David Hejmanowski: Flynt, Rose and freedom of speech


“Michael Bertolini, you know, told us that he not only ran bets but he ran young girls for him down at spring training.”

— John M. Dowd

Pete Rose investigator

“Rose never did any such thing, and until the Dowd accusations, no one had ever claimed he did.”

— Martin Garbus

Attorney for Pete Rose

It has been more than 25 years since John Dowd’s investigation into Pete Rose’s betting on baseball led to the issuance of the Dowd Report and the subsequent decision by then-Commissioner A. Bartlett Giamatti to ban Rose from baseball for life. Dowd and Rose are now both 75 years old, but Dowd’s report crept back into the news last year when current Commissioner Rob Manfred was considering Rose’s request for reinstatement.

Dowd, not surprisingly, felt pretty strongly about keeping Rose out of baseball and was not shy about saying so publicly. During one radio interview last July for a station in West Chester, Pennsylvania, Dowd reported an allegation that a memorabilia dealer named Michael Bertolini had been bringing underage girls to Rose during spring training. This week, Rose filed a federal lawsuit against Dowd in Pennsylvania seeking unspecified damages. The suit will hinge, in part, on a U.S. Supreme Court decision involving another controversial Ohio figure.

The year was 1983 and Jerry Falwell, then president of the Moral Majority, had publicly taken on Larry Flynt of Hustler magazine, Bob Guccione of Penthouse magazine and Hugh Hefner of Playboy magazine. Calling them “kings of porn,” Falwell spoke out against the magazines and against pornography in general. The statements led him to be tabbed by a Good Housekeeping survey as the second most admired man in America (next to President Ronald Reagan).

Flynt, never one to back down, decided to retaliate. In the November 1983 issue of Hustler, Flynt ran a fake advertisement claiming that Falwell had been involved in an alcohol-induced, incestuous relationship with his mother. Worse, the parody claimed that the affair had occurred in an outhouse. None of the allegations contained any fact nor did they attempt to. In fact, at the bottom of the page were the words, “ad parody, not to be taken seriously.”

Falwell sued Flynt and Hustler for damages, claiming libel, invasion of privacy and intentional infliction of emotional distress. In response to the filing of the lawsuit, Hustler ran the fake advertisement again. The case went to a jury in a federal court in Virginia, which ruled in favor of Falwell and awarded him $150,000 in damages.

Hustler appealed and the federal appeals court upheld the verdict. The Supreme Court agreed to hear the case and to review whether the First Amendment protected Hustler from having to pay the damages award. In its arguments to the Supreme Court, Hustler was joined by the ACLU, the American Association of Editorial Cartoonists, the Association of American Publishers and HBO, among others.

Libel is the act of defaming someone in writing or by visual media whereas slander is defamation by active speech. The Falwell case circled around libel allegations involving a public figure. It is extremely difficult to win a libel suit against a public official because, in 1964, the Supreme Court decided that the Constitution’s guarantee of free speech largely protects those who make potentially libelous statements about public officials and public figures. In New York Times v. Sullivan, the court ruled that those public officials could only recover damages in libel suits if they could demonstrate “actual malice.” The court defined this as the making of a statement, “with the knowledge that it was false or with reckless disregard of whether it was false or not.”

Because Hustler never claimed that the Falwell ad was true, and even went so far as to state below the ad that it was not, Falwell could not win on his libel claim. Instead, the damages award was for emotional distress only. When Hustler appealed the case to the Supreme Court, the court unanimously ruled that the same standard applies to emotional distress cases that applies to libel claims. Falwell’s jury award was vacated. Hustler had won because what it said about Falwell was so obviously false that no one could confuse it for a truthful statement.

Rose’s suit against Dowd differs in that it is a slander claim but, more importantly, because Dowd was making the statements claiming that they were true. The case will proceed first through the trial stages in the federal district court and then, if necessary, work its way through the federal appeals system. It could be several years before a final result is known.


David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.

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