The Blaze: “Hustler” smears S.E. Cupp; Update: Planned Parenthood, Sandra Fluke denounce

posted at 1:23 pm on May 23, 2012 by Allahpundit

Follow the link to see what I mean. Pure degradation, and not the first time an “adult magazine” has taken special aim at conservative women. Playboy did it too with their “hate f***” piece in 2009, but that got pulled after the outcry threatened the mag’s reputation for being kinda sorta respectable. How do you shame “Hustler,” though?

Better question: Can she sue? My gut reaction was no, partly because “Hustler” has famously been down this constitutional road before and came out a big winner. But note the fine print in that decision:

This case presents us with a novel question involving First Amendment limitations upon a State’s authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State’s interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do…

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.

The image in the Falwell case was a caricature; no one could have mistaken it for reality. A photoshop is different. The question for the court would be whether the disclaimer that “Hustler” posted alongside the image of Cupp is enough to make clear that it’s a parody or whether, in the age of the Internet and Google Images, the image has to be considered in isolation. (In that case, would they be off the hook if they simply slapped a “Satire” label in the corner of the image itself? Probably.) A separate question is what claim(s) Cupp would assert and whether the legal standards for each would be materially different. Remember, the Falwell case wasn’t a defamation claim, it was a claim of intentional infliction of emotional distress, although the legal touchstone that a public figure needs to show “actual malice” is the same in both. Could Cupp show that “Hustler” had reckless disregard for the truth here notwithstanding the big disclaimer next to the photoshop? It’d be a heavy lift, but we might get to find out.

Here she is chatting with Beck about it this morning. Exit quotation from her statement to The Blaze: “The outrage of Sandra Fluke will not be matched on my side. It seems that feminism has devolved into an institution that has picked losers and winners and has decided that some women qualify for respect and other women do not.”

Update: This is starting to get some movement on the left now, with Planned Parenthood and Sandra Fluke tweeting their condemnations of “Hustler.”

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