The MacNeil/Lehrer Report; Hustler Magazine

ROBERT MacNEIL: Good evening. President Carter has shown he is willing to speak out for the civil rights of dissidents in Eastern Europe? Will he do so for Larry Flynt, publisher of the girlie magazine Hustler who was jailed on an obscenity conviction last week. That`s what the President is being asked to do in a petition circulating in the literary world. So far some fifty prominent writers are reported to have signed, including Woody Allen, David Halberstam and John Dean. This petition claims that Mr. Flynt`s first amendment rights have been violated and asks President Carter to "show the same concern for dissidents at home as you have for those in Russia." The petition was started by Hustler magazine itself, and the case has thrown civil libertarians into a torment of indecision.

Two previous cases are relevant. Last April an actor called Harry Reims was convicted of conspiracy in Memphis for his role in "Deep Throat," a movie judged obscene. Last summer Al Goldstein, publisher of Screw magazine, was indicted in Wichita for allegedly using the U.S. mails to distribute obscene materials. There was a mistrial, and he`s due for a retrial in April. In these cases are the courts trampling on the first amendment -- freedom of the press -- in fighting pornography? With Jim Lehrer in Miami, that`s what we consider tonight. Jim?

JIM LEHRER: Robin, the Hustler case, of course, is the freshest and possibly the most far-reaching of the three. Last week on February 8 an Ohio state court jury in Cincinnati found Hustler publisher Larry Flynt guilty of pandering obscenity and engaging in organized crime. He was given the maximum sentence in both -- six months on the pandering charge and from seven to twenty-five years on the organized crime conviction. There was a dispute over conditions of a $55,000 bail and that was not resolved until Monday by an appeals court. Flynt was released from the Cincinnati jail then and is now here in Miami where he has a house nearby.

First, Mr. Flynt, what is your legal situation now? You are appealing the verdict; are you prepared to appeal it all the way, or where are you right now?

LARRY FLYNT: Naturally, I want to appeal it all the way, and of course we`re hopeful that the decision will be reversed on an appellate level. We were all quite shocked that the verdict was returned in the first place.

LEHRER: What is this doing to your magazine? Is it going to put you out of business, or is all the publicity actually helping the magazine?

FLYNT: I won`t deny the publicity is really helping the magazine. I have orders for two million copies of the March issue that

I can`t even fill now.

LEHRER: What would be a normal run, say, for March?

FLYNT: Three million copies.

LEHRER: I see, but you got two million extra, you mean.

FLYNT: Yes. We`ve got orders for five million copies. But what people don`t realize about Hustler -- and that`s why the verdict shocked everybody -- is it`s not a hard-core magazine sold in adult bookstores. Hustler`s distributed worldwide in over twenty-five different countries, in the process-being translated into seven other languages, and the verdict just really took everybody by surprise.

LEHRER: You don`t feel that the people of Cincinnati had the right to do to you what they did?

FLYNT: No, and I think the danger inherent in what happened is that many producers and publishers will shelve creative ideas and thoughts because they might be offensive to the most conservative community standards. And I think this has just brought out into the light just what a bad decision that was by the Supreme Court in the Miller case, leaving it up to individual communities to set their own standards. It`s my feeling that a community sets its standards by economic support of magazines and books. And you know, our first amendment gets its vitality and meaning from an unrestricted right of free choice; and it doesn`t say we`re going to give freedom to some people and not others. And that`s why so many people are alarmed about it and are coming to my defense, not only with editorial support in the media but in many different ways; and it`s not that they`re defending Larry Flynt or Hustler magazine. Many of these people have told me, "I`m not prow o what you do in Hustler magazine, but I`m proud that I live in a country where I have a choice to buy it if I want to and it has a right to exist."

LEHRER: You know, in fact some of the very people who are supporting you have made it very clear that they consider your magazine a tasteless, worthless piece of trash, as a matter of fact. Does that bother you at all?

FLYNT: It doesn`t bother me at all because Hustler is as much & humor magazine as it is a sex magazine. We`re to magazine publishing what "Saturday Night Live" or "Mary Hartman" is to television; and we must remember that if we had not seen a movie since 1940 we would be offended by something with a PG rating. Often when you deal with satire and especially when you mix it with sex it can be offensive, but we`re talking about taste. And when a community makes a decision with a jury verdict like happened in Cincinnati -- although we did not get a fair trial, and probably Mr. Fahringer could elaborate on the legal issues later on...

LEHRER: That`s your attorney, and we`re going to be talking to him in a moment.

FLYNT: Yes. But aside from that, it`s just a chilling thought that one community can.... What really happened by that verdict in simpler terms is they`ve got publishers and producers trying to second-guess what community standards are in Biloxi, Mississippi, or Little Rock, Arkansas, and it`s just really amazing.

LEHRER: That is of course the crux of the thing, and that`s what we want to explore tonight. Thank you, Mr. Flynt. Robin?

MacNEIL: Let`s take that point up from another point of view with another gentleman who`s also in Miami tonight, Larry Parrish, a United States District Attorney from Memphis, Tennessee, and in fact the man who was the successful prosecutor in the Harry Reims "Deep Throat" case. Mr. Parrish, what is the meaning of the Cincinnati decision to you?

LARRY PARRISH: I don`t think the Cincinnati decision has any particular legal significance as far as precedent setting or anything; it was a regular, normal obscenity trial. I think the thing that`s the most important about it and the most heartening about it as far as I`m concerned is the sentence that was imposed. I think it was a very fair sentence and one which should signal to the community or to the people in general that the law is going to be brought to bear against people who violate it with the same intensity that the violation is brought against the law. And to me it`s heartening that there is a situation where people are willing to impose the penalties that the law anticipates will be imposed if someone flagrantly violates it.

MacNEIL: You said that you didn`t think it would be precedent setting legally; was it not something of, if not a strict legal precedent, of an innovation to use the organized crime charge carrying such a much larger sentence in a case like this?

PARRISH: Innovative...? I don`t know if that has ever been done before; it probably has not. But the law, I don`t think, is that long on the books, but I don`t know that much -- I wasn`t involved in the Cincinnati prosecution as such. I conferred with the prosecutors from time to time occasionally. But it`s just the innovative use of the normal law that would be brought to bear. In other words, if this were an antitrust case, no one would be complaining about using the organized crime statute to bring to bear against those who are seeking to monopolize or to do business by unfair trade practices; but here somehow people think that it`s terrible to use what the law provides and using it fully. Nothing is worse to a law than to try to enforce it with sort of a yawny attitude; that is, go into court and take a lackadaisical attitude about the prosecution and. then be defeated, and then the false impression is given to the community that the jury has stamped its approval on the materials involved, which is not true. This is a case where the prosecutors have stood toe-to-toe with the defense, have worked hard -- I know they worked hard -- they traveled around the country gathering a lot of information. And every single time, if prosecutors are willing to invest the time and the energy and not a fifteen-minute brush-up on the law but really get into the law and do their homework, the same result is going to take place if it`s in San Francisco or Cincinnati or Biloxi or anywhere else. It`s only when prosecutors take a lackadaisical approach to their job that there will be a verdict-different from the one that was returned in Cincinnati.

MacNEIL: Thank you. Jim?

LEHRER: On the other side of this legal dispute is Herald Fahringer, general counsel for the American Association of Constitutional Lawyers. He is Mr. Flynt`s attorney and has represented many clients with similar legal problems. Mr. Fahringer, how do you see the legal significance of the Flynt case?

HERALD PRICE FAHRINGER: I think it`s terribly wide-reaching and I think it`s going to have an anguishing impact upon the publishing industry of this country for some of the reasons that Mr. Flynt commented on. Obviously, there isn`t any publisher or any film distributor that can accommodate every small community in this country -- the backwoods of Tennessee, the Midwest, any area where obviously attitudes are terribly provincial, and when they see something like Hustler magazine or Screw magazine in Kansas they`re shocked by it, where these things in a more sophisticated community are accepted and are generally tolerated. And so that in dealing with community standards, if we reach a point in this country where, as Mr. Flynt indicated, Little Rock, Arkansas, or Cincinnati, Ohio, can dictate to the rest of us what we can read I think we have turned the clock back and we have denied very much of what our forefathers have given us. I want to make one point here. Philosophically, incidentally, I should declare myself at the outset that I`m opposed to any obscenity laws. I think the first amendment, the one that was designed by our forefathers, really meant that we should be able to read and see what we please as long as it doesn`t harm anyone else -- and there`s never been any scientific proof that has demonstrated that pornography harms anyone. And so I`m a purist in that regard, and you should know that.

LEHRER: All right, and we`ll get into that in a moment; but the fact is there are obscenity laws in the United States at a local end and the Supreme Court has ruled on this, and the Supreme Court has said in the Miller case that it is up to local community standards, or words to that effect. Mr. Parrish is shaking his head -we`ll get back to that in a moment. First, Mr. Fahringer, how does a local community enforce obscenity laws without doing what they did to Mr. Flynt and Mr. Reims, et cetera?

FAHRINGER: Of course, you must understand one thing -- and I think this is terribly relevant to this program -- one of the problems that`s in the Cincinnati case. We endeavored to prove the contemporary community standards there by producing in evidence a host of other magazines that had been sold and accepted in the community, one million in number during the same period of time of our indictment. Some thirty-five titles totaling one million copies of a host of other so-called girlie magazines, starting with Playboy and going right down the line, and that proof was all rejected. We also brought in experts who would testify as to what the community standards were; they had made a study of them. That proof was rejected. And as a consequence what you find is that the magazine is judged in a vacuum. Now, you ask the question, how do you do this? Ideally, the jury, should really be made aware of what is being accepted in the community, because many of them haven`t seen it; and that a critical problem in this whole area.

LEHRER: Don`t you think, though, that this is what the Supreme Court had in mind in the Miller case, exactly what happened in Memphis and in Cincinnati?

FAHRINGER: I have no doubts about that at all. And I have a feeling that in another three years, when they see the chaos that it has created -- there`s a movement afoot right now,-per haps, to withdraw from that line -- and I`m hopeful, since we`re interpreting a national Constitution, the first amendment that applies to the whole United States, that we should return to the national standard, which is a much more meaningful and sensible one.

LEHRER: Thank you. Robin?

MacNEIL: I might just read, since we`ve referred to it a couple of times, that bit of the Supreme Court ruling of 1973: "The basic guidelines for the trier of fact must-be (a) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest; (b) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law; and (e) whether the work taken as a whole lacks serious literary, artistic, political or scientific value." Dr. Mary Calderone has spend many years researching sex-related problems and problems of communicating in this society. She`s the president of the Sex Education and Information Council of the United States. First of all, in your particular area of expertise, picking up on what Mr. Fahringer just said, is there proof that pornography does or does not harm people in the country?

Dr. MARY CALDERONE: No, but there have been studies that showed that sex criminals literally had much less access to the explicit sexual materials while they were growing up than non-sex criminals. I give that to you for what it may be worth. I think that`s significant.

MacNEIL: I see. What is your opinion, listening to this discussion of particularly the Cincinnati decision, of what its effect may be nationally?

CALDERONE: I think it`s just going to compound utter confusion already, and chaos because it really doesn`t move us anywhere at all; it just says, "We disagree, we disagree, I disagree, and so forth. I would like to know that this jury had made probability studies of the Cincinnati population to find out exactly what is an average citizen and what are the standard community .mores. Until we do that all of this sort of thing simply means nothing.

MacNEIL: How do professionals like you in the field of sex information and sex education feel that problems like this can be solved? How can you preserve our freedom to read what some of us might want to read and be protected from what some of us might find offensive?

CALDERONE: There`s a very fine line here, I think -- or may-be it`s too broad a line; I`m not quite sure which I mean -- between the existence of laws, and the mere existence of laws doesn`t prove them good; we should just mention the Comstock and the birth control and the prohibition laws. The fact that they exist doesn`t mean that they`re any good at all, necessarily, There`s a fine line between the existence of laws and their enforcement, and a very broad line between them and education and the state of knowledge of the public, the general public. Now, the fact is that there has been an explosion of knowledge about human sexuality. The human sexuality movement is now a movement established in and of itself, with leaders in all of the professional disciplines -- name them: the World Health Organization -- all of them recognizing human sexuality as a tremendously important, crucial center of the human individual life. But unfortunately the general public -- again, this "general public," whoever he or she may be -- is not aware of many, many of these facts; for instance, that the needs for depending on explicit sexual materials, compulsive dependence on seeing explicit sexual materials or erotic materials in adult life -- these needs are programmed in very, very early in life by some lack of balance in the meeting of the needs of the child by the parents, some deprivation, something that happens, or some traumatic experience.

MacNEIL: That`s established; in other words, what you`re saying is that there is a body of the community that actually needs pornographic materials, or explicit sexual materials.

CALDERONE: Yes. And as a matter of fact the SEICUS board has a position that echoes the position of the Majority Report of the President`s Commission on Obscenity and Pornography, but the wording is very important: the use of explicit sexual materials -- not the enjoyment, the use. Because these materials do fulfill a real need for many people who cannot achieve the pleasure and joy in their sexuality without the use of these materials, and I think that this is very important to recognize. You can`t deprogram it too easily.

MacNEIL: Well, let`s feed that point of view now back in to the gentlemen in Miami. Jim?

LEHRER: To you, Mr. Parrish -- this question about how do you determine what are the standards in your town, Memphis or Cincinnati or whatever - - how do you do that?

PARRISH: There are two points that need to be made here. One is that the Supreme Court his never mandated that you geographically approach the problem of community standards, whether locally or nationally. There is no need to take into account any geographical boundary lines at all; and in the cases in Memphis we never have. It`s the same way that juries are called upon to decide what a reasonably prudent person would do under a given circumstance. You don`t say a reasonably prudent person in Cincinnati or a reasonably prudent person in the western judicial district of Tennessee, it`s just those things that are common to human beings. I prefer that; I think that is the better approach. I certainly think that is one that the Supreme Court has given license to follow. So that`s one point that needs to be made. I think probably the most probitive evidence of what the standard is among people in general is demographic information, and therefore we use demographers as expert witnesses in our cases in Memphis to put some meat and bones on an average person. How old is the average person, how many children does the average person have? Does the average person recognize religious practices?

LEHRER: Prom that you assume a feeling about sex, or a feeling about pornography or obscenity?

PARRISH- What you arrive at is that the average person-generally is a traditionalist. The average adult in the United States is forty-four years old. If you take the entire population from infancy through whatever, the average person is twenty-nine years old; has three children; has a job making, I think $13,000 -- I`m not sure of all the details. But those things you`ve got to consider, that there are more people in the United States over age sixty than there are between age twenty-one and twenty-nine, and you have to put everybody in the hopper when you`re coming up with your average. The defense normally likes to say "the average Hustler reader" or the average theater goer" or things of that nature says?

LEHRER: Is that true, Mr. Flynt, about what the defense

FLYNT: No, I think most of the social sinus in the country today would all agree that exposure even to hard-core pornography -- and this was the consensus of the Presidential Commission on Obscenity -- is not harmful to the average person and won`t alter your sexual desires. So really, for a moment we can eliminate effects. The major question here is the first amendment issue. You know, Harry Truman once said, "Freedom rings the loudest when opinions clash." Now, if we all agreed on Hustler we wouldn`t be sitting here doing this show now; so there`s differences of opinion in every community. So I think while we`re trying to protect the rights of some we cannot forget the rights of others. And I think the answer -- you know, we`re all discussing the issues, but nobody`s discussing the answers-- I think the answer lies in some sort of peaceful coexistence. We should respect one another`s rights to read books and go to the movies, just like we respect each other`s rights to worship and vote as we choose. Nobody should be telling the other person what they can read or see. And the issue is really very simple; it`s not a complex one. The only thing is, when you get bad, antiquated laws -- conspiracy laws where they can reach out in the country and nab anybody they want to; and one person can get thirty days for murder another person can get twenty-five years for publishing a book -- that`s ridiculous.

LEHRER: I assume you would agree, Mr. Fahringer.

PAHRINGER: Yes, and I want to just add one other thing, Jim, to what he said that is very troublesome to me. You know, when our forefathers designed the first amendment they gave to everyone, including publishers, the right to say what they please even though it might be poorly exercised or displeasing to those in places of power; but they gave it because they knew that was the only way we could conduct a representative democracy. Now, there`s much in Hustler magazine that people have labeled "tasteless," but you know in a free society we have to forbear, we have to put up with a lot that is unpleasant to us. The Supreme Court Justice of the United States once said that the price that we have to pay for a free press and free speech is that we have to put up with and even pay for a good deal of trash. And that`s what we`re talking about here -- everybody making their own choice as to what they want to read or see.

LEHRER: You don`t buy that, Mr. Parrish?

PARRISH: Not at all. We`re not talking about the first amendment here, and to cast it into that language deceives people who think that we are.

FLYNT: We`re talking about freedom of choice -- that`s what the first amendment`s all about, the right to a free choice.

PARRISH: May I finish, or not?

LEHRER,- Sure. Go ahead.

PARRISH: You could find the Supreme Court Justice to have said anything over the years; many of them are in dissenting opinions though. But the point here is that the Supreme Court has guaranteed through the Constitution -- and I would literally fight a war over this principle -- that anybody can advocate anything they want, they can express any ideas they want to. The thing that`s regulated by obscenity laws is the mode and the manner of the advocacy. If someone wants to advocate nudity that is fine, and nobody, no law anywhere can ever be passed to say you cannot advocate nudity. But a law can be passed that says you can`t use the mode of walking down the street naked to advocate that. And so it`s the means and the mode of advocating the idea, not the idea. And what the first amendment does is protects our right to advocate whatever we want to advocate and no obscenity law anywhere does anything to prohibit us from doing that.

LEHRER: Robin?

MacNEIL: Dr. Calderone, how do you view that?

CALDERONE: That interests me very much to hear Mr. Parrish say that because I think this is exactly what the Memphis and the Cincinnati decisions are beginning to controvert. I conceive of three very specific rights that relate to this field. The first is the right of access to materials -- what you want to read. To follow that, you have to have the right to produce or to publish and to distribute to meet this right, if you`re really going to have the first right and give it more than lip service. But then there`s a third right -- and I`m representing the consumer, the consumer who presumably would look at Hustler but also the consumer whom Mr. Parrish was trying to protect--- the right of the public, the un-needing and unwilling public against invasion of its privacy (this is the distribution factor here) in unwanted (which would be mail solicitation) or inappropriate (which certainly applies to advertising) or possibly -- and I have to triple underline this -- possibly harmful (meaning access of minors) ways. And I think we don`t know what explicit or erotic material does to minors -- probably much, much less than we`re afraid of. And I think these three rights really do mean learning how to live in a pluralistic society with these three rights all served.

MacNEIL: Mr. Parrish, what do you say about that?

PARRISH: I think that there`s a basic misconception on the part of Dr. Calderone -- or one could interpret it that way. That is that there`s some equation between explicit materials and of scene materials. No material has ever been declared obscene simply because it was explicit. Of course, defendants always go in and they try to use the phrase "explicit sex" rather than "obscene representations." Also we`re talking in terms of titles here; there`s nothing wrong with Hustler as a title. Time Magazine is a title, Playboy is a title it`s the representations that appear in these publications, and merely the fact that they`re explicit does not mean that they`re obscene in any way. So I think to draw our attention to the issue here we have to use the word "obscene," not "sexually explicit" because the two are not to be equated.

MacNEIL: Mr. Fahringer?

FAHRINGER: Yes, I wanted to simply say that I think what troubles me more than anything else in this country today is the power that has been bestowed upon prosecutors to pick out one magazine, one film and strike it down by really bringing the full force of the government against it. I would think with the level of public disorder in this country today our resources could be better committed to some of the more pressing problems. I really, to be perfectly blunt, think this is a lot of nonsense. I have-an abiding confidence in the American public`s judgment to read any book without being corrupted or unduly influenced; and while all this money and time is spent on chasing down one film or one book, it just seems to me to be utterly ridiculous and totally incompatible with the first amendment. And I don`t know how Mr. Parrish can say that the striking down of a magazine that has a readership of fifteen million doesn`t involve the first amendment; that seems elementary and basic to me.

MacNEIL: Thank you. Jim?

LEHRER: Mr. Flynt, a final question. What motivated you to get into the sex magazine business, anyhow?

FLYNT: When I started Hustler -- you`ve got to remember, I`m . not an educated journalist; I`m only a good publisher because I`m a good consumer. I only have an eighth-grade education. So when I started the magazine I wanted to deal with sex as I knew it as a boy growing up on the farm, working in the factory, in the Navy. I wanted to write about it as my friends talked about it on the street, four-letter words and all. And I did just that. And I produced an entertaining magazine and it cost me my freedom.

LEHRER: Robin?

MacNEIL: Thank you all very much in Miami. Good night, Jim..

LEHRER: Good night, Robin.

MacNEIL: Thank you, Dr. Calderone. Jim Lehrer and I will be back tomorrow night. I`m Robert MacNeil. Good night.