I recently wrote a column on how the West is curtailing free speech under blasphemy, hate speech, and anti-discrimination laws. As if on cue, lawyer Gloria Allred has called for the criminal prosecution of Rush Limbaugh for calling law student Sandra Fluke a “slut” and “prostitute.” I previously wrote that I believe Limbaugh’s comments were protected speech under the first amendment and constitute opinion for the purposes of any libel action. Such a prosecution would threaten core free speech principles and the law cited by Allred would appear not only inimical to free speech but overtly sexist.
In her press conference, Allred proclaimed “Mr. Limbaugh targeted his attack on a young law student who was simply exercised her free speech and her right to testify before congress on a very important issue to millions of American women and he vilified her. He defamed her and engaged in unwarranted, tasteless and exceptionally damaging attacks on her. He needs to face the consequences of his conduct in every way that is meaningful.” Thus, Allred insists, Limbaugh must be prosecuted to protect the free speech rights of Fluke. For most civil libertarians, that is rather counterintuitive.
In her letter to Palm Beach County State Attorney Michael McAuliffe, Allred speaks on behalf of the Women’s Equal Rights Legal Defense and Education Fund. On her website, Allred identifies herself as the “founder and president” of the organization. Allred wants an investigation under Section 836.04 of the Florida Statutes which allows for the criminal prosecution of anyone who “speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity.” While based on defamation, the law allows for a criminal charge of a misdemeanor of the first degree.
What is curious about Allred’s embracing of this law is that it is overtly sexist. The law suggests that a woman who is viewed as unchaste is so harmed that she constitutes a crime victim. Chastity is defined by Webster’s as “(a) : abstention from unlawful sexual intercourse; (b) : abstention from all sexual intercourse.” The law is based on the out-dated notion that a woman who has sex before marriage is damaged and subject to social stigma. To put it more colloquially, such a woman was viewed as a “slut or prostitute.” That is precisely the outrageous view voiced by Limbaugh in relation to Fluke and led to a worldwide condemnation. Now, Allred wants him prosecuted under a law that assumes that is based on the same assumption. The law was not designed to prevent women from being called sluts. Laws like Florida’s code provision were designed on the belief that a woman who is unchaste is a slut — and that “good” women should never be accused of sex before marriage. So Allred wants Limbaugh prosecuted for saying Fluke is a slut based on the law that effectively treats unchaste women as sluts. It does not protect men because an unchaste man was viewed under these dated laws as just a normal man. A man was not viewed as harmed or demeaned by being sexually active. Only a woman was harmed by the suggestion of sexual activities. Not also the law only protects women who are “falsely” accused of being unchaste. Thus if a woman has been sexually active before married, she would presumably not be protected under the law.
I have previously written against these archaic laws, which were passed with anti-fornication and anti-adultery laws. Even when anti-adultery laws did not limit themselves to women, it was women who were often targeted.
Using sexist laws to fight sexism is never a good idea. In this case, the prosecution suggested by Allred would not only reaffirm the very sexism at the core of Limbaugh’s comments but add an attack on free speech to magnify the harm.