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Many of us listen to Rush Limbaugh’s radio show for the entertainment value of his statements. Many of us were not laughing late last month, however, when Limbaugh unleashed a series of derogatory statements about Georgetown University law student Sandra Fluke, referring to her as a “slut,” “prostitute,” and “round heeled” as she spoke before a Democratic Congressional hearing in support of mandatory health coverage for contraceptives. This episode from Limbaugh seemed to cross far over the line of decency, even by Rush Limbaugh Show standards. In response, nearly two dozen advertisers have refused to sponsor Limbaugh’s radio show, and a range of media figures, including President Obama, have spoken out against Limbaugh’s comments.
For high-profile attorney Gloria Allred, prosecuting Rush Limbaugh in the court of public opinion is insufficient justice. Allred has called for Florida prosecutors to initiate prosecution against Limbaugh, who broadcasts his radio show from West Palm Beach. The proposed cause of action, defamation under Florida Code § 836.04, which states that “[w]hoever 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 in the first degree.” A misdemeanor of the first degree is punishable by a term of imprisonment not to exceed one year.
In Stutts v. State, the Florida Supreme Court upheld the conviction of a man who said that a particular woman was nothing more than a “common prostitute” and that she had given birth to a “bastard child,” and held that a jury can infer malice from the falsity of the defamatory statement. Rush Limbaugh’s statements about Sandra Fluke would thus appear to fall within the ambit of the statute, though an actual prosecution appears unlikely for reason of desuetude, the legal doctrine whereby long and continued non-use of a statute results in a court’s refusal to impose sanctions under it. In United States v. Jones, a 2004 case from the Eastern District of Wisconsin upholding a prosecution under the Migratory Bird Treaty Act, the defendant argued that the government had not brought a criminal prosecution pursuant to that law in the Eastern District in the previous five years. In the instant case, certainly a hundred and five year gap is significant, particularly given the wide change in social mores and standards of behavior since then. This is not to say that Sandra Fluke is precluded from suing Rush Limbaugh for slander in civil court, and Limbaugh is likely to change his tune if advertisers continue to drop their affiliation with his show. Indeed, Limbaugh apologized last week for his statements about Sandra Fluke.
– Ian Quin
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