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The decline of an institution such as freedom of speech is generally not measured out in detectable stages, or by discrete events. There may be occasional exceptions to this general rule, however. In Hustler Magazine v. Falwell, the Supreme Court, through an opinion by Chief Justice Rehnquist, held with virtual unanimity 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 . . . 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.

The publication at issue was a parody of a Campari Liqueur advertisement, the gist of which portrayed Reverend Falwell as having engaged in "a drunken incestuous rendezvous with his mother in an outhouse," and as being a habitual drunk. The ad parody was accompanied by a disclaimer indicating that it was "'not to be taken seriously,'" and the magazine's table of contents listed the parody as "'fiction.'" The plaintiff Reverend Jerry Falwell's attention was drawn to the ad parody by a reporter, and Falwell shortly thereafter filed suit alleging libel, invasion of privacy, and intentional infliction of emotional distress. The defendants, Hustler Magazine and publisher Larry Flynt, were granted a directed verdict on the invasion of privacy claim and were found not liable on the libel claim, but the jury found both defendants liable for $100,000 compensatory damages and $50,000 punitive damages on the claim of intentional infliction of emotional distress. The judgment was affirmed by the Fourth Circuit, but was reversed by the Supreme Court.

The opinion for the court drew, at least implicitly, a number of controversial conclusions. First, it is questionable whether Flynt's ad parody should be treated as speech within the meaning, intent, or purposes and values of the First Amendment. That is, it is unclear whether Flynt's parody is actually speech in the constitutional sense. Second, assuming that Flynt's parody is speech in the constitutional sense, it is unclear why the court gave this speech the high level or degree of protection that it did. The Court has frequently sought to distinguish between "high-value" speech, or speech close to the core of the free speech clause, and "low-value" speech, or speech on the periphery of, if not entirely outside the purposes of, the free speech clause. This distinction is not unproblematic, but the court has often suggested that low-value speech may be constitutionally subject to state regulation on any one of a variety of relatively undemanding, nonrigorous constitutional tests. It is unclear why the Court did not view Flynt's parody as being within one of the "low-value" speech categories or at least as being analogous to speech ordinarily within those categories.

The Hustler Court's controversial conclusions may be examined primarily by reference to the broad range of purposes or values that might be thought to underlie the free speech clause. This focus raises a number of other controversial aspects of the Hustler opinion, including the relevance and application of a free speech-based concern for the value of individual self-realization; the relevance, for free speech purposes, of the falsity and unbelievability of Flynt's speech; and the possible analogy between Flynt's speech and invidious racial epithets. If the tort of intentional infliction of emotional distress is to be "constitutionalized," then the most defensible approach is to immunize only those otherwise tortious speech-acts addressing a matter of public interest and concern, regardless of whether the plaintiff-victim is thought to be a public figure or not.

By implication, the court in Hustler determined that Flynt's parody was, at least as alleged, more like a written defamation or libel than a psychological battery and thus deserving of similar constitutional treatment. Intentional infliction of emotional distress, even to the extent that it is inflicted in some communicative manner, does not require that the defendants have made some false assertion of fact. The Court nonetheless saw fit to subsume the tort of intentional infliction of emotional distress within the constitutional restrictions on the tort of libel. Specifically, as quoted above, the Court required that public official or public figure plaintiffs claiming intentional infliction of emotional distress show not only the elements of that tort, but also that the defendant made a false statement of fact, and that the defendant did so with actual malice.

The Court thus constitutionalized the tort of intentional infliction of emotional distress in a peculiarly inapposite way. The Court grafted the extraneous modern defamation element of falsity incongruously onto the tort of intentional infliction of emotional distress, and anticlimactically required that the false statement be shown to have been made with reckless disregard for its falsity. However, there is no organic, necessary, or even recurring relationship between any communicative infliction of emotional distress and the truth or falsity of any statement of fact the defendant may happen to make. In other words, there is no particular reason, if one is inclined to verbally inflict emotional distress, to do so in a way that requires or is attended by a false statement.

The emotional distress of someone in Falwell's position is not assuaged by the understanding that most or all readers do not believe the literal truth of the factual assertions; the plaintiff's reputation, or his distress over a decrease in his reputation, is not the issue. Further, we may be sure that no one contemplating inflicting emotional distress on a public official or public figure who is aware of the Court's rule in Hustler will be so foolish as to expose himself to the only possibility of plaintiff's recovery by gratuitously including an arguably false assertion of fact. There will always be ways of inflicting severe emotional distress on public officials or public figures other than through false factual claims. For all practical purposes, the Court's holding in Hustler grants reasonably sophisticated perpetrators essentially complete and absolute constitutional protection.

The relevance in this context of false statements of fact by the defendant will be discussed further below, but it is worth speculating why the Court might have been led to essentially graft a portion of the tort of defamation onto the tort of intentional infliction of emotional distress. Perhaps the Court assumed that there was no harm in doing so since the torts of defamation and intentional infliction of emotional distress are often thought of as somehow mutually equivalent or at least as on a par with each other constitutionally.

The problem is that the two kinds of tortious conduct might be entitled to the same degree of constitutional protection without the elements of the torts, such as a false statement, being transferable between the torts in any nonarbitrary way. The torts of defamation and of intentional infliction of emotional distress plainly serve different purposes; the falsity of an assertion of fact is generally relevant, in principle, only to defamation. As one commentator has rightly observed, "the emotional distress tort . . . is designed to protect the victim's emotional well-being, as distinct from the reputational interests historically protected in defamation law." Intentional infliction of emotional distress is more in the nature of a kick or a punch and need not involve any true or false assertion of fact.

This analogy between intentional infliction of emotional distress and the tort of battery impeaches the constitutional logic of Hustler at its deepest level. Most of us would be reluctant to ever categorize any punch or kick as "speech" within the meaning of the First Amendment, or to afford such action even a limited degree of constitutional protection. We are reluctant to classify a punch as "speech" even though some punches are provoked by the literal speech of one's political opponent. A punch may, in at least some cases, convey a general attitude or state of mind, and the person throwing the punch may intend this, nor need any of this be lost on the victim of the punch. Arguably, the punch may be a reaction or a response to a political speech with which one heatedly disagrees.

But if a punch or, for that matter, a merely negligent elbowing, does not amount to speech in the constitutional sense, why must "written speech" be treated as speech within the meaning of the Constitution if the "written speech" is nothing more than a surrogate for the punch? If, in a particular instance, "written speech" is demonstrably intended to merely have the same functions and effect as punch, shouldn't the law recur to substance rather than to form?

As we have seen, the free speech clause has been widely interpreted by commentators to serve either a narrower or a broader range of purposes. Interpreted broadly, the free speech clause is, again, thought to operate to protect the workings of a representative process of government, to promote the detection and dissemination of truth at least in the political realm, and to accommodate and promote the important value of individual self-realization. As a first approximation, a court should be reluctant to classify "written speech" as speech in the constitutional sense where the utterance, apart from its popularity or unpopularity, cannot plausibly be construed as implicating any of the recognized purposes or functions of the first amendment.

The Court in Hustler did not consider the relation between the ad parody and the purposes or functions of the first amendment presumably because it assumed that Flynt's parody, however distasteful and controversial, qualified as speech in the constitutional sense. Such an assumption seems warranted only if one focuses only vaguely on the speaker and the addressee, both well-known, politically controversial public figures who are natural political adversaries, in a broad sense of the term "political." But if the focus is instead placed on the actual speech and its context, the Court's assumption seems more doubtful. . .

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