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Good versus evil as the world watched Roanoke 35 years ago.
For six days in early December of 1984, America turned its eyes to Roanoke as a national cultural war played out in a federal courtroom.
On one side: Jerry Falwell, the Southern Baptist preacher who established Thomas Road Baptist Church, founded Liberty University and turned the religious right into a dominant political power through his Moral Majority political action committee.
On the other: Larry Flynt, the publisher of Hustler magazine, whose graphic photo spreads and articles about sex, politics and religion made competitors Playboy and Penthouse look positively prudish by comparison.
The legal battle between the two began in Roanoke, but eventually wound up in the Supreme Court of the United States, with the resulting decision forever changing media and politics in America.
The case, known as Hustler Magazine v. Falwell, “remains one of the great cornerstones of modern First Amendment law,” according to Rodney Smolla, dean and professor at the Delaware Law School of Widener University, who wrote about the case in 1988’s “Jerry Falwell v. Larry Flynt: The First Amendment on Trial.”
“It has endured over time and it continues to be looked upon as one of the most important free speech cases ever decided,” Smolla says. “As much as any case in American history, it guaranteed the wide-open freedom we have to be very caustic and critical.”
For all its legal importance, the battle between Falwell and Flynt transcended the courtroom, representing a polarizing conflict in American culture that endures still today, most obviously in knock-down, drag-out battles that play out hourly on Facebook and other social media channels.
For all their differences, Falwell and Flynt came from similar backgrounds. Falwell was born and raised in Lynchburg as the son of a bootlegger. Flynt grew up poor in Magoffin County in eastern Kentucky, and dabbled in bootlegging himself before moving into pornography. Flynt founded and grew Hustler through the 1970s, but in 1978, he was attacked by a gunman outside a Georgia courthouse, partially paralyzing him and putting him in a wheelchair from then on.
One year after Flynt was shot, Falwell established the Moral Majority as part of his growing involvement in politics, with his primary goal being to restrict abortion. Throughout the early ‘80s, Falwell also went after pornography, which eventually brought him into conflict with Flynt.
“Falwell was on his anti-pornography campaign,” says Wat Hopkins, a communications professor at Virginia Tech who specializes in free-speech law. “If he had had his way, he would have shut down every porn magazine producer in the country. Flynt was a target, obviously, because his magazine was borderline between mainstream pornography and outlandish trash. He responded to the Falwell political onslaught, and that’s how it got started.”
Here’s how Flynt described what happened next, in an op-ed he wrote for the Los Angeles Times shortly after Falwell’s death in 2007: “After several years of listening to him bash me and reading his insults, I decided it was time to start poking some fun at him. So we ran a parody ad in Hustler—a takeoff on the then-current Campari ads in which people were interviewed describing ‘their first time.’ In the ads, it ultimately became clear that the interviewees were describing their first time sipping Campari. But not in our parody. We had Falwell describing his ‘first time’ as having been with his mother, ‘drunk off our God-fearing asses,’ in an outhouse.”
The kicker had Falwell saying he always “got sloshed” on Campari, a 48-proof apéritif, before taking to the pulpit: “You don’t think I could lay down all that bullshit sober, do you?”
The parody, labeled as such in the table of contents and on the page itself, ran in Hustler’s November 1983 magazine. Falwell first heard about it when a reporter waved it at him during a news conference in Washington, D.C. Falwell shrugged off the question—“That is probably nothing new,” he said as he walked away—but soon sent a staff member to buy the issue.
“Jerry had no trouble shrugging off the insults and innuendo that came his way, but you do not drag the name of a southern gentleman’s mother through the mud without a fight,” wrote Macel Falwell, Jerry Falwell’s wife, in her 2008 book, “Jerry Falwell: His Life and Legacy.”
Falwell filed a $45 million lawsuit against Hustler and Flynt. The case was filed in Falwell’s local federal court, the U.S. District Court for the Western District of Virginia, located in Roanoke.
Deranged?
Falwell used his political committee and his radio and television outlets to raise money for the legal endeavor, ultimately raising $45,000 from the Moral Majority and more than $672,000 from the Old Time Gospel Hour, according to Smolla’s book. He used that money to hire a bulldog of a lawyer, Norman Ray Grutman.
Grutman had previously faced off against Falwell, when Grutman represented Penthouse magazine. In that federal court case, also heard in Roanoke, Falwell unsuccessfully sued the porn magazine for running an interview by freelance journalists. Grutman also had a history with Flynt, having represented Penthouse in its own legal battles against Hustler.
“I always thought that Falwell said, well if I’m going to sue the devil, I want a lawyer who’s a devil himself,” Smolla says. “Grutman had really destroyed Falwell in the suit that Falwell brought against Penthouse, but it didn’t apparently cause a grudge or bitterness. Falwell went out and hired the guy who had been his adversary to be his lawyer. Then there’s the history between Grutman and Flynt. Penthouse and Hustler had been in lots of legal disputes, so that also made it attractive for Falwell to hire Grutman: He was getting someone who had been a street fighter with a record of going up against the guy he was going to sue.”
That edge is apparent from the beginning in news coverage of the case. In a United Press International story previewing the 1984 court fight in Roanoke, Grutman told a reporter, “This is a pitched battle between the forces of good and evil. I’ll be wearing a white hat. Ask Mr. Flynt what he’ll be wearing.”
The beginning of the case did not go well for Flynt. In June of 1984, Grutman deposed Flynt in a federal prison in North Carolina, where Flynt was serving a sentence for contempt of court. Flynt was depressed, covered in bedsores, on several different medications and handcuffed to his hospital gurney. During the deposition, Flynt claimed to be receiving radio signals, spewed vulgarities and verbally attacked Falwell, Grutman, the justice system and traditional American values in graphic terms. Smolla describes it as “one of the most vulgar, phantasmagorical and self-destructive depositions in legal history.”
The question of whether to admit the deranged deposition was one of the first questions facing federal Judge James C. Turk, who would preside over the case between Falwell and Flynt in Roanoke.
The Good Judge Turk
At the time of the case, Turk had served as a federal judge for 12 years. Before that, the Roanoke County native had served another 12 years in the Virginia Senate before being appointed to the bench by President Richard Nixon. Steve Haner, a Roanoke Times reporter from 1976 to 1986 who now works as a lobbyist in Richmond, says Turk was a moderate Mountain Valley Republican, belonging to a group that also included former Gov. John Dalton and U.S. Rep. Caldwell Butler. At a time when Democrats still held a dominant majority in the General Assembly, Republicans like Turk were often appointed to the federal bench.
Smolla got to know Turk in the late ‘00s while serving as the dean of Washington and Lee University Law School.
“He was an extraordinary gentleman and the kind of judge that lawyers love,” he says. “He’s prepared, he’s respectful, he’s balanced. I always got the impression that everyone thought they were getting someone who had done their homework and someone who was incredibly respectful and fair.”
Even so, many observers entered the jury trial believing that the case’s location in Roanoke favored Falwell because of his proximity. Think of it as a home court advantage. Flynt’s background, however, offered its own advantages.
“Larry Flynt is a product of the mountains, a product of rural Appalachia,” Smolla notes. “He’s a regular guy who managed to make it good. There were probably people who identified with him. They may not have believed anything he said, but they identified with him as much as they identified with Falwell.”
Flynt also entered the case in a much better state of mind and body than during the deposition earlier that year. By the time he rolled into the courtroom in his gold-plated wheelchair, Flynt had received a surgery that relieved him of much of his pain, as well as the need for drugs to dull that pain.
In considering Flynt’s wild deposition recorded six months earlier, Judge Turk initially ruled that the interview should be excluded due to Flynt’s obvious irrationality, but he then reversed himself and allowed it to be played for jurors.
Smolla said Turk faced a tough challenge in handling other similarly difficult rulings, an inherently thorny case, and aggressive lawyers. He did so in an even-handed way that prevented the courtroom from spiraling out of control.
“He took control and managed to create order out of chaos,” Smolla says.
The controlled environment within the courtroom didn’t prevent sensationalism in its coverage by national outlets.
“It was one of those situations where I was more interested in how the national press was playing it for their own purposes and sometimes distorting it,” says Haner, who watched the case play out from his desk at the Roanoke Times. “They loved to demonize Falwell, which I thought was hilarious. Falwell loved being demonized in the national press. … He loved being in the paper. He loved it.”
No Libel, But Damages
Falwell sued Flynt for invasion of privacy, libel and intentional infliction of emotional distress. Only the latter two went to trial, as invasion of privacy was done away with in a summary judgment before the trial. On December 8, the jury found against Flynt on the libel charge, reasoning that the Hustler parody was clearly just a joke and not a representation of actual facts. However, the jury awarded Falwell $150,000 in damages on infliction of emotional distress.
That decision was affirmed by the U.S. Court of Appeals for the Fourth Circuit, but Flynt then appealed it to the U.S. Supreme Court, which in 1987 agreed to take up the case.
Hopkins had just arrived at Virginia Tech as an emerging expert in First Amendment law and remembered being worried about the outcome. After all, the case featured outrageous Larry Flynt—known for pushing buttons and pulling stunts such as appearing in 1983 in a federal district court wearing a diaper and a Purple Heart pinned to a bulletproof vest—taking part in a case before a Supreme Court led by Chief Justice William Rehnquist, known for his gravity and conservatism. That version of the Rehnquist Court also included judicial heavyweights William J. Brennan Jr., Thurgood Marshall, John Paul Stevens, Sandra Day O’Connor and Antonin Scalia.
In the oral arguments before the court, Alan Isaacman argued for Flynt and Grutman for Falwell. Smolla remembers a pivotal moment during Isaacman’s segment when Stevens asked, what’s the public interest in the Hustler parody?
Isaacman responded that the point was to ridicule Falwell, in part by putting him “in a ridiculous setting.”
“Instead of Jerry Falwell speaking from the television with a beatific look on his face and the warmth that comes out of him, and the sincerity in his voice, and he’s a terrific communicator, and he’s standing on a pulpit and he may have a Bible in his hand,” Isaacman said. “Instead of that situation, Hustler is saying, let’s deflate this stuffed shirt, let’s bring him down to our level, or at least to the level where you will listen to what we have to say.”
As Isaacman said “let’s bring him down to our level,” he held out his hands to the justices.
“There was a second of total silence and then Justice Rehnquist just burst out laughing and laughed so hard he bent over and went beneath the bench for a minute, just doubled over with laughter,” said Smolla, who attended the hearing. “That caused everyone in the courtroom to laugh—the justices to laugh, the audience to laugh. I was sitting right behind Isaacman in the front row, and I whispered to another lawyer, who’d written one of the briefs, ‘We just won the case.’ That moment of laughter, if they could see the joke and that it was funny, they could connect with it as a parody.”
Smolla’s reaction was correct.
“Lo and behold, in one of the great upsets in Supreme Court history, Rehnquist wrote the opinion for the court—and [previously] he’d ruled against the media in every case,” Smolla said. “I think his laugh had as much to do with the case as anything.”
No Damages, But a Stunning Friendship
The Supreme Court overturned the Roanoke jury and the 4th Circuit decisions by an 8-0 vote. (The missing vote was Anthony Kennedy, who had been appointed and was on the court, but did not participate in the ruling because he was not on the court during the oral arguments.)
Rehnquist wrote the majority opinion, ruling that because the district court found in favor of Flynt on the question of libel, there was no question whether the magazine “ad” was parody. It couldn’t be understood as describing real facts about Falwell; it didn’t make false statements that were implied to be true. That meant it didn’t meet the actual-malice standard of another landmark free-speech case, 1964’s New York Times Company v. Sullivan, which meant the parody could not be the subject of damages under that same standard.
Flynt and Hustler had won a resounding victory.
“The case is important because the court reaffirmed that political speech gets the highest degree of protection under the First Amendment,” Hopkins says. “It gets the highest degree of protection. When there’s a public debate going on about pornography in society—there had been two presidential commissions on this issue—that’s a topic of self-governing importance and deserves the highest degree of protection.”
In his 2007 op-ed, Flynt wrote that “Falwell was forced to publicly come to grips with the reality that this is America, where you can make fun of anyone you want. That hadn’t been absolutely clear before our case, but now it’s being taught in law schools all over the country, and our case is being hailed as one of the most important free-speech cases of the 20th century.”
Ultimately, Falwell shared in the victory, largely because of his instincts for publicity. In the wake of losing to Flynt in the nation’s highest court, Falwell reached out and suggested the two go on a national tour in which they’d debate the case on college campuses and in television and radio studios around the country.
“It worked out well for both sides,” Haner says. “They both got name identification and got to play the victim. At the end of the process, they were doing joint appearances. Neither one of them shied away from the limelight.”
During the tour, the pair appeared together on Larry King Live.
“After the pair debated the morality of the court’s decision, Falwell got a call from one of his staff back in Lynchburg,” Dirk Smillie writes in “Falwell Inc.” “A Florida real-estate developer had been watching the show and called to request information on how to wire a one-million-dollar cash contribution to Falwell’s church. Like other megachurch pastors, Falwell’s religious ventures grew more or less in line with the media exposure he received.”
Flynt benefitted, too: 1996’s “The People vs. Larry Flynt,” a film starring Woody Harrelson as Flynt, featured the case prominently. Over the course of the tour, Falwell and Flynt developed a friendship.
Smolla moderated an event with the two at the University of Virginia to mark the case’s 10th anniversary.
“They were positively chummy, and Flynt referred to Falwell as his preacher,” Smolla said. “They joked around with each other, and it looked like there weren’t any lasting bitter or hard feelings. They still each believed in their own positions, but it wasn’t at that stage a bitter conversation.”
Hopkins was in the audience at the event: “When they came in, Falwell was pushing Flynt in his wheelchair. At one point when being introduced, Flynt said that Falwell was his pastor, and Falwell said, ‘Yes, and I keep telling you, if you don’t change your ways, you’re going straight to hell.’ It got a big laugh.”
Falwell continued to grow his church and political influence, navigating controversies, lawsuits and an ever-changing society. He died in 2007, and his sons inherited his work: Jerry Falwell Jr. at Liberty University and Jonathan Falwell at Thomas Road Baptist Church.
Both have continued to build on their father’s work, with Thomas Road Baptist Church swelling to about 25,000 members, and Liberty University enrolling more than 15,000 students on campus and 95,000 online. Every Republican presidential nominee of the last two decades has spoken at Liberty University, as well as Democrats such as Jimmy Carter, Bernie Sanders and Ted Kennedy.
“Falwell was a pioneer in making it legitimate for religious figures to jump in with everything into the political arena,” Smolla says. “We saw an echo of that in the extent to which conservative Christians openly rallied to support President [Donald] Trump, largely because of the desire to see Roe v. Wade overruled and a more conservative Supreme Court.”
Flynt continues to function as a public figure today, acting as a free-speech icon while continuing to publish Hustler magazine and pornography generally. Of course, print magazines of all kinds have in many realms given way to the internet’s unending stream of content, including porn. So unlike Falwell, Flynt finds his empire diminished from what it was during his legal feud with the televangelist from Lynchburg.
Yet it’s easy to find Flynt’s influence in today’s culture, not just in the omnipresence of internet porn but in the anything-goes libertarian ethos of online culture generally.
In Macel Falwell’s biography of her husband, she spends part of a chapter quoting her son, Jonathan Falwell. Jonathan described a trip to California during which his father visited Flynt: “On our flight home, I asked Dad why he worked at keeping a relationship with Larry. Dad looked at me, a thoughtful expression on his face, and said, ‘One day Larry Flynt will come to a place in his life when he needs a friend. And there will come a time when he needs something of a spiritual nature. When that happens, I want to be the man he calls.’”
Flynt’s op-ed after Falwell’s 2007 death concluded with this final assessment of their relationship:
“I’ll never admire him for his views or his opinions. To this day, I’m not sure if his television embrace was meant to mend fences, to show himself to the public as a generous and forgiving preacher or merely to make me uneasy, but the ultimate result was one I never expected and was just as shocking a turn to me as was winning that famous Supreme Court case: We became friends.”
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