From the FBI's Secret SCOTUS Files about Larry Flynt

Flynt gave Justice O'Connor a complimentary subscription to Hustler magazine. Her secretary asked Flynt to remove her subscription. Flynt replied, "I’ll take you off Hustler’s subscription list when you resign from the court.”

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Larry Flynt died in February 2021. The provocateur was party to two important Supreme Court cases: Keeton v. Hustler (1983) and Hustler v. Falwell (1988). I really enjoyed The People v. Larry Flynt. The film accurately recreated the Supreme Court oral argument in the Falwell case. The actor playing Justice Scalia read, almost verbatim, from the official transcript.

Alas, the movie didn't include Flynt's bizarre behavior during the proceedings. Now, we have even more insights. Vice Magazine sent a FOIA request to the FBI for Flynt's files. Some of the stories are bonkers. Here are six highlights.

First, Flynt wanted to represent himself in Keeton, but the Court denied that request. And Flynt had an outburst in the Court!

At 10 o'clock that morning, Flynt arrived in the Supreme Court surrounded by bodyguards. U.S. Marshals were prepared for an outburst, as Flynt had a history of misbehaving in court, and Flynt delivered. As the justices wrapped up the hearing, Flynt shouted: "Fuck this court! You denied me counsel of my choice. I won't be judged by nine assholes and one token cunt—goddamn motherfuckers!" according to a transcript of audio recordings from the court that was part of the FBI file.

This colloquy does not appear in the Oyez transcript.

Joe DiGenova, who was the U.S. Attorney for D.C. offered this statement:

"On Nov. 8, 1983, the dignity and decorum of the United States Supreme Court—pristine for nearly two centuries—was shattered by the deliberately outrageous conduct of the defendant," was how the episode was described in a charging document signed by Joe DiGenova, the then-U.S. Attorney for the District of Columbia. DiGenova has more recently been in the limelight as a pro-Trump analyst and Fox News regular.

Second, Flynt had a Cohen v. California moment. But his shirt didn't say "Fuck the Draft." It said "Fuck this Court."

Flynt attempted to open his coat to reveal a T-shirt reading "Fuck This Court" underneath, but the marshals quickly whisked him out of the room to a side chamber, where he was placed under arrest.

Third, Flynt needed to use the bathroom. But the Court did not have wheelchair-accessible toilets, so he was brought to a hospital!

Flynt, paralyzed from the waist down, told officers he needed to use the bathroom, several of the affidavits revealed. But as this was 1983, the Supreme Court's bathrooms were not wheelchair-accessible. Neither were the toilets at central booking. The only option was to take him to a hospital emergency room.

Officers attempted to place him in a police wagon to take him to the hospital, but they couldn't get him in with the wheelchair. A police cruiser also didn't work. Then, Flynt's lawyers offered the use of a limo they had rented that day. The offer was accepted and Flynt was driven to the clink in style.

Fourth, later Flynt wore the same shirt to his district court appearance. The government asked that Flynt never go to the Supreme Court again.

Later that day Flynt was brought before Judge Jean Dwyer in Washington on charges of disrupting the court. He arrived still wearing the "Fuck This Court" shirt. According to a transcript of the proceeding that had been placed in Flynt's file, the judge agreed to allow him to be released if he complied with  a prosecution request that he not go to the Supreme Court again.

Flynt refused, with a rousing endorsement of the First Amendment:

"Free expression is absolute. The First Amendment is the most important amendment of the Constitution. It cannot be compromised. You do not have the right to compromise it. Neither does the Supreme Court have a right to compromise it, and when I am the next president, anybody that is responsible for perverting the constitution of this great land will be put in a glass cage and I will sell tickets so people can come to Washington and see what evil perverts really look like."

Eventually, Flynt agreed to not visit the Court during the pendency of the contempt case. And he kept his shirt:

Dwyer informed Flynt that the Supreme Court ban wasn't absolute but only for the duration of the contempt case against him. He then agreed. Before the proceeding ended, federal prosecutors asked that Flynt's shirt be taken as evidence in the case. The judge said a photograph of the offending shirt would be sufficient.

Fifth, we learn that before Keeton was argued, Flynt had sent Justice O'Connor a complimentary subscription of Hustler magazine. Generally, litigants are not allowed to engage in ex parte communications with judges. And litigants are definitely not allowed to give valuable gifts to judges. Of course, Flynt did both!

In the weeks preceding the Supreme Court hearing in the Keeton case, Flynt began sending Justice Sandra Day O'Connor a complimentary subscription to Hustler.

O'Connor's secretary wrote back, and asked that Flynt take her off the list. Flynt declined.

A list included in the file that detailed the subsequent correspondence noted that O'Connor's secretary wrote back asking Flynt to remove the justice from the magazine's subscription list. Flynt replied: "Fuck you, cunt. I'll take you off Hustler's subscription list when you resign from the court." He then added her to the subscription list of other magazines he published.

Wow!

In 2016, I sent a copy of my book, Unraveled, to all nine Justices. I received several letters of thanks. Other Justices sent nothing. Justice Sotomayor's secretary returned the book, with a letter stating that she could not accept any writings that affected pending litigation. I framed that letter, with the other thank you notes, on my office wall. I trust that Justice O'Connor's secretary returned each issue of Hustler to the publisher.

Sixth, there is a crazy report about an attempt to put explosives in the tubing of Flynt's wheelchair.

A statement in the file from an unnamed informant claimed Flynt had sought help from an alcoholic mercenary and a private investigator to wire his wheelchair with explosives so he could blow himself up during his 1983 Supreme Court hearing and take all the justices with him.

Flynt allegedly asked Mitch WerBell, a weapons expert who ran a guerrilla training school in Georgia, and Gordon Novel, a private investigator, to fill the hollow metal tubes of his wheelchair with C-4 explosives impregnated with needles for the maximum effect, the informant said. The men refused, and WerBell later discussed swapping out Flynt's wheelchair before the hearing, in the event he managed to convince someone else to do it for him, the informant said.

Prosecutors ultimately decided not to charge Flynt with a crime, determining that any discussion of detonating himself in the Supreme Court was just idle talk.

Absolutely bonkers. What a litigant!

NEXT: A Data Point on the Use/Mention Dichotomy and Slurs

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  1. Don’t Fuck this Court. Get rid of these filthy traitors. Replace them with wine besotted bums vomiting in the gutter for an immediate upgrade in the intelligence of decisions and in the clarity of the writing. They stink.

    They are Ivy indoctrinated, know nothing bookworms who know shit about shit. Yet, they get to make national policy on complicated technical subjects. They are almost always wrong, due to their bias in favor of big government, a wholly owned subsidiary of the lawyer profession.

    1. Take that man into custody.

      That is the sole validation of this Supreme Court, a guy with a gun. Otherwise, their entire output, and their every utterance is garbage.

  2. Back when the left pretended to care about free speech….

    I remember those days!

    1. “And then there is the alarming set of cultural trends in recent years that involves declines in support for free speech, due process, open debate, free scientific inquiry, and other pillars of modern Western liberalism. Surveys suggest that women, compared to men, are markedly less supportive of these liberal ideas, so it’s hardly a stretch to attribute their erosion to cultural feminization. There is no consensus as to why women are this way, but again, this may reflect psychological adaptations for child-rearing—which, if my own experience is any guide, tends to be rather undemocratic and peremptory. That women are more averse to debate and confrontation may also stem from their greater emotional sensitivity—a sensitivity that makes verbal swordplay more stressful for them, on average, than it is for men, and may help explain why they often use phrases like “made me feel unsafe” to justify their suppression of debate or dissent.”

      An interesting perspective.
      See: https://americanmind.org/salvo/pink-shift/

      1. Of course the point I raise is that any social order is most visible as its power and influence starts to wane, and that goes all the way back to Socrates.

  3. I’m actually surprised that no one told O’Connor to simply file Form 1500 with the local Post Office.

    https://about.usps.com/forms/ps1500.pdf

  4. Will you also be sending all nine justices a copy of the blog post you wrote today about the Atlantic article? I suspect Gorsuch and Kavanaugh will find that post at least as offensive as O’Connor had found the copy of Hustler.

  5. O’Connor should not have given Flynt the pleasure of acknowledging the subscription. She should simply have instructed her secretary to quietly throw them away as soon as they arrived.

    1. It feels like a no-win situation. Had she not clearly repudiated it (just as Sotomayor did with the book), that would have left the door open for potential mischief down the road. “Oh, so you just ‘threw them away,’ huh?”

      1. She only read Hustler for the articles.

      2. Flynt was a known problem. My guess is that O’Connor discussed this with law enforcement on some level (possibly FBI) and the rationale was send the polite letter and see what Flynt then did.
        He hadn’t done enough — yet — to be prosecuted, but if he responded with a threat, then…

        My guess is that Court Security has had to deal with actual threats over the years, and the issue here was determining if Flynt was just a loudmouthed boor — or an actual threat.

    2. They should have used it for a drinking game after hours. Applying the Miller “I know it when I see it” test.

  6. “rousing endorsement of the First Amendment”

    With friends like him, 1A doesn’t need enemies.

    Guy was insane. Should have been in an institution.

    1. Insane people still get 1A.

      The nongovernmental party in a 1A case is nigh-definitionally not into publicly-approved speech.

  7. Larry Flynt was shot and paralyzed by an evangelical White nationalist Nazi for the crime of engaging in speech disfavored by American right-wingers.

    Carry on, clingers. But only so far as your betters permit.

    1. Larry Flynt was shot because the white nationalist was offended by the photos of interracial sex. That same gunman shot an interracial couple in Madison, WI.

      1. Saying that a serial murder was just a White nationalist is like saying that Jeffrey Dahmer was just a gay man.

        1. He wasn’t just a White nationalist.

          He also was an evangelical.

          1. And Dahmer was also a patron of bathhouses…

            1. I know plenty of evangelicals and most of them are non-violent, peaceful, honest, and genuinely friendly. From my experience, evangelical Christians are much nicer people than most liberals I know.
              And I am not a Christian. When I was growing up I was teased mercilessly by the other students at my school. The only place I was safe from being teased was at a summer camp run by evangelicals Christians. So I will defend them against ignorant slurs.

  8. I wonder how many of todays evangelicals would be offended by Larry Flynt’s behavior but excuse the behavior of the former President? I suspect far too many.

    1. I seem to remember the Feminists being silent on Bill Clinton’s antics…

      1. You have an amazing gift of memory. It can even recall things that never happened!

    2. Jerry Falwell became friends with Larry Flynt. Falwell also had a sense of humor. I was once backstage at an event and he was walking by. This was in 2001 if I remember right. A couple of reporters (wearing press badges) came up to question him. As they got close to them he asked, “Are you guys from Hustler Magazine?” The two reporters looked puzzled. The African American security guard standing nearby cracked up laughing.

  9. Many years ago, the firm I worked for was retained by the rock group Van Halen to seek a state-court temporary restraining order against a group of “John Doe” defendants — would-be sellers of counterfeit Van Halen posters and tee-shirts outside the grounds of the Astrodome, where the band was scheduled to perform as part of a world tour. The TRO permitted off-duty police officers hired on behalf of Van Halen to serve the TRO upon persons peddling the sham goods, and to confiscate said merchandise pending a temporary injunction hearing and eventual trial.

    A colleague of mine presented the TRO ex parte, and it was duly granted. And on the night of the concert, the off-duty officers duly seized thousands of tee-shirts and posters. Almost without exception, the counterfeit vendors would simply drop their swag and run like hell, but one of them calmly accepted the proffered copy of the TRO — and to the astonishment of all concerned, he then showed up in court, without a lawyer, at the temporary injunction hearing to demand the return of his bogus goods.

    He made the misjudgment of wearing a tee-shirt boldly stenciled “Van Halen Injunction Tour.”

    The presiding judge, Lynn Hughes (now a senior-status U.S. District Judge in S.D. Tex), was not amused. Sua sponte, he recessed the hearing and reset it for two weeks thence, directing the young man to show up with counsel and without the tee-shirt to show cause why he ought not be held in contempt of court.

    The young man showed up two weeks later with a lawyer and without the tee-shirt. His lawyer politely withdrew his client’s previous request for the return of the seized goods and, indeed, consented to the entry by agreement of a permanent injunction banning him from ever again selling anything remotely related to Van Halen.

    The Van Halen Injunction Tour was, in short, a complete and resounding success.

  10. I was in the courtroom for the oral arguments in GOOD NEWS CLUB VS. MILFORD CENTRAL SCHOOL DISTRICT. The audio files of the arguments are available online. As the first attorney starts giving his argument, Scalia jumps in and starts questioning him about whether he cited LEMON to the 2nd Circuit. Scalia ends the exchange with a comment that he is certain that the judge writing the opinion was aware of LEMON not because the attorney cited to it but because that same judge wrote the opinion in LEMON that the Supreme Court later overturned. The whole courtroom broke out in laughter. I remember how loud it was. In the audio file you can hear the laughter, but it does not sound as loud.
    The court was in good spirits after that. It looked like a lot of fun.
    https://www.oyez.org/cases/2000/99-2036

    1. Correction, LAMBS CHAPEL, not LEMON.

    2. Antonin Scalia
      Mr. Marcelle, did you cite Lamb’s Chapel to the Second Circuit?

      Thomas Marcelle
      Yes, Your Honor, quite extensively, and dissent as well said, Judge Jacobs said the case couldn’t be squared with Lamb’s Chapel.

      Antonin Scalia
      Lamb’s Chapel, if I’m correct, is not even cited in the Second Circuit’s opinion, is that right?

      Thomas Marcelle
      That’s correct, Your Honor.

      Antonin Scalia
      Isn’t even mentioned?

      Thomas Marcelle
      And I think the way they got around Lamb’s Chapel, Your Honor, was really by embracing a distinction that this Court rejected in Rosenberger, a distinction–

      Antonin Scalia
      I assume that the judge who wrote the opinion for the Second Circuit was aware of Lamb’s Chapel, not just because you cited it, but because it had reversed an earlier decision of his, isn’t that right?

  11. Great story, I hadn’t been aware of all this. I also love the shameless self-promotion and presumptuousness inherent to sending your book at all nine SCOTUS justices. King stuff.

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