Infuriated by a critic who photoshopped his head onto the body of a male porn star, a Georgia legislator has proposed making such images illegal. Violators would face a $1,000 fine.
“Everyone has a right to privacy,” Rep. Earnest Smith (D-Augusta) said in an interview with FoxNews.com. “No one has a right to make fun of anyone. It’s not a First Amendment right.”
The legislation would define defamation to include cases where someone "causes an unknowing person wrongfully to be identified as the person in an obscene depiction in such a manner that a reasonable person would conclude that the image depicted was that of the person so wrongfully identified." It specifically includes "the electronic imposing of the facial image of a person onto an obscene depiction."The Supreme Court has a different take. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) the Court ruled 8-0 that Rev. Jerry Falwell could not collect damages for an equally offensive cartoon. From the syllabus of the opinion:
In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be accepted. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here.