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, 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." And, in the "oh, the irony department," one of the defendants in Rakofsky v. The Internet, 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 s