Max Kennerly, the attorney who has argued that Sandra Fluke could legitimately sue talk show host Rush Limbaugh for his on-air insults, rebuts the Ethics Alarms post finding his argument disturbing. I’ll have a response at the end. Here is his Comment of the Day on “Ethics Train Wreck Extra: the Lawyer, the Advisor, and the Kennedy”:
“Who said anything about “silencing?” Defamation is a civil claim that, when proven, results in a monetary judgment, nothing more. Limbaugh’s still free to say what he wants.
“I assume your response to the “it’s not silencing” argument is something like, “he’s not technically silenced, but his speech is chilled.” To that, I ask which scenario is more chilling:
“(1) a massive broadcasting corporation filing an insurance claim and then defending a claim that has no chance of altering the corporation’s overall profitability;
“(2) a broadcaster with a national platform maliciously lying about the testimony given by and sex life of a private citizen?
“The former has such a small “chilling effect” that publishers these days ignore it, and frequently go self-insured because the actual risk of defamation liability is so small. (E.g., the NY Times has not paid a dime on a defamation claim in over fifty years.) The latter has a real ability to preclude private individuals without media platforms and without teams of lawyers from participating in public debate.
“For some reason you think it’s an assault on free speech when a corporation faces a trivial monetary claim, but not when a private citizen is attacked for speaking out. Why? Why are Limbaugh’s well-protected interests so much more important than the interests of Fluke to speak out about issues and the interests of society to not have intentionally false statements overwhelming the public debate?”
I like lawyers; most of my family was or is a lawyer; a large proportion of my friends and business associates too. Thus I appreciate it when lawyers act like lawyers, and even when their arguments edge into self-parody. I don’t know what’s in his head, so I can’t say authoritatively that he doesn’t believe it. Still, this strikes me as legal “truthiness.”
- Kennerly’s title is literally correct: Sandra can sue Limbaugh. People file long-shot, irresponsible, vindictive and unjust suits all the time that meet the low, low, low professional standards for an ethically permissible action. She can, but she shouldn’t. And she could not possibly prevail.
- The question, “Who said anything about “silencing?” Defamation is a civil claim that, when proven, results in a monetary judgment, nothing more. Limbaugh’s still free to say what he wants” should strike anyone who has read the rhetoric issuing from Fluke’s ideological allies and defenders as disingenuous. Silencing Limbaugh is the goal, and has been a goal for years. We are witnessing the most recent of many boycotts aimed at stripping away Limbaugh’s corporate sponsors, and a law suit would be part of the assault. Meanwhile, such lawsuits obviously chill free speech. Corporations of all kinds are litigation-averse, and even a weak case can drag on indefinitely, causing burdensome expenditure of time and expense. Obviously successful litigation to punish Limbaugh for his choices of metaphors and words in this case would contribute to less vigorous speech, not only by him but by others. As Ken at Popehat wrote in one of his dozens of posts on this topic, —and this isn’t the best, just the one I found the quickest:
“…no sensible and well-ordered society can recognize a right to be free from offense. It’s unprincipled and mercurial, a celebration of the rule of subjective reaction over the rule of law. It’s an open invitation to censorship-by-heckler’s-veto. It chills satire, parody, sharp retorts, hard truths, and uncomfortable revelations. George Bernard Shaw says “all great truths begin as blasphemies” — so where is the room for exploration of truth in a society that lets every entitled group define its own blasphemies and demand that everyone avoid uttering them?”
Fluke was offended, not slandered.
- This: “a broadcaster with a national platform maliciously lying about the testimony given by and sex life of a private citizen?” is a classic lawyer’s tactic, eliminating the counter argument by defining it out of existence. Since in claiming a public figure—and that’s what Fluke probably is—has been slandered requires malice, Max describes Rush’s comments as malicious. meaning he showed a desire to do real harm to Fluke. That’s more than a stretch; it’s fantasy. No one could listen to Rush’s rant and believe he was seriously arguing that Fluke was literally a prostitute. He was making a mean-spirited metaphor that sought humor in its very excessiveness. It misfired. He should be able to have misfires in his edgy commentary and attempts at satire without having to worry that he will be sued. Similarly, Limbaugh is not a journalist, and the label “broadcaster” is literally correct but misleading. He’s a shock-jock, right wing critic and performance artist, like Jon Stewart, blurring the lines between commentary and entertainment. He is not responsible for conveying facts in an objective manner. He has, and must have great leeway, including leeway to go too far, in order to do his job at all.
I’m not sure I understand the relevance of Part 1 of this sequence. It’s OK to file lawsuits designed to chill expression because they are unlikely to prevail? I think it’s unethical to file such lawsuits, period, and insurance coverage has nothing to do with it.
- “For some reason you think it’s an assault on free speech when a corporation faces a trivial monetary claim, but not when a private citizen is attacked for speaking out. Why?” I can’t fault Mr. Kennerly for not reading all my posts on this topic, but I specifically wrote that one of the things wrong with Rush’s attack is that it was bullying, and threatened to intimidate other Sandra Flukes from venturing into future public policy debates. I think that was unethical, not actionable. I would not try to create an enforceable standard to punish criticism by public figures of private ones who suddenly find themselves in the glare of public attention. This has to be self-policing. Go back and read what some liberal media pundits wrote about “Joe the Plumber” in 2008. Yes, this is wrong; I said it was wrong in Rush’s case. That’s how ethics works: we seek a consensus regarding unethical conduct, and use social disapproval and debate to persuade the unethical party to consider values like fairness and respect in the future.
I have no doubt whatsoever that the impetus to sue Limbaugh is driven, to a great extent, by a coordinated attempt to try to drive him from the air. I don’t think the effort is likely to work, just as I think the proposed slander suit is so weak that it will never be brought.
A futile unethical act is still unethical.