They’re Making Me Defend Rush Limbaugh
I’ve made my opinion of Rush Limbaugh’s derogatory comments about Sandra Fluke fairly clear. They were crude and disgusting, and his apology was mostly self-serving. Additionally, I consider him to be mostly a negative influence on the conservative movement, the Republican Party, and American politics in general. I haven’t listened to him, at least not on a regular or voluntary basis, in years and have no intention of doing so at any point in the future. He’s managed to become very rich thanks to what he does but, kind of like Howard Stern, what he does adds very little that’s positive to American culture.
Having said all of that, I’ve got to say that I’ve become more than a little disturbed by some aspects of the anti-Limbaugh backlash that has resulted from the Fluke comments. The most prominent of these, perhaps, is the campaign that seems to have originated with Media Matters of America to get sponsors to pull their ads from Limbaugh’s show in the wake of the Fluke comments. By some counts, this campaign has resulted more than 50 national and local sponsors to pull their ads. Yes, such a campaign is within the First Amendment rights of the people behind it, but after pondering the matter for several days I kind of find myself agreeing with Bill Maher’s comments about this campaign:
“I got crap from both the left and the right this week because — OK, let me address the left first, because I found this more disheartening,” Maher said. “They were very mad at me because I tweeted that people like Rush Limbaugh — who I absolutely disagree with, I’ve never said a good word about him, I did a whole monologue about what an asshole he was only a week ago — but I said I don’t like it that people are made to disappear when they say something or people try to make them disappear when they say something you don’t like. That’s America. Sometimes you’re made to feel uncomfortable, OK?”
Maher proceeded to attack Limbaugh, but warned of the potential chilling effect the situation would have for speech.
“Can we put this in perspective?” Maher said. “No one died. A guy made a bad joke, a bad joke because a — it was a disgusting sentiment that he was evoking and also because it wasn’t even a joke. It’s a stupid fat fuck who is not funny and it annoys me that people who cannot keep two disparate thoughts in their own mind lump me in together with him and say I’m defending him. I’m not defending him. I’m defending living in a country where people don’t have to be afraid that they might go out of the bounds for one minute. Do we all want to be talking like White House spokesmen?”
“Let me give you a quote from the ACLU, liberals,” he said. “[T]he ACLU — what more liberal bastion is there than that? ‘It is easy to defend freedom of speech when the message is something that many find reasonable, but the defense of freedom of speech is more critical when the message is something that most people find repulsive.’ We’re looking at you, Rush Limbaugh. But you know what? I would rather put up with Rush Limbaugh and live in a country where we all do have freedom of speech. And the people who I’ve heard say, when they put pressure on his sponsors, the system is working. No it’s not. That’s the system being manipulated. I lived through that 10 years ago.”
Maher has a point. As a legal matter, the First Amendment only applies to attempts by government entities to suppress speech. For that reason, the actions of private organizations to pressure Limbaugh’s advertisers — or Bill Maher’s in the years when he was still on commercial television — are entirely protected and no reasonable person would suggest that they should be banned. At the same time, though, there is an ethos to the First Amendment that suggests that efforts to suppress the speech of others should be avoided. There’s an old idea called the marketplace of ideas that says that all forms of speech should be allowed to flourish, and that the people themselves are the best judge of the value of that speech. Even offensive speech should be protected by the law, the argument goes, because the only thing that suppressing it accomplishes is to drive it underground. In the specific case of Rush Limbaugh, the campaign against advertisers seems to me to be misplaced. As long as Limbaugh has millions of listeners there will be companies willing to advertise on his show. Instead of targeting the advertisers, the target should be the audience. Persuade them that he’s wrong, that’s what a battle of ideas is all about.
The advertiser boycott, though, is minor in comparison to some of the other more alarming ideas I’ve seen pop up in response to the Fluke controversy.
Rush Limbaugh has drawn the ire of celebrity lawyer Gloria Allred, who sent a letter to the Palm Beach County state attorney requesting an investigation into whether the popular radio host should be prosecuted for calling a law student a “slut” and “prostitute” last week.
“Mr. Limbaugh targeted his attack on a young law student who was simply exercising her free speech and her right to testify before congress on a very important issue to millions of American women and he vilified her. He defamed her and engaged in unwarranted, tasteless and exceptionally damaging attacks on her,” Allred told POLITICO Friday afternoon. “He needs to face the consequences of his conduct in every way that is meaningful.”
In a letter dated March 8, Allred, writing on behalf of the Women’s Equal Rights Legal Defense and Education Fund, requested that Palm Beach County State Attorney Michael McAuliffe probe whether the conservative radio personality had violated Section 836.04 of the Florida Statutes by calling Georgetown University law student Sandra Fluke the two derogatory words.
The statute stipulates that anyone who “speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity” is guilty of a misdemeanor of the first degree. Allred explained that the statute recently came to her attention as having never been repealed, and that it could very well apply to Limbaugh’s remarks as his show is broadcast from West Palm Beach.
It is now entirely up to the prosecutor to exercise his discretion on whether there will be a prosecution. McAuliffe did not immediately respond to a request for comment.
First of all, on behalf of lawyers everywhere I just want to apologize for Gloria Allred. I’m honestly not even sure what she does for a career anymore other than fly around the country looking for the next high profile case involving sexual allegations of some kind. You might remember the last time she showed up was when Sharon Bialek held her odd press conference alleging that Herman Cain had attempted to grope her in a car in Washington, D.C. some years ago. When there’s a high profile case, there’s no more dangerous place on the planet than to stand between Gloria Allred and a television camera.
Second, as Eugene Volokh details in a post at The Volokh Conspiracy, it’s fairly clear that the Florida statute under which Allred argues for Limbaugh’s prosecution is unconstitutional not just under the First Amendment, but under the Equal Protection Clause of the 14th Amendment:
[T]he Florida criminal statute, which explicitly applies only to accusations about women and not men, almost certainly violates the Equal Protection Clause doctrine that bans most forms of sex discrimination. (See, e.g., Mississippi Univ. for Women v. Hogan (1982).) This doctrine has long been used to invalidate laws that ostensibly favor women but are based on, and perpetuate, sex-based norms of proper behavior; and at least two cases, Ivey v. State (Ala. 2001) and Rejent v. Liberation Pubs. (N.Y. App. Div. 1994), have specifically concluded that such sex-based rules in libel law are unconstitutional — here’s what Rejent said:
It is, as one commentator has noted, ‘quite blatantly sexist and discriminatory, and is based on outmoded assumptions about sexual behavior. Sex-based classifications very similar to the ‘unchastity of a woman’ rule have been struck down by the United States Supreme Court as violative of the equal protection clause…. The Restatement (Second) takes a laudable lead in this area, modifying the traditional rule to a sex-neutral standard that renders any imputation of ‘sexual misconduct’ by a man or woman slanderous per se.
And since I quite doubt that Florida courts would be willing to cure the discrimination by broadening the criminal law to cover accusations against men — courts in most states generally aren’t allowed to essentially criminalize behavior that the legislature hasn’t criminalized — I think the Florida statute would have to be struck down as an Equal Protection Clause violation, leaving it to the legislature to decide whether to reenact a sex-neutral statute.
I’ll leave the legal analysis on this one to Professor Volokh, and just say that anyone who responds to an offensive comment by a radio talk show host by saying he should be criminally prosecuted is either someone who has no respect for the First Amendment, or someone who will say anything necessary to get attention once a microphone is thrust in front of them. Given that this is Ms. Allred we’re talking about, I’ll let the reader come to their own conclusion. However, I have to say as an attorney that it’s absolutely irresponsible for an officer of the court to suggest that the power of the state should be used to suppress a person’s freedom of speech in this manner. Yes, what Limbaugh said was disgusting. But saying something disgusting shouldn’t be a crime.
Along the same lines of Allred’s call for criminal prosecution is an Op-Ed at CNN by Jane Fonda, Robin Morgan, and Gloria Steinem calling on the Federal Communications Commission to ban Rush Limbaugh from the airwaves:
Limbaugh doesn’t just call people names. He promotes language that deliberately dehumanizes his targets. Like the sophisticated propagandist Josef Goebbels, he creates rhetorical frames — and the bigger the lie the more effective — inciting listeners to view people they disagree with as sub-humans. His longtime favorite term for women, “femi-nazi,” doesn’t even raise eyebrows anymore, an example of how rhetoric spreads when unchallenged by coarsened cultural norms.
To be honest, the mention of Goebbels should be enough to send this column into laughably silly, or at least Godwin’s Law, territory. Say what you will about Rush Limbaugh, but Goebbels he is not and, as with every other attempt to analogize a contemporary political dispute by comparing one’s opponents to the most evil regime in human history, the point alone makes the rest of the argument exceedingly silly. Nonetheless, there is more to consider:
Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license. In keeping with this obligation, individual radio listeners may complain to the FCC that Limbaugh’s radio station (and those syndicating his show) are not acting in the public interest or serving their respective communities of license by permitting such dehumanizing speech.
The FCC takes such complaints into consideration when stations file for license renewal. For local listeners near a station that carries Limbaugh’s show, there is plenty of evidence to bring to the FCC that their station isn’t carrying out its public interest obligation. Complaints can be registered under the broadcast category of the FCC website: http://www.fcc.gov/complaints
This isn’t political. While we disagree with Limbaugh’s politics, what’s at stake is the fallout of a society tolerating toxic, hate-inciting speech. For 20 years, Limbaugh has hidden behind the First Amendment, or else claimed he’s really “doing humor” or “entertainment.” He is indeed constitutionally entitled to his opinions, but he is not constitutionally entitled to the people’s airways.
It’s time for the public to take back our broadcast resources. Limbaugh has had decades to fix his show. Now it’s up to us.
Here’s how you do that. Don’t like the show? Don’t listen to it. There, you’ve solved your problem. Using the heavy hand of the state to ban someone from the airwaves is not only offensive to the First Amendment, it strikes me as being entirely un-American. The arguments about limited spectrum are absurd given the world that we live in, and there is a generations worth of Supreme Court opinions that make clear that what this Op-Ed suggests is entirely unconstitutional. The argument that “[t]his isn’t political” is absurd and silly. These activists are targeting Limbaugh precisely because of his political opinions, and it’s those opinions that are the reason they want the state to shut him up. Agree with him or disagree with him, that’s just wrong.
Rush Limbaugh is loud, offensive, and abrasive. I don’t like him. However, to borrow a phrase, I will defend to the death his right to say what he says. And so should anyone else who believes in free speech.