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Geoff Trachtenberg
Geoff Trachtenberg
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Defamation, Intentional Infliction of Emotional Distress and the Relationship of Larry Flynt and Jerry Falwell

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I often get asked about defamation suits and whether they are viable. Every time I deal with the issue I explain that the close cousin of defamation is intentional infliction of emotional distress and that both present difficult challenges.

While defamation liability can be established fairly easily, damages can prove a problem for most cases. Intentional infliction of emotional distress, by comparison, is hard to establish because you need a sufficiently “outrageous” action, but damages are easier to prove.

So what does this have to do with Jerry Falwell? I’m getting there.

In my view, a good defamation case will often give rise to an even better intentional infliction of emotional distress claim. That is, if you have a sufficiently outrageous misrepresentation to get good damages for defamation, that can also be translated into a very good emotional distress claim.

The classic example of this was the lawsuit Jerry Falwell filed against Hustler for running a parody ad about Falwell losing his virginity in an outhouse with his mother. In that case, ironically, the federal jury returned a verdict in favor of Hustler on the defamation claim, but found for Falwell on the intentional infliction of emotional distress claim, awarding Hustler $200,000.

In light of Falwell’s recent death, Larry Flynt, the founder of Hustler, reflected on the case as follows:

The Reverend Jerry Falwell and I were arch enemies for fifteen years. We became involved in a lawsuit concerning First Amendment rights and Hustler magazine. Without question, this was my most important battle – the 1988 Hustler Magazine, Inc. v. Jerry Falwell, 485 U.S. 46 (1988), case, where after millions of dollars and much deliberation, the Supreme Court unanimously ruled in my favor.

My mother always told me that no matter how much you dislike a person, when you meet them face to face you will find characteristics about them that you like. Jerry Falwell was a perfect example of that. I hated everything he stood for, but after meeting him in person, years after the trial, Jerry Falwell and I became good friends. He would visit me in California and we would debate together on college campuses. I always appreciated his sincerity even though I knew what he was selling and he knew what I was selling.

The most important result of our relationship was the landmark decision from the Supreme Court that made parody protected speech, and the fact that much of what we see on television and hear on the radio today is a direct result of my having won that now famous case which Falwell played such an important role in.