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Rush Limbaugh, Hate Speech, and the First Amendment

by Professor Will Huhn on March 15, 2012

in Constitutional Law,Freedom of Speech,Wilson Huhn

Rush Limbaugh has a long history of demeaning people based upon their gender, race, religion, and sexual orientation. His record is a perfect demonstration of the fact that in the context of a public address hate speech is protected by the First Amendment. That does not mean that other people have to put up with it.

The Constitution protects many categories of speech that other people find offensive. People have the right to distribute, read, and view pornography. People have the right to burn the American flag in protest. People have the right to advocate that there be a Communist revolution. People have the right to praise Islamic terrorists.

People also have the right to make statements that are misognynistic, racist, anti-gay, and Islamophobic. Over the years Rush Limbaugh has persistently exercised his right to freedom of speech in those ways. It is the centerpiece of his political philosophy, the foundation of his entire career. As a white, straight, christian male he believes that he is superior to all other people who do not share all of those characteristics. I won't repeat his despicable language.  If you choose you may see his statements by linking to any of the following sites that have recorded the "highlights"  of his broadcasting career:

Gane McCalla, at NewsOne, Republished! Top 10 Limbaugh Racist Quotes (don't miss the ones set forth in the comments!);

John H. Richardson, Esquire, The Rush Limbaugh Racism No One's Paying Attention To (editor's note to John: A preposition is a terrible thing to end a sentence with!);

John K. Wilson, Rush's 53 Smears Against Sandra Fluke (in case you thought that Rush just "misspoke" when he called Fluke a couple of vile names);

Adam Clark Estes, Rush Limbaugh's Latest Verbal Victim Feels Derided, Dismissed (the day after he apologized to Fluke Limbaugh viciously attacked another woman).

Limbaugh has long kept Media Matters for America busy.  Their research department has compiled a lengthy list of Limbaugh's "greatest hits:"

The 20 Worst Racial Attacks Limbaugh's Advertisers Have Sponsored

15 Of Limbaugh's Most Offensive And Controversial Comments Targeting Immigrants

Rush Limbaugh's Worst Advertiser-Sponsored Attacks On The LGBT Community

"Feminazi": The Origin of Limbaugh's Trademark Slur Against Women

Rush Limbaugh's Decades Of Sexism And Misogyny

Limbaugh: Islam "Most-Known" for Its "Terrorist Wing"

Limbaugh calls Islamic cultural center "a victory monument at Ground Zero"

The 10 Worst Advertiser-Sponsored Moments Limbaugh Laughed At Human Suffering

UPDATED: Limbaugh's Misogynistic Attack On Georgetown Law Student Continues With Increased Vitriol

10 Of Limbaugh's Worst Advertiser-Sponsored Attacks On The Poor

No-one may be prosecuted, fined, or put in jail for indulging in any of these forms of hate speech.

But society does place limits on the time, place, or manner of speech. I wouldn't recommend bringing pornography to work or posting it in one's cubicle. It's probably unwise for a student to burn an American flag in his or her dormitory. You might think twice before calling someone a vile name at work or at school. Just because hate speech is constitutionally protected from criminal prosecution does not mean that it must be tolerated at all times or places. If Rush were to speak to one of his employees the way he so often speaks on the air he would be subject to sanction under non-discrimination laws.  If as a student he were to repeat some of his on-air comments in class he might be removed from the classroom, suspended, or expelled.  In 2003, Limbaugh's mercifully short tenure as a ESPN commentator came to a close after he made gratuitous, racist remarks about quarterback Donavan McNabb.  The law may not punish hate speech, but that does not mean that there are not consequences for it.

As the host of a talk radio show Limbaugh is relatively insulated from legal consquences for engaging in hate speech.  The law rightfully imposes few limits on a person who is addressing the public.  Among those limits: the speaker may not incite a riot; the speaker may not defame individuals; and the speaker may not depict obscenity.  Short of those circumstances, however, as a radio host or a commentator Limbaugh can say or write whatever he wants and the law can and should do nothing about it.

The remedy for bad speech is more speech. Those who disagree with Limbaugh's message of hate can speak out against it, as I do today; refuse to listen to his programs; or boycott his sponsors. All of these responses, as well, are protected by the First Amendment.

Those of you who are inclined to defend Limbaugh, please don't pretend "everybody talks like this." No decent person does. Please don't try to justify him by pointing to some equally vile statement made by someone else. I would condemn that too, as should every decent person. And please don't defend what he has said by claiming that he has a constitutional right to say these things. I agree.

It's still wrong.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

{ 6 comments }

larry d. March 15, 2012 at 8:48 am

No one's claiming everyone talks like this, Professor. Although Limbaugh's remarks are consistently misconstrued and taken out of context, the main claim I have is progressives consistently do talk like this. Your refusal to even acknowledge that fact is what makes you appear to be a dimwitted political hack, rather than respected academic. But I guess considering those academics who make the news these days it's becoming clear that in all too many cases the two terms are synonymous.

larry d. March 15, 2012 at 10:11 am

As for the centerpiece of one's political philosophy, segregating folks by race and gender has been the central plank of Democrats ever since the party's founder came up with the concept of the Trail of Tears. Subsistence checks and government-provided housing are still the biggest tools in the box, but things have gotten worse with modern progressivism, in which we see an integral connection to eugenics in the form of abortion and, yes, contraception, under the guise of "women's health," as if reproduction is an ailment. Very creepy stuff.

The Progressive movement swept America from roughly the early 1890s through the early 1920s, producing a broad popular consensus that government should be the primary agent of social change. To that end, legions of idealistic young crusaders, operating at the local, state, and federal levels, seized and wielded sweeping new powers and enacted a mountain of new legislation, including minimum wage and maximum hour laws, antitrust statutes, restrictions on the sale and consumption of alcohol, appropriations for hundreds of miles of roads and highways, assistance to new immigrants and the poor, women’s suffrage, and electoral reform, among much else.

Today many on the liberal left would like to revive that movement and its aura of social justice. Journalist Bill Moyers, speaking at a conference sponsored by the left-wing Campaign for America’s Future, described Progressivism as “one of the country’s great traditions.” Progressives, he told the crowd, “exalted and extended the original American Revolution. They spelled out new terms of partnership between the people and their rulers. And they kindled a flame that lit some of the most prosperous decades in modern history.”

Yet the Progressive Era was also a time of vicious, state-sponsored racism. In fact, from the standpoint of African-American history, the Progressive Era qualifies as arguably the single worst period since Emancipation. The wholesale disfranchisement of Southern black voters occurred during these years, as did the rise and triumph of Jim Crow. Furthermore, as the Westminster College historian David W. Southern notes in his recent book, The Progressive Era and Race: Reform and Reaction, 1900–1917, the very worst of it—disfranchisement, segregation, race baiting, lynching—“went hand-in-hand with the most advanced forms of southern progressivism.” Racism was the norm, not the exception, among the very crusaders romanticized by today’s activist left.

At the heart of Southern’s flawed but useful study is a deceptively simple question: How did reformers infused with lofty ideals embrace such abominable bigotry? His answer begins with the race-based pseudoscience that dominated educated opinion at the turn of the 20th century. “At college,” Southern notes, “budding progressives not only read exposés of capitalistic barons and attacks on laissez-faire economics by muckraking journalists, they also read racist tracts that drew on the latest anthropology, biology, psychology, sociology, eugenics, and medical science.”

Popular titles included Charles Carroll’s The Negro a Beast (1900) and R.W. Shufeldt’s The Negro, a Menace to American Civilization (1907). One bestseller, Madison Grant’s The Passing of the Great Race (1916), discussed the concept of “race suicide,” the theory that inferior races were out-breeding their betters. President Theodore Roosevelt was one of many Progressives captivated by this notion: He opposed voting rights for African-American men, which were guaranteed by the 15th amendment, on the grounds that the black race was still in its adolescence.

Such thinking, which emphasized “expert” opinion and advocated sweeping governmental power, fit perfectly within the Progressive worldview, which favored a large, active government that engaged in technocratic, paternalistic planning. As for reconciling white supremacy with egalitarian democracy, keep in mind that when a racist Progressive championed “the working man,” “the common man,” or “the people,” he typically prefixed the silent adjective white.

For a good illustration, consider Carter Glass of Virginia. Glass was a Progressive state and U.S. senator and, as chairman of the House Committee on Banking and Currency, one of the major architects of the Federal Reserve Act of 1913. He was also an enthusiastic supporter of his state’s massive effort to disfranchise black voters. “Discrimination! Why that is exactly what we propose,” he declared to one journalist. “To remove every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.”

Then there was political scientist John R. Commons, an adviser to the Progressive Wisconsin governor and senator Robert M. LaFollette and a member of Theodore Roosevelt’s Immigration Commission. Commons, the author of Races and Immigrants in America (1907), criticized immigration on both protectionist grounds (he believed immigrants depressed wages and weakened labor unions) and racist ones (he wrote that the so-called tropical races were “indolent and fickle”).

Woodrow Wilson, whose Progressive presidential legacy includes the Federal Reserve System, a federal loan program for farmers, and an eight-hour workday for railroad employees, segregated the federal bureaucracy in Washington, D.C. “I have recently spent several days in Washington,” the black leader Booker T. Washington wrote during Wilson’s first term, “and I have never seen the colored people so discouraged and bitter as they are at the present time.”

Perhaps the most notorious figure of the era was Benjamin “Pitchfork” Tillman, a leading Southern Progressive and inveterate white supremacist. As senator from South Carolina from 1895 to 1918, Tillman stumped for “Free Silver,” the economic panacea of the agrarian populist (and future secretary of state) William Jennings Bryan, whom Tillman repeatedly supported for president. “Pitchfork” Tillman favored such Progressive staples as antitrust laws, railroad regulations, and public education, but felt the latter was fit only for whites. “When you educate a negro,” he brayed, “you educate a candidate for the penitentiary or spoil a good field hand.”

Nor did African Americans always fare better among those radicals situated entirely to the left of the Progressives. Socialist Party leader Eugene V. Debs, though personally sympathetic to blacks, declared during his 1912 campaign for the presidency, “We have nothing special to offer the Negro.” Other leading radicals offered even less. Writing in the Socialist Democratic Herald, Victor Berger, the leader of the party’s right wing, declared that “there can be no doubt that the negroes and mulattoes constitute a lower race—that the Caucasian and even the Mongolian have the start on them in civilization by many years.” The celebrated left-wing novelist Jack London, covering the 1908 heavyweight title bout between black challenger Jack Johnson and white boxing champ Tommy Burns, filled his New York Herald story with lurid ethnic caricatures and incessant race baiting. “Though he was a committed socialist,” observed Jack Johnson biographer Geoffrey C. Ward, London’s “solidarity with the working class did not extend to black people.”

As Southern thoroughly documents, these examples just begin to scratch the surface. Progressivism was infested with the most repugnant strains of racism. But was there something more, something inherent in Progressivism itself that facilitated the era’s harsh treatment of blacks? According to Southern, who repeatedly maintains that racism derailed “the great promise” of Progressivism, the answer is no. “The ideas of race and color were powerful, controlling elements in progressive social and political thinking,” he argues. “And this fixation on race explains how democratic reform and racism went hand-in-hand.”

That is surely correct, but is it the whole story? As the legal scholar Richard Epstein has noted, “the sad but simple truth is that the Jim Crow resegregation of America depended on a conception of constitutional law that gave property rights short shrift, and showed broad deference to state action under the police power.” Progressivism itself, in other words, granted the state vast new authority to manage all walks of American life while at the same time weakening traditional checks on government power, including property rights and liberty of contract. Such a mixture was ripe for the racist abuse that occurred.

Take the Supreme Court’s notorious decision in Plessy v. Ferguson (1896), a case that has rightly come to symbolize the South’s Jim Crow regime. In Plessy, the Court considered a Louisiana statute forbidding railroads from selling first-class tickets to blacks, a clear violation of economic liberty. In its 7–1 ruling, the Court upheld segregation in public accommodations so long as “separate but equal” facilities were provided for each race, setting off an orgy of legislation throughout the old Confederacy. South Carolina, for example, segregated trains two years after Plessy. Streetcars followed in 1905, train depots and restaurants in 1906, textile plants in 1915–16, circuses in 1917, pool halls in 1924, and beaches in 1934.

No doubt many of those businesses would have excluded or mistreated black customers whatever the law. But in a market free from Jim Crow regulations, other businesses would have welcomed blacks, or at least black dollars, forcing racist enterprises to bear the full cost of excluding or mistreating all those potential paying customers. (This was one of the chief reasons the segregationists pushed for those laws in the first place.) The state, in the eloquent words of the historian C. Vann Woodward, granted “free rein and the majesty of the law to mass aggressions that might otherwise have been curbed, blunted, or deflected.”

Furthermore, this tangled web of regulations, ordinances, codes, and controls was spun during the heyday of Progressivism, precisely when such official actions were least likely to receive any meaningful scrutiny. Southern, despite his otherwise close attention to the many permutations of race and racism, fails to recognize this major defect in the Progressive worldview.

A similar failure handicaps his treatment of one of the era’s rare victories for African Americans. In Buchanan v. Warley (1917), the Supreme Court unanimously overturned a Louisville ordinance segregating residential housing blocks by race. The case involved a voluntary contract between a white seller and a black buyer for a housing lot located in a majority-white neighborhood. Under the law, the new black owner could not live on the property he had just purchased.

Writing for the Court, Justice William Rufus Day held that “this attempt to prevent the alienation of the property in question to a person of color…is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”

Yet Southern dismisses this rare and important victory as “hollow” and incorrectly asserts that it “was decided not on the grounds of human rights, but on those of white property rights.” In fact, the judicial recognition of black rights stood at the very center of the decision. Justice Day’s opinion clearly states that the Fourteenth Amendment “operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”

Nor should Southern’s characterization of this victory as “hollow” pass unchallenged. As the legal scholars David Bernstein and Ilya Somin have argued, the Buchanan ruling played a major though sadly underappreciated role in the burgeoning fight for civil rights. “Buchanan could not force whites to live in the same neighborhood as blacks,” Bernstein and Somin write, “but it did prevent cities from stifling black migration by creating de jure and inflexible boundaries for black neighborhoods, and may have prevented even more damaging legislation.” It is well worth noting, they continue, that the South did not adopt South African–style apartheid at this time, despite widespread white support for such measures.

In addition, Buchanan was the first major Supreme Court victory for the four-year-old National Association for the Advancement of Colored People, a huge boon for the organization that would go on to win the landmark Brown v. Board of Education (1954), overturning Plessy. W.E.B Du Bois, an NAACP founder and longtime editor of its newsletter, The Crisis, gave Buchanan credit for “the breaking of the backbone of segregation.”

Despite these significant shortcomings, The Progressive Era and Race deserves careful attention. The Progressive movement unleashed, aided, and abetted some of the most destructive forces in 20th-century America. The better we understand this history, the less likely we are to repeat it.

The Progressive Era and Race: Reform and Reaction, 1900–1917, by David W. Southern, Wheeling, W.V.: Harlan Davidson, 240 pages,

http://reason.com/archives/2006/05/05/when-bigots-become-reformers

Dave March 15, 2012 at 10:48 am

Here is where this stuff does not meet the smell test – Why didn't anyone care about these things when they were said? In the 1990's when Clinton and Carville were trying to smear talk radio and pretend they were somewhat responsible for the Oklahoma City bombing, they would not have jumped all over some outrageous statement? Apparently, you would have us believe that the 20 million weekly listeners , including opposition research types, were all complicit in the coverup? A better explanation is that these things were taken out of context or just plain made up and attributed to 8 years ago or something like that. Most of them have been debunked already.

An example, the only reason that anyone knows the quote "Take that bone out of your nose and call me back" is because he used it as an example of something that he was embarrassed to have said years ago when he worked as an insult-radio disc jockey in Pittsburgh in his younger days.

I cannot find in your blog where you complained about racist remarks made by our current Vice-President-
"I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy," Joe Biden said. "I mean, that's a storybook, man."
Or is this just another case of pretend moral outrage?

John March 15, 2012 at 3:38 pm

It is obvious that you do not listen to his program. Don't start, or you might find that you've become addicted! He is a lovable fuzz ball.

Bridget C March 15, 2012 at 5:26 pm

Thank you for a well thought out and carefully crafted article about this issue.

And regarding those who use the history of the parties to claim the left is the side that wants to segregate the races – I have a challenge for you. Go find a picture of congress from the last decade or so that depicts them sitting divided by party. Take a good long look at that picture and then decide who the party of diversity really is.

larry d. March 15, 2012 at 5:47 pm

That kind of blatant tokenism is pretty common among Democrats, Bridget. I'd rather take a picture of the government subsidized housing that's keeping blacks segregated on the wrong side of the tracks in my town. Give them a subsistence check and a few food stamps and voila!: you're no longer the party of slavery, Jim Crow, segregation, lynchings, the KKK, the Trail of Tears, eugenics, etc.

Right?

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