How Not to Fight a Bully


Allred Is All Wrong About Prosecuting Limbaugh

The Limbaugh debacle keeps rolling. The number of advertisers to have abandoned his show has risen to 161 (according to Think Progress) or maybe 98 (if you prefer MSNBC), but either way, the chorus of on-line outrage generated by the sexist smear of Sandra Fluke has coalesced into the sort of loose-knit coalition that greeted the decision of the Susan G. Komen foundation to pull its funding from Planned Parenthood in January, and ultimately forced its reversal.

Limbaugh apologized – after a fashion – on March 3rd, but that seems to have done little to stanch the hemorrhage of sponsors. A timeline and article over at Media Matters underscores that the majority of defections came post-apology. Tuesday, Premier Advertising, which syndicates the show, took a two week hiatus from placing national advertising on the show, the “barter spots” which local stations run in exchange for the right to air Limbaugh otherwise free of charge.

With this much blood in the water, you might have expected sharks, and if you did, you were not disappointed. On March 8th, “celebrity/attorney/feminist Gloria Allred” entered the fray, when she wrote to the County Attorney in Palm Beach County, Florida, demanding that Limbaugh be prosecuted for his remarks against Fluke.

Allred alleged that Limbaugh, whose show originates in Palm Beach County, violated the Florida statute which makes falsely impugning the chastity of a woman a misdemeanor. Because Limbaugh called Fluke both a slut and a prostitute, and later denied that either accusation was true, he was self evidently guilty of criminal defamation, according to Allred, whose officious call for prosecution can be read here.

This is not the first time that Gloria Allred has interjected herself into a celebrity dust-up without a client to represent.

After Michael Jackson dangled his child from a Berlin hotel balcony, Allred, who was 5,700 miles away at the time, and who represented no-one involved, demanded that Santa Barbara County authorities strip Jackson of custody. Now, she is calling for prosecutors to charge Limbaugh under a law – Fl. Stat. § 836.04 – adopted in 1883.

To give some perspective, that was the same year in which the Supreme Court decided The Civil Rights Cases, which refused to apply the then-new 13th and 14th Amendments to bar race discrimination by private parties. That decision laid the groundwork for Plessy v. Ferguson, decided sixteen years later, which sustained “enforced separation of the races” in railroad cars, and provided the legal basis for segregation for more than seventy years.

This is not an idle trip down memory lane. It is meant to underscore the degree to which Allred is championing prosecution under a law enacted in what, for civil rights attorneys, were the dark ages; a prehistory, in which almost every working concept around which modern civil rights law is shaped had yet to take form.

The First Amendment is no exception. Ratified December 1791, it enjoyed a brief first flowering in the early 19th century, but remained largely dormant as a source of constitutional doctrine until the First World War. (Those interested in its long slumber could do worse than to read the pioneering work of the late Leonard Levy.)

The statute that Allred suggests be invoked against Limbaugh was adopted eighty years before the Supreme Court, in New York Times v. Sullivan, reconciled state defamation with the protection of public discourse afforded by the First Amendment. The statute provides:

Defamation.—Whoever 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 of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The law of defamation has long had a special concern for the sexual reputations of women. At common law, there were only four ways to commit defamation per se, one of which was to falsely malign a woman’s chastity. How such a rule fits into an evolving ethos of sexuality is a very good question, about which much has been written.

Whatever the outcome of that discussion, the suggestion that Limbaugh be prosecuted is asinine, for five reasons.

First, the law of defamation has evolved a constitutional dimension since 1883, which would complicate – and probably defeat – any effort to prosecute him under the statute at issue.

After Sullivan, a whole jurisprudence of “constitutional defamation” arose, limiting liability in cases involving a whole new stable of plaintiffs, including “public figures” and “limited purpose public figures,” and affording enhanced protection to even false statements made in the course of discussing matters of widespread public concern.

The takeaway here is the notion of “actual malice,” a term of art that has nothing to do will spite or ill-will. For a statement governed by the actual malice test to be defamatory, it must be uttered (verbally or in print) as a known falsehood, or with “reckless disregard for the truth.”

Fluke may already be a public figure; she is at least a limited purpose public figure for purposes of the controversy surrounding her testimony. And there is no question that her testimony itself, and the related controversy, represent matters of legitimate public concern. Liability in such cases requires actual malice.

Section 836.04 does require the state to prove malice in order to obtain a conviction, and to avoid thumping chests with the First Amendment, a Florida court would probably interpret that as meaning “actual malice,” in the Sullivan sense.

That said, Limbaugh would have a solid defense in claiming that his language was not literal but figurative, intended as hyperbole, and represented his opinion in any event. What is a “slut,” after all? The inherent subjectivity of the term would make an opinion defense robust. And the case for “prostitute” being hyperbole, in the context in which that allegation was uttered, would be equally strong.

Now, imagine the case at trial.

The second reason not to prosecute Limbaugh is that truth is a complete defense to a charge of defamation. It is a defense that would put the question of Fluke’s sexual habits squarely at issue.

The law shields victims of sexual violence from an airing of their erotic past. But the question of Fluke’s chastity – and whether it was wrongly sullied – would go to the heart of Limbaugh’s prosecution. Did Gloria Allred bother to check with Sandra Fluke before she suggested making her sex life a matter of protracted public inquiry?

Fluke has recourse to the courts in a civil defamation action, if that is the path she chooses to follow. She doesn’t need – and I am willing to bet she doesn’t want – Gloria Allred and the State of Florida making that decision for her.

Third: Such a prosecution would, of course, turn Limbaugh into the victim in this sordid saga, a role he would doubtless cherish, but one which he in no way deserves.

As I noted last week, the First Amendment is not implicated by the withdrawal of sponsors now unwilling to be affiliated with Limbaugh and his ugliness. Prosecuting the man for defamation would, by contrast, put free speech advocates and a certain measure of public sympathy, on his side. I really don’t want to end up rooting for Rush, and would appreciate Gloria not steering this sideshow in that direction.

Fourth: It is past time to retire laws which criminalize locker room slurs against women. Those proscriptions carry an implication that women are fragile beings, whose sensibilities need to be protected by the courts. They implicitly stigmatize sexual activity outside marriage, by portraying it not only as immoral, but as so uniquely immoral that its mere implication should be a crime.

Worse, they portray, with Victorian fustiness, women who engage in extramarital sex as somehow inherently damaged.

It is worth remembering the other ways in which libel per se could be committed at common law. The tort of libel was complete – without the need to prove damages – in only a handful of cases. In addition to falsely impugning the chastity of a woman, you could commit libel per se by falsely accusing someone of having a sexually transmitted disease, of having committed a crime, or of being incompetent in his profession.

In short, libel per se was reserved for life-shattering allegations that rendered their victims either unemployable or unmarriagable. Do we really want to keep premarital sex on that short list of vices?

Fifth: There is just no need to prosecute even vile speech, and doing so strikes at the heart of the First Amendment.

If the point Allred is trying to make is that Limbaugh is a bad man, whose ugly remarks should not go unpunished, she is a week late to the party. Limbaugh has suffered a massive defection of sponsors. His remarks have been dissected, almost universally criticized, and held up as an example of everything contemptible in contemporary civic discourse.

With the speed and suppleness that only the Internet can deliver, his past outbursts have been chronicled, footnoted and put on display to hammer home the point that what happened to Sandra Fluke was not an aberration. In short, Limbaugh has paid for his attack on Fluke’s reputation in kind. His own reputation has suffered grievously.

The modern doctrine of Free Expression was born in the aftermath of the First World War, during the first Red Scare, in which states and the federal government rushed to criminalize pacifist and socialist rhetoric. At the time, the legal consensus was that the state was free to punish speech which tended toward subversion and unrest, in order to prevent sedition from blossoming into revolution.

In a series of early opinions, Justices Holmes and Brandeis evolved a different view – known as the clear and present danger test – which limits the state to punishing only that speech which poses a (surprise) clear and present danger of inciting imminent lawlessness, and is intended to do just that.

That doctrine had its best early exposition in the concurrence filed by Justice Brandeis in Whitney v. California, a case in which the Supreme Court upheld a conviction under a California statute which made it a crime to preach or incite terrorism “as a means of accomplishing a change in industrial ownership.” Brandeis voted to sustain the conviction, but only because, in his estimation, the climate in Alameda County in 1919 made the East Bay ripe for Red October.

I have a plea.

Every time someone suggests prosecuting someone else for something the latter has said, turn to the Brandeis concurrence in Whitney, and read it to him aloud.

Failing that, read it yourself, if you haven’t already.

The Brandeis concurrence is to the First Amendment what the Sermon on the Mount is to Christianity. It is poetic, concise, compelling, uplifting, and a shining and beautiful synopsis of all that is good and right and true. Here’s part:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

The condemnation of Rush Limbaugh has proven once again that the best remedy for bad speech is more speech.

Should Limbaugh be prosecuted?  I cannot see how a lawyer, or a feminist could argue for that result. But then again, Gloria Allred wears three hats.

Cleveland Heights, 14 March 2012

A Salient Rebuttal

Michael Kelly offers a cogent response to the opinion I voiced in Point Counterpoint. He argues that as bad as Rush Limbaugh is, we should take a hard look at the testimony offered by Sandra Fluke.

You can see his post using the Featured Rebuttal tab above, or by clicking here.

Somewhere Becoming Rain welcomes your comments. With the permission of the writer, responses in essay form may be added to Featured Responses, to keep the discussion moving ahead, in what I hope will emerge as a collective search for the truth.

Thanks to Mike Kelly, and to everyone who comments here.

Point – Counterpoint

Of Ignorance & Sluts

If you are Bill Maher (and chances are, you’re not) the defection of more than forty advertisers from Rush Limbaugh must look like the French Revolution, as seen from the vantage point of George III. On one hand, to see so ancient and powerful an adversary brought low must come with a healthy dollop of schadenfreude. On the other, certain things should never be encouraged.

Maher was tweeting with the other hand Tuesday, when he urged liberals to accept Limbaugh’s apology for his despicable – and by now almost universally known – remarks  regarding Georgetown law student Sandra Fluke.

Maher says that to not accept Limbaugh’s (tepid) mea culpa would make liberals “look bad,” and with admirable candor, admitted that his discomfort was grounded at least in part in his own distaste for “intimidation by sponsor pullout.”

(Maher was himself the target of a boycott campaign last year, after he tweeted his disdain for Tim Tebow, whose notorious public piety had failed to save the Broncos from a lopsided loss to Buffalo.)

He gets an “A” for honesty, but that only serves to elevate his advice to the level of an honest mistake. Limbaugh sinned against both Sandra Fluke and the American people with his ongoing, puerile outbursts. The former has chosen not to accept his apology, and the rest of us should follow her lead.

Limbaugh has made a lucrative career out of being, for lack of a better word, an asshole. He didn’t invent the shock-jock genre, but he has perfected it, and outlasted many a lesser performer to become a wellspring of bilious ignorance, the best and most reliable champion of militant stupidity in a country suffocating under pretenders to that throne. His continued existence as a media force lends material support to Rick Santorum’s thesis that Satan himself is at work in American politics.

Limbaugh likes to say he is merely an entertainer, whose political views should not be taken seriously, but nobody believes that, least of all Limbaugh.

For two decades, he has been a centerpiece of the conservative movement. His radio show airs on 600 stations nationwide.  Justice Clarence Thomas officiated at his third wedding. He all but announced the obstreperous tone for the Republican response to the election of Barack Obama, when on the eve of the presidential inauguration, he publicly hoped that Obama would fail to turn around an economy devastated by recession. When Republican National Chairman Michael Steele had the temerity to call Limbaugh out on that sentiment – Steele called it, to his credit, “incendiary” and “ugly” – Limbaugh mocked his lack of conviction to the party. Two days later, Steele, who in the course of his remarks had called Limbaugh “an entertainer,” succumbed to pressure to publicly apologize to the de facto head of the Republican Party, Rush Limbaugh.

Even Mitt Romney – who claims that only God can at this point derail his inevitable nomination – tempered his criticism of the slut tirade, observing only that he “would not have used” words like “prostitute” in criticizing Fluke. Romney’s campaign has received generous support from the board at his old firm, Bain & Company, which owns Clear Channel communications, which in turn syndicates Limbaugh.

Stop to digest that: the inevitable Republican nominee, a straight-laced Mormon bishop who once headed the firm that owns Limbaugh as a commercial concern, can barely muster the courage to criticize an “entertainer’s” nationally syndicated, multi-day assault on the sexual reputation of a law student. Yeah, that’s entertainment.

Limbaugh – as much an anyone in the last twenty years – has set the tone of our national political conversation, and he has done a poor job of it.

His stock in trade is indignation. He goads an aging group of listeners whose place in the world has eroded, from born advantage to comparative equality, into confusing their self-pity with common sense. He is the latest incarnation of an old American demon, the anti-intellectual, happy to explain your present misfortune as the nefarious work of the Catholic, the Irishman, the Socialist, the College Boy, the Progressive, the Immigrant, and the Jew.

The labels change, but the trope never does.  The world was a straightforward place, until a dangerous group of effete and overeducated men, with soft hands and lazy backs, wrested the levers of power from decent folk to give away your jobs, emancipate your women, suppress your God, and raise up the Negro and the Mexican in your place. Oh, but what a country this was. Guys like us, we had it made . . . .

Unfortunately for Sandra Fluke, the altar of self-pity demands a steady stream of sacrifice. Inchoate resentment makes for a receptive audience, but only focused rage sells mattresses on the air.

When Michael J. Fox appeared in a campaign spot for then-senatorial-candidate Clair McCaskill – who supported stem-cell research – Limbaugh pilloried the actor, claiming he had exaggerated the symptoms of his Parkinson’s Disease for dramatic effect. Limbaugh mocked his tremors because – in a thorny debate involving science, the nature of human life, and the ethical implications of curing diseases with fetal stem cells – nothing cuts the gordian knot of complexity quite like scoring a cheap laugh off the cripple.

Limbaugh’s vulgar crusade against Sandra Fluke  – and as author John K. Wilson makes abundantly clear, it has been a sustained campaign of vicious derision – is a variation on the same play.

Confronted with a serious discussion of a sensitive and emotionally charged topic, Limbaugh – who has nothing like an original thought to add to the debate, but whose fame depends on his being able to reliably rouse the outrage of his listeners – chose to impugn the sexual morality of a third year student at a first tier law school 53 times over the course of three days.

He called her a slut. He suggested that she had had so much sex it was a wonder that she could walk to the hearing room in which she ultimately testified before an informal group of Democratic lawmakers. He repeatedly suggested that she used birth control in such quantities that it was making her broke – the sort of mistake that might be expected from a man with an incomplete understanding of the female reproductive system, whose own sexual experiences seem to require at least one pill each.

Limbaugh wondered aloud who bought Fluke condoms when she was in the sixth grade. He said he was entitled to see videos of her having sex. In short, he engaged in a prurient, vile, and morally reprehensible attack on a stranger, enlisting her in a seedy little fantasy designed to both incite and titillate his resentful hive of listeners.

Two weeks ago, Sandra Fluke was an anonymous third year law student. Now she is a bold face name. Her privacy has been decimated, her virtue called into question, and the thought of her as a sexually active woman has been twisted into prurient fodder.


Because last week, she had the courage to participate in a public discussion of whether religious institutions like Georgetown University, where she is a student, should be required to fund contraception under the Affordable Care Act. She had the moral courage to take an articulate and public stand on an emotionally charged and ordinarily private matter, the question of access to contraception in the face of religious and institutional barriers to that access. She had the moral courage to put not just a face, but her face, on an abstraction in an effort to affect change.

She did that in opposition to the tenets of the Church which runs her university. She did it despite Darrell Issa turning his back on her contribution, to solicit advice about the medical needs of women from the ranks of the male clergy. She did it though the topic was sex, which makes social conservatives squirm and, worse yet, the ability to have sex freely, an idea so repugnant that its stench can apparently only be cleared from the forum by the sweet incense of Rush Limbaugh, who speculates aloud about the manner in which a twelve year old girl might get access to condoms. That requires moral courage.

We need more Sandra Flukes.

We need more women and men not only willing to speak truth to power, but to put themselves on the line – publicly, rationally, and articulately – to infuse our public policy debates with something more than the empty oratorical bunting of Mitt Romney, the narrow manipulations of K Street, and the smoldering hatred that Fluke herself reaped as a reward for taking a turn in the public forum.

We need contributions to our national discourse that are factual, humane, and illustrate the effects that policy abstractions bring to bear in real lives. We need all this so much more than we need the irreducible kernel of bitterness that dwells in the hateful, shrunken hearts of the dittoheads.

Constitutional scholars as sagacious as Sarah Palin and Michelle Bachman have emerged to warn us that criticizing Limbaugh imperils free expression for us all.

What Palin should remember, and Bill Maher seems to know, is that Limbaugh is facing the wrath of the market in the withdrawal of his sponsors. He has spent years calibrating the level of invective best suited to making him a suitable pitchman for adjustable beds. Now the good folks over at Sleep Number have gotten cold feet. That’s business, not censorship, and Limbaugh is a victim, if at all, of his own savage style.

He still has his defenders. Among the advertisers standing fast is Hillsdale College, which says that its been pursuing truth and defending liberty since 1844. To its credit, Hillsdale condemned Limbaugh’s remarks last week as “destructive to reasonable political discourse,” but it intends to keep advertsising on his show because

he and his large audience have proved themselves friendly to the College’s 168-year-old mission: to provide “sound learning” of a kind essential to maintaining “civil and religious liberty” and “intelligent piety.”

Forgive me for being cynical, but I suspect that when the human genome is finally sequenced, we will learn that cultural conservatism and an even rudimentary sense of irony are mutually exclusive traits.

The unwarranted cries of censorship fit perfectly within the worldview that keeps Limbaugh in business. Somehow – liberals are crafty – a nationally-known broadcaster who earns nearly a million dollars a week, owns his own Gulfstream and has fifteen million listeners has fallen victim to a law student with ovaries. It is just another riff on the only theme that Limbaugh really has: the uppity, the educated and the politically correct have once again managed to keep the white man down.

Before anyone else tries to turn Limbaugh into a Lenny Bruce for the Old Spice set, it might be prudent to question what, exactly, his self-proclaimed “absurdity” contributes to our national discussion. Here is my take: nothing of value.

The slut flap is a good example of why not. When Sandra Fluke finally got the chance to express herself on Capitol Hill, she explained, based on her own experience and the experience of students she knows, why extending contraception coverage is important to students at religiously affiliated universities. She explained the costs, the alternative medical uses for contraceptives (in addition to avoiding pregnancies), and recounted a number of stories of women forced to forgo those benefits because of poverty. She noted the position of various Jesuit universities with respect to the debate, and the choices faced by women at those universities as a result.

How did Limbaugh respond? With epithets, invective, and lurid speculation about the sex lives of “coeds,” a term that both dates him and suggests that he gets his information regarding university women from the covers of soft-core DVDs. Trimmed of its considerable fat, what Limbaugh had to say amounts to this: they have too much sex, they cannot afford their pills, and they want me to pay. Too bad (but, hee-hee, and aren’t I the outrageous one, I might just pay if I could watch them get it on).

Now, to be fair, there is the seed of an argument, or at least a legitimate public policy question, in there: maybe society as a whole should not publicly subsidize contraceptives for students, or compel religiously affiliated organizations to offer insurance coverage that does.  Those were the questions with which Fluke wrestled in her testimony. Her position admits of legitimate critiques and is open to valid counter-arguments. Limbaugh offered neither.

Fluke used her few minutes on the national stage to present a calm, informative and concise exposition of why coverage matters to her and others like her. Limbaugh, who returned obsessively to the issue over three days, seems not to have advanced a single cogent critique or counter-argument to meet the substance of her claims.

Limbaugh has a world view. But on this score, he doesn’t have an argument, just an unfocused sense of being put upon and an urgent need to be the center of attention. Limbaugh isn’t an advocate, he is an instigator, a professional heckler, a bully, and a scold. He wants desperately to be a part of a national conversation the honest conduct of which is beyond his intellectual capacity, and the tenor and subject matter of which have long since passed him by. Something inside him aches to be front and center when the hot button issues are being discussed. He has all the time in the world and an unmatched capacity to get his message out, but ultimately, nothing of substance to say. In this, he is pathetic, an imbecile perpetually trapped in the spotlight, striking the same pose of shocked outrage for more than twenty years, and contributing nothing of substance.

If that was all he was, then Bill Maher would be right. It would be best to accept his apologies, avert our collective eyes from the rhetorical train wreck that has been his career, and move on.

But that is not all. By using his pulpit to mock and deride, by heaping derision on those with the sincerity and courage to contribute to the national discussion in earnest, Limbaugh has become a sort of Brownshirt-in-Chief, always ready to intimidate and shout down those with whom he disagrees.

Personal mockery is not argument, and the power to mock mercilessly before an audience of fifteen million is the rhetorical equivalent of burning a cross on the lawn or throwing a brick through the living room window. It says only that we are legion, and we hate you, and that you speak out against us at your peril.

We should not forgive Limbaugh, because the Fluke affair was not a one-off, but just the latest, and the most vile, eruption in a career built upon fouling the waters of national discourse.

Thirty-six years ago – when Saturday Night Live was not only funny but cutting edge social commentary – Jane Curtin played straight-woman to Dan Ackroyd in Point Counterpoint, a mock debate styled after 60 Minutes.

On October 11, 1975, Point-Counterpoint “tackled” the question of changing sexual mores from the perspective of whether actor Lee Marvin owed his long time lover “palimony” when they separated.

Curtin laid out the argument for recognizing the realities of the relationship in court with a remarkably straight face, all the while setting up for the first line of Ackroyd’s sexist rebuttal, which began with what may be the most memorable line in SNL history: “Jane, you ignorant slut.”

The diatribe, which predated Limbaugh’s turn on the national stage by a decade, could have come straight from his lips. Execpt that it was parody, played for laughs, and intended to mock the wounded rage of a generation of men still making sense of feminism in its youth.

Ackroyd’s whole rant was brilliant, but the funniest line was the first, not only for its shock value, but for the inherent lunacy that a reasoned critique of sexual morality could be countered by calling one’s opponent a slut. It was funny because it was ridiculous. In 1975.

But here we are in the enlightened future. This time, I will concede, Limbaugh gets the better of Karl Marx. History is repeating itself, but the first time was farce. Lately, it’s tragedy.

Cleveland Heights, 9 March 2012

A Thousand People in the Street: An Occupation Meditation

The Summer of Love Meets The Winter of Our Discontent

They are angry.

On that much, everyone agrees.

As the mainstream media wakes up to the Occupation of Wall Street and as that protest, and its growing collection of siblings around the globe, enter their second month, the inchoate nature of the whole enterprise is emerging as its distinguishing feature.

There are no recognized leaders. There have been no demands. There is no future agenda. There are only a growing collection of tents in cities around the world, filled with people, not all of them young, who seem convinced the present state of affairs can no longer be tolerated with silent acquiescence.

The lack of a formal agenda makes what by now deserves to be called (at the very least) a nascent movement unlike even its more open textured predecessors.

It is not a good-natured convocation of liberals gathered to call for a more civil discourse, like the Rally to Restore Sanity. Its not a coalition of disparate groups making common cause against a common adversary, like the succession of demonstrations and general strikes that rocked Paris in May 1968.

It is spontaneous and at least in part a creature of new communications technologies, like texting and tweeting, as were the vast rallies this winter in Tahir Square, but unlike those rallies, it lacks the focus of a single, clearly articulable demand.  It is not nearly as vast as the Tiananmen Square protest of 1989, but like that event, it seems to be settling in for a long haul, and to be evolving  an agenda as it goes along.

Michael Kimmelman noted as much in the Sunday New York Times, when he wrote that the demonstrators in Zuccotti Park have created their own polis, built on consensus and cooperation, a functioning, self policing community in miniature, within which protesters with different concerns and different messages are forging ties based on proximity and discussion.

How long that remains the case, and whether the ethos of shared endeavor can survive the growth of tent towns into tent cities, remains to be seen. Consensus born of collegiality works best in microcosm. New York cannot be run like a New Hampshire town meeting. But that those discussions are taking place at all provides an object lesson in what large scale democracy, managed from the top down, can seldom achieve, and what makes the Occupations unlike other recent acts of public demonstrations.

The Occupation, like a protest march, has taken hold of a public space to articulate its message face-to-face to the financiers against whom it is aimed, and the passers by who form its primary audience. Kimmelman, in his thoughtful essay, rightly noted that in doing so, the Occupation both joins a long line of American protests that have drawn symbolic meaning from the forum in which they were conducted.

What makes the Occupation different is the way in which it relates to the forum. Unlike, say, the Million Man March or even the various demonstrations against the World Trade Organization, the Occupation – despite its name – does not really occupy, to the temporary exclusion of other uses, its chosen forum. It is less an act of temporary occupation than it is the beginning of an ongoing vigil.

The idea of an encampment as an exercise in public discourse is not new. And the ways in which it differs from a march or a parade are worth considering.

Unlike the latter, which occupy a public forum completely, and exclusively, for a brief time, the Occupations inhabit the public spaces of which they have become a part less dramatically, but for an indefinite duration. The message they convey draws its force not merely from the force of numbers, but from the persistence of the messengers. Unlike a march, a vigil evolves: it is interactive, a teachable moment, an ongoing encounter. It is perfectly suited to the loosely joined complaints of its various participants, knitted together by a general sense that the nation has lost its way. It does not deliver an emphatic message so much as pose a persistent question. It is punctuated, if at all, not by an exclamation point so much as by a long trail of ellipses.

This is a sit-in, and like every sit-in, it carries with it a moral ultimatum. From the Bonus Army to the Freedom Riders, to the mock shanty-towns that urged colleges across the east to divest themselves of their South African assets in solidarity with the victims of Apartheid, every sit-in defies the powers to which it speaks truth to move it along.

When demonstrators in Times Square on Sunday reminded police that the “whole world was watching” they not only echoed the Grant Park of 1968, they also enunciated the central rhetorical reality of what was going on downtown.

The inchoate gathering encamped in Liberty Plaza Park may not have a focused message, but they do have the spotlight. Like the lunch counter demonstrators of fifty years ago, they are using it to insist that we answer uncomfortable questions to which answers are long past due. They are defying us to answer them, to engage them, or to move them along. They are doing it face to face. How we as a nation respond will define us at this moment in our history, whether we like it or not.

Next time, I will give some thought to the notion of a demonstration that evolves an agenda as it progresses, and what it says about First Amendment freedoms and the scale of civil discourse.

For those intrigued by such questions, it promises to be an interesting autumn, sandwiched somewhere between the summer of love and the winter of our discontent.

Cleveland, 19 October 2011

Enfants Terribles

Messrs. Hoffa & Galliano Face Their Critics

Labor Day in Detroit must have a righteous anger all its own. That may explain why Teamster President Jimmy Hoffa – brought in to warm up the crowd for President Obama – ignited a firestorm in the Commentariat on Monday.

For those of you emerging from comas, this was the spark that kindled the first rhetorical highlight of the week:

President Obama, this is your army. We are ready to march. And President Obama we want one thing: Jobs. Jobs. Jobs. Jobs. Jobs. Jobs. Jobs. Jobs. That’s what we’re going to tell him. He’s going to be – and when he sees what we’re doing here he will be inspired. But he needs help and you know what? Everybody here’s got to vote. If we go back and keep the eye on the prize, let’s take these [expletive] out and give America back to America where we belong!

The Sons of Bitches (elided above by the heirs of Katherine Graham) were not amused.

The folks at Fair and Balanced edited Hoffa down to his most incendiary morsel, sounding the tocsin of class warfare – again. National Tea Party leaders called on President Obama to repudiate the remark, while in Rockford, Illinois, the local Tea Party called for Hoffa to resign.

Brad Blakeman, a former staffer for Bush-the-Younger, went on Fox to denounce the “thuggish” remarks as the sort you might expect from Tony Soprano, apparently forgetting for a moment that Jimmy Hoffa is not, actually, Jimmy Hoffa.

Michelle Bachman and Sarah Palin added their own scorn, the former branding Hoffa a thug, and the latter (to her credit, more on the merits) warning her working class followers that the unions are not their friends.

Neither mentioned the numerous Tea Party events (like this one, and this one, and this one too) at which demonstrators were encouraged to march with firearms.

But irony is not a Tea Party thing.

By midweek the news cycle had made all things new.

President Obama repudiated nothing, and Jimmy Hoffa stood his ground.

Later, some Republicans debated at a library, and the President addressed a joint session of Congress summoned by truant officers.

But on Thursday in Paris, the other rhetorical shoe dropped.

There, a three judge panel convicted British fashion designer and former Dior creative director John Galliano of “making public insults” based on race, ethnicity or religion, imposed a suspended fine of €6000, and assessed court costs of €16,500, which will go to fund the work of several groups working to combat racism, which were designated by his accusers.

His accusers are the patrons unfortunate enough to have endured his anti-Semitic rants, both outside a Paris bar, and in a restaurant, in October 2010 and February 2011, respectively.

The incidents included a harangue against a woman named Geraldine Bloch, whom Galliano accused of having “an ugly Jewish face,” of being attended by a “dirty Asian” companion and of having unfashionable boots.

(Ms. Bloch is not Jewish, her companion was not Asian, and the question of whether or not her boots were fashionable is well beyond the scope of my expertise.)

Not charged – but admitted into evidence – were remarks documented in a videotape circulated online by the Sun in February, in which Galliano accosted two diners in yet another restaurant, professing his love of Hitler, his hatred of Jews, and his wish that the ancestors of his victims had been gassed.

Galliano took the novel step of blaming his racist outbursts on substance abuse, and the Court, noting his remorse and his work on behalf of the gay community, declined to jail him.

But it might have, for up to six months.

What Mr. Galliano did is illegal in France, and in one form or another has been for well over a century. Article 29 of the Press Law of 1881 (here for the purists) makes both slander and “incitement to discrimination, hatred and violence” criminal offenses.

Under the Act of 13 July 1990 (the Gaysott Act), those defamed on the basis of race or ethnicity have a legal right of reply, and publications tending to call into doubt the reality of Nazi crimes against humanity can be punished by fines of up to €45,000.

Hoffa and Galliano make an unlikely pair, but their rhetorical adventures this week combine to form an instructive reminder of what constitutes incitement in America, and how unlike the rest of the world we are in that regard.

Despite some unpersuasive and ill-informed suggestions to the contrary, what Jimmy Hoffa said in Detroit on Monday does not constitute criminal incitement, and could not be punished as such consistent with the First Amendment.

The Constitution affords substantial “breathing space” to political rhetoric, and even if a prosecutor could establish that Hoffa was calling for political violence – a dubious argument given the content and the context of his remarks – advocating political violence, in the abstract, is perfectly legal.

More than four decades ago, the Supreme Court reshaped the law of what First Amendment lawyers call “seditious libel.” In Brandenburg v. Ohio, the Court held that only when violent advocacy is both intended to produce, and creates an imminent risk of lawless conduct, may it be punished by the law.

The “clear and present danger” test recognizes that hyperbolic rhetoric is a political commonplace, and not necessarily the first step on the road to revolution.

In similar cases, the Court has forbidden the prosecution of abstract threats upon the life of the president, Watts v. United States, and warnings that those who failed to honor a boycott of local merchants could expect to have their necks broken, N.A.A.C.P. v. Claiborne Hardware.

By these standards, the Hoffa speech is well within the boundaries of protected political expression, and no intellectually honest argument to the contrary can be made.

But had Mr. Galliano delivered his rants in Poughkeepsie, and not Paris, the answer would not be so obvious.

Discussions of race are a central part of American politics, and the right of racial extremists to espouse their views, however distasteful, falls well within the ambit of the First Amendment.

Indeed, not only must the government permit Anti-Semites to disseminate their message in the streets, Colin v. Chicago Park District, it must expend even considerable resources to ensure that their provocations do not incite offended bystanders to lawlessness, Forsythe County Georgia v. The Nationalist Movement.

The First Amendment protects speech that is deeply offensive, like the homophobic and anti-patriotic rants of Fred Phelps near the funerals of fallen soldiers, Snyder v. Phelps, and of dubious social value, like video games that feature graphic, first person violence, Brown v. Entertainment Merchants Association.

The core commitment to the notion that ideas are to be tested in the marketplace, and not proscribed a priori, is what distinguishes our approach to restricting hate speech to that taken by the nations of the European Union.

There are few topics that are simply off limits under the First Amendment. Obscenity, child pornography, false advertising and the solicitation of unlawful conduct are essentially disowned by the Constitution, deemed to be “non-speech” in the talk of the trade, in the belief that they are imbued with essentially no redeeming social value that merits protection.

Another class of non-speech – fighting words – also exists. Since Chaplinsky v. New Hampshire, the Supreme Court has recognized that a small subset of words are so inflammatory and likely to result in a violent response that their utterance may be punished.

Their fate hinges not on any idea that they convey, but on the fact that their use, in a sense, short circuits reason, and is “likely to provoke the average person to retaliation.”

Which brings us round to John Galliano in Poughkeepsie.

A good argument can be made that the face-to-face insults hurled by Galliano at his fellow diners were so likely to provoke a response as to amount to incitement. Indeed, the non-Asian companion of Ms. Bloch is reported to have wielded a chair against Galliano in response to his diatribe.

Such incitement can be prohibited under the fighting words doctrine, not because the ideas are ugly, discredited or useless, but because the words do not trade in ideas at all, so much as invite a physical response.

What links seditious libel and the fighting words doctrine is the belief that we protect expression because, and to the extent that, it is an appeal to reason. In this sense, both doctrines are about context, immediacy, and the intermediation of reason.

Mill realized as much fifty years before the Supreme Court began to flesh out the meaning of the First Amendment, when in On Liberty, he wrote:

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard

The distinction is between content and context.

In France, Galliano can be punished because society has declared his idea useless and not worth considering.

Here, neither he nor Hoffa can be punished, unless their words bypass reason altogether, and present an imminent threat of disorder by stoking the passions of their listeners to violence.

Thomas Emerson, in his landmark work The System of Freedom of Expression, recognized that the distinction between punishing words likely to incite because they excite the listener, and words likely to incite violence because they convince the listener of some proposition or other, is the difference between taking seriously the moral autonomy of the listener, and treating him as an automaton.

Reacting to the Galliano conviction, Professor Eric Bleich of Middlebury College has suggested that, as a society, “[w]e may lose more than we gain from protecting racist speech.”

His essay is thoughtful, and his support of that conclusion lukewarm, but in the end I cannot agree.

France and the member states of the European Union undertook a systematic codification of human rights in the shadow of the Holocaust, and their conclusions regarding hate speech can only be understood in that context. But they assume the discredited garbage spewed by Galliano still has the power to persuade. Confidence in reason, and the power of rhetoric to reach reason, suggests a better result.

There is nothing good to be said about the ugly rantings of John Galliano. Anti-semitism, as Clive James observed, is “a world view through a pin-hole: as scientists say about a bad theory, it is not even wrong.” The French have decided as much as a matter of law.

But in America, every one has the right to be wrong.

Or not even. I prefer it that way.

Cleveland Heights, 10 September 2011