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When Not to Bring a Prosecution...

...is when Gloria Allred wants you to bring it.

Never one to pass up a chance at publicity of whatever quality, Ms. Allred has suggested that Rush Limbaugh face criminal prosecution for publicly calling a Georgetown law student a "slut."  This was because the student testified before Congress in a manner inconsistent with Mr. Limbaugh's views about the (required) provision of contraceptives.

Limbaugh apologized for his crude and insulting remark, as well he should have.  Indeed, there's a rumor about that radio talk show hosts, and other human beings, should think about what they say before they say it.  But the idea that a person should be prosecuted for being unbearably crude is, well, crazy, not to mention dangerous.

Ms. Allred points to a statute providing that anyone who "speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity" is guilty of a misdemeanor of the first degree.  The statute sounds to me like something out of the 18th Century, and embodies a paternalistic attitude toward women that, in any other context, would make Ms. Allred's head explode.  But, to cut to the chase, it is probably the most obviously unconstitutional statute I have ever read.  The statute, and Ms. Allred's desire to use it, are so out to lunch that they make liberal McCarthyite campus speech codes look good.


Falsehoods, like threats, are generally not constitutionally protected, as explained in our brief in the Stolen Valor Act case.

However, a statement that is clearly hyperbole and would not be taken as a literal assertion is not within the exception. In United States v. Watts, 394 U.S. 705 (1969), the Supreme Court found that a threat to kill LBJ, which would be prosecutable if a "true threat," was, in context, "a kind of very crude offensive method of stating a political opposition to the President."

In this case, Limbaugh deserves every bit of the criticism he has received for this statement and his inadequate apology, but the claim that it can be prosecuted as a criminal offense is preposterous.

My jurisdiction has a statute on its books quite similar to the one cited by Allred. The crime is called "slander of a woman." I think it's quite obvious that this is just one of those vestiges of bygone days that our legislature just hasn't gotten around to repealing, and any prosecutor who tried to charge that crime would clearly be laughed out of court.

It seems to me that a civil suit for slander would be a more plausible course of action than any sort of criminal prosecution.

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