Column: Parody, Jerry Falwell and Dead Sea Scrolls Debate (New York Law Journal)

Parody has been a staple of political discourse from time immemorial. At its best, it can add an invaluable dimension to debate on matters of public concern, albeit at the psychic expense of the parody’s target. In modern times, that expense occasionally translates into lawsuits, and the sharper the parody the spicier the legal controversy.

Just last week the New York Court of Appeals heard arguments in a case arising out of an academic debate over the Dead Sea Scrolls that spiraled into an absurdist Internet jihad and led to a prosecution for some acts the defendant has claimed were intended to be parody. When it comes to First Amendment parody claims, the seminal decision is a 1988 U.S. Supreme Court case addressing a Hustler Magazine liquor ad featuring an “interview” with Moral Majority founder Jerry Falwell talking about having had drunken sex with his mother in an outhouse. And between the bygone era of the Hustler print parody and the current Dead Sea Scrolls dispute lies a controversy involving a parody website of the White House that prompted a censorial effort by the Bush administration that predictably backfired.

Jerry Falwell’s Plight
Jerry Falwell was a fundamentalist Christian preacher who led a large church in western Virginia in the 1960s and 1970s. In 1979 he founded the Moral Majority, which spearheaded an aggressive national campaign supporting conservative social values—particularly around sexuality—and Republican political candidates. Falwell and the Moral Majority were credited with playing a significant role in the 1980 election of Ronald Reagan.

In its November 1983 issue, the pornographic Hustler Magazine, led by the notorious Larry Flynt, featured on its inside cover what appeared to be an advertisement for Campari liquor. At the time Campari was running a series of ads that highlighted the “first time” a prominent person had tried Campari but that carried an unmistakable double-entrendre referring to the person’s first time having had sex. Then-Chief Justice William Rehnquist described the ad as follows:

Copying the form and layout of these Campari ads, Hustler’s editors chose [Falwell] 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 [Falwell] and his mother as drunk and immoral, and suggests that [Falwell] is a hypocrite who preaches only when he is drunk.

Words alone—much less this description from the Supreme Court—can hardly capture the bite and humor of the ad (which can be seen at http://en.wikipedia.org/wiki/File:Falwellhustler.jpg). But the following excerpt from the ad’s interview provides a better sense of it:

FALWELL: My first time was in an outhouse outside Lynchburg, Virginia.
….
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 God-fearing asses on Campari, ginger ale, and soda—that’s called a Fire and Brimstone—at the time. And Mom looked better than a Baptist whore with a $100 donation.

Not surprisingly, the ad did not sit well with Falwell, who—undoubtedly to the delight of Larry Flynt—sued. By the time Hustler Magazine v. Falwell reached the Supreme Court, the case presented a novel question about the intersection between the protections of the federal Constitution’s First Amendment and damage claims afforded by state law for intentional infliction of emotional distress. Doctrinally, the question before the court was whether to extend to claims for intentional infliction of emotional distress the requirement—established in the seminal case of Times v. Sullivan—that a public figure could only recover damages for reputational harm from speech upon a showing that the speaker made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Falwell argued that, when it came to intentional infliction of emotional distress, the truth or falsity of the statement was immaterial.

The Supreme Court unanimously rejected this. Underlying this conclusion was a strong reiteration of the free-speech values underlying the First Amendment:

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. The 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. 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. 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….”

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. Justice Frankfurter put it succinctly 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.

With these values as a foundation for its analysis, the court refused to entertain Falwell’s contention that hurtful motives of the speaker rendered speech unprotected. Indeed, the court observed that much of political discourse was intended to damage the target, making untenable any First Amendment exception for speech designed to inflict harm on another. In support of this Rehnquist’s opinion highlighted the rich history of satirical political cartoons.

Though conceding that the Falwell ad was “at best a distant cousin of the political cartoons described above, and a rather poor one at that,” the court held nonetheless that no meaningful lines could be drawn between the two. It thus held that the Times v. Sullivan standard controlled and dismissed Falwell’s claim since the jury had found that no reasonable person would think the ad depicted an actual interview with Falwell and thus could not be depicted as false, much less knowingly so.

Spoofing Lynne Cheney
The Hustler Magazine ruling surfaced in a second entertaining controversy in late 2002. In December of that year, the counsel for then Vice-President Dick Cheney fired off a letter to a Brooklyn group about a website it ran. That website, whitehouse.org (which no longer functions), was a parody of the official White House website. Among the spoof website’s pages were ones profiling administration officials, and one of those pages was devoted to the Vice-President’s wife, Lynne Cheney, who herself was a prominent conservative. Describing her formative years, the website explained that “Mrs. Dick Cheney took a special liking to the tragically romantic works of the Frenchman Victor Hugo, most notably his seminal novel “The Hunchback of Notre Dame,” from which she would later take her cue when selecting a mate.”

Unsurprisingly, someone in the Cheney household was not amused, leading to a letter from Cheney’s counsel David Addington demanding “adjustments” to the website. As for the Hustler Magazine decision, Addington attempted to distinguish it on the grounds that the Falwell ad featured a prominent disclaimer: “In contrast to the notice of ‘ad parody—not to be taken seriously’ that appeared on the very page complained of in [Hustler Magazine], few people are likely to notice the disclaimer link on the webpage relating to Mrs. Cheney.” Addington also contended that whitehouse.org was illegally using the official presidential seal, which features a bald eagle.

Genuinely concerned about the prospect of White House action, the group came to the NYCLU seeking help. Even a cursory examination of the website revealed that it was a parody protected under Hustler Magazine, and we wrote to Addington telling him just that. We also pointed out that the seal on the website featured not a bald eagle, but a vulture.

More importantly, we gave the correspondence to The New York Times, which ran a substantial story about the dispute. Predictably, that accomplished what every parodist craves: enormous attention. Indeed, so many people visited whitehouse.org the day of the story that the site temporarily crashed. As for Vice-President Cheney, no litigation was necessary, as his office was not heard from again on this matter.

The Dead Sea Scrolls
This bit of parody history brings us to the current Dead Sea Scrolls controversy. As the Times last year explained in a lengthy story about the case now before the Court of Appeals, the Scrolls are “a cache of 2,000-year-old texts and fragments discovered in caves near Qumran, in what is now the West Bank. Their discovery, beginning in 1947 and continuing for a decade, is one of the great archaeological finds of the mid-20th century, and from the start has been marked by controversy.”

One participant in that controversy is a University of Chicago professor whose views about the Scrolls’ origins have not been accepted by the academic community. That in turn prompted his son, Raphael Golb, a New York City resident and NYU Law School graduate, to mount an Internet campaign in which he used as many as 80 aliases to post comments supporting his father’s views and attacking academicians in the other camp. Through these aliases—known as Internet sock puppets—Golb sought to create the impression of broad public support for his father’s position and broad public skepticism of the prevailing academic viewpoint, though all of these postings came only from the son.

The Times story also described two important ways in which Golb went beyond his faux Internet debate. In response to a virtual tour created by a UCLA graduate student for a museum exhibit about the Scrolls, Golb sent pseudonymous emails to academics indicating the student was an anti-Semite, something the student claims was untrue and substantially harmed his ability to land a faculty job. And in an effort to tarnish an NYU professor prominent in the Dead Sea Scrolls community, Golb created a gmail account in the professor’s name and sent out emails to the professor’s colleagues in which the professor appeared to admit that he had plagiarized work done by Golb’s father.

The professor went to the FBI, which ultimately led to the Manhattan District Attorney’s Office prosecuting Golb for various offenses, including criminal impersonation and aggravated harassment. Following a jury verdict against him, Golb was sentenced to six months, and his appeals culminated last week in oral arguments in the Court of Appeals.

Among other things, Golb has argued that his email impersonation of the NYU professor was parody protected by the First Amendment. As Hustler Magazine makes clear, acts of parody are entitled to broad constitutional protections. The more difficult issue presented by the Golb situation, however, is whether his impersonation can be considered parody. That turns in large part on whether a reasonable person would have realized the emails were not actually from the professor, as the jury in Hustler Magazine concluded that a reasonable reader would not have thought the Falwell interview to have been genuine.