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March 13, 2012

Fair Weather Feminists and the Stolen Concept

Recently the Editorial Staff has been having a little fun with arguments supported by assertions the speaker has previously rejected on their face. A particularly vivid example is supplied by proponents of admitting women to the combat arms. One the one hand, they claim that there are no significant differences between men and women and that fully integrating women into the armed services will not place additional burdens on military leaders. Having gained what they wanted taking that position, they then claim the exact opposite: that women (because they are smaller, physically weaker, and less aggressive/assertive) require a whole host of special protections not currently extended to their supposedly equal male counterparts.

Which are we to believe? That women are the same as men (in which case they should require no protection that men do not also require)? Or that women are different from - and weaker than - men (and thus require special protections that impose additional burdens on military leaders)?

The Right has its own gender issues. Having long dismissed the notion that statistical disparities suggest institutionalized bias, they now argue that declining male academic achievement is attributable to a feminized, hostile environment in academia that discourages boys and men from competing. When the shoe was on the other foot, women were told it was their job to meet society's standards, not society's job to make them feel safe and valued.

Having pooh-pooh'd the idea that male dominated environments sometimes dishearten and discourage women from entering the fray, they now embrace the idea that female dominated environments sometimes dishearten and discourage men from doing the same thing.

Again, which is it? Both sides are engaging in what Ayn Rand called the fallacy of the stolen concept:

Objectivists define the fallacy of the stolen concept: the act of using a concept while ignoring, contradicting or denying the validity of the concepts on which it logically and genetically depends. An example of the stolen concept fallacy is anarchist Pierre-Joseph Proudhon's assertion, "All property is theft".
While discussing the hierarchical nature of knowledge, Nathaniel Branden states, "Theft" is a concept that logically and genetically depends on the antecedent concept of "rightfully owned property"—and refers to the act of taking that property without the owner's consent. If no property is rightfully owned, that is, if nothing is property, there can be no such concept as "theft." Thus, the statement "All property is theft" has an internal contradiction: to use the concept "theft" while denying the validity of the concept of "property," is to use "theft" as a concept to which one has no logical right—that is, as a stolen concept.

This said, Gloria Allred's latest stunt raises the stolen concept to an art form:

What is curious about Allred’s embracing of this law is that it is overtly sexist. The law suggests that a woman who is viewed as unchaste is so harmed that she constitutes a crime victim. Chastity is defined by Webster’s as “(a) : abstention from unlawful sexual intercourse; (b) : abstention from all sexual intercourse.” The law is based on the out-dated notion that a woman who has sex before marriage is damaged and subject to social stigma. To put it more colloquially, such a woman was viewed as a “slut or prostitute.” That is precisely the outrageous view voiced by Limbaugh in relation to Fluke and led to a worldwide condemnation. Now, Allred wants him prosecuted under a law that assumes that is based on the same assumption. The law was not designed to prevent women from being called sluts. Laws like Florida’s code provision were designed on the belief that a woman who is unchaste is a slut — and that “good” women should never be accused of sex before marriage. So Allred wants Limbaugh prosecuted for saying Fluke is a slut based on the law that effectively treats unchaste women as sluts. It does not protect men because an unchaste man was viewed under these dated laws as just a normal man. A man was not viewed as harmed or demeaned by being sexually active. Only a woman was harmed by the suggestion of sexual activities. Not also the law only protects women who are “falsely” accused of being unchaste. Thus if a woman has been sexually active before married, she would presumably not be protected under the law.

...Using sexist laws to fight sexism is never a good idea. In this case, the prosecution suggested by Allred would not only reaffirm the very sexism at the core of Limbaugh’s comments but add an attack on free speech to magnify the harm.

One day, supposed feminists like Gloria Allred are going to have to reconcile the contradiction between their constant demands to be treated exactly like men and their constant demands for special protections and privileges not afforded to men.

Posted by Cassandra at March 13, 2012 06:42 AM

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"One day, supposed feminists like Gloria Allred are going to have to reconcile the contradiction between their constant demands to be treated exactly like men and their constant demands for special protections not commonly afforded to men."

Oh, Cass, shirley you know by now, progressives don't *do* honesty.
Or common sense.
Or reality.
Or.....
0>;~}

Posted by: DL Sly at March 13, 2012 01:30 PM

I know people don't much like it when I say this, but some do.

For instance, Jonathan Turley wrote the piece I excerpted above. So he clearly recognizes the problem with what Allred is doing, and he called her on it.

That's a good thing, no es verdad?

Posted by: Cassandra at March 13, 2012 02:06 PM

As I said in the post below, it's pretty clear that Limbaugh violated the law in question; and I doubt he'd mind being prosecuted (both because of the publicity and, as you point out, because it reinforces a point he was trying to uphold).

The good thing about both sides being on both sides of the issue is that both sides win either way. Limbaugh wins if it gets thrown out (victory for his 1A rights!) or if he is convicted (massive publicity!). Allredian feminism wins if the law is thrown out ("We were only using this to get rid of an outdated law based on a feudal concept") or if it is upheld ("We punished that pig Limbaugh!"). The only danger is that the law might be upheld without sustaining a conviction, in which case both sides lose; but the danger of that is small enough, given the facts.

Posted by: Grim at March 13, 2012 02:12 PM

Well, I am not sure he actually did. In order for the law to protect her, the supposed victim has to be "chaste":

“speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity.”

If you can establish that an unmarried woman is having sex, then by definition the imputation that she is unchaste cannot be false.

We don't actually know whether Fluke is having sex or not, and without knowing that we cannot determine whether he broke the law or not.

That, by the way, was the real problem with what Rush did. He said something defamatory without knowing (or making any attempt to establish) whether or not what he was saying was actually true or not.

He relied on that CNS article, which misrepresented her testimony, rather than reading her testimony for himself.

So certainly he is guilty of gullibility, not to mention sloppy work.

Posted by: Cassandra at March 13, 2012 02:19 PM

I read "false" and "malicious" as separate tests. I suppose a defense attorney could argue that the prosecution had to prove both at once -- that the claims were 'maliciously false,' rather than both 'false' and 'malicious.'

In this case, Rush was making some claims about 'what she is saying' that are false as a matter of public record. These claims falsely stated that she was claiming unchastity. So, that test is met.

Was he making these claims maliciously? I would think it wouldn't be hard to convince a jury of his malicious intent toward Ms. Fluke, just by playing the tape.

The real problem may be that Palm Beach is embarrassed to discover a law like this still on the books.

Posted by: Grim at March 13, 2012 02:52 PM

Rush was making some claims about 'what she is saying' that are false as a matter of public record. These claims falsely stated that she was claiming unchastity. So, that test is met.

His claims as to what she said are false as a matter of public record, but her chastity is not a matter of public record.

They are separate tests. The defamation must be:

1. False. Truth is a defense to defamation, so if you can prove that your statement is true (Fluke is not chaste), you're not guilty. That he cannot have known whether or not she is chaste suggests reckless disregard for the truth.

2. Malicious. Generally malice in criminal law has a different meaning than it does in everyday life. In the context of defamation/libel, it means the defamatory statement was either made with full knowledge of its falsity (Rush couldn't know this) or reckless disregard as to its truth or falsity (here, I suspect he's on thinner ice).

There are other defenses to defamation. One is when you're making a comment on a matter of public interest. The reasonableness test is pretty forgiving here. Your argument doesn't have to hold water - if a reasonable person could have made the argument, you're in the clear.

I don't know how the reasonable man standard applies to radio talk show hosts, though. I would argue that a reasonable talk show host is required to exert at least a reasonable effort (actually reading the testimony you're describing to your listeners *sometime* during the 3 day period in which you find yourself unable to stop digging strikes me as eminently reasonable). But I suspect most courts would not hold him liable.

The real question here is: did Rush seriously mean that Fluke herself was a slut/prostitute simply by virtue of saying that some women can't afford birth control?

Or was he using her to make a broader argument?

To me, this really isn't defamation, no matter how childish Limbaugh's comments were. I don't think he really cares about her sex life, though the sex tape remark was just beyond creepy.

Posted by: Cassandra at March 13, 2012 03:12 PM

By the way, my previous comments are based on common law concepts I learned in college. Each state has its own laws though, and they vary.

I don't claim to know anything about Fl law. I did read the statute and it mentions a published apology as a defense.

This sounds like a publicity stunt from Allred. That her previous clients include Rachel Uchitel and that other pornstar chick who was cavorting with a very married Tiger Woods among others only adds to the amusement value of Ms. Allred pretending to be uber outraged at the implication of slutty sluttery :p

Posted by: Cassandra at March 13, 2012 03:16 PM

"I don't claim to know anything about Fl law."

But did you stay at a Holiday Inn Express last night??

Posted by: Snarkammando at March 13, 2012 04:36 PM

Where did you find the statute? I looked for it, but all I could find was stories about Allred's letter.

Posted by: Grim at March 13, 2012 06:17 PM

It's linked from Turley's post, but here's the link:

http://law.justia.com/codes/florida/2005/TitleXLVI/ch0836.html

I skimmed - didn't read the whole thing. Here is the relevant section:

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.

The other stuff is just stuff I remember from common law I learned in school. This article (which I just found by Googling "florida defenses to defamation") contains more information:

Criminal Libel
Unlike most states, Florida still recognizes criminal libel. Chapter 836 of the Florida Statutes does not define the elements of criminal libel, but it does specifically prohibit false statements that harm a bank or other financial institution's reputation or accuse a female of being unchaste. To the extent that the statute remains valid, criminal libel is a first-degree misdemeanor. However, a Florida appeals court found Fla. Stat. § 836.11 -- which deals with anonymous defamation of individuals or religious groups -- to be unconstitutional. State v. Shank, 795 So.2d 1067 (Fla.Ct.App., 4th Dist. 2001).

Actual Malice and Negligence
In Florida, a private figure plaintiff bringing a defamation lawsuit generally must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

See also the link on Substantial Truth:

http://www.citmedialaw.org/legal-guide/substantial-truth

This is what I remember from school:

"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation.

The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct.

The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case.

*********

And now I am remembering why I loved my law classes. Interesting stuff, no?


Posted by: Cassandra at March 13, 2012 06:56 PM

I would think Ms. Fluke would have a strong case that Limbaugh was negligent wrt the truth/falsity of his claims about her sex life.

In fact, that was what led me to criticize his statements so harshly. It was painfully obvious from the things Limbaugh was saying that he hadn't even bothered to read her testimony before opening his big yap.

Moreover, you can't tell a thing about how often a woman has sex by the simple fact that she's on the Pill. Stupid, stupid, stupid. Did I mention ignorant? And stupid?

On the otter heiny, I don't really see how she could prove she is chaste. Kind of hard to prove a negative.

Posted by: Cassandra at March 13, 2012 07:02 PM

It is, quite interesting.

Since the question isn't whether she is chaste in act, but whether Limbaugh accurately accused her of declaring herself to be unchaste, the factual falsity of the statement is clear enough. The case would probably thus hinge on the degree to which she was a public figure, and (if so) whether Limbaugh ever quoted from the transcript of her remarks in the three days he spent talking about the issue. Insofar as she were held a private figure, negligence is enough; but if she is a public figure, you'd probably have to prove that Limbaugh had actually encountered her real testimony.

Where is the part about published apologies?

Posted by: Grim at March 13, 2012 07:03 PM

I am not sure that applies to broadcast libel/defamation but it's in the FL statute.

A lot of statutes are sloppily written. IN the intro it talks about retractions by newspapers but later it talks about broadcasts.

I have been out of school too long to venture an uninformed opinion about what it all means. I do recall being fairly appalled at how ambiguous a lot of statutes are.

No wonder they end up in the courts. And that's the important insight: the statute alone isn't enough. You also have to look at the relevant case law (which I just don't have the time to do).

Posted by: Cassandra at March 13, 2012 07:12 PM

"On the otter heiny, I don't really see how she could prove she is chaste."

Perhaps her liberal friends and colleagues should bring in an expert....say one of the Virginity Police from Egypt's Muslim Brotherhood, I hear their guy is available.

Posted by: DL Sly at March 14, 2012 09:02 AM

Perhaps her liberal friends and colleagues should bring in an expert....say one of the Virginity Police from Egypt's Muslim Brotherhood, I hear their guy is available.

Yes, but when we do that sort of thing, it's a beautiful and natural expression of vibrant cultural diversity.

When Rethugs get all weird and obsessive-like about female sexuality, that's because they hate women and want to confiscate our contraceptives :p

Reading the news these days requires a well developed sense of the ironic. Or so I've heard.

Posted by: Ali Baba and the 40 Oxygen Thieves at March 14, 2012 11:43 AM

Ali,

Why do you not drop by the Djibouti Casbah sometime so that we might further explore this vibrant of which you speak?

P.S. I import Asians to do the ironic... lightly starched.

Peas be upon you.

Posted by: Sheik Djibouti at March 14, 2012 12:10 PM

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