Rush Limbaugh’s Legal Threat to the DCCC

So the other day the news broke that Rush Limbaugh was threatening to sue the Democratic Congressional Campaign Committee otherwise known as the DCCC.  I remember reading about it at Instapundit and Mr. Reynolds saying “it sends a valuable signal.”  Well, respectfully, I think he is wrong.

But first, you should probably see that letter, below the fold:

  Limbaugh Legal Threat to the DCCC by MailOnline

The crux of the matter is a passage where Limbaugh talked about the new push for more affirmative consent laws.  Here’s a clip of the fuller context:



And if you don’t feel like watching a video, here’s what his own transcript says:

Consent must be freely given and, can be withdrawn at any time, and the absence of “no” does not mean “yes.”  How many of you guys, in your own experience with women, have learned that “no” means “yes” if you know how to spot it?  Let me tell you something.  In this modern world, that is simply not tolerated.  People aren’t even gonna try to understand that one.  I mean, it used to be said it was a cliché.  It used to part of the advice young boys were given.  See, that’s what we gotta change.  We have got to reprogram the way we raise men.  Why do you think permission every step of the way, clearly spelling out “why”... are all of these not lawsuits waiting to happen if even one of these steps are not taken?

This whole passage, according to Limbaugh’s lawyer “clearly, unambiguously and emphatically condemned the notion that “‘no’ means ‘yes’.”  And yet, allegedly a DCCC email took the line “‘no’ means ‘yes’ if you know how to spot it” and used it in an email saying that advertisers should dump him.

Now, I don’t personally know that this is true that the DCCC wrote this.  It seems like the kind of thing they do, breathlessly repeating some offensive thing some Republican or Conservative supposedly said and denouncing it, and oh, by the way, give us money because somehow that will repudiate that offensive thing.  It seems like something they would do, but I don’t know that they did it.

Yet for the sake of argument, I will assume that this letter’s version of events is basically true.  But even assuming it is true, I don’t think Limbaugh has a viable case.

The problem comes from the fact that I am not sure his words are as unambiguous as he claims.  Now, let me say that if he says he doesn’t feel that way about rape, I’ll accept it as true.  But his lawyer claims that in context it is clear, while in reality the larger context of Limbaugh’s use of words, it is ambiguous.

For instance, he says “See, that’s what we gotta change.  We have got to reprogram the way we raise men.”  Well, who is “we” in those sentences?  In standard English, “we” is a first person plural, that is it means the speaker and several other people comprising a group.  By contrast, “they” is a third person plural, describing a group of people separate from both the speaker and the listener.

So in standard English, “we” is supposed to describe a group of people that includes yourself.  For instance, just today people are saying “we” landed a probe on a comet.  Well, bluntly, that is a European effort, and therefore from my perspective they landed a probe on a comet, not we.  I had zero participation in that.

But Limbaugh commonly talks about “we,” putting himself in the position of a group he doesn’t belong to.  For instance, consider this example:

Ladies and gentlemen, welcome back. Rush Limbaugh. Happy to have you here on the one and only EIB Network. You know another reason why the left -- and not just the left, by the way. Let's just say the reason why people in general, but particularly on the left, are made nervous by people like Pope Francis, is because they're certain. They are filled with resolve. They're confident -- happily so, by the way. Glowingly, happily so. But it is that certitude that bothers them.

Nobody is supposed to be that certain.

We are all supposed to have open minds. We're all supposed to be undecided. We're supposed to be malleable. We're supposed to be bendable, shapeable, formable. We're supposed to be open, but popes are certain about what they believe. That's why the pope is orthodox. Now, we played the sound bite, a montage of media figures. One of the media figures, Shannon Bream of Fox, said that Pope Francis is "staunchly orthodox" on the issues of abortion, contraception, same-sex marriage.

(Emphasis added.)  The point isn’t to quote his insight, but to see how Limbaugh uses language.  In the third paragraph he says “We are all supposed to have open minds. We're all supposed to be undecided....”  Do you think he is saying that him and his audience should actually be this way?  Or do you think he is saying something more like this: “Liberals believe we are supposed to have open minds.  They believe we are supposed to be undecided” and so on?  Does Mr. Limbaugh strike you as someone who is “bendable, shapeable, formable?”  Any doubts on the subject is dispelled by Limbaugh’s own words later in the same discussion:

[Popes] can't be intimidated by normal, everyday pressure tactics. Maybe this is why TIME Magazine called me "the pope" of the Republican Party. I'm unreachable. I'm making a point here. I've been doing this 25 years; I haven't moderated yet. I haven't modified anything yet. Because I'm certain. I am confident of what I believe. But I also fully understand that I don't have, nor do I want, the power to force people to accept it. I'd rather they do that willingly. That's what this program's all about, actually.

So he sees himself as similar to the Pope in this respect: he is not malleable.  So all that “we” stuff is clearly not talking about himself, but unspecified antagonists.

Here’s another example:

Get this.  Folks, you're not gonna believe this, except that you will.  It's not just the Redskins now.  There are people livid at the nickname of the University of Mississippi, Ole Miss.  We have got to get rid of it.  (interruption) Well, you ought to be tell us.  Now, hang on a minute, hang on a minute.  The story makes it clear that Ole Miss is a profound insult to anybody with slave ancestry.

(Emphasis added.)  Limbaugh goes on to explain that Ole Miss was slang for the woman of the slave plantation houses, and thus it is a reference to slave masters and therefore this nickname is insulting to descendants of slaves.  Whatever you think of that, do you think that Limbaugh believes we have to get rid of that name?  Well, Limbaugh clears it up a few paragraphs later:

And you see, folks, all of this is political.  This has nothing to do with people offended or anything.  It is all political.  (interruption)  Well, they may be struggling economically in Mississippi, but this has nothing to do with that.  This is the left on the march.  This is the left attempting to say that everything institutionally, traditionally in this country is racist in its roots and has to be uprooted and done away with.  That's what this is.  (interruption)  Of course they're seriously insane, but remember, now, the chancellor at the university sent this to the students.  This is not the students demanding something.  This is administration down.

So if there was any doubt on the subject, Limbaugh was saying “we” but he really meant “liberals” or “they.”

And he does that sort of thing a lot, not being clear who is the person talking or who he is talking about.  So we might interpret the same quote his lawyer gave in a radically different way from his intended meaning.  To illustrate how one might read it, let me add nouns to the paragraph as follows in italics:

Liberals believe consent must be freely given and, can be withdrawn at any time, and the absence of “no” does not mean “yes.”  How many of you guys, in your own experience with women, have learned that “no” means “yes” if you know how to spot it?  Let me tell you something.  In this modern world, that is simply not tolerated by liberals.  Liberals aren’t even gonna try to understand that one.  I mean, it used to be said it was a cliché.  It used to part of the advice young boys were given.  See, that’s what liberals believe we gotta change.  Liberals believe we have got to reprogram the way we raise men.  Why do you think permission every step of the way, clearly spelling out “why”... are all of these not lawsuits waiting to happen if even one of these steps are not taken?

And if you interpret it something like that way, it all starts to sound more likely an apology for rape, a genuine belief that sometimes “yes” means “no,” and so on.  I am not saying that was Limbaugh’s intended meaning.  But a person could be reasonably confused.

So Limbaugh (and his lawyers) want to look at the context of the paragraph in which it was in, but if we look at the even larger context of how Limbaugh expresses himself, it is far from clear that when he says “[i]n this modern world, that is simply not tolerated” that he agrees with that lack of tolerance.  I will assume he does, but there are liberals out there who actually think that republicans are pro-rape and if someone like that reads that comment they could honestly fill in these ambiguities to suggest that Limbaugh was saying sometimes “no” means “yes.”

Bear in mind, Limbaugh almost certainly qualifies as a public figure.  This means that the truth or falsity of the matter is not judged as it is with ordinary mortals.  Instead, it is judged by the malice standard.  You might at first think that this is easy.  “Obviously, they have malice: they hate Rush!”  And they probably do, but legal malice is different from malice in the ordinary use of English.  Legal malice requires either 1) knowledge it is false, or 2) a reckless disregard for the truth or falsity of the matter.  Judged by that standard, the ambiguity I have been pointing out would seem to settle the matter.

There is also another potential problem: proving causation of harm.  Even assuming that advertisers dropped Limbaugh over this, proving it might be difficult.  You would, in essence, need some of his advertisers to say that they dropped him because of the comments about rape, after receiving this email from the DCCC.  Are there a lot of people on the DCCC mailing list who also advertise on Limbaugh’s show?  It certainly is not obvious on its face that it was only because of the DCCC: seriously, I found hundreds of links via Google discussing how offended liberals are that Rush said this.

All of that isn’t to say that the case won’t survive a motion to dismiss.  It might.  And even if discovery doesn’t turn up anything illegal, it might uncover embarrassing ties to the #StopRush movement.  And, full disclosure, since I strongly suspect that Brett Kimberlin’s associate Neal Rauhauser is involved in #StopRush, I might very well enjoy the fireworks if such a thing comes to light.

But ultimately the threatened suit seems to be meritless.  I said this to one of my friends tonight and he asked, “do you think it is lawfare?”  (Lawfare being described as abusive litigation designed simply to harm your “enemies, often to suppress protected speech.)  I truly don’t think so.  This isn’t like Brett Kimberlin refusing to name any specific falsehood Patrick Frey had told about him and saying, “I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what[?]”  If Limbaugh has ever sued anyone before it is news to me, and certainly he hasn’t had such an utterly litigious history as Kimberlin.  I think in the end, Limbaugh feels morally outraged and thinks therefore the law must have a remedy for him.  As I noted before, the law is not the same as morality, but it is common to confuse the two.

But the mention of #StopRush raises another interesting possibility: is Limbaugh considering a larger suit?  Is he considering suing all the people involved in #StopRush, for instance, perhaps in a civil conspiracy action?  While I have yet to see the merits in any such possible suit—they aren’t lying about him, as far as I can tell, although if they are dishonestly presenting themselves as being more numerous than they are, that could create problems for them.  While I have said that the law is not the same as morality, I also say this: if something is morally wrong, it usually is illegal somehow, too.  So the best, simplest advice to keep yourself out of civil and criminal legal trouble, is to always do the right thing.

And while I wouldn’t see any merit in such a suit, and while if I was Limbaugh’s attorney, I might tell him it is a fool’s errand to file such a thing, that doesn’t mean I won’t feel some schadenfreude and pop a little popcorn should such a suit be filed.  I can oppose a thing and still on some level enjoy it.

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

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.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.