For the Last Time, NO, Sandra Fluke does not have a valid defamation claim against Rush Limbaugh

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, Mike (the Situation” Sorrentino, the American Nazi Party, Glenn Beck, Gail Dines, the Westboro Baptist Church, The Jonas Brothers, Ann Bartow, Creed, Jack Thompson, 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.” (source). And a Philadelphia attorney, Max Kennerly, told his local newspaper that he thinks Fluke has a case. (source)

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 one of these moronic proles gets butthurt about something someone says, they’ll be right on the phone to the closest bottom feeding lawyer they can find. (Example)

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 necessary for a plaintiff to be a household name to be a public figure, either; he or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999).  It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be 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”).

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 the “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. 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. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because 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.

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 non-defamatory.  

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.

The times they are a changin’…

In 2005, an ex-girlfriend of KISS lead singer Gene Simmons sued after VH1 ran a “rockumentary” in which she was portrayed, she claims, as an “unchaste woman.”

The plaintiff, Georgeann Ward, said that a portrayal of her as promiscuous was defamatory. The defendants argued that “changing social mores could affect how certain sexual conduct is viewed by the community, and that what was defamatory at one time may no longer be the case.”

While the New York state court refused the defendants’ motion to dismiss the lawsuit, the judge did suggest that the proper “legal authority or social science data” might convince a court that saying a woman is promiscuous is no longer automatically defamatory. The two sides have since settled, but I believe that this is an accurate portrayal of modern thought. Things might be different in Mississippi or other third world jurisdictions, but a case brought in DC (where I would imagine the claim would be brought) would likely be examined through 20th century, and not antebellum, eyes.

Professor Lisa Pruitt of the University of California at Davis School of Law said that although it might be more difficult for a woman to sue today when she is defamed in a sexual manner, the change in the law is “a net gain for women because it signifies, through law’s expressive function, that women’s most important attribute is no longer their sexual propriety.” (source)

Accordingly, it 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. C.f. 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. Remember when Democratic elected officials condemned Bill Maher for calling Sarah Palin a “cunt?” No, me either) 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.

57 Responses to For the Last Time, NO, Sandra Fluke does not have a valid defamation claim against Rush Limbaugh

  1. Charles Platt says:

    In this case, I believe context may have been important. I recall the statement fairly clearly. According to my recollection, he didn’t just say that the woman was a prostitute. He argued a hypothetical point, which went like this: “IF you want the government to pay you for having sex (by paying for your birth control pills, which presumably you use for purposes of avoiding pregnancy while having sex), THEN what does that make you? It makes you a prostitute, doesn’t it?”

    Would it not be true that a hypothetical context provides additional protection? And since the phrasing was delivered as a question (according to my recollection), would that not provide additional protection too?

    • miguel says:

      The problem is, Charles, nobody is asking for taxpayers to pay for birth control. Ms. Fluke is a student at Georgetown and pays for insurance. She would like for contraceptives (which have medical uses quite remote from sexual activity) to be covered by that insurance plan. Even where contraceptives are used for sexual activity (gasp!), they are cheaper than children so the insurers benefit from covering the pill.
      The fact that Rush framed Fluke’s comments as a plea for “taxpayer” money is one of the troubling aspects of this case. It simply isn’t true.

      • Miguel,

        You’re right. BUT, Georgetown’s insurance DOES pay for contraceptives if they are prescribed for medical uses apart from birth control.

        She’s no more honest than Limbaugh.

      • You are correct, the cost of the contraceptives would not be paid for directly by the government under Fluke’s request. The insurance companies would be forced by the government to provide this coverage, which would ultimately be paid for by every American, since everyone is being required to have insurance coverage. So the money for the contraceptives is still coming out of the pockets of all working Americans, who are commonly referred to as the “taxpayers.” Limbaugh’s comment may have not been literally true, but it was accurate.

  2. senpai71 says:

    Excellent column!

  3. cclaw3 says:

    The Pedophile’s Guide, Flag Burning, and Limbaugh…the list can go on and on regarding potentially offensive material. As a mother, patriot, and defender of America each of the above examples truly disgust me and yet I equally defend. If Constitutional protections are going to have any teeth at all, they must apply equally and across the board to one and all regardless of race, creed, sexual orientation, financial or social status, etc. The law is clear regarding its protection of speech so long as it is not obscene or intended to incite violence or criminal activity. Rush Limbaugh, although a true idiot, has not performed either of the above infractions and alas I too shall “… affix shields, sharpen swords, and stand next to our brothers and sisters in arms to protect.” I entirely agree with your post and of particular note is the fact that all too often “uneducated and erroneous statements” spread like wildfire and are mistaken for truth in our country. Thank you for fighting the good fight!

  4. Tom Halpin says:

    There is a big difference between calling Sarah Palin a cunt. It could be argued she is. Arguing that Fuke is a slut or a prostitute is quite a different matter. My opinion which is probably worthless is that Fluke is not sufficiently a public figure to make anyone who slanders or libels her immune.

    • Your opinion is hardly “worthless.” You do have a slight misunderstanding of the law though — you are not immune from defamation claims if you talk about a public figure. That public figure just needs to overcome a higher burden to prove the case.

      For example, if Rush had said “Sandra Fluke is clearly an oxycontin addict. There were clear indications of that in her testimony. I oughta know.” That would probably be defamatory, given that it is clearly false and has nothing really to do with her testimony.

      And, I’d agree that she is not an “all purpose public figure,” but in the context of criticizing her for her statements, she’s a “limited purpose public figure.” Again, if Rush were falsely accusing her of being a pill-head, or of flunking out of school, anything that was outside of the debate that she willingly entered into — then she might not have to get over the actual malice bar.

      • miguel says:

        Rush’s statements about the testimony itself were false. It was about access to “birth control” pills for legitimate and pressing medical needs, as prescribed by a doctor. Rush made it sound like it was about Sandra’s personal sex life, which was not the subject of her testimony at all. Furthermore, he framed it as a taxpayer controversy even though no taxpayer funds are involved in the matter. I am hard pressed to see which parts of his statements about Ms. Fluke’s testimony are true at all. Most troubling is that Ms. Fluke was not the subject of a remark or two but three days of abuse. The sustained nature of the personal attack and lying is egregious.

      • miguel says:

        “public figure n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star, or sports hero.”
        Ms. Fluke does not rise to this level of “great public interest.” She wasn’t famous or celebrated until Rush went on the offense here. Nor did she “thrust herself” into anything. She was asked to testify and she gave testimony. Not really thrusting in my book.

        • Your book may be interesting, but it has no relevance when analyzing a legal issue. You’re wrong. When you testify in front of a congressional committee, willingly and knowingly seeking the public eye, you’re a public figure. Not a general purpose one, but what is known as a “Vortex public figure” or a “limited purpose public figure”.

  5. blueollie says:

    But we have a “war on women” so you are part of that war if you don’t think that she has a case….(eyeroll)

    Seriously, nice column, even though I thought that your first column should have been sufficient.

  6. [...] this Randazza Once again, Randazza (an accomplished First Amendment Lawyer) makes the case that Sandra Fluke does NOT have a valid defamation case against Rush Limbaugh. I have no legal training, but his argument makes sense to me. But nature of the “Republican [...]

  7. Andy says:

    To paraphrase Voltaire: Whilst I disagree with your diarrhetic ramblings, lowest common denomination seeking ravings and general bullshit assertions of bigotry and hate as fact, I will defend to your death your right to say them.

    Maybe not as polite as the philosopher, but probably a more accurate statment of my feelings toward Rush.

  8. Me says:

    I thought in Sullivan the Court held that you can’t apply a libel per se standard to public figures in any event. Am I misremembering?

  9. Frank says:

    I was with you until your defamation per se argument. While it is true that times have changed, citing to opinions on a settlement is hardly the precedent necessary to overrule a longstanding body of case law. And, was it really obvious from the context that Limbaugh’s statements were hyperbole? I think not. I really do believe from the context and conviction of his words he was serious. Thus, Fluke has a strong enough case to muscle a handsome settlement from Rush, and she should bring it.

    • Leo says:

      As the world’s current Windbag in Chief, I think it’s safe to say that everything Rush says is hyperbole. Truly scary are those who believe his words are Gospel.

      • Frank says:

        I hate to be the bearer of bad news, but 15-20 million Americans subscribe to the gospel according to Rush. Moreover, I am unaware of (and cannot find) a single jurisdiction that has repudiated the Restatement Section 570 of Torts or that has disagreed with the US Supreme Court’s decision in Gertz v. Robert Welch Inc., 418 U.S. 323. Both provide that imputing unchastity on a women is actionable at law. Opinions from those in the media might differ, but there is still a basis in law for Fluke to successfully bring suit against Rush.

  10. Chris Hayes says:

    I was wondering how you were going to get around the Slander per se argument – I didn’t realize the law had changed on the issue in regard to an “unchaste woman.”

  11. Jesse G. says:

    Rush has another airtight defense. If it comes out of Rush’s mouth it cannot be defamation as a matter of law because everyone knows he’s a lying sack of shit that has never uttered a word of truth on the air.

  12. James says:

    Good analysis

    My instinctive reaction, yes, voluntarily injected herself into the controversy therefore arguably “public figure” but possible slander per se but limited damages with satire as a defense. Note there is a problem on Day 2 or 3? when he comments something about (as if he is Miss Fluke or someone comparable) ” I got 3 guys I’m sleeping with tonight”. Rush seemed to believe she was buying a huge volume of condoms given the $3000 figure over 3 years she cites. Birth control pills can be one tenth that amount. By inference she suggesting at a minimum promiscuous behavior, so that presents issues of what if any damages there are in regards to calling her or joking about her being a “slut.”

  13. Becky says:

    While I agree with your overall point – Fluke should not sue Limbaugh for defamation and the idea of doing so is silly – I would like to quibble with one point you raised.

    Bill Maher is not equivalent to Rush Limbaugh. Limbaugh has had significant influence in the Republican party; legislators have changed their stances and courses of action based on what he’s said. Maher’s influence on Democrat politicians is negligible.

    I’m not asking either side’s politicians to automatically condemn an entertainer’s use of free speech. I just believe people should stop pointing to Maher as a “both sides do it!” proof when both sides view their Limbaugh/Maher completely differently.

    • Jacob says:

      Becky, unless you can point to a study on Limbaugh’s influence vs. Maher’s, I’m guessing that your evidence is anecdotal at best. In my experience, conservatives I know think Limbaugh is, at best, a blowhard. Most say much worse about him. Liberals I know, on the other hand, describe Maher as such (paraphrased): “Brilliant…visionary…he speaks the truth, instead of just attacking people like Rush.” Now who sounds influential?

  14. [...] forum, Fluke loses her private figure status and becomes a public figure. I'm not sure I buy that. But it's worth the read anyway. (And the author is no Rush fan, either.) A snippet: And the author must have read my mind, [...]

  15. B. Watson says:

    Current events made me realize just how ignorant I was on libel laws and got me curious. I asked a lawyer friend of mine, and he pointed me to this article. It’s been very informative and helpful. I thank you for it.

    After reading your conclusion, I am compelled to say that you are missing one VERY big point. Not a legal point, mind you, more of a social/psychological point. You said, “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. Remember when Democratic elected officials condemned Bill Maher for calling Sarah Palin a “cunt?” No, me either)” The difference between the two situations is so crystal clear to me, that I am totally flabbergasted that someone so obviously intelligent and well education as you are appears not to see it. Bill Maher called one woman a dirty, nasty name. Regardless of how you feel about her, Bill Maher, or his choice of language, unless you are, in fact, Sarah Palin, then his words were an attack on someone else. Limbaugh may have been talking about Fluke specifically, but he couched his opinions in such a way that he effectively called EVERYONE who has ever had insurance subsidized birth control a prostitute. Do you know how many people that is? Me neither. A lot more than one, that’s for sure. In America alone, that number must have an awful lot of zeros in it. Limbaugh’s words were a direct attack on every single one of them, including every gentleman that has had an insurance subsidized vasectomy. Now, granted that does not have one iota of influence on whether or not Fluke has a legal case. It does create a huge difference on how people react to his remarks. I agree that Limbaugh has a right to free speech. I also have a right to use my freedom of speech to condemn his attack on an entire slice of the population. That does not make me, or anyone else, hypocritical of free speech. Equating the Palin/Maher situation to the current Fluke/Limbaugh debate (and you are far from the only person to do so) shows a complete incomprehension of what Limbaugh did and just why it has had such a strong impact.

    • So is your point that Bill Maher calling one woman a cunt is not the same as Rush Limbaugh implying that say 2/3 of American women are “sluts” and “prostitutes?”

      • B. Watson says:

        Almost. No they are not the same, which is essential to my point, but not the point in its entirety. The article did an excellent job of outlining all the legalities of libel and how it applies to this specific case. Then in the conclusion, it veers away from the legal facts and into making judgments on those condemning Limbaugh’s remarks, using the Maher/Palin incident to justify this position. Condemning Limbaugh for what he said is NOT the same as condemning his right to say it. The author fails to clearly make that distinct in the conclusion and it is an extremely important distinction. One that needs to be made. Perhaps repeatedly.

        Using the Maher/Palin incident to bolster the author’s judgement is a comparison that simply doesn’t hold water. You could compare a .45 caliber bullet to a hydrogen bomb, and yes draw several parallels as long as you completely ignore the magnitude of the weapons, target and resulting destruction. You didn’t hear elected officials condemn Bill Maher? Of course not. Very few people, even those extremely offended by his remarks, felt that is was their place to defend her. They let Palin decide if, when, and how to defend herself. Limbaugh caused an enormous number of people to feel personally attacked. Statistics 101 – increase your sample size and you increase the probability of getting a hit. The number of people who feel personally attacked is so enormous, that even if only a small percentage of them cry foul, it will make for a very large and loud protest. Frankly, it would be mind-boggling abnormal NOT to hear a large outcry in this incident. While the law can (and most often should) separate an incident from the social and psychological culture created by it, labeling someone (or a group of someones) a hypocrite IS a social and psychological judgment and can not possibly be separated from this context. If you want to call Limbaugh’s condemners hypocrites, so ahead. But, I suggest you find a stronger foundation to bolster your claim.

    • Charles Platt says:

      “he effectively called EVERYONE who has ever had insurance subsidized birth control a prostitute.”

      Not so. As I pointed out earlier, I believe Limbaugh asked a hypothetical question: IF you want any entity to subsidize your sex life, THEN doesn’t that make you a prostitute? So, is this a valid point or not?

      Personally I think it is far-fetched, but raises issues about the implications of government-sponsored health care which seem worth discussing, to me.

      Incidentally, Limbaugh’s question could have been applied equally to men, if health insurance policies covered condoms. But they don’t, do they? Now I wonder why that is.

      • Frank says:

        “So, Ms. 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, and I’ll tell you what it is. We want you to post the videos online so we can all watch.”

        This is not a question. It’s an attack on women. And if you think it raises a question worth discussing, I have more faith in humanity than I should.

        • Charles Platt says:

          It’s offensive and silly, but no, I don’t see it as an attack on women in general. It’s an attack on liberal women who share an apparent feeling of entitlement. I think “entitlement” is the key word.

          Personally I believe his ultimate target was government-funded health insurance.

          As for condoms not being eligible for health insurance reimbursement: could this be because men have never made such a request?

          • Frank says:

            99% of American women have/currently use contraceptives. How is this not an attack on women?

            • Charles Platt says:

              99% of American women do not seek government reimbursement for contraceptives. That was (is) surely the point.

              Your opinions are derived from apparently a very short excerpt from the Limbaugh show in question. Mine are derived from listening at some length over a period of days and noticing which topics the man comes back to.

            • Frank says:

              17.4 million women are in need of publicly funded contraceptives. So, your position is that it is okay to insult millions of women? I also hope you realize that 52% of women use contraceptives for reasons other than to prevent unwanted pregnancies. Thus, your condoms argument fails, and this is an attack on millions of women, which per your staunch defense of Rush is perfectly acceptable.

            • Why wouldn’t it be ok to insult millions of women?

              Is it ok to insult millions of republicans?

              Is it ok to insult millions of muslims?

              Is it ok to insult millions of mormons or scientologists?

              Is it ok to insult millions of New York Yankees fans?

              You are not entitled to an existence devoid of insult. Nobody is. If you think that using contraception is morally wrong, you’re a fucking idiot (see, I just insulted millions of catholics), but you’re entitled to that opinion. you’re also entitled to think that any woman who is on contraception is a slut, whore, harlot, and hussy.

              So yes, it is ok to insult millions of (insert group here)

          • Frank says:

            And Rush didn’t use the keyword entitlement, you did. My opinions are about what Rush actually said, not what people wish he said or interpreted his comments to mean.

        • It’s satire. It raises a question–no, not directly, but implicitly.

          Why do I have to pay for their contraceptives again? I mean as a moral principle–what’s the idea? And why is that idea superior to, say, personal responsibility or individual pursuit of happiness and all that. That is a question worth discussing, and that’s the question he raised—in an offensive way that I do not approve of, but it’s a fair point.

          • Charles Platt says:

            Mario nails it. He’s right, and he said it better than I did. And when it comes to *satire,* of a public figure, that enjoys substantial protection, doesn’t it? You know, after the Larry Flynt cartoon, back in the day….

      • B. Watson says:

        In this particular case, Limbaugh’s past works against him. He has a deserved reputation for disparaging and degrading remarks. So, no, I (and many others) do not believe for one instant that his sole intention was to open an interesting and worthy discussion about government-sponsored health care. In fact, his comments were made in a way virtually guaranteed to deflect attention AWAY from the serious issues that need to be hashed out and onto him. He may be an egotistical drug-head, but he’s not that stupid. You have a very hard sell to convince people Limbaugh did not know perfectly well the insult he was flinging at a large section of the population.

        As for your last point, most insurance policies do cover vasectomies, so no, men are NOT immune to Limbaugh’s insults. Most of them just haven’t figured that out yet, or just don’t care. I don’t particularly feel like starting a whole other debate over condoms. I will simply point out that it is rare for an insurance policy to cover over the counter medications. Yes, I know, condoms aren’t medications, but I suspect that insurance companies view them in the same light in this case. Personally, it wouldn’t bother me a bit if insurance did pay for condoms, but I don’t see many men out there demanding that they do so.

        • Charles Platt says:

          Thank you BW for making the solid point regarding vasectomies. According to Limbaugh’s logic, if the government starts subsidizing vasectomies, the recipients will be no better than male prostitutes, or perhaps gigolos. I would like to have seen this raised as a rebuttal, instead of all the outrage.

          As for Limbaugh, I never said that his “sole” intention was to discuss government-sponsored health care. He will say whatever seems likely to maintain his share of the talk-show audience.

          I do believe “Obamacare” was his primary topic, however, underneath the froth of offensive name-calling. This topic is mentioned on his show almost every day, in my experience. (I tune in while driving, because I like to study opinions that I disagree with. Also I am fascinated by his professional expertise as an orator, and his unerring ability to piss people off. He is a true master of his medium, and his alternation between sentimentality and righteous anger reminds me so much of Hitler’s speeches, I have to wonder if Limbaugh found some of his inspiration there.)

  16. Frank says:

    If you, like Rush, get off by picking on women that’s your prerogative. My proposed solution is that we set up nationwide sparring matches, so I can punch some sense into guys like you and Rush. Out of respect for our fellow man, we should avoid insulting each other. In the absence of that respect, or if it ceases to be attainable, we should settle our differences with fisticuffs.

    • Yes, that’s what we need, Internet Tough Guy. You mad bro?

      • Frank says:

        Not mad, at all. You’re right that people aren’t entitled to a life free from insults, and my answer is that disrespectful people aren’t entitled to lives free from broken noses. My offer stands. I train at 20th Street Gym in Denver. I’d be happy to share my info. if you’re interested is assisting me set these sparring matches.

        • Your IP address says you’re in New Mexico. And if you’re looking for reading material where nobody is ever insulted, you’re at the wrong blog. Perhaps you would be more comfortable at Icanhascheezeburger.com or something like that.

          • Frank says:

            Yes. I go to school here, but I’ll be in Denver for spring break (starting) tomorrow and post graduation in May. Anything else you need to know?

          • Frank says:

            I train with Mike from Stevie Johnston’s camp in case your wondering about the 20th street gym connection. Ask around. I’m legit.

    • Charles Platt says:

      Okay let me get this straight . . . this peculiar person is ready to “go tribal” in his outrage against people who feel that a radio host has a right to be obnoxious toward a subset of females, who want their birth control pills to be paid for by the federal government?

      Doesn’t this seem a bit–odd?

  17. Charles Platt says:

    Somewhere above, “Frank” claims “17.4 million women are in need of publicly funded contraceptives.”

    Statements like this just boggle my mind, and yes, this is why I used the word “entitlement,” Frank, because you seem to feel that if a person wants something, the person is entitled to have it, at the expense of everyone else. And this is precisely what the radio show was about. The Limbaugh comment, crude and offensive as it was, has a serious subtext: If you live off handouts, you degrade yourself.

  18. Richard Payton says:

    Thank you for clarifying the fact that Ms.Fluke was no longer a private citizen. Her decision to testify before Congress ended those protections. The very fact that we as a nation have decided to be overwhelmed by this non-story.

    I too am a first amendment junkie. It is only through vigorous debate, that truth can be revealed. If you want Mr.Limbaugh off the air,allow the free market to work.

  19. [...] People often say that it is easy to defend the popular causes, but harder to defend the unpopular ones. I’m not 100% convinced of that: I think, regardless of how people feel about Illinois Nazis, people tend to give you credit. “Oh, no, he doesn’t like Nazis, he’s just consistent in his beliefs. Isn’t that wonderful?” “He wasn’t a Communist, he just believed in their right to free speech. Wasn’t he a hero?” I don’t want to trivialize those who defend the Commies or the Nazis, but it seems, in some ways, harder to defend the speech of the people that the proverbial “cool kids” don’t like: the people who are unpopular, but not unpopular enough. People like radio talkshow hosts. [...]

  20. [...] In Mr. Randazza’s own words: [...]

  21. [...] This privacy right is the basis for claims of defamation and its various flavors of libel and slander. For a comprehensive education in defamation law, do some searches about whether Sandra Fluke has the right to sue Rush Limbaugh for calling her a slut.  There are good legal arguments for yes and no. [...]

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