By Dan Spinelli
Dan Spinelli is a freshman at the University of Pennsylvania studying Philosophy, Politics, and Economics (PPE).
Libel, the publication of false statements defamatory to one’s character, is one of the most inscrutable areas of constitutional law. Laws surrounding libel and slander, the spoken form of libel, often provoke some of the judicial system’s most eccentric cases. This article will trace the developments in libel law over the past half-century by focusing on the landmark 1987 Supreme Court case of Hustler Magazine v. Falwell, and discuss a more recent controversy involving comedienne Sarah Silverman and rapper Eminem.
Hustler Magazine opened up the floodgates for defamation of public figures through a quite humorous case. After discovering his scandalous portrayal in the magazine, Reverend Jerry Falwell sued Hustler.  Falwell was a figurehead of the “moral majority” movement of the 1980’s that aligned the Republican Party with the Christian right. His notoriety made him an easy target for controversial publications like Hustler. In one issue, Hustler ran a parody feature discussing the “first times” of different celebrities, and depicted Falwell’s first time as a “drunken incestuous rendezvous with his mother in an outhouse.”  This evidently outrageous piece enraged Falwell, who sued Hustler for defamation of character.
Upon reaching the Supreme Court, the justices deliberated over whether Falwell’s right to recover damages for libel or Hustler’s First Amendment right to freedom of the press should reign supreme. To contemporary readers, the idea of Falwell recovering damages for “emotional distress” caused by an outrageous comment may seem ridiculous. However, the defamatory magazine feature seemed blatantly unconstitutional when held up to the Court’s decision set forth in the 1963 case of The New York Times v. Sullivan. In this landmark case, the justices elaborated a standard for the press to publish freely (and sometimes erroneously) about public affairs without fear of libel charges, except in cases of “reckless disregard for the truth.”  The dilemma here is almost comically apparent: showcasing Reverend Jerry Falwell having incestuous sex with his mother is almost certainly recklessly untruthful. How can the Court reconcile its standard in New York Times with the problematic situation in Hustler?
Chief Justice William Rehnquist’s opinion in Hustler provided a clever answer: freedom of speech requires some “breathing space” for the press to ensure that no chilling effects block important speech about public figures.  Following this line of reasoning, the press does not always have to report facts completely factually. Punishing them for a single misstep with costly libel charges will almost certainly derail any further conversation. This was exemplified through the charges against the Saturday Evening Post, which essentially went bankrupt after fending off libel charges from the 1967 case of Curtis Publishing Co. v. Butts (although the Chief Justice William Rehnquist’s opinion in Hustler provided a clever Post was exonerated, the immense trial costs contributed to the venerable newspaper’s bankruptcy).  With the Post’s demise clearly in mind, Rehnquist’s reasoning makes sense. We as a democratic populace certainly want free-flowing conversation about public issues, even if the reporting may sometimes stretch the truth. But is the depiction of Jerry Falwell, so to speak, going to town with his mother really a matter of “public concern?”
Well, yes. As a figure of immense public import, satirical depictions of Falwell run to the crux of First Amendment protection. Furthermore, as Rehnquist explicated in the Hustler opinion, a showing of “actual malice” must be present to allow any recovery for libel of public figures.  Hustler’s humorous depiction of Falwell seems hardly reminiscent of “actual malice,” but as many critics of the Court’s opinion have pointed out, almost nothing seems to meet the hard standard of “actual malice.” Ultimately, the Court lent a helping hand to two rather disparate social commentators: Sarah Silverman and Eminem.
The versatile and fearless comedienne Sarah Silverman has long been notable for her cuttingedge comedy that transgresses the boundaries of decency and acceptability. Silverman appeared to push the envelope too far in her appearance in the 2005 film The Aristocrats, which traced the history and stylistic diversity of the famous “aristocrats” joke through constant retellings by different comedians. In Silverman’s retelling, she included real people, such as television host Joe Franklin, as characters in her joke. In her conclusion, Silverman deadpanned that “Joe Franklin raped me.” This wildly scandalous but clearly tongue-in-cheek claim caused an uproar upon the movie’s release. While Silverman’s comment was clearly staged as part of a joke, her first-person narration and serious delivery drew ire from the real-life Joe Franklin, who remarked that he “didn’t like the nature of the wisecrack.”  While Franklin ultimately chose not to sue Silverman, his outrage signaled a roadblock of sorts to the American legal system’s jurisprudence on defamation. Could Franklin have garnered a settlement from Silverman? Although her comments surely lacked any discussion of matters of “public importance,” Franklin’s status as a public figure and the improbable case that Silverman intended “actual malice” toward him would have complicated Franklin’s lawsuit.
Another interesting case study regarding libel involves the musical artist Eminem whose often-defamatory rap lyrics about his mother could very well be said to show “actual malice.” Eminem has made it no secret that his childhood in Detroit was difficult, and that his mother’s drug abuse blighted his childhood. This raises the legal question of whether Eminem’s malice is truthful or in the guise of one of the rapper’s personas.
The lyrics in question came off of Eminem’s debut track, “My Name Is,” in which he rapped, “My mom smokes more dope than I do.” Such lyrics present a scurrilous claim, though clearly in the manner of hip-hop’s tendency toward exaggeration and invective. If the courts were to actually adjudicate the truth of such a statement, Eminem would need to incriminate himself in order to “measure” his intake of drugs against his mother’s, which was clearly not an option per the Fifth Amendment. Eminem had arguably the clearest case of “actual malice.” In his follow-up record, The Marshall Mathers LP, Eminem raps about raping his mother in the song, “Kill You.”  In interviews, he has expressed nothing but distaste for her. The strict legal standard of “actual malice” seems to have actually been met in this case.
Ultimately, the big winners in Debbie Mathers’ litigation against her son were the lawyers. A pair of $11 million defamation lawsuits resulted in a measly $25,000 settlement for Eminem’s mom. The presiding judge then ruled “that $23,354.25 of the $25,000 settlement should go to Fred Gibson, Mathers’ former attorney.” 
The trend from Hustler shows the increasing difficulty to trying cases of libel. The Court’s almost impossibly strict standard of “actual malice” firmly discourages litigation and strengthens the position of transgressors. What this legal standard does not do is protect public figures from the court of public opinion. And it does indeed seem that public opinion is the best recourse to affect the actions of transgressors.
 “Jerry Falwell Biography Evangelist, Minister, Pastor, Television Personality, Radio Talk Show Host,” Biography, accessed November 19, 2014, http://www.biography.com/people/jerryfalwell9291425.
 Special To The New York Times, “Excerpts From High Court’s Affirmation of Speech Protections,” The New York Times, February 25, 1988, sec. U.S., http://www.nytimes.com/1988/02/25/us/excerptsfromhighcourtsaffirmationof-speechprotections.html.
 “New York Times Co. v. Sullivan | Casebriefs,” accessed November 19, 2014, http://www.casebriefs.com/blog/law/torts/tortskeyedtoepstein/defamation/new-yorktimescovsullivan/.
 “Court: No Special Protection For News Opinion,” Chicago Tribune, accessed November 19, 2014, http://articles.chicagotribune.com/19900622/news/9002200731_1_libelsupremecourtdefamatory.
 “Curtis Publishing Co. v. Butts | Casebriefs,” accessed November 19, 2014, http://www.casebriefs.com/blog/law/torts/tortskeyedtoepstein/defamation/curtis-publishingcovbutts/.
 Genelle Belmas and Wayne Overbeck, Major Principles of Media Law, 2014 Edition (Cengage Learning, 2013).
 Sam Anderson, “Irony Maiden,” Slate, November 10, 2005, http://www.slate.com/articles/arts/culturebox/2005/11/irony_maiden.html.
 Eminem: Kill You (lyrics), 2008, https://www.youtube.com/watch?v=v9Y-CSQor5s&feature=youtube_gdata_player.
 Corey Moss 8/8/2001, “Eminem’s Mom Nets Measly $1,600 From Lawsuits Against Her Son,” MTV News, accessed November 19, 2014,
Photo Credit: Flickr User Tim Green