05/15/2007 05:20 pm ET Updated May 25, 2011

Thanks Jerry, We Hardly Knew Ya

I can't think of anyone I would less rather spend time with than Jerry Falwell. I really can't.

But I owe Falwell something. We all do. I teach my students at NYU about it most semesters, and I guess today is a good time to blog about it.

In the 1980s, Falwell squared-off in federal court against Larry Flynt, someone else I wouldn't waste the money it takes to buy a cup of coffee for or the time it takes to drink it with.

It was one of the more surreal legal battles of the last quarter century, but there's a lesson in that fight for us today, because too often our politics and our public discourse get simplified -- dumbed down, frankly -- into a two-sided narrative constructed by a mass media that is more interested in easily defined conflict than fruitful public discussion.

Lazy journalists and commercial writers have a template. They tell us we have to choose between two sides. It's one or the other. Flynt or Falwell.

Politicians driven by high-paid consultants and a sound-bite society do it too. They tell us, "In this election, the choice is clear: the Republican or the Democrat." Or, as the president says, "You're with us or you're with the terrorists."

It's a fool's way of thinking. But in a modern, fast-paced world, we often rush past our real choices and pick from the limited images and narratives we receive from mass media.

We just put on the team jersey that is most familiar, the one we think most of our friends are wearing, and we make a choice we are uncomfortable with -- or worse -- we disengage.

Whether we realize it, that disengagement has a cost, not just in our voice not being heard, but in the way we think of ourselves, even if it just festers in our subconscious.

In 1983, Flynt published a parody magazine ad for a popular alcoholic drink with a headline that read, "Falwell Talks About His First Time." It described Falwell having an incestuous encounter with his mother in an outhouse. It was a riff on a real ad campaign for Campari, an Italian aperitif, which featured tongue-in-cheek interviews with celebrities talking about their "first time."

Milos Forman offers a great account in his film, The People v. Larry Flynt, which is required viewing in my mass media courses. Woody Harrelson and Ed Norton are great as Flynt and his longsuffering lawyer. Flynt even makes a cameo as a judge. And, of all people, Courtney Love is out of this world as Flynt's wife, Althea.

The film is worth seeing simply for those performances. But that isn't the reason I assign it.

This story, told correctly, reminds us there was a third role in the saga -- one that elevates this conflict well above a fight between two noxious jerks. It's the character with the least recognizable face but the most to loose: The First Amendment.

In one of the more memorable scenes, Flynt quips to an arrogant and pesky reporter: "Why do I have to go to jail to protect your freedom?"

Thanks to the New York Times v. Sullivan ruling, Falwell lost his original claim for libel, but the jury awarded him $150,000 in punitive damages for intentionally inflicting "emotional distress" on Falwell.

Flynt appealed to the Supreme Court, which ruled UNANIMOUSLY for him in Hustler Magazine v. Falwell. The opinion, written by Chief Justice William Rehnquist, found that creators of parodies of public figures are protected against civil liability by the First Amendment, unless the parody includes false statements of fact made in knowing or reckless disregard for the truth.

Think about that the next time you watch Stephen Colbert.

The winner that day wasn't Flynt. It was you and me and the First Amendment. Falwell was collateral damage; Flynt just happened to hit the lottery.

No one in his right mind could believe William Rehnquist, Antonin Scalia and Sandra Day O'Connor sided with a pornographer over a preacher. These justices and five others (Kennedy, who had been on the court for six days, recused himself) saw the fool's choice for what it was. They slowed down enough to see that something bigger was at stake.

They refused the temptation to put on the team jersey.

The First Amendment wasn't written to give Flynt the freedom to degrade women or Falwell the freedom to spout hateful and ignorant bullshit and claim it is God's word.

It was drafted to create and preserve a set of rights that ensure you and I can get together and criticize any elected official or governmental policy we want, and that we can make a record of that in the mass media and send it to anyone who couldn't be there for the original discussion.

For better or worse, all the other crap -- Jesus in a glass of urine, the Klan marching in Skokie, newspaper ads that claim the Holocaust never happened -- gets a free ride.

Remember that the next time someone tries to get you to put on a team jersey -- or rushes you to make a fool's choice by taking a side you are uncomfortable with in an issue that is presented as two oversimplified unpleasant extremes.

These are fast and complex times, and our mass media don't always work to our advantage. Sometimes it takes an unlikely protagonist with an unlikely cause to get unlikely people to do the right thing.

Thanks Jerry for helping remind us what a great country we live in. We hardly knew ya.