Hustler Magazine, Inc. v. Falwell

485 U.S. 46 (1988)


An issue of Hustler Magazine featured a “parody” of an advertisement for Campari Liqueur that contained the name and picture of respondent Jerry Falwell and was entitled “Jerry Fawell talks about his first time.”  The parody was modeled after actual Campari ads that included interviews with various celebrities about their “first times” trying Campari, playing on the sexual double entendre of “first times.”  In the fake ad featuring Falwell, he states that his “first time” was during a drunken incestuous encounter with his mother in an outhouse.  Small print at the bottom of the ad and the magazine’s table of contents stated that the ad was a parody and not to be taken seriously.

Procedural History

After a trial, the district court granted a directed verdict for Hustler on Falwell’s invasion of privacy claim.  The jury found against Falwell on the libel claim, but ruled for him on the intentional infliction of emotional distress claim.  The Fourth Circuit affirmed the judgment against Hustler.


Does the First Amendment protect speech intended to inflict emotional distress on a public figure when that speech could not reasonably have been interpreted as stating actual facts about that public figure?

Holding / Rule

(Rehnquist) Yes.  Reversed.  A public figure may not recover for the tort of intentional infliction of emotional distress based on published speech without showing that the publication contains a false statement of fact made with “actual malice,” i.e., “knowledge that the statement was false or with reckless disregard as to whether or not it was true.”


The First Amendment is especially protective of speech on matters of public interest and concern—“the best test of truth is the power of the thought to get itself accepted in the competition of the market.”  Robust political debate is bound to produce speech critical of public figures.  New York Times Co. v. Sullivan established that a public figure may hold a speaker liable for damage to reputation caused by publication of a defamatory falsehood only if the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”  False statements of fact are valueless, but inevitable in free debate, so a strict liability rule would have an unwanted chilling effect.  The standard should be no different for claims of intentional infliction of emotional distress—to hold otherwise using a subjective standard like “outrageousness” would chill the speech of political cartoonists and satirists, which has historically played a prominent role in public and political debate.  The “actual malice” standard gives “adequate ‘breathing space’ to the freedoms protected by the First Amendment.” The Court accepted the jury’s finding that the ad here could not reasonably be understood as describing actual facts about Falwell.

White concurred in the judgment, stating that New York Times Co. v. Sullivan had little to do with this case since the jury found that the ad contained no assertion of fact.

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