Chief Justice Warren E. Burger asks Solicitor General Wade McCree, who was before the court supporting the Board of Regents' position, whether there was any evidence that the medical school ever excluded applicants based on race. In the other excerpt, Justice Byron R. White asks Bakke's attorney, Reynolds H. Colvin, whether the university could implement an admissions program that takes race into account. The court in 1978 handed down two muddled 5-4 decisions that both ordered the school to admit Bakke and said the use of race as a criterion in admissions decisions was constitutionally permissible. Freedom of Speech Rev. Jerry Falwell sued Hustler magazine over a parody that depicted the fundamentalist evangelist as a drunk in an incestuous sexual affair with his mother in an outhouse. Falwell won a judgement against Hustler but the magazine took the case to the Supreme Court in 1988 to argue the art was protected under the First Amendment.
Parody is protected speech.
Obscenity is not protected. Here, Justice John Paul Stevens asks Hustler attorney Alan Isaacman to specify the public interest in giving constitutional protection to the magazine's parody. Then Justice Antonin Scalia asks Norman Roy Grutman, Falwell's attorney, to specify the standards that satirists can apply to avoid lawsuits. Justice Sandra Day O'Connor follows with a similar question. A unanimous Supreme Court overturned the verdict and declared that the First Amendment's protection of free expression extends to publications that intentionally inflict emotional distress.