The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Friday, March 9, 2012

Gloria Allred Hypocritically Tries to Get Limbaugh Prosecuted Under a Sexist Law

Update: Thanks for the linkage from Overlawyered, which correctly notes it might be "counterproductive" to give Ms. Allred additional publicity.  I agree normally, but this is too thuggish to ignore.  They also link to this Volokh piece which goes into more depth about problems with this law.

For some on the left it is not enough to disagree with what someone said.  No they want to see that person destroyed, terrorized and imprisoned, for holding an opinion that they don’t like.  Not everyone on the left, of course.  There are decent liberals who believe in freedom of speech, but there is this creeping fascist tendency.

A case in point is Gloria Allred.  She was last seen simulating masturbation with a baseball bat on national television (yes, really).  And now she has jumped into the Limbaugh/Fluke controversy with a demand to prosecute Limbaugh for calling Fluke a slut and a prostitute.

Let’s take a moment to review what Limbaugh actually said, because it is important.

"What does it say about the college coed who goes before a congressional committee and essentially says that she must be paid to have sex?" Limbaugh continued, “It makes her a slut, right?  It makes her a prostitute. She wants to be paid to have sex."

So based on this statement Gloria Allred, ostensibly representing the Women’s Equal Rights Legal Defense and Educaton Fund (of which she is the President) has demanded that Rush Limbaugh be prosecuted for saying this under Florida Statutes §836.04 which states that:

836.04  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.

You can indeed read the letter she wrote demanding this prosecution, here.

Does anyone else see the problem with this law?  It’s very language contains a discrimination based on sex—it applies only to imputations of a lack of chastity against women.  And I thought that this legal organization—and Ms. Allred herself—was opposed to sex discrimination.  Indeed Allred’s site states that she is “a tireless crusader against discrimination in all areas of our lives.”  Oh, except in the criminal law in Florida when a prominent Republican or conservative is involved.  So this attack on Limbaugh is deeply unprincipled as is any "feminist" who cheers it on.

And this is probably a fatal flaw in the statute itself.  I am not being ideological when I say this, but almost any lawyer will tell you that this law is unlikely to be upheld under the Equal Protection Clause of the Fourteenth Amendment which prohibits many forms of discrimination.  As the Supreme Court has repeatedly said “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives[.]”  U.S. v. Virginia, 518 U.S. 515 (1996).  It’s important to note that in this case the test wouldn’t apply to the general concept of protecting a person’s sexual reputation, but instead the legislature’s decision to protect a woman’s sexual reputation and not a man’s.  That discrimination has to serve this important governmental purpose, and in my opinion it is unlikely that any court will find that it does.

But sharp eyed lawyers will know that U.S. v. Virginia didn’t even apply this standard, but went with even tougher-sounding language: “Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.”  Court observers interpret this as introducing a new, even higher standard for consideration, but still below the strict scrutiny afforded racial classifications.  For my money, I am not sure if it is supposed to be a higher standard or a clarification of what the old standard means, but I am open to that interpretation.

What kinds of discrimination pass would muster?  Bluntly I think it would have to be something that involves almost tautological truths.  For instance, it will never be considered unlawful sex discrimination to place urinals in men’s rooms and not women’s rooms.  It is unlikely to be considered sex discrimination to provide prostate exams for men only, or for breast exams for women only.  And indeed I doubt the Supreme Court will find that separate bathrooms by sex is sex discrimination the way bathrooms separated by race was considered racial discrimination.

So I can practically see the Supreme Court opinion talking about how this law was based on outdated mores and so on.  One fully expects this passage from Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) to be cited:

Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

The idea that it is some great harm to attack he sexual purity of a woman, but not a man, is precisely the kind of archaic and stereotypic notion that the courts will frown upon.

And it is worth noting that this law is indeed very rarely enforced and once when it was challenged based on the sex discrimination in the statute prosecutors withdrew the charge.

And one thing that is important to note is that Allred almost certainly knows this law is unlikely to survive any challenge under the Equal Protection Clause, or at least she would if she took five seconds to think about it.  So she is urging Limbaugh to be prosecuted, forcing him to spend time and money, when she knows—or should know—that any prosecution would be unsuccessful.  It is thuggery, pure and simple, mixed with publicity seeking.

And there is indeed another problem with this law, although it is less gloriously ironic than Allred pushing the enforcement of a sexist law: it probably isn’t defamation.  Go back and read Limbaugh’s comments again.  His entire knowledge of this woman’s sexual activity amounts to his knowledge that she wants to get birth control pills.  And based on that fact alone (“It makes her”), he calls her a slut, and based on the fact she wants us to pay for it, he calls her a whore.  This was an uncharitable assessment, and he is right to have apologized for it, but it was his opinion based on undeniable facts and thus is protected speech as “fair comment.”  It was wrong, but it is legally protected.

By the way, do you know how epically silly this is?  A Daily Koser agrees with me.  I discovered this just as I was wrapping up the post:

The Florida statute (which bans all anonymous publication, including many writers on DailyKos) is one of the worst examples of sexist paternalism, pretending to “protect” women by treating them like weaklings needing the defense of the state against offenses to the virtue. It's no small irony that at the bottom of Allred's letter is the text of the never-adopted Equal Rights Amendment: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Clearly, a law that protects the “chastity” reputation of women but not men fails to meet that equal rights standard....

Sadly, some of the outrage against Limbaugh reflects the very same sexist notions embodied in the Florida law invoked by Allred, that the "chastity" of women is what makes them worthy.

Amen to that, and good catch on the Equal Rights Amendment language.  I frankly missed it.


* As a side note, Hogan involved a man applying to an all women university so there is no question that the rule applies both ways—to laws that discriminate against men and women.  Indeed this was over a claim that this was a form of an affirmative action, to provide women a “room of their own” and so on.  This probably had a lot to do with the fact that the school in question was a school of nursing, not exactly a profession where women have faced discrimination and indeed one could easily argue that by encouraging women to be nurse and not doctors, Mississippi was not combatting sexism, but encouraging it.

Anyway, in Hogan the Supreme Court has made it pretty clear that there probably cannot be a single gender school, even if there is a separate but equal choice for the other gender.  The Virginia case was even easier because there wasn’t even a separate but equal school for women to match up with the then men-only Virginia Military Institute.


Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.


  1. Jeez. It was a rude joke. He apologized. Allred sure is good at getting attention. She managed to insert herself into Weinergate as well.

    I agree with JohnKWilson that this is offensive sexism that women don't need. Shame that some women pose as feminists while undermining the concept of treating men and women the same.

    Does she really want to live in a world where people are prosecuted for insulting other people in their jokes?

  2. Yeah, I don't mean to defend Rush, but I don't think he was seriously calling her that, he was making a (bad, inappropriate) joke. "Illustrating the absurd with the absurd" or whatever. I mean he wasn't seriously suggesting she was an actual prostitute, right? He wasn't seriously suggesting that she tape her sexual encounters and make them publicly available so that those who fund the encounters can reap some benefits from having to do so, right? (Yeesh, that last one just creeps me out, he really went way over the line with that.)

  3. Yeah, he crossed the line for sure. But he apologized and she's refused to accept it. I don't see how this is a bigger deal. I don't really care if some company wants to stop sponsoring Rush. Free country, though if they sponsor Ed Shultz and not Rush they just seem to be liberal activist companies like Carbonite.

    He had a point, of course. He was illustrating absurdity by taking the assumptions or dishonesty and extending that to an absurd conclusion. It's actually a logical way to refute things, but Rush took it a little too far.

    I think he's probably delighted with much of the reaction to this. I admit I listened to his program last week, which is rare for me. I think he enjoys the continued relevance. Allred just wants a piece of the relevance pie.

  4. I disagree with the characterizations of Rush above. He wasn't "illustrating absurdity"; he was engaging in a character attack. If he wanted to illustrate the absurdity of what Fluke was advocating, he had to be HONEST about what she was advocating (and she WASN'T advocating that taxpayers "pay for her to have sex").

    His apology was merely for his "word choice" -- i.e, for the words "slut" and "prostitute" -- and not for the defamation. In other words, Rush apparently thinks it would be fine to call her a "slut" and "prostitute", so long as he avoids those magic words.

    That said, Aaron is correct. The statute is archaic. And it should not be the business of the state to prosecute sexist louts under criminal law. But Fluke has a wonderful defamation suit, and THAT she should pursue.

  5. Ken

    > But Fluke has a wonderful defamation suit, and THAT she should pursue.

    Rush Limbaugh was not saying that he knew about her sexual habits and as a result he knew she was a slut and a whore.

    He said that the fact she used birth control and wanted Georgetown to pay for it, made her one.

    That is his opinion based on undeniable facts. She undeniably used bc, she undeniably wanted Georgetown to pay for it. He is allowed to draw a negative opinion about her character based on it.

    That is not to say what he said was morally correct, but as far as the law of defamation is concerned that is fair comment. So she would not have a wonderful defamation case, and she better hope no anti-slapp law would apply.

  6. Just imagine if every time Colbert or David Letterman or Maddow made a ridiculous joke about someone... something no one reasonably thought was intended to communicate an accurate point... they could be sued.

    Rush apologized for his joke. If someone wants to hold it against him, that's fine, but defamation? It was trying to make a point about how absurd Fluke's comments are. In other words, the fact it was absurd and untrue was an intended part of the argument rush was making.

  7. Rush wasn't making an accurate point. She wasn't asking for the taxpayer to pay for her sex, and she never raised the issue of how much sex she was having. So why was Rush impugning her reputation with those lies?

    And there is a hell of a difference between a "joke" and a three-day character assassination. Rush didn't let up; in fact, when the blowback started against Rush, he doubled down.

    Finally, he didn't apologize for the "joke"; he apologized for using the words "slut" and "prostitute". That leaves, by one count, 53 attacks for which he did NOT apologize.

  8. Kman

    > Rush wasn't making an accurate point.

    You are confusing an inaccurate opinion with inaccurate facts. You are also forgetting that not every inaccuracy creates a cause of action. So…

    > She wasn't asking for the taxpayer to pay for her sex,

    Which is true, she was asking for Georgetown to be forced to pay it. Which is a difference without distinction. Rush’s logic is she was asking to be paid for sex therefore she was a prostitute. Who the payor is has no impact on the accuracy of that statement.

    > and she never raised the issue of how much sex she was having. So why was Rush impugning her reputation with those lies?

    See, this is where you are going wrong. Rush believed, apparently, that using birth control pills made you a slut, at least if you were not married. You believe that is wrong, and I believe that is wrong, but he is entitled to that opinion because that is what it is—an opinion. Being a “slut” is not purely a matter of fact, but of opinion, too. It is an assessment that a person, typically a woman, is having more sex than she should. And the rub is the question of how much sex a woman should have. If a person thinks a woman should be a blushing virgin until their wedding day, than ANY sex is too much sex.

    (Which is probably hypocritical in addition to being wrong, but again this is Rush’s opinion and he is entitled to it.)

    Now if he pretended that he knew exactly how much sex she was having independently and called her a slut, that might give rise to defamation. But to take publicly known facts—that she uses birth control and wants someone else to pay for it—and to conclude BASED ON THOSE FACTS while making it clear that he was basing he assessment on those facts, then that is nothing more than his opinion, which is not actionable.

    Get it? Sheesh.

  9. I just want to add that when government forces someone to pay for something, that, to me, is a tax and a government program. It's just crafted in a way that lets politicians off the hook for an enormous expansion to government (one reason I grumble a lot about Romney's 'conservatism').

    If Obama forces Georgetown to pay for some condoms, that's a government program and a tax and, to me, government spending. They are claiming and spending the money, after all.

    But furthermore, Rush was not lying about Fluke's sex habits. He was exposing that Fluke's figure was a lie. If you take that figure seriously, $3000, then obviously you're not talking about 'the pill', so he figured she's talking about condoms. So she's having sex three times a day or whatever. Which is absurd.

    It's a reductio ad absurdium. The entire point is showing that the entire chain of reasoning is untrue, not that it is true. Rush doesn't believe Fluke's figure (or now her friend's figure) was honest. He believes it was a fraud.

    And he's right.

    Where's Fluke's apology, now that we have established that liars should pay for their lies?

  10. >> Which is true, she was asking for Georgetown to be forced to pay it. Which is a difference without distinction.

    That's not what Rush said. He said -- and this is a quote -- "She wants to be paid to have sex. She's having so much sex she can't afford the contraception. She wants you and me and the taxpayers to pay her to have sex."

    >> Rush’s logic is she was asking to be paid for sex therefore she was a prostitute. Who the payor is has no impact on the accuracy of that statement.

    Using birth control isn't the factual equivalent of having sex. And having birth control COVERAGE isn't the same as using birth control. That's why all this is tantamount to a lie. It's like saying, "Well, my employer pays for health care coverage; my health care coverage includes treatment for liver cancer; therefore, my employer is paying me to have liver cancer".

    >> Rush believed, apparently, that using birth control pills made you a slut, at least if you were not married... Now if he pretended that he knew exactly how much sex she was having independently and called her a slut, that might give rise to defamation.

    But that's exactly what he did. He pretended to know how much sex she was having. Not EXACTLY how much, but when he says:

    "She's having so much sex she can't afford the contraception."


    "A Georgetown coed told Nancy Pelosi's hearing that the women in her law school program are having so much sex they're going broke."


    "...she and her co-ed classmates are having sex nearly three times a day for three years straight, apparently these deadbeat boyfriends or random hookups that these babes are encountering here, having sex with nearly three times a day"


    "She's having so much sex it's amazing she can still walk, but she made it up there."


    "She's having so much sex that she's going broke! There's no question about her virtue."


    "Here's a woman exercising no self-control. The fact that she wants to have repeated, never-ending, as often as she wants it sex -- given."

    and half a dozen more examples.

    These are all actionable statement, even though they never use the word "slut". It's Defamation 101.