The Roanoker - November/December 2019 - 36

Reporter Doug Pardue, who covered the trial for the Roanoke Times & World News, went on
to win a Pulitzer nomination while still at the Roanoke paper, and later won a Pulitzer at the
Charleston (S.C.) Post and Courier.

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.
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NOVEMBER/DECEMBER 2019

"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
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