With over 500 affiliates carrying the Rush Limbaugh program and social media offering many of those affiliates instant feedback on how they feel about what Rush said last week, we wondered what would happen if Sandra Fluke decided she wanted to take this issue into the court system. Would stations have to worry about any liability? We took that question to broadcast attorney John Garziglia this past weekend and here’s what he had to say.
While it is a near universal truth that anyone can sue for just about anything, Sandra Fluke’s remedies against Rush Limbaugh almost certainly do not lie in a lawsuit. It is highly unlikely that any lawsuit, let alone a successful one, will be brought against Rush Limbaugh and his affiliated stations by Ms. Fluke.
There are a number of reasons for this. First of all, Ms. Fluke put herself in the position of a limited-purpose public figure by her congressional testimony. Second, while calling someone a “slut” or other sexual derogatory term in many states is considered defamatory even without having to allege specific harm, Ms. Fluke, because of being a public figure at least for this controversy would have to show actual malice which would be difficult for her to do. Finally, even if actual malice could be shown which is unlikely, Mr. Limbaugh would likely have a First Amendment defense that his monologue was constitutionally protected hyperbole. Mr. Limbaugh would assert, as he did in his apology, that listeners likely perceived his comments as rhetorical hyperbole, and would not reasonably believe his epithets were meant to be true statements.
Unfortunately, radio stations are not completely out of the regulatory briar bush. The FCC uses an impossible-to-define public interest standard in considering whether to renew a radio station’s license. It is safe to say that no radio station will ever lose its license for sporadic or occasional statements such as at issue here. That does not mean, however, that a radio station cannot suffer at license renewal time because of such incidents.
Anyone, anywhere, can file an objection against a radio station’s license renewal application. The FCC, at least for the past several years, has appeared to make a practice of holding up a radio station’s license renewal application even for benign content complaints. Most license renewal content complaint holds are for indecency while that issue works its way through the courts. But, one recent radio license renewal application was held and not routinely granted for what the FCC’s staff called a “bigotry” complaint about a radio show in which calls were taken on the subject of the intelligence of immigrants.
An FCC hold on a radio station’s license renewal application can have costly side-effects. First, while a license renewal application is pending, the FCC will not allow a sale of the radio station to take place. Second, an license renewal application not granted in the routine course could have adverse ramifications on existing debt instrument financing covenants, or in seeking new or renewal financing. Third, a pending license renewal leaves the door open for anyone else to pile on by filing additional objections against the subject license renewal application
Thus, when listeners complain to radio stations about programming, licensees are well advised to listen and respond to their listeners. Remember that comments or complaints about programming are required to be put into the local public file.
Also, while not required by any FCC rule or policy, it is sometimes prudent to take affirmative steps to address programming comments or complaints, even to the extent of giving listeners airtime to voice their own comments or concerns over controversial programming. It is far less costly in both time and legal fees to give several listeners the opportunity to voice their concerns in response to statements such as made by Mr. Limbaugh, than it is to suffer objections being filed against an upcoming license renewal application.
Meanwhile, thank goodness for our First Amendment. Let’s hope that the FCC’s misguided foray into content complaints at license renewal time is not used adversely against stations that carry robust political commentary.