Fox News' senior judicial analyst Andrew Napolitano said Thursday that S.E. Cupp likely wouldn't have a case against Hustler magazine for publishing a fake, sexually explicit image of her.
"In my opinion, this is protected satire, as it is actually less lurid than what Hustler did to the late Jerry Falwell and which the Supreme Court found was not actionable," Napolitano wrote in an email to The Blaze, referring to the 1988 decision in Hustler Magazine v. Falwell. Hustler publisher Larry Flynt cited the case Wednesday in his defense of the photo.
Napolitano said Cupp might be able to find a federal judge who would allow the case to go to a jury, "but in doing so, this doctored photo would be re-published; and any jury verdict in her favor would no doubt be reversed on appeal."
The Falwell case arose after the magazine published a piece that said the pastor had engaged in a drunken, incestuous encounter with his mother in an outhouse. The court held in an 8-0 decision that parodies of public figures were protected under the First Amendment as long as they could not be reasonably taken as true.
Robert Drechsel, a media law expert at the University of Wisconsin at Madison, told The Blaze it's precisely because Hustler's photo of Cupp is so over the top that she wouldn't have standing to sue for libel or intentional infliction of emotional distress.
Hustler's disclaimer beside the photo that “no such picture of S.E. Cupp actually exists" helps, Drechsel said, but does not automatically immunize the magazine from a lawsuit by itself. What matters is how people take it.
"The irony is, it's because it's so outrageous that nobody would take it seriously," Drechsel said.
Cupp said during an appearance on ABC's "The View" Thursday she probably would not pursue legal action.
“This is a First Amendment issue, Larry Flynt does this professionally,” she said.
Legality aside, Kelly McBride, a journalism ethics instructor at the Poynter Institute, said there are ethical considerations when publishing such a photo -- considerations she suspects Hustler, as a pornographic magazine, doesn't subscribe to.
Such considerations, McBride said, begin with the purpose of the image.
"I suspect Hustler was shooting for commentary, not journalism. But they may have been shooting for influence, as in they are trying to influence how people think about S.E. Cupp," McBride wrote in an email to The Blaze. "You have to balance that against the possible harm. In this case there is a harm to Cupp, as well as a harm to our ability to have a civil discourse in this democracy."
She added, "I doubt Hustler went through any of this process, because I don't think they are interested in any sort of common good."