I'm serious. I've been a Civil Rights attorney since 1979 and still conduct cases daily arising under the Civil Rights Act of 1964. After reading Lefty Coaster's expose of Rush Limbaugh's latest racist rant following Romney's NAACP appearance, I began to wonder why the public accommodation laws that prevent sex and race discrimination in our daily, public lives, shouldn't apply to the Rush Limbaugh program.
In 1964, in a tectonic shift in American politics, Congress passed and President Lyndon Johnson signed the law that more or less ended open discrimination on the basis of race, gender, religion and national origin in American daily, public life. With the pen in his hand LBJ knew that he was delivering the formerly Democratic Solid South over to the GOP for as long as he could foresee, but he signed.
I argue that 42 USC § 2000a(b)(3) should apply to an enterprise like Limbaugh's radio program. It defines, as public accommodations subject to the law:
any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment
Follow me into the tall grass to consider more of this thinking.
Limbaugh would have to argue that a law covering public places of exhibition or entertainment don't apply to his program. This requires resort to principles of statutory construction. When required to interpret a statute, a court will first look for clues in the language of the statute. One standard clue, applicable here, is expressed in the ancient Latin maxim ejusdem generis, and signifies Congressional intent to cover not only the specific exhibition and entertainment venues listed in the text of the statute, but all similar venues as well.
Rush Limbaugh's program is nothing other than an exhibition carried out in a very large, virtual auditorium with a very loud megaphone. This is certainly consistent with another principle of statutory construction, that a civil rights law, being remedial in nature, should be construed broadly to reach all possible targets that Congress might have intended to cover under the language chosen.
The victims of Limbaugh's program are all who are driven off by the blatant discriminatory animus, such as today's rant or the vicious attacks on Susan Fluke. There are certainly common questions of law and fact in the cases of all of these victims, but the class is too numerous for the members to individually come forward in separate cases or join in one regular case. That's what class actions are for.
I didn't go to the law library before I wrote this. I am giving no one legal advice. But I do know that the U.S. Supreme Court has never said that a radio program isn't a public accommodation under the Civil Rights Act of 1964. I also recognize that there are complicatioins under the First Amendment and possible preemption questions with FCC law. Still, class cases potentially carry horrific damages, making this a very pleasant and hopeful train of thought for me.