THE BLOG
04/18/2014 05:21 pm ET Updated Jun 18, 2014

Larry Flynt's Fights for Access Continue Today, More Than 30 Years After U.S. Invasion of Grenada

In July, Larry Flynt will toss an invitation-only birthday bash somewhere in the greater Los Angeles area to celebrate the 40th anniversary of his flagship adult publication, Hustler. And if it's anything like the party five years ago, which boasted a bevy of bare porn stars and a fittingly racy and risqué "Heaven and Hell" theme that engulfed an entire hanger at Santa Monica Airport, gaining access to the Flynt fete won't be easy.

For now, however, the veteran publisher is busy fighting a far less festive access battle of his own some 1,800 miles away. This one's taking place in a staid federal appellate courthouse in Missouri and, as it turns out, is just one of several access skirmishes Flynt has waged over four decades with government entities.

Today, Flynt wants the name of the supposedly board-certified anesthesiologist who presided over the November 2013 execution of white supremacist and convicted murderer Joseph Paul Franklin. Missouri refuses to release it, citing confidentiality concerns. Flynt, in contrast, possesses a seemingly undeniable, vested interest in the matter. That's because Franklin confessed to shooting and paralyzing Flynt in Georgia in 1978, as Franklin objected to an interracial Hustler pictorial dubbed "Butch and His Georgia Peach" featuring a supremely well-endowed nude black man with a white woman.

But Flynt garnered national headlines just last fall when he publicly opposed Franklin's execution for an unrelated murder at a St. Louis area synagogue in the late 1970s. Adamantly anti-death penalty, Flynt bluntly wrote in an October 2013 guest column for the Hollywood Reporter, "I have never come face-to-face with Franklin. I would love an hour in a room with him and a pair of wire-cutters and pliers, so I could inflict the same damage on him that he inflicted on me. But, I do not want to kill him, nor do I want to see him die."

Why does Flynt seek the name of the anesthesiologist involved in Franklin's execution? Flynt asserts in court papers that he is skeptical about whether the anesthesiologist is really board-certified because the official certifying body, the American Board of Anesthesiology, calls for its members not to participate in executions by lethal injection. The conundrum, as Flynt's attorneys from the ACLU of Missouri argue, is that Franklin's anesthesiologist is "either lying about being board certified, or lacks the professional standing required to maintain certification. Missouri engages in hypocrisy by bolstering its claim that its executions satisfy Eighth Amendment standards [against cruel and unusual punishment] by pointing to the inclusion of a certified anesthesiologist."

But a federal judge in December rejected Flynt's unopposed motion on procedural grounds, summarily concluding he didn't have the right to intervene as a non-party in the death-penalty case because "a generalized interest in a subject of litigation does not justify intervention." Now before the U.S. Court of Appeals for the Eighth Circuit, the case is attracting friend-of-the-court briefs filed by several mainstream news organizations, including the owners of the New York Times, Washington Post and Miami Herald, supporting Flynt. As the brief filed by the Reporters Committee for the Freedom of the Press and those organizations puts it, the lower court's decision "is contrary to 35 years of United States Supreme Court and lower federal court jurisprudence stating the public has a First Amendment right of access to the courts, including a constitutional right to have a challenge to closure heard by the court."

Despite such importance, access battles aren't nearly as sexy or intriguing to the public imagination as the First Amendment case for which Flynt is best known, Hustler Magazine vs. Falwell. In that case, a unanimous Supreme Court in 1988 famously protected Hustler's parody of a Campari ad suggesting that the Rev. Jerry Falwell, then head of the Moral Majority, had sex with his mother in a fly-infested outhouse and preached while drunk. The parody closed with Falwell rhetorically querying, "You don't think I could lay down all that bullshit sober, do you?"

Although that case gained public acclaim, especially after Milos Forman's 1996 movie, The People vs. Larry Flynt, Flynt has a penchant for fighting access cases that largely have flown under the public's radar. As Bruce Brown, head of the Reporters Committee for Freedom of the Press, explained to me in a recent email, "Larry Flynt will never be best known for his access work, but it's impressive that he has taken it upon himself to fight for this important public right."

For instance, when the United States invaded the tiny island of Grenada in 1983, he went to federal court to challenge a blanket press ban imposed by then-secretary of defense Caspar Weinberger. Unfortunately, by the time the case worked its way up to the appellate court level, the fighting was done and the absolute press ban had been lifted, rendering the issue moot.

Flynt sued another secretary of defense -- this time, Donald Rumsfeld -- in 2001 shortly after U.S. military combat operations began in Afghanistan. The publisher argued that journalists, including a reporter from Hustler, had a First Amendment right to embed with U.S. troops in battle. The lawsuit came, as the U.S. Court of Appeals for the District of Columbia noted in its 2004 ruling the case, after "Flynt requested that Hustler reporters gain access to combat operations, and that access was not immediately granted." He struck out before the appellate court in Flynt vs. Rumsfeld, which concluded "there is no constitutionally based right for the media to embed with U.S. military forces in combat."

One can only hope that the access outcome now in Missouri will be different and that, by the time the Hustler 40th anniversary party rolls around this summer in Southern California, the septuagenarian Flynt will have a true reason to celebrate.