Is Rush Limbaugh a Clear and Present Danger?

The First Amendment to the United States Constitution prohibits Congress from enacting any laws abridging freedom of speech or of the press. As with any other freedom, there is a societal expectation that it will be exercised responsibly. But what does it mean to exercise freedom of speech responsibly? The courts have given us very wide latitude. Perhaps most famous among relevant quotations are these words from Supreme Court Justice Oliver Wendell Holmes, Jr.: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." Although the ruling in which Holmes wrote those words in his opinion was later overturned, the principle was not: there is some speech that is sufficiently dangerous that it is not protected.

Although the First Amendment's protection of free speech has been interpreted broadly to cover a wide range of "expression," including the visual arts, the intent of the Framers was to protect political speech, and especially unpopular political speech.

Recently Rush Limbaugh directed his intemperate vitriol against the Obama Administration's decision to deny a religious exception for insurance coverage of prescription contraceptives (a topic on which I wrote earlier this month). But Limbaugh did not limit his attacks to the president or officials in his Administration. Rather, he included a Georgetown University law student who had testified before Congress, advocating such insurance coverage. She explained that the cost of prescription birth control is not inconsiderable. She was talking about hormonal contraception, but Limbaugh took the amount she estimated and applied it instead to one of the cheaper methods (condoms), calculating how often one must have sex to spend that much on birth control. Having done the faulty arithmetic, Limbaugh derided the law student as a "slut."

[It would, I think, have made just as much sense to do that arithmetic, assume the law student was in a monogamous relationship, and consider her intimate partner: "Wow. Lucky guy! Tired, but lucky." But I digress.]

While one who testifies before Congress makes herself into something of a public figure, there is certainly no expectation that she will then be subject to vile verbal attacks from those who disagree with her opinions. There was public outrage about Limbaugh's remarks, and a campaign quickly got underway to apply pressure to commercial sponsors of his radio show to withdraw their advertising support.

That is how it should be, I think. You don't like what Limbaugh says or how he says it? Convince those who support his program through advertising that being thus associated with him is not in their best interests. Commercial sponsors are very sensitive to what they believe are the public images of celebrities with whom they have relationships. Witness the reaction to the sexual promiscuity of Tiger Woods or the cannabis indulgences of Michael Phelps.

CNN has provided some perspective on this issue. Their Web site ran a piece by Marc Randazza, a First Amendment attorney from Nevada, explaining the continued importance of protecting politically unpopular speech. There is no question that much of what Limbaugh has to say is politically unpopular with those who are not among his loyal radio audience. Randazza is the editor of his own blog, The Legal Satyricon, which posted his thoughtful essay. But it also posted (as did CNN) a piece by Jane Fonda, Robin Morgan, and Gloria Steinem, co-founders of the Women's Media Center, who say the FCC should boot Rush off the air. They warn of the consequences of "society tolerating toxic, hate-inciting speech." They exhort their readers to complain to the FCC about Limbaugh, the idea being that the FCC would respond by taking action to remove Limbaugh from the broadcast radio spectrum.

How exactly the FCC could do that without plainly violating the First Amendment is unclear. The FCC can fine stations that have programming that violates its standards of decency. It might be amusing to see whether the ACLU is willing to defend Limbaugh should FCC declare his show in violation of those standards. But the FCC could do that. And, if it did, that would silence Limbaugh once and for all. Just like it did Howard Stern. Oh, wait. Stern just moved to satellite radio. Could Rush do that?

And that brings me back to the opening question, because Rush Limbaugh cannot be silenced unless he is dangerous - by First Amendment standards. Justice Holmes wrote that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

In the spirit of full disclosure, I should acknowledge that I listen to Rush, because I am interested in a broad spectrum of opinion, which necessarily includes extremes. In the same spirit, I must acknowledge that I often become sufficiently exasperated with him to change the station. And that is a freedom we all have. I will continue to exercise that freedom, and I will defend Rush Limbaugh's freedom to go on expressing his opinions on the public airwaves, no matter how offensive or stupid they may be.