Respondent, a nationally known minister and commentator on
politics and public affairs, filed a diversity action in Federal
District Court against petitioners, a nationally circulated
magazine and its publisher, to recover damages for,
inter
alia, libel and intentional infliction of emotional distress
arising from the publication of an advertisement "parody" which,
among other things, portrayed respondent as having engaged in a
drunken incestuous rendezvous with his mother in an outhouse. The
jury found against respondent on the libel claim, specifically
finding that the parody could not "reasonably be understood as
describing actual facts . . . or events," but ruled in his favor on
the emotional distress claim, stating that he should be awarded
compensatory and punitive damages. The Court of Appeals affirmed,
rejecting petitioners' contention that the "actual malice" standard
of
New York Times Co. v. Sullivan, 376 U.
S. 254, must be met before respondent can recover for
emotional distress. Rejecting as irrelevant the contention that,
because the jury found that the parody did not describe actual
facts, the ad was an opinion protected by the First Amendment to
the Federal Constitution, the court ruled that the issue was
whether the ad's publication was sufficiently outrageous to
constitute intentional infliction of emotional distress.
Held: In order to protect the free flow of ideas and
opinions on matters of public interest and concern, the First and
Fourteenth Amendments prohibit public figures and public officials
from recovering damages for the tort of intentional infliction of
emotional distress by reason of the publication of a caricature
such as the ad parody at issue without showing in addition that the
publication contains a false statement of fact which was made with
"actual malice,"
i.e., with knowledge that the statement
was false or with reckless disregard as to whether or not it was
true. The State's interest in protecting public figures from
emotional distress is not sufficient to deny First Amendment
protection to speech that is patently offensive and is intended to
inflict emotional injury when that speech could not reasonably have
been interpreted as stating actual facts about the public figure
involved. Here, respondent is clearly a "public figure" for First
Amendment purposes, and the lower courts' finding that the ad
parody was not reasonably believable must be accepted.
"Outrageousness"
Page 485 U. S. 47
in the area of political and social discourse has an inherent
subjectiveness about it which would allow a jury to impose
liability on the basis of the jurors' tastes or views, or perhaps
on the basis of their dislike of a particular expression, and
cannot, consistently with the First Amendment, form a basis for the
award of damages for conduct such as that involved here. Pp.
485 U. S.
50-57.
797 F.2d 1270, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ.,
joined. WHITE, J., filed an opinion concurring in the judgment,
post, p.
485 U. S. 57.
KENNEDY, J., took no part in the consideration or decision of the
case.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Hustler Magazine, Inc., is a magazine of nationwide
circulation. Respondent Jerry Falwell, a nationally known minister
who has been active as a commentator on politics and public
affairs, sued petitioner and its publisher, petitioner Larry Flynt,
to recover damages for invasion of
Page 485 U. S. 48
privacy, libel, and intentional infliction of emotional
distress. The District Court directed a verdict against respondent
on the privacy claim, and submitted the other two claims to a jury.
The jury found for petitioners on the defamation claim, but found
for respondent on the claim for intentional infliction of emotional
distress and awarded damages. We now consider whether this award is
consistent with the First and Fourteenth Amendments of the United
States Constitution.
The inside front cover of the November, 1983, issue of Hustler
Magazine featured a "parody" of an advertisement for Campari
Liqueur that contained the name and picture of respondent and was
entitled "Jerry Falwell talks about his first time." This parody
was modeled after actual Campari ads that included interviews with
various celebrities about their "first times." Although it was
apparent by the end of each interview that this meant the first
time they sampled Campari, the ads clearly played on the sexual
double entendre of the general subject of "first times." Copying
the form and layout of these Campari ads, Hustler's editors chose
respondent as the featured celebrity and drafted an alleged
"interview" with him in which he states that his "first time" was
during a drunken incestuous rendezvous with his mother in an
outhouse. The Hustler parody portrays respondent and his mother as
drunk and immoral, and suggests that respondent is a hypocrite who
preaches only when he is drunk. In small print at the bottom of the
page, the ad contains the disclaimer, "ad parody -- not to be taken
seriously." The magazine's table of contents also lists the ad as
"Fiction; Ad and Personality Parody."
Soon after the November issue of Hustler became available to the
public, respondent brought this diversity action in the United
States District Court for the Western District of Virginia against
Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co.,
Inc. Respondent stated in his complaint that publication of the ad
parody in Hustler entitled
Page 485 U. S. 49
him to recover damages for libel, invasion of privacy, and
intentional infliction of emotional distress. The case proceeded to
trial. [
Footnote 1] At the
close of the evidence, the District Court granted a directed
verdict for petitioners on the invasion of privacy claim. The jury
then found against respondent on the libel claim, specifically
finding that the ad parody could not "reasonably be understood as
describing actual facts about [respondent] or actual events in
which [he] participated." App. to Pet. for Cert. C1. The jury ruled
for respondent on the intentional infliction of emotional distress
claim, however, and stated that he should be awarded $100,000 in
compensatory damages, as well as $50,000 each in punitive damages
from petitioners. [
Footnote 2]
Petitioners' motion for judgment notwithstanding the verdict was
denied.
On appeal, the United States Court of Appeals for the Fourth
Circuit affirmed the judgment against petitioners.
Falwell v.
Flynt, 797 F.2d 1270 (1986). The court rejected petitioners'
argument that the "actual malice" standard of
New York Times
Co. v. Sullivan, 376 U. S. 254
(1964), must be met before respondent can recover for emotional
distress. The court agreed that, because respondent is concededly a
public figure, petitioners are "entitled to the same level of first
amendment protection in the claim for intentional infliction of
emotional distress that they received in [respondent's] claim for
libel." 797 F.2d at 1274. But this does not mean that a literal
application of the actual malice rule is appropriate in the context
of an emotional distress claim. In the court's view, the
New
York Times decision emphasized the constitutional importance
not of the falsity of the statement or the defendant's disregard
for the truth, but of the heightened level of culpability embodied
in the requirement of "knowing . . . or reckless" conduct. Here,
the
New York
Page 485 U. S. 50
Times standard is satisfied by the state law
requirement, and the jury's finding, that the defendants have acted
intentionally or recklessly. [
Footnote 3] The Court of Appeals then went on to reject
the contention that, because the jury found that the ad parody did
not describe actual facts about respondent, the ad was an opinion
that is protected by the First Amendment. As the court put it, this
was "irrelevant," as the issue is "whether [the ad's] publication
was sufficiently outrageous to constitute intentional infliction of
emotional distress."
Id. at 1276. [
Footnote 4] Petitioners then filed a petition for
rehearing en banc, but this was denied by a divided court. Given
the importance of the constitutional issues involved, we granted
certiorari. 480 U.S. 945 (1987).
This case presents us with a novel question involving First
Amendment limitations upon a State's authority to protect its
citizens from the intentional infliction of emotional distress. We
must decide whether a public figure may recover damages for
emotional harm caused by the publication of an ad parody offensive
to him, and doubtless gross and repugnant in the eyes of most.
Respondent would have us find that a State's interest in protecting
public figures from emotional distress is sufficient to deny First
Amendment protection to speech that is patently offensive and is
intended to inflict emotional injury, even when that speech could
not reasonably have been interpreted as stating actual facts about
the public figure involved. This we decline to do.
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.
"[T]he
Page 485 U. S. 51
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."
Bose Corp. v. Consumers Union of United States, Inc.,
466 U. S. 485,
466 U. S.
503-504 (1984). We have therefore been particularly
vigilant to ensure that individual expressions of ideas remain free
from governmentally imposed sanctions. The First Amendment
recognizes no such thing as a "false" idea.
Gertz v. Robert
Welch, Inc., 418 U. S. 323,
418 U. S. 339
(1974). As Justice Holmes wrote,
"when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe the
very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas -- that the best
test of truth is the power of the thought to get itself accepted in
the competition of the market. . . ."
Abrams v. United States, 250 U.
S. 616,
250 U. S. 630
(1919) (dissenting opinion).
The sort of robust political debate encouraged by the First
Amendment is bound to produce speech that is critical of those who
hold public office or those public figures who are
"intimately involved in the resolution of important public
questions or, by reason of their fame, shape events in areas of
concern to society at large."
Associated Press v. Walker, decided with
Curtis
Publishing Co. v. Butts, 388 U. S. 130,
388 U. S. 164
(1967) (Warren, C.J., concurring in result). Justice Frankfurter
put it succinctly in
Baumgartner v. United States,
322 U. S. 665,
322 U. S.
673-674 (1944), when he said that "[o]ne of the
prerogatives of American citizenship is the right to criticize
public men and measures." Such criticism, inevitably, will not
always be reasoned or moderate; public figures as well as public
officials will be subject to "vehement, caustic, and sometimes
unpleasantly sharp attacks,"
New York Times, supra, at
376 U. S.
270.
"[T]he candidate who vaunts his spotless record and sterling
integrity cannot convincingly cry 'Foul!' when an opponent or an
industrious reporter attempts
Page 485 U. S. 52
to demonstrate the contrary."
Monitor Patriot Co. v. Roy, 401 U.
S. 265,
401 U. S. 274
(1971).
Of course, this does not mean that any speech about a public
figure is immune from sanction in the form of damages. Since
New York Times Co. v. Sullivan, 376 U.
S. 254 (1964), we have consistently ruled that a public
figure may hold a speaker liable for the damage to reputation
caused by publication of a defamatory falsehood, but only if the
statement was made "with knowledge that it was false or with
reckless disregard of whether it was false or not."
Id. at
376 U. S.
279-280. False statements of fact are particularly
valueless; they interfere with the truthseeking function of the
marketplace of ideas, and they cause damage to an individual's
reputation that cannot easily be repaired by counterspeech, however
persuasive or effective.
See Gertz, 418 U.S. at
418 U. S. 340,
418 U. S. 344,
n. 9. But even though falsehoods have little value in and of
themselves, they are "nevertheless inevitable in free debate,"
id. at
418 U. S. 340,
and a rule that would impose strict liability on a publisher for
false factual assertions would have an undoubted "chilling" effect
on speech relating to public figures that does have constitutional
value. "
Freedoms of expression require "breathing space."'"
Philadelphia Newspapers, Inc. v. Hepps, 475 U.
S. 767, 475 U. S. 772
(1986) (quoting New York Times, supra, at 376 U. S.
272). This breathing space is provided by a
constitutional rule that allows public figures to recover for libel
or defamation only when they can prove both that the statement was
false and that the statement was made with the requisite level of
culpability.
Respondent argues, however, that a different standard should
apply in this case because, here, the State seeks to prevent not
reputational damage, but the severe emotional distress suffered by
the person who is the subject of an offensive publication.
Cf.
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.
S. 562 (1977) (ruling that the "actual malice" standard
does not apply to the tort of appropriation of a right of
publicity). In respondent's view, and in the view of the
Page 485 U. S. 53
Court of Appeals, so long as the utterance was intended to
inflict emotional distress, was outrageous, and did in fact inflict
serious emotional distress, it is of no constitutional import
whether the statement was a fact or an opinion, or whether it was
true or false. It is the intent to cause injury that is the
gravamen of the tort, and the State's interest in preventing
emotional harm simply outweighs whatever interest a speaker may
have in speech of this type.
Generally speaking, the law does not regard the intent to
inflict emotional distress as one which should receive much
solicitude, and it is quite understandable that most, if not all,
jurisdictions have chosen to make it civilly culpable where the
conduct in question is sufficiently "outrageous." But in the world
of debate about public affairs, many things done with motives that
are less than admirable are protected by the First Amendment. In
Garrison v. Louisiana, 379 U. S. 64
(1964), we held that, even when a speaker or writer is motivated by
hatred or ill-will, his expression was protected by the First
Amendment:
"Debate on public issues will not be uninhibited if the speaker
must run the risk that it will be proved in court that he spoke out
of hatred; even if he did speak out of hatred, utterances honestly
believed contribute to the free interchange of ideas and the
ascertainment of truth."
Id. at
379 U. S. 73.
Thus, while such a bad motive may be deemed controlling for
purposes of tort liability in other areas of the law, we think the
First Amendment prohibits such a result in the area of public
debate about public figures.
Were we to hold otherwise, there can be little doubt that
political cartoonists and satirists would be subjected to damages
awards without any showing that their work falsely defamed its
subject. Webster's defines a caricature as "the deliberately
distorted picturing or imitating of a person, literary style, etc.
by exaggerating features or mannerisms for satirical effect."
Webster's New Unabridged Twentieth
Page 485 U. S. 54
Century Dictionary of the English Language 275 (2d ed.1979). The
appeal of the political cartoon or caricature is often based on
exploitation of unfortunate physical traits or politically
embarrassing events -- an exploitation often calculated to injure
the feelings of the subject of the portrayal. The art of the
cartoonist is often not reasoned or evenhanded, but slashing and
one-sided. One cartoonist expressed the nature of the art in these
words:
"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."
Long, The Political Cartoon: Journalism's Strongest Weapon, The
Quill 56, 57 (Nov.1962). Several famous examples of this type of
intentionally injurious speech were drawn by Thomas Nast, probably
the greatest American cartoonist to date, who was associated for
many years during the post-Civil War era with Harper's Weekly. In
the pages of that publication Nast conducted a graphic vendetta
against William M. "Boss" Tweed and his corrupt associates in New
York City's "Tweed Ring." It has been described by one historian of
the subject as "a sustained attack which in its passion and
effectiveness stands alone in the history of American graphic art."
M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another
writer explains that the success of the Nast cartoon was achieved
"because of the emotional impact of its presentation. It
continuously goes beyond the bounds of good taste and conventional
manners." C. Press, The Political Cartoon 251 (1981).
Despite their sometimes caustic nature, from the early cartoon
portraying George Washington as an ass down to the present day,
graphic depictions and satirical cartoons have played a prominent
role in public and political debate. Nast's castigation of the
Tweed Ring, Walt McDougall's characterization of Presidential
candidate James G. Blaine's banquet with the millionaires at
Delmonico's as "The Royal
Page 485 U. S. 55
Feast of Belshazzar," and numerous other efforts have
undoubtedly had an effect on the course and outcome of
contemporaneous debate. Lincoln's tall, gangling posture, Teddy
Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting
jaw and cigarette holder have been memorialized by political
cartoons with an effect that could not have been obtained by the
photographer or the portrait artist. From the viewpoint of history,
it is clear that our political discourse would have been
considerably poorer without them.
Respondent contends, however, that the caricature in question
here was so "outrageous" as to distinguish it from more traditional
political cartoons. There is no doubt that the caricature of
respondent and his mother published in Hustler is at best a distant
cousin of the political cartoons described above, and a rather poor
relation at that. If it were possible by laying down a principled
standard to separate the one from the other, public discourse would
probably suffer little or no harm. But we doubt that there is any
such standard, and we are quite sure that the pejorative
description "outrageous" does not supply one. "Outrageousness" in
the area of political and social discourse has an inherent
subjectiveness about it which would allow a jury to impose
liability on the basis of the jurors' tastes or views, or perhaps
on the basis of their dislike of a particular expression. An
"outrageousness" standard thus 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.
See NAACP v. Claiborne Hardware Co., 458 U.
S. 886,
458 U. S. 910
(1982) ("Speech does not lose its protected character . . . simply
because it may embarrass others or coerce them into action"). And,
as we stated in
FCC v. Pacifica Foundation, 438 U.
S. 726 (1978):
"[T]he fact that society may find speech offensive is not a
sufficient reason for suppressing it. Indeed, if it is the
speaker's opinion that gives offense, that consequence is a reason
for according it constitutional protection.
Page 485 U. S. 56
For it is a central tenet of the First Amendment that the
government must remain neutral in the marketplace of ideas."
Id. at
438 U. S.
745-746.
See also Street v. New York,
394 U. S. 576,
394 U. S. 592
(1969) ("It is firmly settled that . . . the public expression of
ideas may not be prohibited merely because the ideas are themselves
offensive to some of their hearers").
Admittedly, these oft-repeated First Amendment principles, like
other principles, are subject to limitations. We recognized in
Pacifica Foundation that speech that is "
vulgar,'
`offensive,' and `shocking'" is "not entitled to absolute
constitutional protection under all circumstances." 438 U.S. at
438 U. S. 747.
In Chaplinsky v. New Hampshire, 315 U.
S. 568 (1942), we held that a State could lawfully
punish an individual for the use of insulting "`fighting' words --
those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace." Id. at
315 U. S.
571-572. These limitations are but recognition of the
observation in Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U. S. 749,
472 U. S. 758
(1985), that this Court has "long recognized that not all speech is
of equal First Amendment importance." But the sort of expression
involved in this case does not seem to us to be governed by any
exception to the general First Amendment principles stated
above.
We conclude that public figures and public officials may not
recover for the tort of intentional infliction of emotional
distress by reason of publications such as the one here at issue
without showing, in addition, that the publication contains a false
statement of fact which was made with "actual malice,"
i.e., with knowledge that the statement was false or with
reckless disregard as to whether or not it was true. This is not
merely a "blind application" of the
New York Times
standard,
see Time, Inc. v. Hill, 385 U.
S. 374,
385 U. S. 390
(1967); it reflects our considered judgment that such a standard is
necessary to give adequate "breathing space" to the freedoms
protected by the First Amendment.
Page 485 U. S. 57
Here it is clear that respondent Falwell is a "public figure"
for purposes of First Amendment law. [
Footnote 5] The jury found against respondent on his libel
claim when it decided that the Hustler ad parody could not
"reasonably be understood as describing actual facts about
[respondent] or actual events in which [he] participated." App. to
Pet. for Cert. C1. The Court of Appeals interpreted the jury's
finding to be that the ad parody "was not reasonably believable,"
797 F.2d at 1278, and, in accordance with our custom, we accept
this finding. Respondent is thus relegated to his claim for damages
awarded by the jury for the intentional infliction of emotional
distress by "outrageous" conduct. But, for reasons heretofore
stated, this claim cannot, consistently with the First Amendment,
form a basis for the award of damages when the conduct in question
is the publication of a caricature such as the ad parody involved
here. The judgment of the Court of Appeals is accordingly
Reversed.
JUSTICE KENNEDY took no part in the consideration or decision of
this case.
JUSTICE WHITE, concurring in the judgment.
As I see it, the decision in
New York Times Co. v.
Sullivan, 376 U. S. 254
(1964), has little to do with this case, for here the jury found
that the ad contained no assertion of fact. But I agree with the
Court that the judgment below, which penalized the publication of
the parody, cannot be squared with the First Amendment.
[
Footnote 1]
While the case was pending, the ad parody was published in
Hustler Magazine a second time.
[
Footnote 2]
The jury found no liability on the part of Flynt Distributing
Co., Inc. It is consequently not a party to this appeal.
[
Footnote 3]
Under Virginia law, in an action for intentional infliction of
emotional distress, a plaintiff must show that the defendant's
conduct (1) is intentional or reckless; (2) offends generally
accepted standards of decency or morality; (3) is causally
connected with the plaintiff's emotional distress; and (4) caused
emotional distress that was severe. 797 F.2d at 1275, n. 4 (citing
Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145
(1974)).
[
Footnote 4]
The court below also rejected several other contentions that
petitioners do not raise in this appeal.
[
Footnote 5]
Neither party disputes this conclusion. Respondent is the host
of a nationally syndicated television show and was the founder and
president of a political organization formerly known as the Moral
Majority. He is also the founder of Liberty University in
Lynchburg, Virginia, and is the author of several books and
publications. Who's Who in America 849 (44th ed.1986-1987).