William Rehnquist

“ All you have to say or all you have to win, which is plenty, that using opinion or parody to inflict emotional distress is not protected by the First Amendment, which is a considerably different proposition than what you've been pushing. ”

“ It affects what goes on in the minds of other people as well, and not just the minds of one citizen.
So reputation in a sense covers a lot more territory than emotional distress does.
And the point of what I'm trying to make is that we really have people who are engaging in political debate in a way that involves vehement caustic and sometimes unpleasantly sharp language, as the New York Times v. Sullivan used.
Now, this speech is protected as rhetorical hyperbole, it's protected as satire and parody and as the expression of opinion. ”

“ Include that, and then you say, parody or opinion about a public figure is never actionable even though it's done intentionally for the purpose of causing emotional distress, that's your proposition.
Mr. Isaacman: And even though it contains nothing that can be understood as a false statement of fact.
Justice Byron R. White: Sure, sure.
Mr. Isaacman: Including that, I agree, yes.
That's my proposition.
Justice Byron R. White: That's your proposition.
Mr. Isaacman: You cross the line when you say something that can be understood as a false statement of fact. ”

“ I frankly think that it isn't too much to expect, Justice O'Connor, that a responsible author, artist, or anyone would understand that attempting to falsely depict as a representational fact that someone is committing incest with his mother in an outhouse and saying that she's a whore, and that when the person involved is an abstemious Baptist Minister, that he always gets drunk before he goes into the pulpit, it isn't too much to say that anybody who would do that ought to take the consequences for casting that into the stream. ”

“ I would submit that it is not a greater interest than protecting reputation, because in the area of reputational injury, libel as we know it, for example, when it's in written form, emotional distress is an element of recovery as well as damage to reputation, and reputation affects what other people think of you. ”

“ And this jury that was certainly not a jury that came from Hustler's background in any way, said that no reasonable reader could perceive this as a statement of fact.
And in summing up, what I would like to do is say this is not just a dispute between Hustler and Jerry Falwell, and a rule that's applied in this case is not just that Hustler Magazine can no longer perform what it does for its readers, and that is produce this type of irreverent humor or other types of irreverent humor.
It affects everything that goes on in our national life. ”

“ Yes, we could win under New York Times, but I'm suggesting that as a jurist prudential matter, the New York Times formulation of actual malice is inappropriate and irrelevant for this tort for the reason that when you're dealing with the tort of libel, the focus of inquiry, the gravamen is on the issue of true or falsity in which facts become the measure of what is true or false, or something which has been dealt with recklessly. ”

“ One is there is a public interest in having Hustler express its view that what Jerry Falwell says as the rhetorical question at the end of the ad parody indicates is B.S. And Hustler has every right to say that somebody who's out there campaigning against it saying don't read our magazine and we're poison on the minds of America and don't engage in sex outside of wedlock and don't drink alcohol.
Hustler has every right to say that man is full of B.S. And that's what this ad parody says. ”

“ Justice Antonin Scalia: How often do you think you're going to be able to get a jury to find that it was done with the intent of creating emotional distress.
I mean, there is that finding here.
Mr. Isaacman: Every time Almost every time that something critical is said about somebody, because how can any speaker come in and say I didn't intend to cause any emotional distress, and be believed.
If you say something critical about another person, and if it's very critical, it's going to cause emotional distress. ”

“ Isaacman: I don't think that any reasonable reader of any of the speech that has occurred in the cases including New York Times v. Sullivan, Garrison and all the other cases that have come down, Letter Carriers I gave as an example, could ever say that the speaker did not intend to cause harm.
When you say something that somebody has a corkscrew soul and has tortured principles for a heart and is a traitor, who can believe that person doesn't intend to cause harm.
People intend the natural consequences of their actions. ”

“ In a specific way, the question becomes: is rhetorical hyperbole, satire, parody, or opinion protected by the First Amendment when it doesn't contain assertions of fact and when the subject of the rhetorical hyperbole is a public figure. ”

“ It doesn't give an absolute privilege to state falsehood.
It just says the falsehood is okay unless there's an intent.
Now, here we have a State Tort that is specifically an intentional Tort.
There must be an intent to create the emotional distress, so it really is not quite the same category of opening up that you're making it out to be. ”

“ The other is that what the cartoonist, the writer or the speaker does, constitutes in the mind of the community, an utterance of such enormity, such a heinous kind of utterance, usually false, that nobody should have to bear that if the purpose was to inflict severe emotional injury, and severe emotional injury results. ”

“ What about a cartoonist who sits down at his easel, or whatever cartoonists sit down at, and thinks to himself, a candidate acts for the presidency as just a big windbag, a pompous turkey and I'm going to draw this cartoon showing him as such. ”

“ Because that would make that tort duplicative and would give the opportunity for plaintiff to get around the First Amendment limitations.
Justice John Paul Stevens: Mr. Isaacman, you puzzled me with your answer to Justice White, and assuming there's no public figure involved, and you've admitted there's a public interest in protecting the citizenry from emotional distress, what's the public interest in protecting speech that does nothing else?
Mr. Isaacman: There is a public interest in allowing every citizen of this country to express his views. ”

“ And the reason for that is that the press, the press that clamors here for a universal exemption so that they should have license to do what these people have done, and that it should be condoned and considered just a trivial or trifling incident of being a public figure.
In Mr. Justice Powell's decision in Gertz, he talked about protecting speech that mattered. ”

“ Mr. Isaacman: Well, one of the lines was suggested by a question earlier, and that is in the private figure of public figure area, if the Court really wants to balance.
But somebody whose going into public life, George Washington as an example, there's a cartoon in I think it's the cartoonist's society brief, that has George Washington being led on a donkey and underneath there's a caption that, so and so whose leading the donkey is leading this ass, or something to that effect.
Justice Antonin Scalia: I can handle that. ”

“ Between the 1700s and today, I would suggest, that people have become more acclimatized to the use of the kinds of language or the kinds of things that had they been depicted at an earlier age would have been regarded as socially unacceptable. ”

“ And so the contours of this tort presumably we would find in some Virginia decisions?
Mr. Grutman: Yes.
Justice John Paul Stevens: And the latest decision that's cited in your opponent's reply brief is a lower court decision which seems to say there's no tort of this kind at all.
You didn't comment on that.
Mr. Grutman: That case which I saw when I received their brief I believe yesterday, I noticed was a Court of inferior jurisdiction.
Justice John Paul Stevens: Right.
Mr. Grutman: I do not think that it is controlling on this Court.
I do not think that it is good law. ”

“ And we have a long tradition, as Judge Wilkinson said, of satiric commentary and you can't pick up a newspaper in this country without seeing cartoons or editorials that have critical comments about people. ”

“ That to me means that they said this is not a true statement of fact, but it's nonetheless a statement of fact for the purposes of New York Times or for the purposes of this case.
Justice Antonin Scalia: Give me a statement that isn't a statement of fact.
Mr. Grutman: Pardon?
Justice Antonin Scalia: Give me a statement that isn't a statement of fact in your interpretation of what statement of fact means.
I mean, when you say, statement of fact, it means true fact, or it means nothing at all.
Mr. Grutman: No. ”