First Amendment and Rush Limbaugh


Last week, Georgetown law student Sarah Fluke testified in favor of mandating that health insurance coverage include payment for contraceptive use.  Intelligent discussion regarding the issue of whether or not such coverage ought to be mandated vanished in the kerfuffle that ensued when Rush Limbaugh characterized Fluke as a slut and a prostitute.  Limbaugh did not add any intellectual firepower to the debate regarding mandated contraception usage when he stated:

What does it say about the college co-ed Fluke, who goes before a congressional committee and essentially says she must be paid to have sex?  What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex. She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex.

Notice that nothing in this quotation addresses the underlying issue of whether the government should mandate insurance coverage of contraception. Limbaugh slurs or slanders the reputation of the speaker.

In response, according to a USA Today article, more than 30 national and local advertisers pulled their ads from Limbaugh’s radio show, which is exactly the way the way the Capitalist system should work.  Corporations are free to allocate their advertising budget as they wish, and if the spokesman they hired engages in acts of moral turpitude, the corporation is free to take its advertising dollars elsewhere.  When Tiger Woods crashed his SUV and word of his infidelities came into the public light, for example, he lost sponsorship.

Recently I advocated a voluntary boycott of Limbaugh and any corporation who chooses to support Limbaugh.  I have not appealed to the government to limit or censor Limbaugh, and yet some folks have asserted First Amendment arguments on Limbaugh’s behalf against this boycott I support.  As a Libertarian who majored in Constitutional History in undergraduate and studied the Constitution and free speech issues in law school, I consider myself a staunch defender of our First Amendment rights.  In the case at hand, however, the First Amendment does not bear on Limbaugh’s attack on Fluke; moreover, it does not limit my right to advocate a boycott of Limbaugh’s radio show.

The First Amendment was enacted to protect the right of individuals to speak out against the government.  The protections granted by the First Amendment build a boundary against the federal government’s right to infringe on individual liberty.  To wit, it provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Please note the word “Congress.”  What this means is that the legislative branch may not pass laws that limit what individuals say or write.  The First Amendment does not apply to limits individuals may place on speech.

As an individual, therefore, I am free to walk away from someone who yells at me.  If someone walks into my home and insults me, I am free to show him or her to the door.  If someone writes “You are a slut” on my Facebook Wall or my blog, I have every right to delete that utterance, and in the process of deleting it, I am not infringing on that individual’s First Amendment rights.  Only a governmental actor can limit our freedom of speech.  When I urge Capital One to take its advertising money somewhere other than Limbaugh’s radio show, I am not violating Limbaugh’s First Amendment rights because I am a private actor, and so is Capital One.  Private citizens simply cannot cause a First Amendment cause of action unless they act under the color of law.

Other bodies of law apply to speech between or against private actors; namely, defamation law.  Under the law of defamation, “an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  See 1977 Restatement (Second) of Torts § 566, Comment a.  Defamation law developed as legal means for individuals to protect their good name and to provide a means for redressing harm caused by untruthful and hurtful statements such as the ones made by Limbaugh referenced above.  See, e.g., Milkovich v. Loran Journal Co., 497 U.S. 1 (1990).  To put it simply, you can talk about someone else, but they can sue you in civil court for defamation if you say things that are both hurtful and untrue.

Limbaugh called Fluke a “slut and a prostitute. “ In other words he attacked her reputation and made allegations that would cause harm to her reputation in the community.  See The First Amendment and the Fifth Estate 526, The Foundation Press (1986).  There is a principle of “fair comment” which would allow Limbaugh to make statements of opinion on matters of legitimate public interest if these opinions are based on true statements of fact.  In the Fluke case, Limbaugh does not know that Fluke is a slut or a prostitute; in fact, he has no means of determining the truth of the insulting words he uses.  From an intellectual standpoint, Limbaugh committed a brazen act of hit and run on an innocent stranger’s reputation.  His words constitute a calumny and represent speech of the lowest sort: baseless, insulting and reckless.

As a blogger and a mother, I have the right to advocate that we stop listening to Limbaugh.  When I ask corporations to take their advertising dollars elsewhere, I am not “censoring” Limbaugh.  Censorship consists of a governmental entity barring an individual from expressing herself.  Limbaugh is free to continue talking, just as we as citizens may urge the corporations whose halls and brands we frequent and acquire to take their financial support of talk show hosts elsewhere.  Ironically, such a voluntary boycott is neither defamatory nor a violation of the First Amendment.

What do you think?  I love to hear from you.  And the First Amendment is one of my favorite topics.

18 Comments on “First Amendment and Rush Limbaugh

  1. What a well thought out post, El! I’ve had several discussions with my girls about Limbaugh, his comments and the power we have as individuals to respond to his vile comments (as well as those made by the actress Patricia Heaton, whose ABC sitcom I’ll be certain to keep turned off in this house!) Needless to say, (I hope!) I’ll be sharing this with my girls. Really well done!

  2. I had to take a break from writing (and pretty much all thinking this week) but I wanted to tell you how much I thought this post hit all the right notes.Thank you! I’ll write more later about The First…still putting my head back together.

  3. Kelly,
    Thank you for checking in — I was wondering where you were and I look forward to your return. I thought about you this morning in a concerned sort of way. Oh, and thank you re the First Amendment post.

  4. The first amendment prevents the government from limiting speech (with some exceptions). It does not, however, protect us from the social & economic consequences of our utterances.

  5. I love it when you talk lawyer 🙂 I’m with you 100%, and I wonder if Sarah has grounds for slander?

  6. LOL Cindy, and thank you! My husband (a lawyer for the SBA, not a free-speech specialist and gah! a Conservative Republican) argued at lunchtime with me re the slander claim. I think Sarah definitely has a claim and my man disagreed and then admitted he had been listening to Rush on the radio. Sigh. xo,

  7. I still need a definition for dooj. Since you called me one and all that . . . smirking sweetly at you. And no, I cannot listen to him either, grrrr. One of my friends called him a “doodoohead,” and as 3rd-grade as that is, it cracked me up.

  8. Great piece. You are way smart. I go right to anger and needed to read a bunch of smart calm people write about this. Thanks El!

  9. I absolutely agree! love this post.

    sadly, the companies that “pulled” only asked for their advertisements to not be aired during his show … they still support the stations that broadcast him and he still gets payed. that the part I wish we could change. I don’t know what percentage of his listeners actually agree with him, but I do know there is a very large percent that listens to him only because they can’t believe he actually has the nerve to spout the filth that he does!

  10. the child left behind: thank you so much! Ah yes, that is a sad result. I don’t understand why Rush is so popular; then again, I read today that Lady Gaga has 20 million followers on Twitter.

  11. I am torn between the kerfuffle as having granted Rush the Entertainer exactly what he wants (more attention) versus Rush the Political Activist who deserves to be exposed for the phony he really is. There are so many reasons to boycott Rush, but maybe none more poignant than his comments about the LRA in Uganda. I think the Fluke thing was boorish, ignorant, rude, etc. but siding with the LRA is truly giving a bear-hug to evil. The man (Rush) is a sociopath with a microphone. The only rational response is to boycott him out of the market.