The hit on Rush Limbaugh

The vicious libel of Rush Limbaugh that took place this week was made possible by an abuse of government power known as antitrust law.

On July 14, 2009, roughly six weeks after David Checketts approached Rush Limbaugh about investing in the St. Louis Rams, the Associated Press reported this:

As NFL owners and players resume talks on a new collective bargaining agreement, the new union chief and 20 current and retired players plan to meet with members of Congress Wednesday in hopes of building political support to head off a lockout.

In an interview with The Associated Press Tuesday, the union head, DeMaurice Smith, said the group will remind lawmakers about the "gifts" Congress bestows on the league, such as an antitrust exemption for broadcasting contracts.

The players' union was asking Congress to use the threat of removing the NFL's antitrust exemption as a way of pressuring the league to reach a new deal with the players.

"Congress has jurisdiction over the NFL in several areas, including a 1961 law granting leagues antitrust exemption for broadcasting. That allowed the NFL to sign TV contracts on behalf of all its teams, helping to transform the league into the economic powerhouse it is today," the AP reported.

Without the antitrust exemption, the NFL would be committing a crime by signing TV contracts on behalf of its teams. Perhaps. It's difficult to know what's legal and what's not legal under the antitrust laws. Microsoft was prosecuted for giving away a free Internet browser.

"The antitrust laws give the government the power to prosecute and convict any business concern in the country any time it chooses," Ayn Rand wrote in 1962. Antitrust, she wrote, is "a haphazard accumulation of non-objective laws so vague, complex, contradictory and inconsistent that any business practice can now be construed as illegal, and by complying with one law a businessman opens himself to prosecution under several others."

Ayn Rand saw the antitrust laws as a means for the "random little powerlusters of the moment" to seize and hold control over somebody else's productive enterprises. "The threat of sudden destruction, of unpredictable retaliation for unnamed offenses, is a much more potent means of enslavement than explicit dictatorial laws," she wrote. "It demands more than mere obedience; it leaves men no policy save one: to please the authorities; to please--in any issue, matter, or circumstance, for fear of an unknowable, unprovable vengeance."

In November of 2007, NFL commissioner Roger Goodell received a letter from Senate Judiciary Committee Chairman Pat Leahy and ranking member Arlen Specter threatening to introduce legislation withdrawing the NFL's antitrust exemption if he did not allow a free broadcast of a game between the New England Patriots and the New York Giants. The league intended to telecast the game exclusively on the NFL Network.

"After weeks of insisting they wouldn't cave in," AP sports writer Rachel Cohen reported, "NFL officials did just that." The game was simulcast on CBS and NBC.

So it should be no surprise that when the NFL Players Association needed a new executive director this year, they thought it might be useful to have someone with Washington experience. DeMaurice Smith, a well-connected Washington lawyer who served on the Obama transition team, got the nod.

"Just like every business in America, a good presence on the Hill is good business," free-agent tight end Mark Bruener told the Associated Press.

The players weren't alone in that assessment. "The NFL has also ramped up its Washington presence," the AP reported, "hiring a full-time lobbyist and creating a political action committee to make federal campaign donations last year."

Stalemate.

But not for long.

On October 12, Chris Mortensen of ESPN reported:

NFL Players executive director DeMaurice Smith on Saturday made a move to solidify the union against a bid by conservative talk show radio host Rush Limbaugh as part of a group that aims to purchase the St. Louis Rams.

In an e-mail to the union's executive committee on Saturday specifically addressing Limbaugh's bid, Smith said, "I've spoken to the Commissioner [Roger Goodell] and I understand that this ownership consideration is in the early stages. But sport in America is at its best when it unifies, gives all of us reason to cheer, and when it transcends. Our sport does exactly that when it overcomes division and rejects discrimination and hatred."

DeMaurice Smith told ESPN, "I encourage our players to express their views." At least seven NFL players came out publicly against Rush Limbaugh.

Somebody apparently told them that Rush Limbaugh endorsed slavery and assassination. Friday on MSNBC, David Shuster issued a non-apology for reporting that Limbaugh held those views, explaining that MSNBC had gotten this information from an NFL player, but they could not independently verify it.

Did the players get that 'information' from DeMaurice Smith?

ESPN's Chris Mortensen reported on October 12:

In Smith's communication Saturday with his executive committee, the union leader encouraged players to speak their mind on all matters, including Limbaugh's bid.

"I have asked our players to embrace their roles not only in the game of football but also as players and partners in the business of the NFL," said Smith in the e-mail. "They risk everything to play this game, they understand that risk and they live with that risk and its consequences for the rest of their life. We also know that there is an ugly part of history and we will not risk going backwards, giving up, giving in or lying down to it."

"Our men are strong and proud sons, fathers, spouses and I am proud when they stand up, understand this is their profession and speak with candor and blunt honesty about how they feel."

They spoke with "blunt honesty" about a preposterous lie. Rush Limbaugh does not support slavery and assassination. He supports tax cuts and free enterprise.

Rush Limbaugh, with his tens of millions of listeners and his sharply articulated conservative views, is a threat to the re-election of the Democratic majorities in the House and Senate.

DeMaurice Smith obviously knows all of this.

Maybe it was his idea, or maybe the Democrats in the House and Senate reached out to him and let it be known that they'd appreciate a favor, but DeMaurice Smith executed a vicious and totally unwarranted attack on Rush Limbaugh that would have ended the career of a less independent broadcaster.

In return, the Democrats on Capitol Hill will threaten to withdraw the NFL's antitrust exemption if the league locks out the players when the collective bargaining agreement expires.

Watch for it.

You don't have to know anything about antitrust law to see the potential it holds for abuse of power. This week the health insurance industry released a report stating that the proposed health care reform bill would result in higher premiums for consumers and businesses, and instead of checking their math the Senate Democrats threatened to revoke their antitrust exemption. President Obama joined their call in his weekly radio address, attacking the insurance industry for "earning these profits and bonuses while enjoying a privileged exemption from our anti-trust laws."

A couple of years ago, Major League Baseball was threatened with the loss of its antitrust exemption if it didn't institute a 'voluntary' drug-testing program with tough penalties for steroid use.

A "privileged exemption" from laws "so vague, complex, contradictory and inconsistent that any business practice can now be construed as illegal" is a very valuable thing.

It can be offered in exchange for campaign contributions. It can be revoked in retaliation for opposition.

It can be a blunt instrument in a collective bargaining negotiation that should not involve the government in any way.

If the NFL didn't have an antitrust exemption, the NFL Players Association would have no reason to curry favor with Democrats on Capitol Hill. Congress would have no leverage, and no role, in negotiations between the league and the union.

But why should there even be a law that prohibits the NFL from negotiating TV contracts for its teams? If it's okay with the team owners, why is it anybody else's problem? What is the threat to the American people that justifies a law allowing politicians to selectively interfere with business negotiations between private parties? And even if there was a reason for such a law, why should politicians be able to offer exemptions from it to certain favored businesses?

It's time to repeal the antitrust statutes. Arbitrary laws are an irresistible invitation to abuse of power. They are dangerous to freedom.

Copyright 2009

Editor's note: You might be interested in the previous posts, "Tackling the NFL" and "Barry Bonds' big asterisk."

Source note: Ayn Rand, "Antitrust: The Rule of Unreason"; The Objectivist Newsletter; February, 1962. Reprinted in The Voice of Reason: Essays in Objectivist Thought by Ayn Rand, available from Amazon.com, the Ayn Rand Institute's bookstore, and many other booksellers.

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