Posted March 8th, 2012 by Marc J. Randazza
Why we have a First Amendment; show your love for It
When I hear Rush Limbaugh's voice, I want to vomit. I despise just about everything that pill-addled, hate-spewing, disgusting piece of human tripe has ever said. The thought of him being thrown off the air and silenced forever makes me swoon with joy. A man can dream, after all.
But, as a First Amendment lawyer, nay First Amendment fetishist, I realize that when I feel this way about a speaker, it is time for me to make sure that I am acutely protective of that speaker's right to peddle his wares in the marketplace of ideas. Whether it is the Ku Klux Klan, the American Nazi Party, Gail Dines, the Westboro Baptist Church, Ann Bartow, or anyone else whose stall in the marketplace of ideas smells as if a hungover bull who had eaten too many spoiled Jamaican beef patties took a crap in it, I take a deep breath and for a small and twisted moment, I savor the aroma. The speech that tests our commitment to free speech – that's the really good stuff. That's the stuff that we need to affix shields, sharpen swords, and stand next to our brothers and sisters in arms to protect.
I must defend Rush Limbaugh
It is for the above reason that I must stand up to defend Rush Limbaugh. House Minority Whip Steny Hoyer came out and said that Sandra Fluke should sue Limbaugh for defamation for famously calling her a "slut." A Pennsylvania attorney, Max Kennerly, told his local newspaper that he thinks Fluke has a case.
She has no such thing, and shame on those who say that she does. It isn't that Rush Limbaugh needs to be shielded from these barbs. It isn't that Sandra Fluke actually might be emboldened to sue. The problem with these uneducated and erroneous statements about the viability of such a suit is that they act like a blizzard wind blowing through the marketplace of ideas. They spread misinformation among the proletariat, who didn't have the benefit of an education in constitutional law, and consequently believe Fluke might have a claim based on Rush's impolitic statements. And the next time some moronic prole gets butthurt about something someone says, they'll be right on the phone to the closest bottom-feeding lawyer they can find.
Spreading ignorance about defamation law makes the marketplace of ideas just that much more chilly, just that much more dangerous, and just that much more likely to be hit with a bomb by some opportunistic ambulance-chaser teamed up with a thin-skinned professional victim so that he or she can get paid for his or her mere "butthurt." Butthurt is not defamation. Butthurt is butthurt, and you don't get paid for that in the United States of America. Not on my watch.
Sandra Fluke is a public figure
When you purposely inject yourself into public debate, you lose your status as a "just minding my own business" private citizen.
When a plaintiff alleging defamation is a public figure, he or she must show that the allegedly false statements were made with actual malice – that is, knowing falsity, or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). Such public figures can include limited-purpose public figures who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). It is not even necessary for someone to seek the limelight to be held to this standard – it is possible to become a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”). See also Daniel Goldreyer, Ltd. v. Dow Jones & Co., Inc., 687 N.Y.S.2d 64, 65 (N.Y. App. Div. 1 Dept. 1999) (holding that controversial art restorer, "well-known in the profession, but not outside of it," was involuntary limited-purpose public figure in connection article regarding his use of certain questionable techniques in the restoration of a valuable painting).
Fluke was testifying before Congress, on national TV, in a debate that she willingly ran toward. She purposely dove into the spotlight, and if the spotlight burned her, that's her problem – not my beloved Constitution's problem.
As a public figure, in order to prevail in a defamation case, Fluke must prove “actual malice” on Limbaugh's part. While Fluke probably thinks that the statements were “malicious” (and they certainly were), “actual malice” has a precise legal meaning, i.e., known falsity or a reckless disregard for the truth. Mere hostility or viciousness is not enough. See Sullivan, 376 U.S. 254 (1964):
[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks …
The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See Sullivan, 376 U.S. at 270. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue every time a statement is false, or implies a nasty falsehood.
Further, there is a reason why public figures need to meet a higher standard than ordinary people. When you jump into a boxing ring, you can't whine when the other guy punches you in the face. And, when you step onto the gladiatorial sands of public political debate, you're going to just need to accept that people who disagree with you are going to say nasty things about you. If you can't stand the heat, don't go running into the kitchen.
Wah! But Rush Limbaugh called her a "prostitute."
No. No, he didn't.
Yes, literally, Rush Limbaugh said that Sandra Fluke was a "prostitute." However, it should not take too high of a degree of sophistication to understand the difference between actually accusing someone of being a harlot of the night, who takes money for sex, and calling someone a prostitute in the exercise of rhetorical hyperbole.
Even his "factually sounding" statements must be taken in context.
"She wants to be paid to have sex. She's having so much sex she can't afford contraception. She wants you and me and the taxpayers to pay her to have sex."
"If we are going to pay for your contraceptives, thus pay for you to have sex, we want something for it, and I'll tell you what it is: We want you to post the videos online so we can all watch."
Even these are hyperbolic and not "false statements of fact."
When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).
In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin, inter alia, a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can’t take it,” Id. at 915. The Wyoming Supreme Court rejected Dworkin's defamation claim, writing:
Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: “Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are.” Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966).
Id. at 915-916. The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of a fat pill-addled blowhard bastard.
Posner wrote that rhetorical hyperbole “is a well recognized category of, as it were, privileged defamation.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996); See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) (“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”).
It is implausible for Limbaugh's statements about Fluke, even if appearing to be factual upon facile review, to be interpreted as actual facts. When a reader – or in the case, listener – would not interpret a statement as factual, it constitutes rhetorical hyperbole, which is not actionable as defamation. Letter Carriers v. Austin, 418 U.S. 264, 283 (1974); Greenbelt, 893 U.S. at 14 (characterizing conduct as “blackmail” was, in context, non-actionable rhetorical hyperbole). “Statements that can be interpreted as nothing more than rhetorical political invective, opinion, or hyperbole are protected speech.” Burns v. Davis, 196 Ariz. 155, 165, 993 P.2d 1119, 1129 (Ariz. App. 1999). Even where defamation defendants have made statements that could be interpreted as factual – a claim of rape, Gold v. Harrison, 962 P.2d 353 (Haw. 1998), cert denied, 526 U.S. 1018 (1999), or a statement that someone behaved "unethically," Wait v. Beck’s North America, Inc., 241 F. Supp. 2d 172, 183 (N.D.N.Y. 2003) – courts have protected this expression as not stating literal fact.
The fact that these statements were made by Rush Limbaugh, the man who coined the term "feminazi" and constantly bemoans the mere continued existence of liberal feminists to a conservative, politically aware radio audience, denudes his description of Fluke as a "prostitute" of any capacity for defamation. No reasonable person would interpret Limbaugh's statement to be factual, and it fits safely under the umbrella of rhetorical hyperbole.
Ok, Rush called her a "slut" – that's defamation per se!
Wrong again, Skippy.
For most of our history, stating or implying that a woman was unchaste would give rise to a claim for defamation per se. In fact, in recent history, a number of courts have specifically held that describing a woman as a "slut" is defamatory per se. See, e.g., Bryson v. News Am. Publs., 672 N.E.2d 1207, 1221 (Ill. 1996); Howard v. Town of Jonesville, 935 F.Supp 855, 861 (W. D. La. 1996) (stating that a woman is “sleeping with everyone” at her place of employment and is incapable of performing her job duties “would appear to be defamatory on its face”) (punctuation and footnote omitted); Smith v. Atkins, 622 So.2d 795, 800 (La. Ct. App. 1993) (calling a woman a “slut” is defamatory per se).
However, I believe that this theory is a throwback to the days when women were essentially the sexual property of their controlling male. A daughter who was unchaste became less valuable to her father, and a wife that was unchaste was less valuable to her husband. But the times they are a changin'....
And it also would be awfully ironic to hear someone supposedly championing women's rights arguing that defamation law should stop its march forward and that a sexist standard should be applied to her suit.
Absent such a bold maneuver, this element would probably wither under scrutiny as a statement of protected opinion.
What is the standard for someone to accurately and factually be described as a slut? Clerks suggests that if a woman performs oral sex on 37 men, that this might be the line. I really don't know. I think that most women would say that the line is well below 37. Then again, I wouldn't really call any woman a slut (unless it was a term of endearment – some women giggle when you call them that). I just don't make value judgments about someone's sexuality. If a woman or a man is promiscuous and they are happy, they can be a slut if they want (or not).
In other words, "slut" is properly regarded as little more than a statement of opinion. But see Bryson, 672 N.E.2d at 1221; Howard, 935 F.Supp at 861; Smith, 622 So.2d at 800.
"Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz, 418 U.S. at 339-40. An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).
The term “slut” has different meanings to different people. Cf. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996). As such, a term with such diffuse and subjective meaning, colored and even defined by the reader's life experiences, is incapable of precise definition. Like "short," "ugly" or "fat," slut is a word that is given its meaning by those who use it – a fact that the participants of SlutWalks around the world in 2011 would be quick to cite. Absent something really bizarre happening in Court, I can't see a court, in this day and age, allowing a defamation claim based on the term "slut."
This incident is unfortunate for those on the Left who have, at least since 2000, considered their side of the aisle to be the place where free speech can feel safe and secure. It has exposed the liberal and academic Left to be as hypocritical and as bad as the dirty Right wing when it comes to free speech. Sandra Fluke's statements were worthy of some criticism, and I lobbed some of my own. Rush Limbaugh could have done a much better job of criticizing Ms. Fluke. But, the fact is that those on the left, defamation lawyers trolling for clients, and Rush Limbaugh haters alike have set aside their desire to understand or support free expression in a hysterical pile-on of the prick from Palm Beach.
They are all wrong. They are not only wrong on the law, but they are also morally wrong because someone, somewhere out there is listening to them – and will believe that when someone gets butthurt, that they are a victim, and that someone has to pay for their thin-skinned indignation in court.
And then we all lose.
Marc Randazza is a Massachusetts, California, Nevada, Arizona, and Florida attorney and 'First Amendment bad ass.' He also writes for his own law blog, The Legal Satyricon.