Rehnquist: SNL’s Biggest Fan

When discussing the speech that should be protected under the First Amendment, most find it easy to agree that factual criticism should always be allowed. Permitting dissent without punishment is for the benefit of the people as it is their right to be informed. But when it comes down to offensive parody, some find it more difficult to draw the line between regulation and not.

In Hustler Magazine v. Falwell, the Supreme Court takes on the issue of offensive parody and expands its protection. The case begun when Rev. Jerry Falwell took offense at a parody advertisement featured in Hustler magazine and sued the publication of libel and emotional distress. As Garrett Epps explains, the lower court judges dismissed the libel charge because the parody could not be taken as making a false statement of fact. Along with the disclaimer on the bottom explaining that it was a parody ad, it was clear to the common viewer that it was meant in jest— not as a factual interview.

The process of reaching the Supreme Court is a long and arduous one, one that most do not even embark on because of the seemingly hopeless odds of making it before the justices. This makes it all the more telling that a dispute over an incestuous parody ad reached the highest court. This case proves that it doesn’t matter whether something belongs to “low culture,” it can still reach the Supreme Court and hold enough value to be constitutionally protected.

In the majority opinion, Justice Rehnquist defends offensive parody and the court reverses the lower court decisions that required Hustler to pay Falwell damages. Throughout the entire opinion, Rehnquist calls upon past cases to explain his reasoning to hold in favor of the publication. The quote that struck me the most comes from the decision in FCC v. Pacifica Foundation:

“The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence if a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas…”  —Justice Stevens

He does admit that there are different societal values between the parody ad in this case and that of the traditional political cartoon he references, but explains that a content-neutral standard is essentially impossible. Speaking to this, Rehnquist writes: “…we doubt that there is any such standard, and we are quite sure that the pejorative description ‘outrageous’ does not supply one.”

There are exceptions to the protection, but this case isn’t one of them. Unless a more clear standard is created, a simple offense to a public figure (even with the intention to cause harm) isn’t enough to seek damages. Rehnquist pushes against using the term ‘outrageous’ to rule whether critical parody should be allowed because this open definition would put it upon juries to make the call. If juries were allowed to decide, their bias would undoubtedly come up that would produce a case-by-case standard. Undoubtedly, Rehnquist explains, this would lead to a chilling effect for publishers who would be subject to pay damages without requiring the proof that the work rises to the level of defamation.

The political cartoons and traditional parodies referenced throughout this case have largely evolved to different Late Night shows’ comedy sketches, satire/parody comedy shows such as SNL, and on a smaller scale, political Internet memes. Time and time again, political satire and comedy is devalued as not being a worthwhile contribution to society. Rehnquist’s words from 1987 still ring true today and can be used to combat this criticism; defending satire and political cartoons, “From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.”

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