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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

Deaths Elsewhere

Evgeny Morozov 0, Carly Simon 1 – These Are the Good Old Days

Messr. Flâneur - Based on Ten Minutes of Online Research and Courtesy of the Toulouse Lautrec Foundation

The nice thing about reading the New York Times is that you get an education in the process. Until the Sunday before last, for example, my grasp of French social pretensions in centuries past was limited to boulevardiers, salonnières, Beaus Brummel, an entire cuisine, a few score sommeliers and maitres d’ and one exchange student in high school. I lived in pitiful ignorance of the flâneurs but, thanks to the Grey Lady, no more.

Evgeny Morozov brought me to speed on February 4th. His editorial in the Times noted the coming demise not of the last Flâneur, who has long since shuffled off this mortal coil, but of the cyberflâneur, a latter days incarnation of the same spirit, who began to graze the Internet around the fin of the last siècle, and whose herd, it seems, is in danger of thinning. The news made me feel old and out of touch. I had never met a cyberflâneur, and here they were, on the way out.

The flâneur himself was the model of refinement, an eclectic sampler of the beautiful and the varied. I cannot help but him imagine him stepping, lean and graceful as a crane, from the green and white bottle of talc that sits beside my barber’s mirror.

Thanks to the French poet Charles Baudelaire and the German critic Walter Benjamin, both of whom viewed the flâneur as an emblem of modernity, his figure (and it was predominantly a “he”) is now firmly associated with 19th-century Paris. The flâneur would leisurely stroll through its streets and especially its arcades — those stylish, lively and bustling rows of shops covered by glass roofs — to cultivate what Honoré de Balzac called “the gastronomy of the eye.”

While not deliberately concealing his identity, the flâneur preferred to stroll incognito. “The art that the flâneur masters is that of seeing without being caught looking,” the Polish sociologist Zygmunt Bauman once remarked.

The cyberflâneur is just as hip, a diffident browser who roams the web, following his eye like a Toucan Sam debeaked in an industrial accident, with no agenda, no destination and no particular place to go. Morozov again:

The idea of exploring cyberspace as virgin territory, not yet colonized by governments and corporations, was romantic; that romanticism was even reflected in the names of early browsers (“Internet Explorer,” “Netscape Navigator”).

Online communities like GeoCities and Tripod were the true digital arcades of that period, trading in the most obscure and the most peculiar, without any sort of hierarchy ranking them by popularity or commercial value. Back then eBay was weirder than most flea markets; strolling through its virtual stands was far more pleasurable than buying any of the items. For a brief moment in the mid-1990s, it did seem that the Internet might trigger an unexpected renaissance of flânerie.

Morozov is exactly wrong, except to invoke the flea market, with its shabby, picked over eclecticism. The fractured, quirky web of 1995 was less Parisian arcade than small town thrift store. There is a difference between wondering through an endless cornucopia of content and wandering what to make of a random assembly of odd lots.

Does anyone else remember Geocities or CompuServe as “stylish, lively and bustling?” No one, I suspect, who isn’t depending of that characterization to lay the groundwork for a shaky analogy meant to make the Internet we inhabit seem coarse and philistine. Morozov has a bone to pick with a certain twenty-something billionaire, but the charge he has chosen to level does not fit the facts.

While I quickly found other contemporaneous commentators who believed that flânerie would flourish online, the sad state of today’s Internet suggests that they couldn’t have been more wrong. Cyberflâneurs are few and far between, while the very practice of cyberflânerie seems at odds with the world of social media. What went wrong? And should we worry?

I am worried that anyone would take seriously the comparison between Mark Zuckerberg and Baron Haussmann. The later was charged by Napoleon III with the most ambitious act of urban renewal of its age. Over thirty years, Haussmann, armed with geometry and sometimes cannon, cut the network of avenues, boulevards, squares and focal points that give modern Paris its character and shape. If you are like me, you imagine the dandy depicted above strolling the grand promenades of that city. Plainly the New York Times did, just look at the illustration it gave Morozov’s opinion piece. But you would be wrong. The Paris of Haussmann is precisely the development against which Morozov inveighs.

The city through which Haussmann cut his boulevards was a medieval warren, a sprawling amalgam of narrow streets and countless alleys. The imposition of geometric order on that was more than just a grand harmonizing aesthetic vision. In the wake of 1848, the boulevards and avenues that bisected the city vouchsafed its rulers the ability to rapidly deploy large bodies of troops in organized formations, ensuring political order as well.

It is wrong to compare the Internet of 1995 with the Paris of 1855 on a number of levels. The latter was already a great city, not a fledgling virtual community, for centuries the center of a great nation and sometimes empire, an urban crossroads that was nearing the end of its second millennium.

The Web of 1995 was nothing like that. It was a slowly connecting network of isolated frontier towns, growing together but still very much separated by the lack of bandwidth, the lack of speed, and the lack of a real reason for anyone to go there.

The flâneurs, we are told, “had all the time in the world: there were reports of flâneurs taking turtles for a walk.” We are invited to image the cyberflâneur, leashed to his 1,200 baud turtle, savoring the virgin web in demitasse sips.

But really, what was there to savor in the age of dial-up and bulletin boards? The pilgrims in that wilderness may have been drawn by the novelty of the medium, and its potential. But the offerings?

The reason the flâneur is “now firmly associated with 19th-century Paris,” and not the Provo of 1952 is because the “gastronomy of the eye” depended upon what the former could offer and the latter did not, a critical mass of culture, talent, learning and commerce drawn from the ends of the Earth and compressed within the confines of a finite space. Like the Internet, in 2012.

Aiming his own cannon at Facebook, Morozov warns:

Everything that makes cyberflânerie possible — solitude and individuality, anonymity and opacity, mystery and ambivalence, curiosity and risk-taking — is under assault by that company. And it’s not just any company: with 845 million active users worldwide, where Facebook goes, arguably, so goes the Internet.

The trouble is that everything that makes cyberflânerie worthwhile depends on a web fully populated by users with a diversity of interests, talents and obsessions as broad as human experience. Yes, the internet today is useful, and something to which we can turn for practical information and not just indulgent browsing. But that hardly negates the fact that the fields of content through which we can browse have expanded to the edges of human experience, and that the Internet has become what Paris, London, New York and few other places were in the 19th century – ganglions of information, crossroads of culture, the universality of which permitted collaboration, derivation and innovation like nowhere else.

Morozov never explains how the randomness and potential for surprise inherent in the Web, in all its vastness, will be undermined because Facebook has embraced a model of social browsing that encourages the user to share her own random walks with anyone who cares to hear. I am grateful for a way to share what I experience with those whose interest might be similarly piqued. But I am not compelled to share, nor to follow in their footsteps. Opacity, solitude and ambivalence are still there for the taking. Anyone who has lost an evening to a random walk through Wikipedia knows just what I mean.

If Morozov is right, something (the Internet) that did not exist in my prime (May 1988, for those of you keeping track) has now outgrown its golden age, and before long, I’ll be rambling on about what I saw on a black and white screen in my youth. At least my grandfather got to watch prize fights in bars. For me, the golden age was Prodigy.

Cyberflaneurs on an Outing, Circa 1998

But Morozov is wrong. He has constructed a sentimental past wistful for an imagined future that never came to pass. Mourning the passing of the cyberflâneur is like waxing nostalgic for the lost steampunk zeppelins. Surely such a thing was inevitable, and yet . . .

Billions now turn daily to the Internet as a means of edification, relaxation, social interaction, and knowledge. There is more than a slight note of elitism in mourning the loss of the day in which the Web was the province of a curious few, an avant-garde of adventurous dilettantes with nothing better to do than wile away the hours perusing the pickings on the fetal Ebay. The Internet is too big, too global, too common to be cool anymore. Too much a part of everyday life to validate the smug self-satisfaction of the sort of people who colonized it. It seems that colonists always resent the new arrivals. In America, in the latest warehouse block to gentrify, and now online.

So shed a tear for the lost Web, vanished in the impressionistic mists of a hazy golden age. It was our youth. Our Paris. Our moveable feast. No, mon ami, we will never be young again, but we’ll always have Prodigy. Au revoir cyberflaneur. This world was never meant for one as beautiful as you. Now excuse the rest of us. We have kitten videos to post on Facebook.
Cleveland Heights, 16 février 2012