WHITE, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

485 U.S. 46

Hustler Magazine, Inc. v. Falwell

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

JUSTICE WHITE, concurring in the judgment.

As I see it, the decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), has little to do with this case, for here the jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment below, which penalized the publication of the parody, cannot be squared with the First Amendment.

1. While the case was pending, the ad parody was published in Hustler Magazine a second time.

2. The jury found no liability on the part of Flynt Distributing Co., Inc. It is consequently not a party to this appeal.

3. Under Virginia law, in an action for intentional infliction of emotional distress, a plaintiff must show that the defendant's conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with the plaintiff's emotional distress; and (4) caused emotional distress that was severe. 797 F.2d at 1275, n. 4 (citing Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974)).

4. The court below also rejected several other contentions that petitioners do not raise in this appeal.

5. Neither party disputes this conclusion. Respondent is the host of a nationally syndicated television show and was the founder and president of a political organization formerly known as the Moral Majority. He is also the founder of Liberty University in Lynchburg, Virginia, and is the author of several books and publications. Who's Who in America 849 (44th ed.1986-1987).