Libeling The First Amendment: The Right's Warping Of Free Speech

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Last updated on April 7th, 2012 at 11:57 pm

We have heard a lot from conservatives about the first amendment, most recently in defense of Rush Limbaugh’s comments in which he referred to Sandra Fluke as a slut and a prostitute, along with his advocacy for on line porn videos of women who want access to birth control through their health insurance plans.

When someone maligns a person’s character with untruths and distortions about that person’s beliefs, statements or activities, it is defaming that person’s character. When someone takes to the public airwaves with such statements, it is called libel. A reasonable person could conclude that Rush Limbaugh’s comments about Sandra Fluke were libelous in nature.

Libel is not protected under the first amendment. For a private person, like Sandra Fluke, to seek a legal remedy against someone who libels them, they need only prove that the statements were untrue and defaming in nature.

Limbaugh mischaracterized Fluke’s congressional testimony in more than one instance. For example, Limbaugh claimed that Fluke advocated for government-paid oral contraceptives. Here is what she actually said:

“How can Congress consider the Fortenberry, Rubio, and Blunt legislation that would allow even more employers and institutions to refuse contraceptive coverage and then respond that the non-profit clinics should step up to take care of the resulting medical crisis, particularly when so many legislators are attempting to defund those very same clinics?”

Limbaugh suggested that Fluke and others are perhaps less discretionary in their choice or frequency of sexual activity than he considers acceptable when he said Fluke is having so much sex that she can’t afford the birth control. Nothing in her testimony supports this assertion.

Actually, she does talk about students forgoing birth control when it is denied under the insurance that they pay for. She does talk about the consequences of the Blunt amendment when it comes to affordability for a prescription for which the cost remains constant regardless of the frequency of sexual encounters.

She also talks about the fact that oral contraceptives are prescribed for purposes other than contraception and the Blunt amendment does not provide for exemptions in these cases.

“These denials of contraceptive coverage impact real people. In the worst cases, women who need this medication for other medical reasons suffer dire consequences. A friend of mine, for example, has polycystic ovarian syndrome and has to take prescription birth control to stop cysts from growing on her ovaries.

Her prescription is technically covered by Georgetown insurance because it’s not intended to prevent pregnancy. Under many religious institutions’ insurance plans, it wouldn’t be, and under Senator Blunt’s amendment, Senator Rubio’s bill, or Representative Fortenberry’s bill, there’s no requirement that an exception be made for such medical needs.”

Chances are if this matter were to be considered in a court room, Limbaugh’s lawyer’s would claim that Fluke is a public person. This is because If someone is a public person, they have to go the extra step to prove actual malice and the aforementioned factors.

If Fluke were to be considered a public person for the purpose of a libel suit the probability that Limbaugh’s libelous statements contributed much more to possibly making Fluke a public person than her testimony is analogous to someone killing their parents then seeking mercy from the court because they are an orphan.

Even if Fluke was a public person there is plenty of evidence to prove the actual malice element of a libel claim.

The fact that Rush Limbaugh has a prior and subsequent history of attacking intelligent women whose views don’t coincide with his views establishes a pattern of malice toward women who fall within this category. Limbaugh’s past references to feminazis illustrate a prolonged resentment of women who stand up for their beliefs, which also do not coincide with Limbaugh’s misogynistic view of the world. His attacks on Traci McMillan and other college educated women and Alexandra Petri shows that Limbaugh’s desire to malign articulate women continues.

In other words, his conduct prior and subsequent to comments made against Sandra Fluke shows that Limbaugh intended to attack Sandra Fluke.

Moreover, let’s consider that Limbaugh’s attacks on Fluke did not end after one, debateably passionate attack. He continued to attack her for several days on his 3 hour radio show. Granted, he issued a statement apologizing for a poor choice of words, perhaps hoping that would prevent an exodus of sponsors or other reasons. However, saying that you chose some bad words to express a sentiment that defames another person, doesn’t undo the libel.

Aside from aspect of libel, Limbaugh’s call for on line porn video in exchange for access to birth control qualifies is obscene material under the definition offered by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). Wikapediasummarizes the court’s legal definition of obscene as:

whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;

whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions^[4] specifically defined by applicable state law; and

“whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”^[5]

Hence, when Rush’s ditto heads and other defenders claim that opposition to those comments is about political correctness or regulating speech, they really don’t have a clue what they are talking about. There’s also an element of arrogance in descriptions of efforts to boycott Limbaugh’s sponsors as extortion or other less than acceptable conduct.

Unlike libel and obscene comments, boycotts are protected under the First Amendment, as reflected in a recent court decision involving a food co-op that boycotted Israeli food products. According to the Seattle Times: the court ruled that the boycott was protected speech and cited an Anti-Slapp law which limits lawsuits aimed at silencing activists.

While the Freedom of Speech clause in the First Amendment is broadly interpreted, there are limits that guarantee. A key difference between Conservative and Liberal defenses of First Amendment rights lies in the notion that while certain sorts of speech are not protected under the Constitution, Free Speech is an inalienable right which every human being enjoys.

This all started because conservatives seem to think that the First amendment is a privilege to be afforded to older white males, corporations and churches that push the conservative political agenda. They also seem to think that the first amendment is a defense of libel, obscenity and hate speech when utilized by conservative commentators. There is nothing in objections to Rush Limbaugh’s slanderous and libelous attacks directed at Sandra Fluke and other women that suggests a desire to regulate speech or narrow the Supreme Court’s broad interpretation of free speech. Suggesting that is just plain false.

This isn’t the first time right wing extremists have made it clear that their version of the first amendment is more consistent with a privilege to promote their oppressive agenda, rather than an inalienable right in which a diversity of thoughts and opinions are expressed.

Police state tactics were used to quash the Occupy Protests. As Sarah Jones reported, people in Virginia who were protesting against a law that seeks to demean women who seek abortions were arrested. In reality, this was about silencing opponents of the right wing and sending a warning out to anyone else who dares to try it.

“Protesters wore armbands reading “Gov. McDonnell get out of my vagina!” Virginia is one of the states where Republicans introduced the physically offensive and often painful transvaginal ultrasound as a mandated medical procedure for women considering an abortion.”

This is not the behavior of people who believe in or value the first amendment. It is the behavior of tyrants.

This post is dedicated to Jason Easley and Sarah Jones who refused to let certain parties silence Politicus’s voice.

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