emotional distress, arguing the parody was so "outrageous" as to take it outside the scope of First Amendment protection.

A jury found against Falwell and in favor of Flynt on the libel claim, stating the parody could not "reasonably be understood as describing actual facts about [Falwell]."

But on the claim of intentional infliction of emotional distress, the jury awarded Falwell $150,000 in damages.

Flynt appealed, arguing that Falwell was a public figure and the standard for causing emotional distress was not the same as for a private person.

The case made its way to the Supreme Court (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 [1988]), where the Court held, in a unanimous decision, that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress inflicted upon them.

Chief Justice William Rehnquist, writing for the court, said, “The appeal of the political cartoon or caricature is often based on the exploration of unfortunate physical traits or politically embarrassing events… often calculated to hurt the feelings of the subject of the portrayal.”

Rehnquist quoted the words of an unnamed cartoonist: “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.”

Rehnquist also wrote: "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."

As to Falwell's argument that the parody was so outrageous that it should not be protected by the First Amendment, Rehnquist added, "'(O)utrageous' is an inherently subjective term, susceptible to the personal taste of the jury empanelled to decide a case. Such a standard '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 question to be asked then is: are Maria Brown and others portrayed in Skrlin's cartoons public figures?

The threshold necessary to elevate people to public figure status is, typically, that they must either be a public official or any other person pervasively involved in public affairs. Brown is the city controller. Most of the others are elected or appointed officials.

The Reporter asked Skrlin about the matter. He brought up the Falwell case.

"Falwell claimed the cartoon caused him emotional distress. Of course it did. That was the point," Skrlin said. "In order to protect political cartoons the court had to protect Larry Flynt’s offensive cartoon. Not many jobs have a Supreme Court mandate to cause emotional distress."

To have decided otherwise, the Supreme Court would have effectively outlawed political cartooning, Skrlin pointed out.






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