First Amendment and Rush Limbaugh

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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.