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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4 Responses to Proposal for Florida Prosecution of Rush Limbaugh for Sandra Fluke Comments

  1. Whitney says:

    I, like Timothy, am not in favor of dredging up an old, paternalistic statute to prosecute Rush Limbaugh. A statute designed to protect against the denigration of a woman’s lack of chastity is simply a relic from another era designed to separate the “good” women from the “bad.” It would be completely inappropriate in light of Limbaugh’s comments about Fluke.

    I would have been, however, in favor of her initiating a civil suit against him. To my knowledge, Limbaugh doesn’t usually attack non-public figures (no matter the attention Ms. Fluke has received, surely she isn’t a public figure). But, if he were sued every time he did this, perhaps he would stop.

  2. Tim Van Hal says:

    While the other commentators present excellent points regarding Rush Limbaugh’s comments, I feel it important to consider the other sides of this issue. I agree that it is lamentable and even deplorable when individuals vilify those that disagree with them in order to try to marginalize their viewpoint. Having oft been the target of similar vilifications, I know better than most the importance of civility in public discourse. I agree that Rush Limbaugh should not have said what he said. I agree more than most that openness of mind is the linchpin to preserving the few original freedom that persist from the founding of our great republic.

    However, I do not feel it appropriate to drum up a Florida statute that was adopted in 1883 in order to silence citizens simply because the majority does not like the viewpoint they present. One need not look far to realize the changes in culture to show the error in basing a legal argument on such a law. The law remains on the books, but certainly a promoter of the very drugs that permitted the sexual revolution and the “women’s liberation” movement would find little favor in the eyes of the 1883 society of Florida that adopted this law. If the law is only to be selectively applied as a political tool to silence viewpoints the majority does not like, the law should be overturned, not more vigilantly enforced.

    Perhaps the most distressing result of Rush’s comments is that they have managed to derail discourse from the issue Rush had intended to address. The debate is whether the government can force individuals and employers to subsidize contraceptives if such contraceptives violate their constitutionally protected right to freedom of conscience. We should be discussing this distressing development, not considering the merits of a defamation claim against Rush Limbaugh. We should be presenting countering viewpoints, and we should be engaging each other with civility and open-mindedness.

  3. Joanna Collins says:

    While Limbaugh’s comments were in disgustingly poor taste, I believe a defamation case against him would, unfortunately, be weak. Rush Limbaugh is known as an outrageous editorialist, one who lives to shock and appall. He has built his professional reputation around his unique (and disgraceful) ability to stir up controversy and says things the average person would never even think. In light of this, and the nature of his show as provocative and divisive, the reasonable person would not have perceived his comments as statements of fact. Rather, I believe they could be characterized as “rhetorical hyperbole.” Referring to Fluke as a “prostitute” was an extreme and blatantly inaccurate choice of words, and no would think he was reporting this as a statement of fact. While his speech is morally reprehensible, the law would have to take into account the source of the comments and the context.

  4. Swathi Padmanabhan says:

    Though the statute is undoubtedly old and the reasons for its existence are the product of a different moral fabric, I think it would be positive to prosecute Rush Limbaugh for his statements. Too often, people on both sides of the political spectrum are quick to use derogatory and/or defamatory terminology to dismiss others’ viewpoints. Doing so does not result in healthy debate. Rather, it is demeaning and arguably makes others who witness them weary of voicing their own opinions.

    Making an example of someone famous whose behavior is potentially damaging to open and productive discourse could actually make others think twice before engaging in similar actions.