COLD OPEN

ABRAHAMSON: I was terrified. I got nervous every time the phone rang.

I would lay awake at night thinking, oh my G-d, the evangelicals are coming for me.
Jesus is coming for me.

MATT: Unprecedented is a show about what we call the “accidental guardians” of our
freedoms, the regular people who helped us figure out what the First Amendment
actually means. And no one embodies this idea more than the guy we’ll hear from
today.
MIKE: This week on the show: The dirty joke that made it to the Supreme Court. Maybe
you’ve heard about Hustler v. Falwell. It’s a case so salacious that Hollywood made it
into a movie. The People vs. Larry Flynt.

JUDGE: Mr. Flynt, is that an American flag you have on there sir?
FLYNT: I have fashioned this American flag into a diaper, because if you’re
gonna treat me like a baby I’m gonna act like one.

MIKE: But the movie left out arguably the most important person.

ABRAHAMSON: This is Terry Abrahamson. I'm being interviewed today, I

believe.

MATT: Yeah, there’s no Terry Abrahamson in the movie.

MIKE: And that’s bizarre, because Terry is responsible for Hustler v. Falwell. Without
him, there’s no case.
MATT: And the Supreme Court might never have weighed in on whether the
constitution protects our right to be mean. Terry’s role has been lost to history—until
now.
MIKE: I’m Mike Vuolo.
MATT: I’m Matthew Schwartz.
MIKE: And this ... is Unprecedented.

TITLE BREAK

MIKE: Who is Terry Abrahamson? He’s a writer. He started out in the advertising
business in Chicago in the 1970s.

ABRAHAMSON: I wrote Charlie the Tuna and Morris the Cat and …
MIKE: Wow.

MATT: Charlie the Tuna. He was that anthropomorphic fish with a tophat, right?
MIKE: No. He didn’t have a tophat, he had a beret.
MATT: (laughing) Oh.
MIKE: He was a beatnik.

1
 STARKIST AD: Come and get your gift Starkist … Sorry Charlie.

MATT: I was three. I didn’t pay much attention.

MIKE: Well’s that’s when this story begins—in the spring of 1983. Terry Abrahamson
gets a phone call from an old colleague.

ABRAHAMSON: He called me up and said, ‘Flynt is looking for some humor for
Hustler. You have any ideas?’

And I kind of knew the reputation of Hustler. I never met anybody who actually
had one in their home. I just thought that was the kind of thing that people went
into the newsstands and looked at and then put back and left. But I looked
through it and then I thought, well I wrote commercials, I'll do some ad parodies.

MIKE: Ad parodies—okay, but Terry wants to do a little bit of research first. So he goes
back to the newsstand and thumbs through an issue of Playboy.

ABRAHAMSON: And I came across an ad. It was a Campari ad.

MIKE: The ad that Terry came across is in this issue of Playboy from 1983.
MATT: Whoa, porn in the studio! Vintage porn.
MIKE: It’s for research purposes. Matt, turn to page 50.
MATT: Umm, okay, let’s see here. Page 50. There it is. Campari. It’s a red liqueur.
That’s basically all I know about it. Never, never had it.
MIKE: Well, in the early 1980s Campari ran a series of print ads. They were full page
magazine advertisements that read like an interview, a Q-and-A, with a famous actress
talking about her first time.

ABRAHAMSON: And, you know, from the headline and from what you started to
read—which was, my toes curled, I saw sky rockets—they're supposed to make
you think that she's talking about the first time she had sex.

MATT: So yeah, uhh, this particular one that Terry came across has an actress holding
up a cocktail. Her name is Jill St. John.
MIKE: Yeah, she played the Bond Girl in Diamonds Are Forever.

TIFFANY CASE: Help yourself to a drink!

JAMES BOND: Is Mr. Case not at home?
TIFFANY CASE: There is no Mr. Case. The T is for Tiffany.

MIKE: Now, I wanna read part of this Jill St. John ad, because remember, this is the
inspiration for the parody ad that Terry’s gonna write. So I’ll play the part of the
interviewer. And playing the part of Ms. Jill St. John will be … Ms. Jill St. John.
MATT: What? Wait, you got Jill St. John?

2
 ENGINEER: Mike.
VUOLO: Yes.
ENGINEER: We are here.
VUOLO: Great.
ENGINEER: Jill just arrived.
ST. JOHN: Hi!
VUOLO: Hi there!

MATT: You just called up a Bond Girl?

MIKE: Yeah.

ST. JOHN: I don’t know what it has to do with the First Amendment, but …

MATT: Where can I find the numbers for Bond Girls?

ST. JOHN: Hi. I’m Jill St. John and I’m talking about my first time. My first time
was in Tre Scalini, an adorable sidewalk cafe in Rome.
INTERVIEWER: Oh, really? Right out in the open?
ST. JOHN: Sure … you see, I’m basically an outdoorsy type of person.
INTERVIEWER: I see. You must tell me all about it.
ST. JOHN: Well, we were just relaxing after a hard day of shooting. Just me and
the crew. It happened with the stunt man.
INTERVIEWER: The stunt man?! That sounds a bit risky!
ST. JOHN: Oh, it wasn’t really. You see, he was Italian, and they just seem to
know about these things.
INTERVIEWER: Go on.
ST. JOHN: Well, he was very romantic. He leaned in close and whispered,
“Gingerly?” “Well,” I said, “I’ve never been shy about anything before.” He gave
me a charming grin, and then ordered a Gingerly for me … that’s Campari,
ginger ale and soda.

MIKE: And it goes on from there.

MATT: I’m still shocked that you got Jill St. John.

ST. JOHN: You were good, too!

VUOLO: Oh, thank you!
ST. JOHN: I think we got it, huh?
VUOLO: I think so!

MATT: She acts with Sean Connery, not Mike Vuolo.

MIKE: Well, (Connery impression) times change, my friend.
MATT: (laughter) That’s awful. Alright. So, this whole ad is just one big bait and switch.
It’s …
MIKE: Yeah.
MATT: It’s a double entendre.
MIKE: Yeah.

3
MATT: Yeah, you think she’s talking about sex, but it turns out she’s actually talking
about this Italian liqueur. Kinda cute.
MIKE: Terry Abrahamson thought so too. So he grabbed his notepad and headed over
to his favorite spot for some inspiration.

ABRAHAMSON: I would go out to Venice Beach to write. A lot going on there, a

lot of characters, a lot of life, a lot of music, and, you know, there was an
unlimited and relentless sensorial bombardment of tie dye everything, and the
scent of marijuana and incense. I felt like things were flowing out of me, as they
should be. It was a good environment for me to get creative.

And I could see the ocean and I could see the people. And I thought about it for
not very long, maybe 90 seconds, and I just wrote: Jerry Falwell talks about his
first time.

MATT: Why Jerry Falwell?

MIKE: In order to understand why Jerry Falwell, it’s important to remember just how
towering and influential a person he was in the early 1980s.

FALWELL: I’m Jerry Falwell, pastor here. Isn’t it grand to be a Christian?

SMOLLA: Jerry Falwell was a fundamentalist, Christian activist.

MIKE: This is Rodney Smolla. He’s dean of the law school at the University of Delaware
and he’s the author of Jerry Falwell v. Larry Flynt: The First Amendment on Trial.

SMOLLA: He had a popular Sunday, gospel big church program.

ANNOUNCER: It’s time now for the Old Time Gospel Hour with Jerry Falwell.
FALWELL: And it’s a real joy every Sunday morning to share with you our
morning worship service.
SMOLLA: He thought it important to enter the political arena and fight everything
that he thought was going wrong with America: moral relativism.
FALWELL: Today there seems to be very little recognition of what is right and
what is wrong.
SMOLLA: Sexual promiscuity.
FALWELL: When you look at herpes, G-d’s judgment because of heterosexual
promiscuity.
SMOLLA: Homosexuality.
FALWELL: A man who gives himself to this kind of perversion is sick! S-I-C-K.
SMOLLA: Abortion.
FALWELL: What is G-d going to do to judge America because of 13 million little
babies we’ve murdered since 1973?
SMOLLA: He formed a side business, so to speak, a political arm of the church
that was called the Moral Majority.
ANCHOR: A new poltical machine that’s anti-abortion, anti-ERA, anti-gay rights.
SMOLLA: There's a thing called truth. It comes from the gospel. It comes from
G-d, and the country has gone awry in not recognizing that.

4
 FALWELL: And what G-d said was wrong 100 years ago is wrong today. G-d
has not changed.
SMOLLA: And I will preach these lessons, and I will back candidates that
endorse these lessons, and I will with no shame enter the arena. And so he did.

MIKE: It’s against this backdrop that Terry Abrahamson—who’s a political progressive,
a liberal—decided that Falwell was the perfect target for his parody.

ABRAHAMSON: He had this agenda that he talked about, Falwell, of wanting to

get people saved. And I'm thinking, yeah, uhh Falwell's kind of a, a guy we
should be saved from, not a guy who should be saving, at least not saving me.
VUOLO: So the assignment was not to write an ad parody lampooning Jerry
Falwell. You chose him as the target.
ABRAHAMSON: All I was told was Flynt wants humor. That was as specific as it
got. So I thought, well, how can I do something that will get a chuckle out of the
folks who read Hustler, and let Jerry Falwell know that not everybody thinks he is
this guy who you can't mess with?

MATT: So Terry Abrahamson wrote one of those sexy, double entendre ads about Jerry
Falwell?
MIKE: Sooort of. Here’s Terry.

ABRAHAMSON: This is how the original ad started: I never dreamed I'd make it
with Grandma, but when those six guys came out of the outhouse smiling and
Grandma was still breathing, I figured, shit, if the flies can take it, well so can I.

MATT: Blech.
MIKE: Not quite a double entendre.
MATT: It’s more like a single entendre—a single, disgusting entendre.
MIKE: Too disgusting for Larry Flynt? Maybe. Terry gets summoned to the Hustler
building in L.A. Larry Flynt’s assistant says that Larry has a problem with the parody.

ABRAHAMSON: And I'm just crushed. And she says, "Larry likes the ad, but
Larry was very close with his grandmother, and he can't imagine or stomach
anyone, even Jerry Falwell, having sex with his own grandmother. Can you
change it to Falwell having sex with his mother?"

And I thought, there's 250 bucks on the line, I'll change it to anything they want.
And I basically just changed the wording from, you know, grandmother to mother
wherever it was needed and that was good enough for them.

MIKE: And so the parody was published in the November, 1983 issue of Hustler.
MATT: You have it?!
MIKE: Thank you eBay. Check out the inside front cover.
MATT: This looks exactly like the Jill St. John ad! It even has a picture of Jerry Falwell
smoldering at the camera.

5
MIKE: Yeah, that’s the point! It’s a parody. Now, we can reenact this like I did with Jill
St. John, only Jerry Falwell is no longer with us and—you know, let’s face it—he
probably wouldn’t participate if he were.
MATT: Probably not.
MIKE: So I’ll be the interviewer again, and …
MATT: I’ll be Jerry Falwell?
MIKE: That’s what I’m thinking.
MATT: Alright. I’m excited.
MIKE: Here it is: Jerry Falwell talks about his first time.

FALWELL: My first time was in an outhouse outside Lynchburg, Virginia.

INTERVIEWER: Wasn’t it a little cramped?
FALWELL: Not after I kicked the goat out.
INTERVIEWER: I see. You must tell me all about it.
FALWELL: I never really expected to make it with Mom, but then after she
showed all the other guys in town such a good time, I figured, “What the hell!”
INTERVIEWER: But your mom? Isn’t that a bit odd?
FALWELL: I don’t think so. Looks don’t mean that much to me in a woman.
INTERVIEWER: Go on.
FALWELL: Well, we were drunk off our G-d-fearing asses on Campari, ginger
ale and soda—that’s called a Fire and Brimstone. And Mom looked better than a
Baptist whore with a $100 donation.
INTERVIEWER: Campari in the crapper with Mom … how interesting. Well, how
was it?
FALWELL: The Campari was great, but …

MIKE: This is your line Matt.

MATT: I can’t, I can’t read this.
MIKE: You wanted to play Jerry Falwell.
MATT: I’m not gonna read this. My mother is gonna listen to this episode. No way.
MIKE: I don’t blame you. I’m not gonna read it either.
MATT: I feel dirty.
MIKE: So this was actually in the magazine. And we left out the most vulgar part.
Google it if you want to. I should mention that there is a little asterisk at the bottom of
the page, next to which it says: “Ad Parody—Not To Be Taken Seriously.”
MATT: Well, at least there’s that, but, this is a really mean parody.
MIKE: Falwell certainly thought so and he took it very seriously. Here’s Falwell back in
the 1980s. He’s at a press conference, talking about the ad.

FALWELL: I have never been incensed by a political cartoonist or any other kind
of cartoonist other than Mr. Flynt, when he suggested that as a minister of the
gospel, that I had been involved incestuously with my late mother, who died at
age 82 some years earlier. A godly woman whose memory has never been
blemished by anyone. And when he suggested that my mother was a whore, a
prostitute, I can’t imagine any red-blooded male in any nation on Earth not being
incensed by that.

6
MIKE: Soon after the parody comes out, Terry hears from his contact at Hustler again.

ABRAHAMSON: And he says, "Listen, has anybody called you or written to you
about this Falwell parody we did?" And I say, "No, why?" And all of a sudden,
you know, my stomach is starting to churn. And he says, "Well, Falwell is suing
Flynt." And then I'm like, oh my G-d, the evangelicals are coming for me. Jesus is
coming for me. It was horrifying. I would lay awake at night sometimes in bed
thinking, am I gonna, you know, get sued? Am I gonna go to jail? It's Jerry
Falwell, he's got plenty of dough.
SCHWARTZ: At this point, were you thinking at all about the protections that the
First Amendment supposedly afforded you, or were you just freaking out?
ABRAHAMSON: I was mostly freaking out.

MIKE: Jesus was not coming for Terry Abrahamson. Nobody was coming for Terry
Abrahamson, the writer. Jerry Falwell was, however, coming for Larry Flynt, the King of
Porn. Falwell had been preaching against pornography for years. Falwell was coming
for Hustler.

FALWELL: Question: Isn’t pornography protected by the First Amendment?

Don’t you think Hugh Heffner, Larry Flynt, and a host of other smut peddlers
have the right to publish their garbage with protection under the First
Amendment? No. N-O. No. I don’t believe the Founding Fathers had garbage in
mind when they wrote the First Amendment. And that’s not censorship; that’s
Christian responsibility.

MIKE: Falwell sued Hustler for what’s called Intentional Infliction of Emotional Distress.
MATT: Which is really just a legal way of saying: Falwell is suing Hustler for hurting his
feelings.

BROKAW: And in a courtroom in Roanoke, Virginia, this week, there is a

confrontation of opposites. The Reverend Jerry Falwell of the Moral Majority
takes on Larry Flynt, a man who calls himself the King of Sleaze.

MIKE: This was a jury trial. And the jury found for Jerry Falwell. They decided that Larry
Flynt owed Falwell $200,000 in damages for Intentional Infliction of Emotional Distress.
MATT: $200,000 for being mean.
MIKE: Yeah, yeah. And, to be fair, we’ve been framing this case as the right to be
mean. But for Terry Abrahamson, this wasn’t just about a vulgar parody of a public
figure. Free speech itself was on the line.

ABRAHAMSON: How can you censor someone, how can you arbitrarily decide
to take a man or a woman's voice? When you take their voice, when you refuse
them the opportunity to vent their soul, you are denying their existence. You deny
people's humanity when you deny their right to speak their mind.

7
MATT: Will the Supreme Court deny Terry Abrahamson’s existence, as he put it? Or
does he have the right to be mean? We’ll find out after the break.
MIKE: Stick around.

8
 MIKE: Nina Totenberg.
NINA: Yes.
MIKE: This may seem like a bit of an indelicate question, but can you tell us
about your first time?
NINA: I've been doing this for so many years, I really don't remember the first
time. Because I didn't think it would be on and off for the rest of my life. And so, I
just know the year, and I'm not telling it.
MIKE: Do you remember who it was with, who was there?
NINA: I went to the press room.
MATT: You did this in the press room?
NINA: I did this in the press room.

MATT: Okay, so the details are a little hazy. Nina doesn’t quite remember her first time
… covering the Supreme Court.
MIKE: She was probably drunk on Campari.
MATT: Maybe, but she does remember this time.

SIEGEL: This is All Things Considered. I’m Robert Siegel.

MONTAGNE: And I’m Renée Montagne. Today the staid Supreme Court played
host to a legal battle between the Moral Majority’s Jerry Falwell and the self-
proclaimed King of Porn, Hustler Magazine publisher Larry Flynt. The battle was
fiery, the decision was yet to come …

MATT: So picture it: we’re in the Supreme Court chamber—this stately room, with 30-
foot high Grecian columns and a curved bench with nine justices looking out at the
packed courtroom. And on the one side, in his gold-plated wheelchair, and I’m not
making that up …
MIKE: That was a real thing.
MATT: … is Larry Flynt.

FLYNT: I think that the First Amendment gives me the right to be offensive.

MATT: And on the other side, the Reverend Jerry Falwell.

FALWELL: I do not believe for a moment that is what the framers of the First
Amendment had in mind.

MIKE: And in the middle, so to speak, you have incest, bestiality.

MATT: Alcohol, group sex in an outhouse.
MIKE: Feces, flies. What am I forgetting?

NINA: I mean it's everything disrespectful you can possibly have. And I
remember reading the briefs and thinking: "This court is full of a bunch of pretty
stuffy guys. You know, how are they going to feel about this?" Oddly enough, the
Chief Justice, who I had just assumed would find this offensive, thought, I'm told,
it was quite funny. Turns out, he had kind of a bawdy sense of humor.

9
 MIKE: Well, if you remember, it begins with the interviewer saying, "Oh, in an
outhouse? Wasn't it cramped?" And Jerry Falwell replies, "Not after I kicked out
the goat."
NINA: (laughing) No I had forgotten that.
MATT: So you think it's funny too?
NINA: Oh, I think it's funny, but, you know, we didn't have a lot of decisions about
Intentional Infliction of Emotional Distress cases at that point anyway.

MATT: In fact, we had no decisions. This is the first time that an Intentional Infliction of
Emotional Distress case is before the Supreme Court.
MIKE: There is so much going on in those five words: Intentional infliction of emotional
distress.
MATT: There’s a lot going on.
MIKE: So if you do something to hurt my feelings on purpose, like REALLY hurt my
feelings, then I can sue you for damages?
MATT: Yeah, you can sue. And the way it works, generally, in our courts is that in order
to win you have to demonstrate that whatever it was that the person did was
OUTRAGEOUS. Here again is Rodney Smolla, who wrote a book about this case. And
he says that “outrageous” is actually the legal term that was used.

SMOLLA: Outrageous was defined as beyond anything that an ordinary

reasonable person should have to endure in a decent society.

MATT: So the question the Supreme Court justices will have to answer is: How do we
know when speech is so outrageous that it’s crossed the line. Take this Jerry Falwell
parody. Is it the incest that makes it outrageous?
MIKE: Maybe it’s the bestiality. Is it the goat?
MATT: What if we get rid of the goat?
MIKE: Yeah, what’s the rule here? How do we know when speech is suddenly
outrageous?
MATT: You’re getting at the job of a Supreme Court justice: It’s coming up with a rule
for situations just like this. When does speech go too far? Falwell’s attorney, Norman
Roy Grutman, argued that Larry Flynt can’t just publish his smut and then hide behind
the First Amendment. Here’s Grutman, at the Supreme Court, arguing for a sense of
decency implicit in the First Amendment.

GRUTMAN: Deliberate, malicious character assassination is not protected

by the First Amendment to the Constitution. This is not the responsible
publisher. This is the wanton, reckless, deliberately malicious publisher
who sets out for the sheer perverse joy of simply causing injury to abuse
the power that he has as a publisher.

MATT: Grutman says that this parody …

10
 GRUTMAN: … constitutes that kind of depiction which would be regarded
by the average member of the community as so intolerable that no civilized
person should have to bear it.

MATT: But Justice Antonin Scalia is skeptical of his argument, because “deliberate,
malicious character assassination”—yeah, we call that politics.

SCALIA: Mr. Grutman, you've given us a lot of words to describe this:

outrageous, heinous, uhh …
GRUTMAN: Repulsive and loathsome.
SCALIA: Repulsive and loathsome. Well I don't know, maybe you haven't
looked at the same political cartoons that I have, but some of them—and a
long tradition of this, not just in this country, back into English history—I
mean, politicians depicted as horrible looking beasts. Can you give us
something that the cartoonist or the political figure can adhere to other
than such general words as heinous, and whatnot? I mean, does it depend
on how ugly the beast is, or what?
GRUTMAN: No, it's not the amount of hair the beast has or how long his
claws may be. I believe that we have … this is a matter of an evolving social
sensibility. It is for the jury to decide whether or not what is being depicted
is done in so offensive, so awful and so horrible a way that it constitutes
the kind of behavior that nobody should have to put up with.
O’CONNOR: Well Mr. Grutman in today’s world people don’t want to have
to take these things to a jury.

MIKE: Lemme jump in here because I want to make sure I understand what both Scalia
and Sandra Day O’Connor are after. They’re asking Grutman for a rule of thumb,
something to help them figure out where the line is.
MATT: Right.
MIKE: And I don’t hear Grutman giving them a rule. In fact, it sounds like Grutman is
saying: We don’t need a rule; that’s what the jury is for. Let the jury decide when it goes
too far. And, in this case, they already did. Flynt owes Falwell $200,000. Let’s leave it at
that.
MATT: Yeah, that’s Grutman’s argument. Leave it to the jury. On the other hand, we’ve
got Larry Flynt’s attorney, Alan Isaacman.

REHNQUIST: Uhh, Mr. Isaacman, you may proceed whenever you’re ready.

MATT: Who says: Hustler hasn’t come close to crossing the line! Yeah, this parody
might be vulgar.
MIKE: Loathsome, repulsive, offensive.
MATT: Right. But Falwell should be able to take it. He spent decades in the public
arena arguing for his particular brand of morality, so it’s only fair that Hustler gets to
fight back. Here’s Alan Isaacman:

11
 ISAACMAN: There is a public interest in having Hustler express its view
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 outside of wedlock and don't drink alcohol—Hustler has every right
to say that man is full of B.S.

MIKE: I am onboard with Isaacman. Jerry Falwell was not some wallflower sitting on the
sidelines of the culture war. He was a soldier in the fight against pornography. And we
have this looong, cherished tradition in America of lampooning—sometimes viciously—
our politicians and our religious figures. I say, if you’re in public life, then you need to get
a thick skin or get out.
MATT: Wow. Well, hold on, you might change your mind on this one. It turns out Justice
Scalia played Devil’s Advocate yet again. Here’s Scalia pushing back, this time against
Alan Isaacman:

SCALIA: Mr. Isaacman, the First Amendment is not everything. It’s a very
important value, but it’s not the only value in our society, certainly. You’re
giving us no help in trying to balance it, it seems to me, against another
value which is that good people should be able to enter public life and
public service. The rule you give us says that if you stand for public office,
or become a public figure in any way, you cannot protect yourself, or
indeed your mother, against a parody of your committing incest with your
mother in an outhouse. Now, is that not a value that ought to be protected?
Do you think George Washington would have stood for public office if that
was the consequence?
ISAACMAN: Somebody who’s going into public life, George Washington is
an example, there’s a cartoon that has George Washington being led on a
donkey and underneath the caption is something about so and so who is
leading this donkey is leading this ass, or something to that effect. Now …
SCALIA: I can handle that. And I think George could handle that. That’s a
far cry from committing incest with your mother in an outhouse. I mean,
there’s no line between the two? We can’t protect that kind of parody and
not protect this?
ISAACMAN: What you’re talking about, Justice Scalia, is a matter of taste.
And what we’re talking about here is, well, is this tasteful or not tasteful?
That’s really what you’re talking about because nobody believed that Jerry
Falwell was being accused of committing incest. … You cross the line
when you say something that can be understood as a false statement of
fact.

MIKE: You cross the line when you say something that can be understood as a false
statement of fact.
MATT: Right.
MIKE: So Isaacman concedes that, yeah, there is a line. But it’s not whether something
is outrageous or offensive because that’s subjective.
MATT: Super subjective.

12
MIKE: The line that Isaacman wants the Court to adopt is whether or not it’s a lie.
MATT: Right. And Hustler Magazine was joking. There’s a difference between a lie and
a joke.
MIKE: Yeah, it was even labeled as a parody. And it said: Not to be taken seriously.
MATT: They never presented it as a fact that Jerry Falwell had sex with his mother in
an outhouse.
MIKE: Nevertheless, I choose to believe it.

CJ REHNQUIST: The case is submitted.

MATT: And the justices retire to decide the fate of the First Amendment. Rod Smolla—
who, as I mentioned, ended up writing a book about this case—he had actually been
hired by a bunch of media organizations to submit written testimony on behalf of
Hustler. He argued that if Falwell won, it wasn’t just the Larry Flynts of the world that
would be impacted. This could affect political cartoonists, Saturday Night Live
comedians.
MIKE: Mean people everywhere.
MATT: Yeah. And a lot of people assumed that Falwell WOULD win, because, as Nina
pointed out, these Supreme Court justices were pretty stuffy. After the oral argument
was over, Larry Flynt took to the steps of the Supreme Court to speak to the media.

FLYNT: It’s magazines like Hustler that need protection of the First Amendment,
not the Washington Post. We offend a lot more people than the Washington Post
do. But I think that the First Amendment gives me the right to be offensive.

MATT: And there, sticking a microphone in Larry Flynt’s face, was, of course, Nina
Totenberg.

TOTENBERG: Mr. Flynt, your opponent in this case said that this is speech that
doesn’t matter, that it shouldn’t be protected because it’s speech that doesn’t
matter.
FLYNT: To live in a free society, you’ve gotta pay a price, and that price is
toleration. You have to tolerate things that you don’t necessarily like. So the Larry
Flynts of the world have to be tolerated. And the Falwellians of the world have to
be tolerated. And that’s what the issue is: My speech is just as important as Jerry
Falwell’s, probably more so.

MATT: So here we are, back at the original question: Was Larry Flynt and Hustler and
Terry Abrahamson—were they TOO mean?
MIKE: Did they take the joke TOO far or does the First Amendment protect them?

SIEGEL: This is All Things Considered, I’m Robert Siegel.

MONTAGNE: And I’m Renée Montagne. Today, televangelist Jerry Falwell lost a
longstanding battle with publisher Larry Flynt, who has described himself as a
smut peddler. The battle ended with a unanimous decision …

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 TOTENBERG: … voided the damage award, ruling that the First Amendment
guarantee of free speech and press protects cartoons and satires from lawsuits
for Emotional Distress.

MIKE: So Larry Flynt won! He’s off the hook for that 200 grand. And it was unanimous.
There was not a single justice who dissented.
MATT: Yeah and remember how the justices were trying to figure out where the line is?
MIKE: Mm-hmm.
MATT: It turns out Flynt’s lawyer, Alan Isaacman, had it right: as long as you’re not
lying, you’re free to speak your mind. Here’s Rodney Smolla.

SMOLLA: If the only thing that a person can point to is that the insulting speech
or the degrading speech hurt my feelings, made me feel bad, the First
Amendment protects that speech no matter how outrageous it is.

NINA: Well the opinion makes it really seem quite simple. You know, if you're
gonna outlaw parody and make publishers of parody pay you hundreds of
thousands of dollars or potentially even millions of dollars, you're gonna outlaw
every kind of satire imaginable including some of the most famous cartoons in
the nation's history and cartoons that changed the course of history.
MATT: It seems odd today that there was even a question about whether
you could lampoon a public figure.
NINA: I think it’s the first time the Court actually had to deal with it. Because
enough norms of behavior had fallen away that you could actually have a parody
about the outrageous sexual behavior of this self-proclaimed paragon of virtue.
That his first sexual experience was with his mother and that they were both
drunk and in an outhouse. Now, that is …
MIKE: Hey, we've all been there Nina. Come on.
NINA: (laughing) But that is really not something that you could have even
imagined, let's say 20 years earlier, anybody having that kind of a satire in a
magazine that was in stores all over the country. You just couldn't have imagined
such a thing.

ABRAHAMSON: When the Supreme Court ruled eight to nothing that it was
okay to inflict emotional distress on a public figure, then I just thought, man, look
what I did. I thought about who these guys were and—these guys and Sandra
Day—and that one of these guys was Thurgood Marshall, who I revere! The fact
that they sat around this table debating the merits and impact and
constitutionality of Terry Abrahamson's dirty joke. It's, it’s pretty mind blowing.

MATT: Unprecedented is produced at WAMU, and edited by Poncie Rutsch. Ben Privot
is our audio engineer.
MIKE: Andi McDaniel is WAMU’s Head of Content.
MATT: WAMU’s general manager is J.J. Yore.
MIKE: If you like the show, tell a friend and be sure to leave a rating and a review on
Apple Podcasts, or wherever you get the show. It really makes a difference.

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MATT: And if you want more podcasts like Unprecedented, become a member of
WAMU. They produce and distribute Unprecedented and other awesome shows.
MIKE: Go to WAMU DOT org SLASH donate, and tell them you're giving because you
love Unprecedented.

CODA

MIKE: Matt, I do have one more thing.

MATT: Okay.
MIKE: It’s in my bag.
MATT: Your bag o’ porn?
MIKE: It’s not porn. I left that at home.
MATT: Okay. What do we have here?
MIKE: You mentioned that you never tasted Campari.
MATT: This is true.
MIKE: I’m making you a Gingerly. Matthew Schwartz talks about his first time.
MATT: Oh my G-d, we’re actually doing this?
MIKE: It is the middle of the day.
MATT: I like a nooner.
MIKE: This is this typically when you start your drinking? Ginger ale … ooh, that’s a
nice fizz. What’s the aroma?
MATT: Oh my G-d.
MIKE: What’s the nose on that?
MATT: Barnyard? It smells grassy.
MIKE: Yeah it does have a kind of earthy smell to it.
MATT: Here we go.
MIKE: Sipping it, there we go.
MATT: Ugh! Gugh! Blech! Oh G-d, this is awful! This is so bad! No, I’m serious, this is
the worst thing I’ve ever tasted!
MIKE: Well there goes Campari as a sponsor.
MATT: Oh G-d, it’s bitter! Oh.
MIKE: I don’t think you like it.
MATT: Oh, it tastes like bath soap.
MIKE: Why is this a thing?
MATT: This is disgusting. Oh, it’s leaving this awful taste in my mouth.
MIKE: Ohh, like many a first time.
MATT: Oh my G-d. You want some?
MIKE: No, thank you.
MATT: Are you sure?
MIKE: Oh I’m positive.
MATT: It’s really good! I’m gonna throw up. This is done. I can’t do this anymore. This is
really, really awful.
MIKE: Alright, we got a whole bottle of Campari here, what are we gonna do with this?

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