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."
Conclusion
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.
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