Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:
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 ….
Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.
1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort. But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.
Thus, for instance, say that A asserts that B is guilty of “blackmail.” Blackmail is a crime, and accusations of crime are generally actionable libel. But if in context it is clear that the word is “rhetorical hyperbole, a vigorous epithet used by those who considered [B]‘s negotiating position extremely unreasonable,” then the accusation is constitutionally protected opinion — it is basically an assertion that B’s accurately described conduct is morally similar to blackmail, a statement of opinion (and perhaps clearly understood hyperbole). So the Court held in Greebelt Coop. Pub. Ass’n, Inc. v. Bresler (1970).
Limbaugh’s saying that Fluke’s testimony “makes her a slut” and “makes her a prostitute” falls into the same category: Listeners would understand is as “rhetorical hyperbole, … vigorous epithet[s] used by [Limbaugh,] who considered [Fluke's advocacy] extremely unreasonable,” an assertion (however logically unsound, in my view) that Fluke’s demands are morally similar to a prostitute’s insistence on getting money for sex. That is a statement of opinion and constitutionally protected.