Con law in action

Everyone doubtless knows by now that Rush Limbaugh has resigned from ESPN's weekly NFL pregame show because of comments he made about Eagles' quarterback Donavon McNabb. For the record, what he said about McNabb, who is African-American, was:

I think what we've had here is a little social concern in the NFL. The media has been very desirous that a black quarterback do well. There is a little hope invested in McNabb, and he got a lot of credit for the performance of this team that he didn't deserve. The defense carried this team.

Now, I am not a huge fan of Rush, who I find bombastic and unthoughtful, though I certainly do not dislike him with any intensity (though many do). And from a sports perspective, he's nuts - McNabb is a great quarterback who I would love to see on my teams (though the quarterbacks on the two teams I follow are doing great right now - see here and here).

What makes this whole episode blogworthy, in my view, is Limbaugh's defense:

In my opinion, it wasn’t a racial opinion, it was a media opinion. We live in a country where, supposedly, by right of the First Amendment you offer opinions but you can’t in certain places and certain times.

This quotation shows a profound misunderstanding of the First Amendment. The First Amendment's speech clause prohibits individuals from government censorship. A violation of the First Amendment requires something at least approximating state action. There is nothing like that here. In fact, no one is suggesting Rush is prohibited by law from saying what he did, just that he shouldn't say it because it is wrong or insensitive or whatever. All of those points are debatable, certainly, but it's not a First Amendment debate because the government isn't doing anything, and of all people Limbaugh - who has made a career of arguing that government should do less - should realize that.
- posted by Anonymous @ 5:56 PM