Sunday, August 28, 2005

Falwell's sterling character denies him relief once again in the federal courts

Years ago, in the libel case brought by the Rev. Jerry Falwell against Larry Flynt over an ad parody in Hustler magazine, the jury found for the defendant, finding that "no reasonable man would believe that the parody was describing actual facts about Falwell." Falwell v. Flynt, 797 F.2d 1270, 1273 (4th Cir. 1986). The U.S. Supreme Court relied in part on this finding to overturn the verdict in favor of Falwell on his claim of intentional infliction of emotional distress. See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) ("We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.")

Last week, in Lamparello v. Falwell, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Michael and King, reversed the district court's entry of an injunction prohibiting the defendant from maintaining a "gripe website critical of Reverend Jerry Falwell." The Court concluded that there was no likelihood of confusion between Falwell's trade names and the defendant's "gripe website." The Court said: "After even a quick glance at the content of the website at, no one seeking Reverend Falwell’s guidance would be misled by the domain name — — into believing Reverend Falwell authorized the content of that website. No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible."

So, I conclude from these two cases, under these cases based on the First Amendment, Rev. Falwell's protection from those who would say transparently bogus things about him is that no one would believe them, and he can obtain a judicial remedy against only those commentators with expression that has some verisimilitude (but is not quite true, as truth, presumably, might also defeat some kinds of claims).

Here are reports on the opinion from Anne Broache of CNET, Eric Goldman, Paul Alan Levy, the AP, Brian Peterson, SC Appellate blog, Susan Crawford, and Warwick Rothnie, among the many to comment on this case which involves the intersection of intellectual property law with the underlying clash of views between Mr. Lamporello and Rev. Falwell over homosexuality - there's something in it for all variety of different blogs.

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