Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:
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 ….
Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.
1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort. But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.
Thus, for instance, say that A asserts that B is guilty of “blackmail.” Blackmail is a crime, and accusations of crime are generally actionable libel. But if in context it is clear that the word is “rhetorical hyperbole, a vigorous epithet used by those who considered [B]’s negotiating position extremely unreasonable,” then the accusation is constitutionally protected opinion — it is basically an assertion that B’s accurately described conduct is morally similar to blackmail, a statement of opinion (and perhaps clearly understood hyperbole). So the Court held in Greebelt Coop. Pub. Ass’n, Inc. v. Bresler (1970).
Limbaugh’s saying that Fluke’s testimony “makes her a slut” and “makes her a prostitute” falls into the same category: Listeners would understand is as “rhetorical hyperbole, … vigorous epithet[s] used by [Limbaugh,] who considered [Fluke’s advocacy] extremely unreasonable,” an assertion (however logically unsound, in my view) that Fluke’s demands are morally similar to a prostitute’s insistence on getting money for sex. That is a statement of opinion and constitutionally protected.
[UPDATE: Some comments led me to conclude that I should elaborate on this, so I added the following paragraph.] The same is so for the “slut” claim, for a related reason: Limbaugh isn’t claiming any private knowledge of Fluke’s number of sexual partners; he is simply expressing his opinion that people who are as concerned about contraceptive costs as Fluke are probably sexually promiscuous, and that Fluke fits that mold. Reasonable listeners would understand that as an opinion expressing a generalization about how people tend to behave. To borrow an analogy from Restatement (Second) Torts § 566 cmt. c ill. 4, “A writes to B about his neighbor C: ‘He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.’ The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation.” In the illustration, the statement is seen as an opinion about what to infer from the facts, and is thus not actionable; that is even more clearly true as to the statement that, “What does it say about the college co-ed Sandra Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex, what does that make her? It makes her a slut, right?”
Milkovich v. Lorain Journal Co. (1990) suggests that the First Amendment doesn’t fully constitutionalize the § 566 principle. But I think that Limbaugh’s broad generalization-based inference — and one that uses a term, “slut,” that is itself so vague and opinion-laden, given that it basically means “more sexual partners than I think is proper” — would in context be seen as constitutionally protected opinion and not the sort of particularized fact-based accusation at issue in Milkovich. And in any event, as a state law matter, Florida courts have apparently adopted the § 566 cmt. c approach. (See, e.g., Stembridge v. Mintz (Fla. Ct. App. 1995).)
If Limbaugh had called Fluke “prostitute” or “slut” in a different context, in which he was asserting that she actually was paid money for sex in a normal prostitution transaction, or that he knew that she actually had sex with many partners, then it might well be actionable. But I don’t think that this is how Limbaugh’s statements would be perceived by listeners. Marc Randazza (Citizen Media Law Project) has much more on this.
2. Beyond this, the 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. Such a sex-neutral statute would probably be considered a constitutional criminal libel statute if limited to knowing falsehoods; Garrison v. Louisiana (1964) suggests that such criminal libel statutes are constitutional if suitably limited, and I suspect that the focus on accusations of sexual impropriety would be constitutional despite R.A.V. v. City of St. Paul (1992), because it seems unlikely to be aimed at the suppression of ideas. But it would be up to the Florida Legislature to create such a sex-neutral statutes, and not to the Florida courts to broaden it. (For an extremely rare case where a court solved a constitutional problem with a criminal statute by broadening the criminal prohibition, see People v. Liberta (N.Y. 1984), a case that was driven by felt moral imperatives that are likely not to be present here.)