No Slander in Rush Limbaugh’s “Slut” Comment
Rush Limbaugh is a dumbass. I can write this without getting sued for defamation because it’s hyperbole. No reasonable person could conclude that I’m stating an actual fact about Mr. Limbaugh. (Feel free to agree, of course, but it’s rhetoric, not provably true or false.)
Following that same line of reasoning, Georgetown University Law student Sandra Fluke can’t sue Mr. Limbaugh for his nasty comments about her – despite what you’re probably reading in the press.
Last week, Ms. Fluke testified at a Congressional hearing about health insurance that without insurance coverage, it costs the women at Georgetown $3,000 to pay for contraceptives during their three years in law school.
Mr. Limbaugh’s response will surprise nobody who’s familiar with his particular brand of loathesome. He said on his radio show last Wednesday that Ms. Fluke is a “slut” and a “prostitute.” He followed that up on Thursday by calling Ms. Fluke and her supporters “feminazis” (he loves that word) who should publish videos of their sex life in exchange for public subsidies for contraception.
Mr. Limbaugh’s comments were lambasted by the national media, corporate sponsors and politicians. President Obama was so appalled that he called Ms. Fluke to tell her that her parents must be so proud of her and check she was OK..
On Friday, New York Representative Carolyn Maloney (D), while at New York Law School to introduce Senator John Kerry, ventured a bit off topic, remarking that “we will be filing a slander suit against Rush Limbaugh. What he’s really trying to do is silence a young woman. It’s unfair, it’s un-American.”
I’m not sure exactly what Ms. Maloney meant by “we,” especially because New York has no criminal slander statues under which Mr. Limbaugh could be prosecuted by the state. Presumably though, she was referring to a potential civil claim for monetary damages brought by Ms. Fluke. And while Ms. Fluke is reportedly less certain about filing a lawsuit, she did say that she is “entertaining” the possibility.
She shouldn’t bother.
Here are some legal basics to start. Speech is protected by the first amendment. Defamation is not.
“Defamation” is a term used to describe both libel, which are written false statements, and slander, which are spoken false statements. Ms. Fluke’s potential lawsuit against Mr. Limbaugh would be for slander.
Traditionally, to make out a claim for slander, the plaintiff needs to prove that the defendant made a statement about the plaintiff to someone else, that it was a false statement of fact, and that it harmed the plaintiff’s reputation.
In many jurisdictions, calling someone a “slut” or any other sexually derogatory term is considered defamatory per se. This means that Ms. Fluke would not even have to allege a specific harm – like the actual inability to get a job or boyfriend because of her new slutty reputation – caused by Mr. Limbaugh’s comments. As the Georgia Court of Appeals held in 2008, calling someone a slut is “injurious on its face.”
Since Mr. Limbaugh’s radio show is broadcast across the country, Ms. Fluke could cherry-pick a jurisdiction in which to file her lawsuit that considers the word “slut” defamatory per se. But that wouldn’t get her very far, because even if the lawsuit were filed in such a jurisdiction, Mr. Limbaugh would have two strong first amendment defenses.
The first harkens back to the Supreme Court’s 1964s landmark decision in New York Times Co. v. Sullivan. The Court held that if the plaintiff is a “public official,” she must prove that the defendant defamed her with “actual malice,” meaning the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court reasoned that public debate inevitably includes some false statements, so without “breathing space” for accidental falsehood, free speech would be unconstitutionally chilled.
Since then, the Supreme Court has applied the actual malice rule to people other than “public officials.” In 1974’s Gertz v. Robert Welch, Inc., the Court explained that the actual malice rule applied to people who “thrust themselves to the forefront of particular public controversies…[and] invite attention and comment.” These people are deemed “limited-purpose public figures” and must allege actual malice to succeed on a defamation claims related to the public controversies they involve themselves in.
So while it has been widely reported that Ms. Fluke’s status as a “private person” would aid her potential slander lawsuit, this just isn’t true. Not because being a private person doesn’t have its legal advantages in defamation cases, but because no court would consider Ms. Fluke a private person in her lawsuit against Mr. Limbaugh. Ms. Fluke’s participation in a Congressional hearing makes her a limited-purpose public figure on matters relating to contraception. Mr. Limbaugh called Ms. Fluke a slut in direct response to her testimony before Congress, so for his comments to be slanderous, Ms. Fluke will need to show that Mr. Limbaugh made them with actual malice – and that’s exceedingly difficult to do.
When filing her lawsuit, Ms. Fluke would need to assert facts showing that Mr. Limbaugh was aware that she was not a slut (which is virtually impossible), or facts that show Mr. Limbaugh recklessly disregarded a risk that Ms. Fluke was not a slut. Considering the public’s horrified reaction, Ms. Fluke may well be able to show that Mr. Limbaugh’s comments were so careless that he grossly deviated from the steps a reasonable person would have taken before calling Ms. Fluke a slut. Still, the actual malice standard would impose unique and uncomfortable challenges for Ms. Fluke because she would need to affirmatively place her sex life into court proceedings in order to show that Mr. Limbaugh could have known of her chastity.
Even if Ms. Fluke is successful in asserting actual malice, a court would likely look favorably on the first amendment defense that Mr. Limbaugh’s comments were constitutionally protected hyperbole. In 1970, the Supreme Court decided Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, in which a real estate developer engaged in negotiations regarding the sale of a parcel of land with both the city council and another buyer. A local newspaper published several articles describing the developer’s negotiating tactics as “blackmail.” In holding that the articles were protected from a libel judgment by the first amendment, the Court reasoned that “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered the [developer's] negotiating position extremely unreasonable.”
Greenbelt stands for the point that a factual statement is not defamatory unless a person would reasonably believe the facts stated are meant to be true. In determining whether a statement is rhetorical hyperbole, the lower courts have made clear that examining the context of the statement is essential.
This is what Mr. Limbaugh had to say about Ms. Fluke:
What does it say about the college coed Susan Fluke [sic], who goes before a congressional committee and essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.
She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex. What does that make us? We’re the pimps.
The johns, that’s right. We would be the johns — no! We’re not the johns. Well — yeah, that’s right. Pimp’s not the right word.
So Miss Fluke, and the rest of you Feminazis, here’s the deal. If we are going to pay for your contraceptives, and thus pay for you to have sex. We want something for it. We want you post the videos online so we can all watch.
Disgusting? Yes; I don’t want to picture Rush Limbaugh anywhere near a sex tape. Illogical? Definitely; as Ms. Fluke testified, birth control is not just used to prevent pregnancy, but for other health reasons.
But did he assert as fact that Ms. Fluke is a slut or a prostitute? He did not. Mr. Limbaugh has long history of using his radio show to spout rhetoric and hyperbole. All of his listeners were perfectly aware that this was not an actual assertion about Ms. Fluke’s sex life, but a “vigorous epithet” slung at Ms. Fluke in order to advance the argument that her position on contraception is wrong
Is it a good argument? No. But is it one protected by the first Amendment? Yes indeed. It’s the American way.
As Supreme Court Justice William Brennan wrote, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
In the end, the backlash was too much for Mr. Limbaugh, who issued this apology on Saturday night.
He’s still a dumbass.