Why Letterman's Apology is Bad for Democracy

Posted by Dov Benjamin on 06.19.2009

There was too much emphasis in the media this week over whether David Letterman had crossed the line, but not enough focus on the chilling consequences of making a comedian apologize for ridiculing a public figure.

As a public relations ploy, it might have been the right thing for David Letterman to apologize for his joke. However, as a first amendment advocate, this apology could have chilling effects on uninhibited free speech of public figures.

First, anyone who is not employed by Fox News or working for Sarah Palin's 2012 presidential campaign is aware that Letterman was clearly referring to the governor's oldest daughter Bristol (the one who got knocked up – hence the punchline of the joke: "her daughter was knocked up by Alex Rodriquez"). Some people might find the joke crude or out of the bounds of good taste, and that is a legitimate opinion (I happen to disagree). But even in that case, the only thing Letterman would be guilty of is poor taste. Second, Bristol Palin is not a private citizen. It is not as if she is at home minding her own business while her mother is in the public spotlight. She is traveling around the country advocating public policies. Finally, while Letterman was obviously referring to Bristol (though the governor insists that Letterman was talking about her fourteen year old daughter Willow), the butt of the joke was Sarah Palin's stance on abstinence. Regardless of how repugnant Bill O'Reilly and Greta Van Susteren find the joke, Letterman has the right to criticize and even ridicule a governor for advocating a policy that is so flawed that even her own daughter is evidence of the failures of abstinence education.

When Larry Flynt published a parody ad in an issue of Hustler Magazine where televangelist Jerry Falwell was portrayed as committing incest with his mother in an outhouse, the U.S. Supreme Court unanimously overturned the lower court's verdict which awarded Falwell damages for pain and suffering. The rationale was that since Falwell was a public figure, Flynt could not be punished unless he was publishing things that were untrue. Since the ad in the magazine was clearly a satiric comment – as is Letterman's joke – it falls under the category of opinion (ie. neither true or false).

The only person who is being defamed in this whole fiasco is David Letterman. Edward Norton, playing the role of Flynt's attorney in The People vs. Larry Flynt , eloquently paraphrased the Virginia District Court's assertion: "Nobody could reasonably believe that Hustler was actually suggesting that Falwell had sex with his mother." Similarly, no reasonable person can believe that Letterman was actually suggesting that Alex Rodriguez literally impregnated Palin's daughter. On the other hand, when Letterman invited the Palin family as guests on his show, the Alaskan Governor declined the offer, stating: "it would be wise to keep Willow away from David Letterman." The difference here is that Palin is actually suggesting that Letterman is a pervert and pedophile. If anyone should be apologizing, it should be Sarah Palin. If anyone is guilty of engaging in libelous speech, it is Sarah Palin.

In the film, Flynt's attorney went on to note that despite the crudity of the ad, it served a necessary public service – to criticize Falwell for the policies he advocates. He also warned that to stifle this speech would set a precedent where politicians could sue Johnny Carson for comments made about them on The Tonight Show . Granted, no one is suing Letterman, but there are organizations and lawmakers demanding that the talk show host be axed for his comments. Letterman will most likely keep his job, but his apology is unhealthy for a thriving democracy, where public figures should be subject to scrutiny, criticism, and even ridicule.