Intentional Omission of Emotional Distress

by Robert L. Waring (November 1997)

The film, The People vs. Larry Flynt, now on video, caused a stir because of its glorification of the life of Flynt, a pornographer who some think is more of a poster boy for misogyny than for the First Amendment. Although the film accurately portrayed certain events in Flynt’s life, some critics have argued that its attempts at realism were selective and carefully intended to seduce audiences into accepting the filmmakers’ deification of Flynt as a national hero. Regardless of Flynt’s status as a hero or as an enemy of public morals, is it likely that the attitudes of some of the film’s viewers towards lawyers and the legal system changed because of these attempts at realism?

The film’s glorification of Flynt also extended to his lawyer, played by Edward Norton. (Norton was the altar-boy-defendant in Primal Fear.) In real life, there were several lawyers over the years, but the film represented them all with a single figure. Lawyers should be satisfied with this device, as it gave audiences the impression of the lawyer as a loyal and trusted counselor and advocate—a friend for life who would take a bullet for his client. (Many of the movie reviews on the Web incorrectly assumed that there was only one lawyer in Flynt’s real life.) Even though this celluloid lawyer did quit at one point when the Flynt’s outlandish antics threatened to completely undermine the lawyer’s efforts on Flynt’s behalf, the lawyer was portrayed as such a part of the family that Flynt’s wife, Althea, successfully begged him to return to her husband’s side.

One of the film’s biggest surprises was near the end. All the visual intensity of Larry Flynt’s hedonism, which probably seemed like life on another planet to most viewers, was followed by a very life-like portrayal of oral argument before the United States Supreme Court. Or was it? [You can listen to an audio recording of the real oral argument in the case Hustler Magazine v. Falwell by visiting the website: http://oyez.at.nwu.edu/oyez.html and downloading the free Real Audio player and the audio file. The oral argument has also just been released in the audio cassette series: May It Please the Court, The First Amendment, edited by Peter Irons (The New Press 1997).]

Director Milos Forman and producer Oliver Stone went to the trouble of constructing a replica of the Supreme Court interior inside an old train station. [For another perspective, see the book, Name Above the Title, in which director Frank Capra tells the story of how he built a replica of the House of Representatives for Mr. Smith Goes to Washington.] The filmmakers also hired actors who resembled the Justices that actually heard Flynt’s case. For example, Justice Scalia (the actor) spoke with the same self-righteous wit as the real Scalia might have, or perhaps even as he did during the oral argument. Justice O’Connor (the actor) did not speak during the film, but her ever present scowl made for great theater.

Yet, this Court scene seemed a wasted opportunity for public education. The Supreme Court is a powerful institution, and on some levels has more in common with the monarchy our forefathers rebelled against than does the institution of the Presidency. The Justices sit for life terms and have no visible accountability to the public. The Court scene shed very little light on the activities of the Court.

Although some viewers may have left the theater with a greater appreciation for the First Amendment’s speech rights, the important protection that Flynt added was barely mentioned in the film. (After the Hustler case, an allegedly defamed public figure cannot circumvent the rigorous actual malice standard by bringing a claim using the lower burden of proof applied to intentional infliction of emotional distress.) Reviewing a transcript of the real oral argument, one can see that only about half of the scene’s dialog attempts to track the real thing. The screenwriters wrote the other fifty percent, apparently deciding that the truth would not be entertaining enough. One clue that the film was dumbing down came when, after a few long shots of the Justices of Supreme Court and the spectators beginning take seats for the oral argument, the cry, "Oyez, oyez, all persons having business before the Supreme Court of the United States" was accompanied by the film caption: "United States Supreme Court, Washington, D.C." No kidding.

The case presented to the Court in the film seemed to center on the substantial right of citizens to criticize public figures without fear of a suit for defamation. In this general context, the film gave Flynt credit for the achievement of rights granted nearly a quarter century earlier in New York Times v. Sullivan. What audiences may remember most is that Flynt the bad boy broke the presumptively stiff decorum of the Supreme Court, and in the end the unanimous decision in his favor meant that all of the Justices found him to have some redeeming qualities. Sounds just like a Hollywood movie.