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Hustler Magazine Held Not Liable For Damages in Teen’s Death

March 21, 1988 GMT

WASHINGTON (AP) _ The Supreme Court today refused to hold Hustler magazine financially liable for the death of a 14-year-old Texas boy who died during a sexual experiment.

The justices, without comment, let stand an appellate ruling that a $182,000 jury verdict against Hustler violated the magazine’s free-speech rights.

Troy Daniel Dunaway was found dead at his Houston area home on Aug. 7, 1981. His nude body was hanging by its neck in his bedroom closet, and at his feet lay an issue of Hustler.

The magazine was opened to an article, entitled ″Orgasm of Death,″ that dealt with a sexual practice called autoerotic asphyxiation - cutting off blood to the brain while masturbating.

The boy’s mother, Diane Herceg, and the young friend who discovered his body, Andy Vines, filed a wrongful-death lawsuit against Hustler.

The suit contended that the magazine article amounted to an ″incitement to lawless conduct″ and therefore should not enjoy the freedom of speech guaranteed by the Constitution’s First Amendment.

In a 1969 decision called Brandenburg vs. Ohio, the Supreme Court said speech aimed at sparking lawless action - such as inciting a riot - is not constitutionally protected and can be made a crime.

A federal jury awarded Mrs. Herceg and Vines $169,000 and $13,000, respectively, in damages, but the 5th U.S. Circuit Court of Appeals threw out the verdict last April 20.

Relying on the 1969 decision, the appeals court said, ″The crucial element to lowering the First Amendment shield is the imminence of the threatened evil. ... Even if the article paints in glowing terms the pleasures supposedly achieved by the practice it describes, no fair reading of it can make its content advocacy, let alone incitement to engage in the practice.″

In an unrelated case, the Supreme Court on Feb. 24 overturned a $200,000 award won against Hustler and its publisher, Larry Flynt, by evangelist Jerry Falwell.

The justices ruled in that case that public figures cannot win lawsuits based on ″emotional distress″ they suffer from satires or parodies if such spoofs cannot reasonably be believed to contain factual statements.

A Texas jury recently ordered Soldier of Fortune magazine to pay $9.4 million to the family of a woman whose husband hired her killer through a classified advertisement in the magazine. An appeal in that case is expected.

In the appeal acted on today, lawyers for Mrs. Herceg and Vines argued that the 5th Circuit court misapplied the Brandenburg decision.

″It seems self-evident that criminal prosecution of a speaker (which had occurred in the 1969 case) provides a greater threat to First Amendment values than a mere civil lawsuit,″ the appeal said.

The appeal urged the justices to provide guidance ″for striking a balance between First Amendment values and the equally important value of providing a seriously injured party with a remedy against the person whose conduct caused the injury.″

The case is Herceg vs. Hustler, 87-113.