Court Jester : How a Beverly Hills Attorney Got the Supreme Court to Laugh

Alan L. Isaacman wanted to make the Supreme Court laugh, and he did.

It wasn’t easy, though.

Friends and colleagues warned the Beverly Hills attorney not to quote comedian Jay Leno in defense of freedom of speech. No, no, no, they said, you can’t use the nation’s highest court for a rerun of the “Tonight” show.

On top of that, Isaacman was defending controversial sex magazine publisher Larry Flynt in a suit brought by the Rev. Jerry Falwell, putting him smack dab in the middle of a collision of extremes. Not the best place to deliver a punch line.

But he found a way, Isaacman said in an interview here, recalling strategy in his first appearance before the justices last Wednesday for oral arguments in a case widely regarded as a potential new threat to the creative license of entertainers, cartoonists, columnists and others who satirize public figures.

By all accounts, Isaacman, a graduate of Harvard Law School’s class of 1967, was successful.

Press reports labeled the Supreme Court session one of the most lively “in recent memory” and noted that both the justices and the large audience erupted in laughter several times, particularly at remarks by Isaacman.

Falwell’s ‘Distress’

At issue was whether the court should overturn a $200,000 award to the television preacher and former head of the Moral Majority for the “emotional distress” he suffered over a parody of him published in Hustler magazine in 1983.

The parody, based on an advertisement for Campari liquor, was a mock interview with Falwell in which the Virginia evangelist was portrayed as describing his first sexual experience as an encounter with his mother in an outhouse.

“My view of this case was that we run into problems with this ad parody if people aren’t prepared to look at it as an attempt at humor,” Isaacman explained. “If somebody will look at it and laugh at it, then we’ve come a long way towards saying, ‘Hey this thing is acceptable, it’s permissible.’ ”

Obviously, lots of people don’t think this kind of thing is funny, Isaacman acknowledged, adding that it’s probably the reason the case has gone all the way to the Supreme Court.

(The court is hearing the case on appeal from federal courts in Virginia, where a jury threw out Falwell’s charges of libel and invasion of privacy against Flynt and the magazine but awarded him money for his mental anguish. Falwell originally asked for $45 million and in a subsequent filing upped the ante to $100 million, Isaacman said.)

“The problem is that this (parody) was written for Hustler readers,” Isaacman said, recounting his travails on the trail to the Supreme Court. “Hustler readers will look at this ad parody and they’ll laugh at it. If you take this ad parody and you put it in front of a Virginia jury composed of 12 fundamentalists who aren’t Hustler readers, who have a high regard for Jerry Falwell and (who are) in an imposing courtroom. . . . You can take Johnny Carson and try to make these people laugh and they’re not going to laugh.”

With studied understatement, he added: “I thought we were going to have a similar problem when we got to the Supreme Court.”

As he mulled things over in the court’s lounge for attorneys last week, Isaacman knew that “somehow or other I had to make the point that you can’t take something like this (the Falwell satire) out of its element . . . and I thought, if I can get humor into this somehow . . . if I can get them relaxing a little bit and laughing a little bit and then--maybe--thinking ‘This is not that terrible, that outrageous . . . .’ ”

But how to do it?

His colleagues had already told him that the Supreme Court didn’t take funny business lightly.

Isaacman also knew he couldn’t poke fun at Falwell because the joke probably would ricochet, creating sympathy for Falwell, he said.

At last inspiration began to blossom.

“It seemed to me the best way to inject humor into that kind of setting is in a self-deprecating way,” Isaacman said.

So, when he was before the court, Isaacman deliberately jabbed his own client by commenting: “Hustler is saying, ‘Let’s deflate this stuffed shirt. Let’s bring him down to our level.’ ”

The black-robed justices, whose sense of humor has not been publicly measured before, howled at the apparent admission of just how low that level is.

“I was happy,” Isaacman said. “I was happy because then we weren’t talking about this terrible emotional distress that was so unjustly visited upon this poor, innocent preacher. . . . There was humor in the air. One of the whole ideas of satire is to go after people who take themselves seriously.”

Although Isaacman says he appreciates a good joke as much as anybody, he also is serious about the issues involved in the case.

If the Supreme Court votes in Falwell’s favor, it will broaden the ability of public figures to sue the media, even though parodies or other attacks may not be strictly libelous, Isaacman said.

The 45-year-old lawyer--who has represented Flynt for about 10 years but says he doesn’t subscribe to his magazine--said he is baffled over exactly what kind of distress Falwell suffered because of the parody.

In court testimony it was clear that Falwell “didn’t lose any sleep, didn’t lose any time away from work and he has a tremendously busy schedule,” he said. “He didn’t go to a psychiatrist, didn’t go to a medical doctor, didn’t lose any weight, didn’t lose any income. He was just very angry--the angriest he’s ever been in all his life. To use his words, he never thought a human being could do something so terrible to another human being. Now, I don’t know where he fits the Holocaust into that.”

Falwell has said that although he has been “harpooned” in many cartoons and other satires, the Hustler parody is the only one that has ever gotten under his skin. His suit is a defense against “the kind of sleaze merchandising that Larry Flynt typifies,” Falwell said last week.

While Flynt and Falwell wait for the court’s decision--sometime in the next few months--in their bitter dispute, Isaacman can savor his apparent success before the top court in the land.

“I loved it. When I was up there, I loved it,” he said. “I was outside myself watching myself, which is a strange feeling. I’m watching my hands move and I’m listening to what I’m saying and watching them. . . . And I know that I was giving them the impression that I was enjoying this. Ask me anything you want because I have the answers.

“I didn’t want to sit down, I really didn’t. . . . I could have stayed there another two hours, I was enjoying it so much.”