Rush to Riot

Caplis's response undoubtedly caught many longtime listeners off-guard, and not just because his focus on Limbaugh forced him to take a long overdue (and unfortunately temporary) break from portraying the potential presidency of Senator Barack Obama as a danger to America nearly as disturbing as global terrorism or the TV comeback of Kathie Lee Gifford. Unlike colleagues such as AM-760's Jay Marvin, who ripped KOA's Bob Newman in May 2007 when the latter casually suggested that all Muslims in the U.S. be made to wear GPS tracking bracelets, Caplis hasn't been known to go after dubious statements by Clear Channel colleagues. Moreover, he's often displayed a fierce loyalty for institutions with which he's been associated — like the University of Colorado at Boulder, which he defended with pitbull tenacity during the recruiting scandal of a few years back. But on April 24, during the KHOW afternoon program he shares/dominates with partner Craig Silverman, Caplis conceded that when Limbaugh was "talking about dreaming and hoping for riots in Denver," he'd gone "way over the line."

Within minutes of these words, however, Clear Channel Denver put out a press release claiming precisely the opposite. "A review of the full transcript... shows that Limbaugh was not advocating violence in Denver at the Democratic National Convention," the document stated — and indeed, Limbaugh did say that "I am not inspiring or inciting riots" at one point. But this comment represented the briefest of asides amid a rambling, discursive take filled with observations like "Riots in Denver at the Democrat convention would see to it we don't elect Democrats — and that's the best damn thing that could happen for this country."

On April 25, even after the press release had essentially repudiated his position, Caplis kept up the Rush-is-wrong drumbeat, devoting hours to the subject and even providing a forum for Denver City Councilman Charlie Brown to offer the same argument — and Kris Olinger, who, as head of AM programming for Clear Channel Denver, is Caplis's de facto boss, didn't have a problem with it. "Basically, my instruction to the talent was, you can have your viewpoint, but make sure you have all the facts and know precisely what you're talking about," she says. Olinger placed particular emphasis on a non-apology apology Limbaugh made on his own April 25 broadcast. "Just to clarify for those of you in Denver, and especially the great people at KOA in Denver..., my point probably could have been better made had I said it this way," he intoned. "If the Democrats and their allies, such as Re-create 68, want to engage in self-destructive behavior, we'll take it. It is they who protest, it is they who riot, it is they who threaten us. It is not us, it is not me. They're the ones."

Indeed, Re-create 68, a Colorado-based protest organization whose moniker references the riot-filled Democratic convention in 1968, is hardly in Limbaugh's ideological corner. But even if it was, Limbaugh couldn't be held responsible for such actions in court, according to Tom Kelley, an attorney for the firm of Levine Sullivan Koch & Schulz who specializes in media law. "Certainly, this far away from the convention, there'd be no chance of legal liability," he says. "The only potential basis for liability in this kind of situation is the doctrine of incitement" — a principle based on cases such as 1969's Brandenburg v. Ohio, which established that speech encouraging violence can only be restricted if it's "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." As Kelley sees it, "the word 'imminent' is critical. It has to be in a setting where people are pretty much deprived of the opportunity to think something over before they do it, and it seems to me that Limbaugh saying 'If you want to riot, go ahead, but you're playing into our hands' doesn't sound very inciteful."