The 1st Amendment

The following correspondence relates to my previous blog titled “Don Imus Meets Michael Richards.

Dear Mr. Krassner:

I congratulate you on writing an interesting piece. However, your article contains the following quote: “[Michael] Richards’ lawyer, Douglas Mirell, said that while Richards’ comments were ‘inappropriate, they are not legally actionable’ and that, if Richards faced mediation or a lawsuit, he intended to oppose a cash settlement under his constitutional right to free speech — an incorrect claim, since the 1st Amendment applies only to censorship by the government.” [Emphasis added.]

In point of fact, whenever anyone invokes the power of the judiciary (an arm of government) to try to enjoin or seek monetary damages for speech they find disagreeable, the First Amendment presents itself as a viable defense. It is why, for instance, defamation (libel or slander) actions can be defeated on constitutional grounds (think New York Times v. Sullivan). It is also why even when one tries to skirt the rules of defamation (by, for instance, claiming intentional infliction of emotional distress, as the late Jerry Falwell did when he sued Hustler magazine), the First Amendment can likewise be successfully interposed as a defense.

Doug Mirell

Dear Doug Mirell,

Of course I apologize, both as a defender/practitioner of the 1st Amendment plus having a deep respect for free-speech attorneys. Basically, though, I believe we are actually in agreement: I meant that If Michael Richards were to make a cash settlement, it would not be for censorship, it would be because he hurt the feelings of the heckler, publicly humiliated him, caused emotional distress, etc.; and when Hustler ran a full-page parody–identified as such–of the Drewer’s Whiskey ad, with Jerry Falwell confessing to having sex with his mother in an outhouse, Falwell sued Larry Flynt, not for libel, but rather for hurt feelings, etc. The Supreme Court ruled unanimously for the defendant. Is this spitting hairs or is it nit picking?



The claim by Falwell against Flynt was for infliction of emotional distress. And this is precisely the same claim that Gloria Allred publicly asserted against Mr. Richards on behalf of her then-clients. Both claims were — and are — equally specious.


And, recommended by my attorney friend, Bob Bloom:

1. Apologize to the First Amendment.

2. Don’t apologize to any lawyer, any time.

3. Whenever you do have to apologize (to any amendment, especially the Fifth or the Sixth), be sure to say that you take full responsibility, even if you don’t. It works. It’s like Reagan saying, “mistakes were made”, as if he had nothing to do with it.

4. Continue to find it impossible to watch Seinfeld re-runs because it’s so unpleasant to look at Richards’ face any more.

PAUL KRASSNER is the editor of The Realist. His books include: Pot Stories for the Soul, One Hand Jerking and Murder at the Conspiracy Convention. He can be reached through his website:


Paul Krassner is the editor of The Realist