Chastity and solvency in Florida law

Rush Limbaugh seems to have broken a Florida law making it a misdemeanor to falsely impute unchastity to a woman.

Gloria Allred says she wants Rush Limbaugh prosecuted under Section 836.04 of the Florida Code:

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.

I assume Allred is kidding about this, but if the statute is valid it looks to me as if Rushbo’s actions were squarely within it. (On the other hand, just how “chaste” does the victim of the defamation have to be in fact?)  I assume that it’s unconstitutional to punish defamation criminally, and that in any case the statute is an unrepealed dead letter from some earlier century.

But how about this doozy?

836.06  Punishment for making derogatory statements concerning banks and building and loan associations.– Any person who shall willfully and maliciously make, circulate or transmit to another or others any false statement, rumor or suggestion, written, printed or by word of mouth, which is directly or by inference derogatory to the financial condition or affects the solvency or financial standing of any banking institution or building and loan association doing business in this state, or who shall counsel, aid, procure or induce another to start, transmit or circulate any such statement or rumor, shall be guilty of a misdemeanor, and upon conviction thereof shall be guilty of a misdemeanor of the first degree.

A character in one of Heinlein’s novels (maybe the Professor in The Moon Is a Harsh Mistress?) suggests that legislatures be required to repeal two old statues for every new one they pass. You can see where he was coming from.


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

14 thoughts on “Chastity and solvency in Florida law”

  1. Provoking a bank run, back in the day, could devastate a community. Pre-FDIC, I can easily see how it would be a major problem. This ain’t no burger-libel.

    1. I agree. It really could be compared to falsely yelling “fire” in a crowded theatre. Deposit insurance helps, but spreading those rumors could still easily cause serious harm.

  2. I personally wish the Michigan Penal Code (Chapter 750 of Michigan Compiled Laws) were subject to reauthorization every ten years or so (and not just in total – I’d force the bastards in Lansing to vote separately on every section) so that maybe we could eliminate unenforced silliness such as laws against blasphemy, lewd cohabitation, adultery (it’s a felony here), and improper language in front of women and children (to say nothing of the unenforceable sodomy law), or at least force a majority of the legislature to say they’re in favor of laws that haven’t been enforced in at least 50 or 60 years and won’t be, and have been flouted by at least one Attorney General of the state (the adultery law, by his own admission).

  3. We’ve got every state beat for silliness in Massachusetts. There are laws against exploding golf balls (those joke store things that disintegrate into dust) and frightening pigeons (although to be fair, the law states “pigeons in coops,” so you aren’t a criminal for walking through the city.)

  4. The Vikings, or so I hear, had a tradition where somebody was appointed to memorize the law, and each year would have to recite it aloud in public. If he omitted something several years running without somebody complaining, that thing was officially repealed. Not a bad system.

    In the modern US, it’s somehow considered unnecessary that the legislators actually read what they’re going to vote upon. And so we not merely have too much law for one man to read all of, we have too much new law each year for one man to read. We’re held legally obligated to obey laws it’s humanly impossible to know!

    I consider it a sign of our moral degeneracy that a legislature which behaves this way is not met with literal mobs with torches and pitchforks.

  5. I would guess that the statute is validly enacted. But I doubt that it is enforceable: Times v. Sullivan, y’know.

    Times v. Sullivan is one of my hot-button issues. I’ve been ranting against the very broad scope of the First Amendment for years before Citizens United. I think I’ve been at arms ever since the Supreme Court gave us that insane category of “commercial free speech”: I think the Virginia Board of Pharmacy case. (My memory isn’t quite trustworthy here, but I’m too lazy to Google.)

    No other country shares our First Amendment fundamentalism, including some fairly civilized places such as Canada, the UK, and Germany. In effect, the First Amendment empowers the Breitbarts and Limbaughs of the country, without creating a substantially better press. Our newspapers and television are inoffensive milquetoasts, constrained by the need for ad revenues. (Fox News is an exception.) If I had to be reduced to only one newspaper, it would be the FT, published in a country whose libel laws are strict by EU standards. And if you want to read about Israel without self-censorship, I advise the Israeli press over the American one. They don’t have a First Amendment, either.

    About the only good argument for our First Amendment fundamentalism I can think of is that our political culture is one of the few that cannot distinguish between Nazis and communists. And the First Amendment did not save us there: the Dennis case drew an unsupportable distinction between the study of communism and its peaceful advocacy. (The Supreme Court follows the election returns.) And I don’t buy the Lady Chatterley’s Lover argument. Most porn is not formally protected by the First Amendment, but society clearly tolerates most porn, anyway, despite the wowsers.

    This is not to say that the wrong guy won the original case. It was relatively narrowly decided, and relatively defensible on its facts. But the holding in the case has metastasized, well before Citizens United.

  6. Excuse me, Mr. Limpballs-Fluke story? Yeah, that was a shark you just leapt over.

  7. The numbers game is a bad one – two for one or whatever. The Ontario government has been trying to enforce, internally at least, without much fanfare, a rule that for every regulation made, two must be revoked. This leads to all sorts of problems, such as departments rolling a bunch of regulations into one big one (so they have credit to make new ones). Rolling them up means that the contents are harder to find, for those affected by them (‘we used to have a regulation that governed our line of work; now we’re in the middle of a 200-page regulation that’s way harder to read’), for totally artificial reasons. Departments are also inclined to make rules that are directives or ‘minister’s orders’ instead of regulations, but that kind of rules are not published as widely, so we reduce access to law.

    Governing by numbers is for people who are too stupid to tell if a regulation is burdensome or not. Some regulations clarify or limit the scope of a statute, or ease life for many. And one person’s red tape is another person’s lifeline.

    It can be worthwhile to clear the deadwood out of the statute book from time to time, but it’s not always easy to tell which statutes are dead. That’s demonstrated by Mark’s original examples. The one on chastity has probably seen its day – though Mr Limbaugh shows why it might be thought to be needed. The one on banks, though, had a very constructive public purpose, to prevent runs on banks that could destroy them. Whether on its face it goes too far in preventing honest criticism of a bank’s risky financial practices is a different question, given how familiar we have all had to become in the past five years of such risks.

  8. Limbaugh would probably have fun on the discovery part of the lawsuit, since the law requires “falsely and maliciously imputing to her a want of chastity.” So he would be putting her under oath for her entire sex history. Fun for her? not much.

    1. Lest anyone be concerned, I can’t find any evidence that Gloria Allred is Sandra Fluke’s lawyer in any way, shape or form. Allred is just performing her role as a carrion feeder in the publicity ecosystem, and Fluke shouldn’t be blamed for that.

      Honestly, even the hint of a suggestion that she had retained Allred would give me far more cause to worry about Fluke’s reputation than a million slut-bombs from the mouth of Limbaugh.

  9. I think that’s the correct Heinlein reference, bearing in mind that the Professor described himself as an anarchist and had little use for legislatures anyway. The suggestion cited was simply one of his ideas for making legislatures less annoying. And he could call himself an anarchist if he chose, but he advocated absolute rule by a small cadre of intellectual elites. This makes him either a Platonian Republican at best, or a totatlitarian at worst. Which is kind of ironic, since Heinlein himself was a leading libertarian.

    So much for politics. If Don’s suggestion was carried out, and the entire code had to be reauthorized every ten years, can you imagine the endless debate that would go on? They’d never get past the first blasphemy statute; you’d have fundamentalists of all stripes coming out of the woodwork. They’d never have time for any new business (which might not be a bad idea, come to think of it).

  10. A former colleague entered a Lutheran seminary and had to sign a chastity pledge. Chastity was clearly defined as strict monogamy if married and total celibacy if not married.

    1. That requirement might only extend to the time he or she spends in the seminary, Andrew, especially with the Christian understanding that “we’re all sinners.” Additionally, the definition changes not only based on the organization–not all organizations are Lutheran seminaries, mind you, which is why they felt the need to define chastity in the waiver–or the act–remember Clinton?–but also, particularly when it comes to Rule of Law, by the times. A guy has never really had to be worried about being called a “slut,” but there was a time when a gal would have to worry about that if she slept with one guy before marriage (a decision which would affect her career and marriage prospects), as opposed to the “boys-will-be-boys” mentality on the other side of the aisle (the guy she slept with would be unmarked socially). As the delineation between the sexes diminishes, what is considered “slutty” behavior is also disappearing as well. It’s entirely legally possible for her to make a case that she’s not a slut, no matter how many guys with whom she’s copulated, just by presenting males with a corresponding number of partners and establishing the lack of social repercussion. The rule of law must see all as equal, and since Limbaugh referred to her as a “slut,” she has a case.

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