Editor’s Note: In the wake of a barrage of sexist slurs against a law student who dared to testify in support of birth control access, Rush Limbaugh lost advertisers by the dozen. Then Women’s Media Center founders Jane Fonda, Gloria Steinem and Robin Morgan called on the FCC to pull Limbaugh off the airwaves. Below, former Planned Parenthood president Gloria Feldt explains why she supports their campaign. In response, lawyer and author Wendy Kaminer writes that “whether or not Limbaugh’s biases are morally reprehensible, he has a fundamental moral as well as legal right to express them.” The second round of their debate appears immediately below; scroll down for Round One!
“Sticks and stones may break my bones but words can never harm me.” As kids, we yelled this retort. It’s as true about discourse on the public airwaves as on the playground, for the most part. Wendy Kaminer and I agree on that.
Kaminer also acknowledges legitimate limits on speech, whether or not the words may break our bones; she says: “[T]he Supreme Court has carved out categories of speech excluded from First Amendment protections, such as obscenity, libel, and incitement to violence.”
Hypothetical are easy, but let’s recall Limbaugh’s actual language. After he called Sandra Fluke the gendered slur, “slut,” after calling the 30-year-old law student a “prostitute,” he declared Fluke should post sex tapes of herself on the Internet in exchange for her birth control coverage. “Crude, sexist insults” seems a euphemism at best. When Kaminer charged that those advocating FCC action against Limbaugh believe “freedom of speech should be limited to speech that they like or only mildly dislike,” she lost sight of the incident’s real meaning. Limbaugh shouldn’t be taken off public airwaves because I dislike what he said. He should be taken off the airwaves for fomenting a culture of objectification and dehumanization that has tangible consequences for real women.
Kaminer’s assertion that even the most egregious sexist speech can’t be equated with incitement to violence brought me this reaction from Robin Morgan, one of the authors of the CNN.com op ed calling upon the FCC to investigate whether Limbaugh crossed the line into obscenity or incitement:
Oh, come on. Widely acknowledged studies on sexual assault [see RAINN.org, Rape, Abuse, and Incest Network] verify the concept of a ‘rape climate,’ responsible for 1) trackable escalation of sexual violence, 2) the most commonly cited reason men admit they rape (or would if they thought they wouldn't be caught--i.e. ‘It's nothing special, women always mean yes when saying no’), and 3) the most commonly cited reason women don't report rape: ‘I was afraid they'd say I asked for it,’ e.g. silencing through blame-the-victim. To characterize women using birth control as voracious sluts feeds rape climate a feast.
Similarly, the National Hispanic Media Coalition documented in great detail how hate speech devolves into action, from anti-immigrant abuse to the Rwandan genocide; in the latter, radio was a powerful tool to legitimize killings “in language strikingly similar to that used by modern day American shock jocks”—not by telling people to kill, but by bombarding the airwaves with dehumanizing epithets.
I am directly familiar—as I hope Kaminer will never be--with the difference between protected free speech and hate speech that can lead to violence. Because I’ve led Planned Parenthood in various capacities, I’ve been caricatured as a Nazi with blood dripping from my hands and spoken of in the vilest language. Threats of violence, including death threats, regularly and traceably followed such media attacks. And need I enumerate the abortion providers murdered in the name of life following similar pervasive incitements in the media.
As an editorial about Glenn Beck’s attacks on Frances Fox Piven in The Nation rightly observed: "At one time it was all just talk for Oklahoma City bomber Timothy McVeigh and Dr. George Tiller's assassin, Scott Roeder, too.”
Kaminer waxes poetic about the emotion underlying the hate talk, but no one suggested regulating emotions. Frankly, I couldn’t care less whether Rush Limbaugh hates progressives or women or people who eat blueberry yogurt. I couldn’t care less whether he believes women are subhuman sexual perverts for wanting their birth control pills covered by insurance. Nor do I care one iota whether he expresses these views—but I do contend he does not have an absolute right to express them on the public spectrum. The airwaves are a public trust, and the FCC has been charged with defining and ensuring the public interest.
It’s the perfect right of women (and men) who believe Limbaugh’s attacks on Sandra Fluke are actionable to pursue their case. It’s the perfect right of women to call him out publicly, to petition sponsors to abandon him, to keep our mouths open and our voices strong as we use every avenue of democracy, including petitioning the FCC.
In her writings, Kaminer has often chastised feminists for playing the victim, for being too timid, too unwilling to fight back against verbal assaults. Well here we are fighting back.
Kaminer should be applauding. We’re using the very freedom of speech she worships in the extreme to ask the FCC to investigate Limbaugh and ascertain whether he has crossed the line into obscenity or incitement.
I think the answer will be yes. It’s time for Limbaugh to rush away.
Actually, I don’t believe that “words can never harm.” I do believe that the relationship between words and tangible, legally cognizable harm is often complicated and speculative, and that state power to censor should be strictly limited to cases in which the relationship between suspect words and actionable harm is immediate, direct, and intentional. I believe the Supreme Court was right to define incitement narrowly as speech intended and likely to cause “imminent lawless action.”
Accept for the sake of argument Feldt’s contention that Limbaugh’s words about Sandra Fluke are “fomenting a culture of objectification and dehumanization (with) tangible consequences for real women.” Accept for the sake of argument Robin Morgan’s heated assertion that characterizing “women using birth control as voracious sluts feeds rape climate a feast.” Even so, Limbaugh’s words don’t approach incitement. (Nor are they “true threats” of violence, which Feldt may have received, and which are not constitutionally protected.)
So, by demanding that Limbaugh be censored, Feldt is effectively demanding that the Court broaden the legal definition of incitement dramatically: Instead of limiting it to speech that intentionally causes direct, immediate harm, she would define “incitement” to include speech that contributes to (or “foments”) objectification, de-humanization, and a culture of violence.
Never mind that Vogue or Cosmo, among other publications, as well as many cable and network tv shows would be vulnerable to censorship under this standard. (After all, anti-porn feminists have included mainstream media depictions of women in their slide shows of allegedly dehumanizing pornography.) Consider instead the ramifications of such an expansive view of unprotected speech for political discourse and the arts.
The definition of incitement proposed by Feldt and Morgan -- speech that fuels or contributes to tangible harm or a harmful “climate” -- was essentially the definition used by the federal courts in the early 20th century, when speech was criminalized for its presumed “bad tendencies.” In 1919, in Shaffer v United States, for example, the 9th Circuit Court of Appeals upheld an Espionage Act conviction for anti-war speech, citing the "probable tendency and effect,” of the speech to obstruct the harm then contemplated by federal law -- interference with military recruitment or enlistment.
Yes, I recognize that Feldt would contest this application of her incitement standard to anti-war speech (or other advocacy she either favors or doesn’t abhor.) I expect she would denounce as unfair an analogy between the effort to suppress Limbaugh’s speech for its “probable tendency and effect” on women and the government’s suppression of speech for its presumed effect on the war effort. I assume she doesn’t intend to expand state power to censor political advocacy when she proposes expanding the power to censor Limbaugh’s “hate speech.” But broaden the standard regulating one category of speech that’s blamed for one sort of harm, and, despite your intentions, you broaden the standard regulating all categories of speech blamed for other sorts of harm. That’s how the law works.
Of course Feldt and her allies have the right to demand government action against Limbaugh, regardless of the legal consequences. I’m not questioning their rights, obviously; I’m questioning their wisdom -- their understanding of free speech and also their political judgment.
By demanding government intervention to silence Limbaugh, feminists have undermined their efforts to demonize or at least marginalize him. From a practical, political perspective, calling for government action was unnecessary as well as unwise: Limbaugh’s widely publicized remarks were turning the market against him (and sparking criticism of Romney and Santorum for their timidity in condemning him.) Losing advertisers, Limbaugh apologized. Still, he was roundly and rightly denounced in the public square for his misogyny (even as pundits on the right began calling for equal denunciations of misogynist speech on the left).
Feminists were winning, especially with Mike Huckabee waiting in the wings to appropriate some of Limbaugh’s market share. Then, perhaps too emboldened by success, Feldt and her allies asked the government to take over for the market and officially suppress Limbaugh’s speech. They’re not just dancing in the end zone; they’re marching, like the maternalistic authoritarians that Limbaugh has always imagined them to be.
There are moments when you know the tectonic plates have shifted. This is one of them. There’s hardly a question that Rush Limbaugh crossed the line of public decency in his abusive language toward Sandra Fluke. His sexist screed was nothing new. But this time, his you-know-it-when-you-see-it shift from free speech to hate speech, from tolerable spew to having the plausible potential to incite physical abuse, has since been properly reflected in the heightened level of outrage. As the Women’s Media Center, a progressive organization committed to media justice for women (disclosure: I serve on the board), points out in its most recent newsletter, “In a country where a woman is raped every two minutes, characterizing women as ravening sexual creatures is an incitement to violence.”
It’s time for citizens to ask the FCC to take Rush Limbaugh off the public airwaves once and for all, as Women’s Media Center founders, Jane Fonda, Gloria Steinem and Robin Morgan, urged in a CNN.com op ed.
This is not an easy statement for me. Not only have I been, proudly, a card-carrying member of the ACLU, I have risked life and limb to fight for women’s freedom of speech, religion and the human right to practice family planning according to their own beliefs and values. I am in no way calling for censorship. Rush is entitled to all the free speech he wants, but we—as women, as members of marginalized or oppressed groups, and as Americans—are equally entitled to use our free speech and all the tools of the democratic process to get him off the air.
David Sirota, in his Sun Journal piece, made this point when he wrote that “broadcasting ideas is a privilege, not a right” and wondered why the right-wing media “portrayed conservatives as victims, marshaling anti-censorship arguments to insinuate that bigotry, anti-Semitism, homophobia and sexism are somehow entitled to a constitutionally protected place in major media outlets.”
The FCC exists because the airwaves are a public trust, and it is obligated to keep them functioning “in the public interest.” Submitting requests to the FCC to fulfill its public interest mandate is no different from asking citizens to send letters to their representatives in Congress. Limbaugh’s hate speech is not in the public interest—the basis by why stations are allowed a license to use the free-spectrum airwaves in the first place.
Limbaugh’s constant racist, misogynist, homophobic and otherwise dehumanizing language has long since crossed the line from a program that entertains or informs into one that abuses the public airwaves—and rather than directing his vitriol at the policy (clearly in the free speech realm), he aimed his abusive language at Sandra Fluke and by extension, created a climate of hate (clearly over the line into hate speech) toward all women. Why shouldn’t we call it what it is, hate speech, and seek appropriate action?
Why take action now, after listening relatively quietly for years? There are watershed moments, when people suddenly notice and become fed up with an atrocity that has been occurring for years. Sometimes it’s a straw that breaks a camel’s back, but sometimes it’s a ten-ton load of bricks. Or a very large man verbally abusing and inciting others to abuse a fresh-faced young woman who looks like everyone’s beloved daughter or sister.
Rush’s comments were not mere insults; they were gendered, sexualized hate speech. As Frank Bruni wrote in the New York Times, “While both men and women are called idiots and puppets and frauds, only women are attacked in terms of suspected (or flat-out hallucinated) licentiousness.” Rush’s language dehumanizes women, in this case by policing—and punishing—female sexuality. “Women are still seen through an erotically censorious prism,” explained Bruni, “and promiscuity is still the ultimate putdown.” This woman-bashing is at its core about fear of women, especially women with power to determine the course of their own lives.
But regardless of motivation, sexualized, gendered hate speech has real consequences. Recently the nation witnessed the literal marginalization of women’s voices during an all-male panel on women’s reproductive health, where women were excluded from discourse on issues that exclusively affect their lives. Through his dehumanizing language, Limbaugh revealed the ugly sexism that foments the warped logic of the Blunt amendment, permitting almost any employer to deny insurance coverage of contraception for almost any reason, the forced ultrasound bills that fit the legal definition of rape and opposition to just about anything that might allow women to function as equal citizens. Their first line of attack is always to denigrate women’s bodies.
I’m usually the first to say the widest possible range of speech should be tolerated, and the last to allege hate speech. But the plates have shifted. Women’s eyes are opening to the pervasive cultural violence that too often devolves into physical violence. This is the moment to take the strongest possible stance—a stance that goes beyond an apology and beyond the loss of sponsors—and call for the FCC to exercise its legitimate power and take Rush Limbaugh off public airwaves.
Because I share Gloria Feldt’s commitment to feminism and reproductive choice, I share her belief that Rush Limbaugh’s rants don’t enhance the public welfare. But my particular concerns about Limbaugh’s political influence also reflect my general concerns about demagoguery, so I’m sorry to hear Feldt and the Women’s Media Center exercising their right to indulge in it.
What do I mean by “demagoguery”? I mean protected political speech that inflames listeners without informing them, speech that, however civil or uncivil, ignores or distorts facts and principles. I mean speech that reflects the corrupting influence of politics on language, described so enduringly by George Orwell—speech that employs euphemisms and clichés in “defense of the indefensible.”
How does Feldt’s speech qualify? Censorship (not the practice but the word) is generally indefensible or at least unappealing, so Feldt insists that she is “in no way calling for censorship.” But she is explicitly calling for government suppression of Limbaugh’s speech based on its allegedly objectionable content, and content-based, government regulation of speech is the foundational definition of censorship.
Of course, censorship is not always legally indefensible: the Supreme Court has carved out categories of speech excluded from First Amendment protections, such as obscenity, libel and incitement to violence. So Feldt characterizes Limbaugh’s “sexist screeds” as “inciting physical abuse,” but in doing so, she ignores both the law and the facts.
The legal definition of incitement was formulated by the Supreme Court in the landmark 1969 case Brandenburg v Ohio, involving prosecution of a Klan leader for speech that included derogatory remarks about “Negroes” and Jews (remarks that would be labeled hate speech today.) He was convicted under a criminal syndicalism statute – the sort of statute previously used against unpopular left wing political advocacy as well as membership in left wing organizations during twentieth-century Red scares.) The Court rightly struck down the Ohio law, rightly defended political advocacy and enunciated this commendably narrow definition of unprotected incitement: speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Limbaugh’s sexist screeds don’t begin to qualify as incitement, and Feldt offers no facts that would indicate otherwise. Instead, she seems oblivious to the need for any evidence that Limbaugh intended to incite imminent violence and that his remarks were likely to do so. She simply declares that “a woman is raped every two minutes,” as if his direct culpability for innumerable, unspecified rapes were self-evident.
Perhaps advocates of censoring Limbaugh consider the legal standard of incitement irrelevant, or insufficiently broad. Perhaps they‘d prefer prohibiting advocacy that lacks a predictable causal relationship to imminent violence—so long as the advocacy is labeled “hate speech.” “Rush’s comments were not mere insults; they were gendered, sexualized hate speech,” Feldt explains.
It would be equally accurate, and a lot less inflammatory, to describe Rush’s comments as crude, sexist insults. But then they might not obviously qualify as “hate speech,” the illegality of which Feldt, like many others, also seems to regard as self-evident. “I’m not in favor of censorship, but free speech isn’t hate speech,” advocates of censoring whatever speech they regard as hateful regularly intone—as if freedom of speech should be limited to speech that they like or only mildly dislike.
Put aside the familiar “slippery slope” arguments against such subjective definitions of unprotected speech. Put aside the fact that people who harbor fervent religious or moral beliefs that abortion is murder, contraception sinful and progressivism a path to serfdom, might consider Rachel Maddow hateful and a greater threat to the Republic than Rush Limbaugh. Put aside the fact that fat people who feel oppressed by a cult of thinness might condemn as “hate speech” Al Franken’s description of Limbaugh as “a big fat idiot,” claiming that it links obesity to idiocy and incites prejudice against the overweight. And put aside practical political realities—notably the fact that official, content-based, speech regulations will be enforced by people in power who may be un-inclined to protect the powerless and may even prefer Rush to Rachel.
Consider instead the proposition that fundamental freedoms of speech and conscience include the freedom to hate. Progressives are free to hate Rush Limbaugh and all he represents, while Limbaugh and his followers are free to hate progressives back. Hate is not an attractive emotion, but it does come naturally to human beings, and like all emotions should always remain beyond the jurisdiction of the state. Advocates of hate speech restrictions might argue that they aim to regulate speech, not feelings; but speech and feelings are inextricably bound, as, I suspect, many writers would attest. I write partly to discover what I think and feel. The freedom to harbor an emotion is partly contingent on the freedom to articulate it. Whether or not Limbaugh’s biases are morally reprehensible, he has a fundamental moral as well as legal right to express them.