How Not to Fight a Bully

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Allred Is All Wrong About Prosecuting Limbaugh

The Limbaugh debacle keeps rolling. The number of advertisers to have abandoned his show has risen to 161 (according to Think Progress) or maybe 98 (if you prefer MSNBC), but either way, the chorus of on-line outrage generated by the sexist smear of Sandra Fluke has coalesced into the sort of loose-knit coalition that greeted the decision of the Susan G. Komen foundation to pull its funding from Planned Parenthood in January, and ultimately forced its reversal.

Limbaugh apologized – after a fashion – on March 3rd, but that seems to have done little to stanch the hemorrhage of sponsors. A timeline and article over at Media Matters underscores that the majority of defections came post-apology. Tuesday, Premier Advertising, which syndicates the show, took a two week hiatus from placing national advertising on the show, the “barter spots” which local stations run in exchange for the right to air Limbaugh otherwise free of charge.

With this much blood in the water, you might have expected sharks, and if you did, you were not disappointed. On March 8th, “celebrity/attorney/feminist Gloria Allred” entered the fray, when she wrote to the County Attorney in Palm Beach County, Florida, demanding that Limbaugh be prosecuted for his remarks against Fluke.

Allred alleged that Limbaugh, whose show originates in Palm Beach County, violated the Florida statute which makes falsely impugning the chastity of a woman a misdemeanor. Because Limbaugh called Fluke both a slut and a prostitute, and later denied that either accusation was true, he was self evidently guilty of criminal defamation, according to Allred, whose officious call for prosecution can be read here.

This is not the first time that Gloria Allred has interjected herself into a celebrity dust-up without a client to represent.

After Michael Jackson dangled his child from a Berlin hotel balcony, Allred, who was 5,700 miles away at the time, and who represented no-one involved, demanded that Santa Barbara County authorities strip Jackson of custody. Now, she is calling for prosecutors to charge Limbaugh under a law – Fl. Stat. § 836.04 – adopted in 1883.

To give some perspective, that was the same year in which the Supreme Court decided The Civil Rights Cases, which refused to apply the then-new 13th and 14th Amendments to bar race discrimination by private parties. That decision laid the groundwork for Plessy v. Ferguson, decided sixteen years later, which sustained “enforced separation of the races” in railroad cars, and provided the legal basis for segregation for more than seventy years.

This is not an idle trip down memory lane. It is meant to underscore the degree to which Allred is championing prosecution under a law enacted in what, for civil rights attorneys, were the dark ages; a prehistory, in which almost every working concept around which modern civil rights law is shaped had yet to take form.

The First Amendment is no exception. Ratified December 1791, it enjoyed a brief first flowering in the early 19th century, but remained largely dormant as a source of constitutional doctrine until the First World War. (Those interested in its long slumber could do worse than to read the pioneering work of the late Leonard Levy.)

The statute that Allred suggests be invoked against Limbaugh was adopted eighty years before the Supreme Court, in New York Times v. Sullivan, reconciled state defamation with the protection of public discourse afforded by the First Amendment. The statute provides:

Defamation.—Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The law of defamation has long had a special concern for the sexual reputations of women. At common law, there were only four ways to commit defamation per se, one of which was to falsely malign a woman’s chastity. How such a rule fits into an evolving ethos of sexuality is a very good question, about which much has been written.

Whatever the outcome of that discussion, the suggestion that Limbaugh be prosecuted is asinine, for five reasons.

First, the law of defamation has evolved a constitutional dimension since 1883, which would complicate – and probably defeat – any effort to prosecute him under the statute at issue.

After Sullivan, a whole jurisprudence of “constitutional defamation” arose, limiting liability in cases involving a whole new stable of plaintiffs, including “public figures” and “limited purpose public figures,” and affording enhanced protection to even false statements made in the course of discussing matters of widespread public concern.

The takeaway here is the notion of “actual malice,” a term of art that has nothing to do will spite or ill-will. For a statement governed by the actual malice test to be defamatory, it must be uttered (verbally or in print) as a known falsehood, or with “reckless disregard for the truth.”

Fluke may already be a public figure; she is at least a limited purpose public figure for purposes of the controversy surrounding her testimony. And there is no question that her testimony itself, and the related controversy, represent matters of legitimate public concern. Liability in such cases requires actual malice.

Section 836.04 does require the state to prove malice in order to obtain a conviction, and to avoid thumping chests with the First Amendment, a Florida court would probably interpret that as meaning “actual malice,” in the Sullivan sense.

That said, Limbaugh would have a solid defense in claiming that his language was not literal but figurative, intended as hyperbole, and represented his opinion in any event. What is a “slut,” after all? The inherent subjectivity of the term would make an opinion defense robust. And the case for “prostitute” being hyperbole, in the context in which that allegation was uttered, would be equally strong.

Now, imagine the case at trial.

The second reason not to prosecute Limbaugh is that truth is a complete defense to a charge of defamation. It is a defense that would put the question of Fluke’s sexual habits squarely at issue.

The law shields victims of sexual violence from an airing of their erotic past. But the question of Fluke’s chastity – and whether it was wrongly sullied – would go to the heart of Limbaugh’s prosecution. Did Gloria Allred bother to check with Sandra Fluke before she suggested making her sex life a matter of protracted public inquiry?

Fluke has recourse to the courts in a civil defamation action, if that is the path she chooses to follow. She doesn’t need – and I am willing to bet she doesn’t want – Gloria Allred and the State of Florida making that decision for her.

Third: Such a prosecution would, of course, turn Limbaugh into the victim in this sordid saga, a role he would doubtless cherish, but one which he in no way deserves.

As I noted last week, the First Amendment is not implicated by the withdrawal of sponsors now unwilling to be affiliated with Limbaugh and his ugliness. Prosecuting the man for defamation would, by contrast, put free speech advocates and a certain measure of public sympathy, on his side. I really don’t want to end up rooting for Rush, and would appreciate Gloria not steering this sideshow in that direction.

Fourth: It is past time to retire laws which criminalize locker room slurs against women. Those proscriptions carry an implication that women are fragile beings, whose sensibilities need to be protected by the courts. They implicitly stigmatize sexual activity outside marriage, by portraying it not only as immoral, but as so uniquely immoral that its mere implication should be a crime.

Worse, they portray, with Victorian fustiness, women who engage in extramarital sex as somehow inherently damaged.

It is worth remembering the other ways in which libel per se could be committed at common law. The tort of libel was complete – without the need to prove damages – in only a handful of cases. In addition to falsely impugning the chastity of a woman, you could commit libel per se by falsely accusing someone of having a sexually transmitted disease, of having committed a crime, or of being incompetent in his profession.

In short, libel per se was reserved for life-shattering allegations that rendered their victims either unemployable or unmarriagable. Do we really want to keep premarital sex on that short list of vices?

Fifth: There is just no need to prosecute even vile speech, and doing so strikes at the heart of the First Amendment.

If the point Allred is trying to make is that Limbaugh is a bad man, whose ugly remarks should not go unpunished, she is a week late to the party. Limbaugh has suffered a massive defection of sponsors. His remarks have been dissected, almost universally criticized, and held up as an example of everything contemptible in contemporary civic discourse.

With the speed and suppleness that only the Internet can deliver, his past outbursts have been chronicled, footnoted and put on display to hammer home the point that what happened to Sandra Fluke was not an aberration. In short, Limbaugh has paid for his attack on Fluke’s reputation in kind. His own reputation has suffered grievously.

The modern doctrine of Free Expression was born in the aftermath of the First World War, during the first Red Scare, in which states and the federal government rushed to criminalize pacifist and socialist rhetoric. At the time, the legal consensus was that the state was free to punish speech which tended toward subversion and unrest, in order to prevent sedition from blossoming into revolution.

In a series of early opinions, Justices Holmes and Brandeis evolved a different view – known as the clear and present danger test – which limits the state to punishing only that speech which poses a (surprise) clear and present danger of inciting imminent lawlessness, and is intended to do just that.

That doctrine had its best early exposition in the concurrence filed by Justice Brandeis in Whitney v. California, a case in which the Supreme Court upheld a conviction under a California statute which made it a crime to preach or incite terrorism “as a means of accomplishing a change in industrial ownership.” Brandeis voted to sustain the conviction, but only because, in his estimation, the climate in Alameda County in 1919 made the East Bay ripe for Red October.

I have a plea.

Every time someone suggests prosecuting someone else for something the latter has said, turn to the Brandeis concurrence in Whitney, and read it to him aloud.

Failing that, read it yourself, if you haven’t already.

The Brandeis concurrence is to the First Amendment what the Sermon on the Mount is to Christianity. It is poetic, concise, compelling, uplifting, and a shining and beautiful synopsis of all that is good and right and true. Here’s part:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

The condemnation of Rush Limbaugh has proven once again that the best remedy for bad speech is more speech.

Should Limbaugh be prosecuted?  I cannot see how a lawyer, or a feminist could argue for that result. But then again, Gloria Allred wears three hats.

Cleveland Heights, 14 March 2012