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Rush Limbaugh, Larry Flynt, and the Westboro Baptist Church: Is Limbaugh Protected by the First Amendment?

by Professor Will Huhn on March 5, 2012

in Constitutional Law,Freedom of Speech,Wilson Huhn

Over the course of three days conservative commentator Rush Limbaugh repeatedly defamed Sandra Fluke, a third-year Georgetown law student, calling her a "slut" and a "prostitute."  If found guilty of slander or intentional infliction of emotional distress (IIED), Limbaugh would be liable to Ms. Fluke for millions of dollars in actual damages, and his potential liability for punitive damages would be astronomical.  Is Limbaugh liable to Fluke for defamation and IIED, or is he protected by the First Amendment?  Limbaugh's only defense would be to compare himself to pornographer Larry Flynt and the homophobic Westboro Baptist Church.

An article by the UK Daily Mail Online describes how this controversy arose.  The House Oversight Committee under the leadership of Rep. Darrell Issa called five male witnesses to testify about how the President's order requiring health insurance companies to cover contraception violates the religious liberty of employers.  Democrats were told that they could call one witness, and they chose to call Ms. Fluke.  The Committee refused to permit Ms. Fluke to testify on the ground that she was not an expert on religious liberty.  According to the Mail,

Ms Fluke later posted her testimony on YouTube. She spoke about a friend who had to take birth control to treat a disorder that caused ovarian cysts, and who subsequently lost her ovary, and of classmates who could not afford contraception.

Phillip Elliott of the Associated Press reports Mr. Limbaugh's response to Ms. Fluke's proffered testimony.  Limbaugh stated:

"What does it say about the college co-ed … who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex."

The following day Limbaugh said:

"If we're going to have to pay for this, then we want something in return, Ms. Fluke," Limbaugh said. "And that would be the videos of all this sex posted online so we can see what we're getting for our money."

After many Democrats and a few Republicans responded with outrage to Limbaugh's remarks and several advertisers deserted Mr. Limbaugh's program, he issued the following apology posted on his website:

For over 20 years, I have illustrated the absurd with absurdity, three hours a day, five days a week. In this instance, I chose the wrong words in my analogy of the situation. I did not mean a personal attack on Ms. Fluke.

I think it is absolutely absurd that during these very serious political times, we are discussing personal sexual recreational activities before members of Congress. I personally do not agree that American citizens should pay for these social activities. What happened to personal responsibility and accountability? Where do we draw the line? If this is accepted as the norm, what will follow? Will we be debating if taxpayers should pay for new sneakers for all students that are interested in running to keep fit? In my monologue, I posited that it is not our business whatsoever to know what is going on in anyone's bedroom nor do I think it is a topic that should reach a Presidential level.

My choice of words was not the best, and in the attempt to be humorous, I created a national stir. I sincerely apologize to Ms. Fluke for the insulting word choices.

There are several issues that must be considered in deciding whether an action for defamation or intentional infliction of emotional distress would lie against Mr. Limbaugh for his three-day diatribe against Ms. Fluke.  Did Limbaugh make statements of fact about Ms. Fluke or did he engage in hyperbole or parody?  If these were statements of fact that were not parody, were they false?  Were these statements made about Ms. Fluke personally or were they instead directed at other people or society generally?  What was Mr. Limbaugh's state of mind:  did he know that his remarks were untrue; did he utter them with careless disregard as their truth or falsity; or was he simply negligent in misstating the truth?  For purposes of this controversy, is Ms. Fluke a private figure or a public figure?  And were these statements about a matter of public concern or did they simply involve Ms. Fluke's private life?  Three of these factors are discussed below.

STATEMENT OF FACT OR PARODY?

No action for defamation may be brought unless it involves a statement that is "falsifiable;" it must be possible to prove that the statement is true or untrue.  Moreover, even a statement of fact is capable of being proven false, no action for defamation lies on behalf of a public figure if the statement may fairly be construed as "parody" not intended to be taken literally.

I think that it is clear that Mr. Limbaugh made statements of fact about Ms. Fluke that could be proven true or false. He specifically referred to her as a "slut" and a "prostitute," terms that have specific, well-known meanings. In fact, these terms are poster boys for words that would trigger "libel per se," the common law doctrine that allowed people to recover damages for defamation almost automatically.  Because of the Supreme Court's interpretation of the First Amendment, however, the doctrine of "libel per se" no longer applies in these types of situations, so it is necessary to continue the analysis.

Even though Limbaugh's remarks were falsifiable statements of fact, Limbaugh would contend that they were "parody;" that no-one could have seriously believed that he was accusing Ms. Fluke of promiscuity.  He would invoke the case of Hustler Magazine v. Falwell (1988), in which the Supreme Court in an opinion by Chief Justice Rehnquist ruled that the pornographer Larry Flynt could not be held liable for a fake advertisement that he published depicting Jerry Falwell admitting to having had sex with his mother in an outhouse.  The Court stated:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. …

Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated."  The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here.

When Mr. Limbaugh finally came to his senses and delivered what he considered be an apology to Ms. Fluke he characterized his statements as "absurdity" and "an attempt at humor."  In referring thus to his remarks he would appear to be raising the Hustler defense to both a cause of action for defamation and a lawsuit for intentional infliction of emotional distress.  The obvious difficulty with the Hustler defense in this instance is that while it was clear that Rev. Jerry Falwell was a public figure, it is not at all clear that Ms. Fluke is.  The "public figure/private figure" dichotomy is discussed below, but first I address whether this involved a matter of public concern or a matter of private concern.

PUBLIC CONCERN OR PRIVATE CONCERN?

In a lawsuit for defamation or IIED Limbaugh would defend on the ground that, like the Westboro Baptist Church, he was discussing a matter of public concern.  In the case of Snyder v. Phelps (2011), decided a year ago this month, the Supreme Court ruled that the Westboro Baptist Church was not liable to the Snyder family despite the fact that the church mounted a demonstration during their son's funeral.  The members of the church claimed that Marine Lance Corporal Matthew Snyder, who had been killed in Iraq in the line of duty, had actually died because God was punishing America for tolerating homosexuality.  They also were demonstrating against the Roman Catholic Church, to which the Snyders belong.

The Snyders were undeniably private figures, and yet the Supreme Court found the Westboro Baptist Church to be immune from liability because their statements were not directed personally at the Snyders and because their statements involved "matters of public concern."  Chief Justice John Roberts delivered the opinion for the majority.  Here is the key passage of his opinion:

The "content" of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of "purely private concern." The placards read "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Fag Troops," "Semper Fi Fags," "God Hates Fags," "Maryland Taliban," "Fags Doom Nations," "Not Blessed Just Cursed," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You're Going to Hell," and "God Hates You." While these messages may fall short of refined social or political commentary, the issues they highlight â the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy â are matters of public import. The signs certainly convey Westboro's position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs–such as "You're Going to Hell" and "God Hates You"–were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues.

Limbaugh's statements are every bit as vile as that of the Westboro Baptist Church.  He would, however, contend that "the overall thrust and dominant theme" of his remarks on this subject "spoke to broader public issues."  In this he would hope to be protected from liability for IIED to Ms. Fluke under the rule of Snyder v. Phelps.  One problem he would face in asserting this defense is that his comments were not responsive to Ms. Fluke's point that women face serious health consequences when contraception services are not made freely available.  Another difficulty Mr. Limbaugh would have is that his comments were directed far more specifically at Ms. Fluke personally than were the remarks of the Westboro church at the Snyder family.

PUBLIC FIGURE OR PRIVATE FIGURE?

Is Ms. Fluke a public figure or a private figure?  This could be argued either way.  Militating against finding Fluke to be a public figure is the fact that she does not hold public office nor does she exercise public power.  Prior to this controversy she was unknown to the public.  In support of finding that she is a public figure for purposes of this controversy is the fact that she was chosen to testify before the House Oversight Committee on the subject of the medical necessity for ready access to  access to contraception.

The leading case on this subject is Gertz v. Robert Welch, Inc. (1974).  In that case the John Birch Society defamed a Chicago attorney, Elmer Gertz, by calling Gertz a "Communist-fronter" and accusing him of being part of a conspiracy because he represented a family suing a Chicago policeman for murder. The key finding of the Supreme Court was that attorney Gertz was not a public figure.  Speaking for the Court, Justice Powell stated:

In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

Unlike Gertz, Ms. Fluke publicly expressed her opinion about access to birth control.  Neither, however, was she acting as an attorney in significant litigation.  Whether she is or is not a "public figure" within the meaning of the law of defamation is not clear.

If Ms. Fluke is a public figure then the standards of New York Times v. Sullivan (1964) would apply, and in order to recover for defamation she would have to prove by clear and convincing evidence that Mr. Limbaugh knew that the statements were false or that he acted with reckless disregard as to their truth or falsity.  Furthermore, she would be ineligible to recover punitive damages.

If on the other hand Ms. Fluke were found to be a private figure then this case would be governed by Gertz v. Welch and in order to recover for defamation she would only have to prove by a preponderance of the evidence that Limbaugh was negligent in making inaccurate statements about her.  Furthermore, she could recover punitive damages if she could prove that Limbaugh knew that the statements were false or that he uttered them without caring whether they were true or false.  Those punitive damages might amount to tens of millions of dollars.

CONCLUSION

If it were determined that Mr. Limbaugh made false statements of fact about Ms. Fluke that the average reasonable person would not know was parody, it would open the door to a suit for defamation.  If it were also determined that Ms. Fluke were a private figure she might also be able to sue for intentional infliction of emotional distress.  If in addition to those two findings it were determined that Mr. Limbaugh's statements  relate to a matter of private concern rather than a matter of public concern then it is almost certain that Mr. Limbaugh would be held liable to Ms. Fluke.

On the one hand, it is clear that Mr. Limbaugh's statements were made in the larger context of the dispute over public funding for preventive care for women's health.  On the other hand, instead of addressing those issues he chose instead to launch a personal attack on Ms. Fluke, and Mr. Limbaugh has a long history of vilifying individuals with whom he disagrees.

That is the weak point of Limbaugh's defense.  He never discusses policy.  He has no demonstrable expertise in science, economics, or public health.  On his program he does not interview leading figures in American life or rationally discuss the ramifications of suggested laws and public policies.  Instead, he engages in the politics of personal destruction, of which his outrageous treatment of Ms. Fluke is but one example.  He seeks not to engage people with whom he disagrees but simply to intimidate them.  In this case he thought he could make Ms. Fluke and other women cower with his bullying and his lies.  He thought that he could silence the opposition by shaming them with assertions of sexual immorality.  In this he is nearly identical to Larry Flynt and the Westboro Baptist Church.  But because his statements contained more plausible and specific factual assertions about Ms. Fluke and because Ms. Fluke might be a private figure it is not altogether clear that he would be able to claim the same legal protections that applied to Flynt and the Westboro group.

There will be no lawsuit.  The President of the United States responded to Mr. Limbaugh's demagoguery by calling Ms. Fluke and telling her that her parents should be proud of her.  I imagine that is sufficient compensation for the ordeal that Mr. Limbaugh put her through.

I am also confident that this issue will arise again.  Mr. Limbaugh will continue to engage in his detestable brand of "humor."  It is all he knows.

In a future post I will conduct a broader analysis of Mr. Limbaugh's political philosophy.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.  He is the author of "The Five Types of Legal Arguments" and "ObamaCare: Is It Necessary, What Will It Accomplish, Is It Constitutional."

{ 6 comments }

larry d. March 5, 2012 at 11:00 am

Hilarious. Limbaugh's statements are nowhere near as vile as the Westboro nuts. Fluke is an obvious liar and professional activist who purposely used her sexuality to put herself in the public limelight. Her story and her statistics are laughable.

Of course Limbaugh probably should have parodied her mustache and greasy hair rather than the dreaded "s word," but he's usually pretty good with the parody stuff. Assuming you've listened to his show, you don't seem to possess the intellect or breadth of knowledge to understand his political analyses. It will of course seem foreign to those who read nothing but the Soros sites, democratunderground and the like.

I'm sure this kind of ridiculous broadside will arise again on this blog. You've always got your son to fall back on when you take the hate a step too far.

Looking forward to further analyses!

John March 5, 2012 at 12:17 pm

Wasted type an a phony issue with a result-driven analysis. Is that how you teach your students to think?

larry d. March 5, 2012 at 1:59 pm

Maybe Limbaugh could compare himself to Ed Schultz, Bill Maher, David Letterman or any number of democrats, rather than to the Westboro nuts:

http://www.thedailybeast.com/articles/2012/03/04/rush-limbaugh-s-apology-liberal-men-need-to-follow-suit.html

Did you know there is a war on women?

Yes, it’s true. Chris Matthews, Keith Olbermann, Bill Maher, Matt Taibbi, and Ed Schultz have been waging it for years with their misogynist outbursts. There have been boycotts by people on the left who are outraged that these guys still have jobs. Oh, wait. Sorry, that never happened.

Boycotts are reserved for people on the right like Rush Limbaugh, who finally apologized Saturday for calling a 30-year-old Georgetown Law student, Sandra Fluke, a “slut” after she testified before congress about contraception. Limbaugh’s apology was likely extracted to stop the departure of any more advertisers, who were rightly under pressure from liberal groups outraged by the comments.

Let it be shouted from the rooftops that Rush Limbaugh should not have called Ms. Fluke a slut or, as he added later, a “prostitute” who should post her sex tapes. It’s unlikely that his apology will assuage the people on a warpath for his scalp, and after all, why should it? He spent days attacking a woman as a slut and prostitute and refused to relent. Now because he doesn’t want to lose advertisers, he apologizes. What’s in order is something more like groveling—and of course a phone call to Ms. Fluke—if you ask me.

But if Limbaugh’s actions demand a boycott—and they do—then what about the army of swine on the left?

During the 2008 election Ed Schultz said on his radio show that Sarah Palin set off a “bimbo alert.” He called Laura Ingraham a “right-wing slut.” (He later apologized.) He once even took to his blog to call yours truly a “bimbo” for the offense of quoting him accurately in a New York Post column.

Keith Olbermann has said that conservative commentator S.E. Cupp should have been aborted by her parents, apparently because he finds her having opinions offensive. He called Michelle Malkin a “mashed-up bag of meat with lipstick.” He found it newsworthy to discuss Carrie Prejean’s breasts on his MSNBC show. His solution for dealing with Hillary Clinton, who he thought should drop out of the presidential race, was to find “somebody who can take her into a room and only he comes out.” Olbermann now works for über-leftist and former Democratic vice president Al Gore at Current TV.

Left-wing darling Matt Taibbi wrote on his blog in 2009, “When I read [Malkin’s] stuff, I imagine her narrating her text, book-on-tape style, with a big, hairy set of balls in her mouth.” In a Rolling Stone article about Secretary of State Clinton, he referred to her “flabby arms.” When feminist writer Erica Jong criticized him for it, he responded by referring to Jong as an “800-year old sex novelist.” (Jong is almost 70, which apparently makes her an irrelevant human being.) In Taibbi’s profile of Congresswoman and presidential candidate Michele Bachmann he labeled her “batshit crazy.” (Oh, those “crazy” women with their hormones and all.)

Chris Matthews’s sickening misogyny was made famous in 2008, when he obsessively tore down Hillary Clinton for standing between Barack Obama and the presidency, something that Matthews could not abide. Over the years he has referred to the former first lady, senator and presidential candidate and current secretary of state as a “she-devil,” “Nurse Ratched,” and “Madame Defarge.” Matthews has also called Clinton “witchy,” “anti-male,” and “uppity” and once claimed she won her Senate seat only because her “husband messed around.” He asked a guest if “being surrounded by women” makes “a case for commander in chief—or does it make a case against it?” At some point Matthews was shamed into sort of half apologizing to Clinton, but then just picked up again with his sexist ramblings.

Matthews has wondered aloud whether Sarah Palin is even “capable of thinking” and has called Bachmann a “balloon head” and said she was “lucky we still don’t have literacy tests out there.” Democratic strategist Jehmu Greene, who is the former president of the Women’s Media Center, told Fox News’ Megyn Kelly in 2011 that Matthews
“is a bully, and his favorite target is women.” So why does he still have a show? What if his favorite target was Jews? Or African-Americans?

But the grand pooh-bah of media misogyny is without a doubt Bill Maher—who also happens to be a favorite of liberals—who has given $1 million to President Obama’s super PAC. Maher has called Palin a “dumb twat” and dropped the C-word in describing the former Alaska governor. He called Palin and Congresswoman Bachmann “boobs” and “two bimbos.” He said of the former vice-presidential candidate, “She is not a mean girl. She is a crazy girl with mean ideas.” He recently made a joke about Rick Santorum’s wife using a vibrator. Imagine now the same joke during the 2008 primary with Michelle Obama’s name in it, and tell me that he would still have a job. Maher said of a woman who was harassed while breast-feeding at an Applebee’s, “Don't show me your tits!” as though a woman feeding her child is trying to flash Maher. (Here’s a way to solve his problem: don’t stare at a strangers’ breasts). Then, his coup de grâce: “And by the way, there is a place where breasts and food do go together. It’s called Hooters!”

Liberals—you know, the people who say they “fight for women”—comprise Maher’s audience, and a parade of high-profile liberals make up his guest list. Yet have any of them confronted him? Nope. That was left to Ann Coulter, who actually called Maher a misogynist to his face, an opportunity that feminist icon Gloria Steinem failed to take when she appeared on his show in 2011.

This is not to suggest that liberals—or feminists—never complain about misogyny. Many feminist blogs now document attacks on women on the left and the right, including Jezebel, Shakesville, and the Women’s Media Center (which was cofounded by Steinem). But when it comes to high-profile campaigns to hold these men accountable—such as that waged against Limbaugh—the real fury seems reserved only for conservatives, while the men on the left get a wink and a nod as long as they are carrying water for the liberal cause.

After all, if Limbaugh’s outburst is part of the “war on women,” then what is the routine misogyny of liberal media men?

It’s time for some equal-opportunity accountability. Without it, the fight against media misogyny will continue to be perceived as a proxy war for the Democratic Party, not a fight for fair treatment of women in the public square.

Dave March 5, 2012 at 5:35 pm

Larry, the difference is no one expects Liberals and Democrats to be respectful and decent.

Hillary Clinton, Sarah Palin and the female members of the media were all public figures and to some degree expect to attacked in public.

I think a better study would be to see how Juanita Broaddrick, Paula Jones, Monica Lewinsky and Linda Tripp were treated by the media. Especially considering that the reason some of them were thrust into the public spotlight was others criminal behavior.

I am please that Rush has apologized.

larry d. March 5, 2012 at 6:54 pm

Rush did the right thing to apologize, I agree. The woman in question was attempting to become a public figure, however, as it's the dream of most any professional activist. She's done at least one talk show a day and she likely regards what Limbaugh said as probably the best thing that ever happened to her. Other democrats are delighting in it, as well.

Quidpro March 6, 2012 at 9:25 am

We can all agree that Limbaugh's comments were asinine.Which is unfortunate because it diverts attention from the radical nature of Ms. Fluke's congressional testimony and what it forshadows for the future of health care if Obamacare remains the law.

Fluke's "testimony" was in reality a form of lobbying. She lobbied Congress for free contraceptives. Free to her, but to be paid by the taxpayers. And why not? If the federal government has taken over health care, then we can expect more of this sort of "testimony".

But those that have supported Obamacare should take heed. Medical decisions will now be political decsions. Which procedures and services are covered will depend on on the direction of the political winds. Don't be surprised when the heart surgery that might save your child's life is denied, but sex reassignment surgery is approved. It's OK, Big Brother knows best.

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