THAT THE RIGHT to free speech has acquired something of a cult status is evident in the deification of the pornographer, Larry Flynt, in the much ballyhooed movie, "The People vs. Larry Flynt."
The would-be hero is the publisher of Hustler magazine, who has struck it rich by bringing his audiences such breakthroughs in free expression as a cover photo of a naked woman being fed through a meat grinder and bootlegged photos of Jacqueline Kennedy sunbathing in the nude. The movie's champions are apparently nostalgic for the old days, when unorthodox political speech could land people in prison or result in their deportation - as was the case when the socialist Eugene Debs and the anarchist Emma Goldman publicly spoke out against World War I. They are tripping over themselves to praise Flynt.
No matter how reprehensible he is, they lecture us, we must be grateful that we live in a society that protects such a person's free speech.
In their zeal to present a modern morality play, Hollywood's bad boys - Milos Forman, director; Oliver Stone, producer - once again have shown little respect for historical facts, beginning with the movie's title. The case before the Supreme Court was not a criminal prosecution of Flynt by "the people." Rather, it was a civil suit brought by the Rev. Jerry Falwell. The cause of action was not obscenity, but invasion of privacy, defamation and intentional infliction of emotional distress.
These rather bland legal formulations, however, fail to capture what Flynt did to his longtime enemy when he presented the leader of the evangelical right in a "parody" of a Campari ad, announcing that his first sexual encounter was with his mother, drunk, in a fly-infested outhouse.
Here, the Flynt-Falwell uproar resembles recent controversial obscenity cases: The particular obscene photographs of Robert Mapplethorpe and the specific obscene lyrics of 2 Live Crew were never reprinted in articles about them and the media's unusual reticence speaks volumes about the character of the material in question.
Terms such as "parody" or "satire" are bent beyond recognition when they are used to describe the obnoxious, asinine patter that appeared in Hustler. And yet the legal appeal came to hinge on the idea of satire - specifically, that the offending material was "opinion," not fact.
Chief Justice William Rehnquist held that no matter how "outrageous" the satire, how maliciously motivated or harmful to its victim, a public figure such as Falwell could not recover damages without proving the existence of "a false statement of fact which was made with 'actual malice.'"
This formulation demonstrates the inability of the law to redress the harm suffered by Falwell. It was because traditional legal remedies such as libel and defamation had failed to protect individuals against new invasive journalism that Louis Brandeis and Samuel Warren formulated the right to privacy in a path-breaking 1890 article. They argued that nothing less than "dignity" and "inviolate personality" were at stake.
As the Supreme Court's decision in favor of Flynt makes clear, these concerns, which were voiced at the very moment the new sensational journalism was making inroads into privacy and public decency, have long faded from legal memory. And, although the principle of free speech has since been extended to safeguard material previously considered obscene, it is stunning to see lowly name-calling now come in for protection.
Apparently, the Supreme Court can no longer distinguish between unorthodox political speech - the lifeblood of a deliberative democracy protected by the First Amendment - and puerile insult closely resembling the obscenity published by magazines such as Hustler.
The question needs to be asked: Why shouldn't Flynt be made to pay for his right to assault verbally whomever he pleases - which, in this case, amounted to $300,000 in damages? Why must Falwell shoulder the burden of Flynt's freedom, not once but twice, now that Hollywood has gotten into the act? And why must we accept that the price we pay for Flynt's rancid brand of published insult and for commercial movies that glorify it is an ugly, indecent and uncivil common world?
Even though champions and detractors of the Flynt movie like to brag that they can stomach these "excesses" of free speech, for them it is not too hefty a price, since facing up to harsh reality has long been a defining pose of the sophisticated modern.
But the debasement of our common world has deeper roots; it is a consequence of living in a society that is proud to be free of outmoded notions of shame that used to prescribe limits not only to speech but to imagination, artistic representation and action.
Thus, the inability of libertarians and their powerful allies in Hollywood, on Madison Avenue and in the art world to recognize that some things are simply beyond the pale of civilization poses at least as serious a threat to our fragile republic as the potential regulation of Flynt-style journalism.
For it is this distinction that makes vigorous public debate possible; without it, puerile name-calling, pornography and even cross-burning have been mistaken for political speech and, in the bargain, one of our most cherished democratic principles has been grossly deformed.
Rochelle Gurstein is the author of "The Repeal of Reticence." The article first appeared in Newsday.
Pub Date: 2/02/97