Wednesday, June 20, 2012
John M. Kang, St. Thomas University School of Law, has published Hustler V. Falwell: Worst Case in the History of the World, Maybe the Universe at 12 Nevada Law Review 582 (2012). Here is the abstract.
Should Hustler Magazine, that cesspit of obscene juvenilia and vicious snark, be entitled to publish a horrifically humiliating parody about you?
If you’re a public figure — if you are “intimately involved in the resolution of important public questions or, by reason of [your] fame, shape events in areas of concern to society at large” — then according to the Supreme Court in Hustler Magazine v. Falwell, yes.
Considering the emotional devastation that such a decision can unleash, the Court, one would expect, should have varnished its decision with a splendid justification. But it didn’t; not by a long shot. And while Hustler Magazine v. Falwell probably will not show up on anyone’s radar for the Worst Supreme Court Case Ever, the topic of the symposium for which this essay was composed, there are a couple of reasons for treating it as such.
One, in a startling act of moral indifference, the Hustler Court made public figures appallingly vulnerable to emotional injury, thereby violating basic expectations for moral decency.
Two, the Hustler opinion is, unlike many atrocious court opinions, still good law, and unlike, say, Bush v. Gore, there is no discernible segment of the population that has prudently dismissed the opinion as a sham.
And, three, dreadful though it is to acknowledge, my students have lauded, year after year, the Hustler opinion as eminently sensible and a logical victory for the Enlightenment. Perhaps needlessly sensitive to charges of didacticism, I have been reluctant to disturb my students’ rosy assumptions, but, running low on the resources of patience, and growing crankier with age, I am now eager to reform those assumptions. (I hasten to add, however, that none of what I say is meant to disparage the decision in Hustler, only its opinion, a distinction whose elaboration warrants another essay.)
Download the article from SSRN at the link.