Update: I spoke with Geraldo Rivera on 77 WABC about the issue (MP3 file here, segment starts at 13:00), and with LXBN TV, with the below video:

The Philadelphia Daily News has an article today quoting me on the Sandra Fluke / Rush Limbaugh defamation scandal:

Max Kennerly, a lawyer with The Beasley Firm in Center City, thinks Fluke “definitely” has a defamation case against Limbaugh if she chooses to pursue it.

Limbaugh could argue that he was simply rendering an opinion protected by the First Amendment or, alternatively, that the statements would be seen as so outlandish that nobody would believe they were true.

But Kennerly said Limbaugh’s comments that Fluke was a “slut” and “prostitute” “embedded false statements of fact,” were thus defamatory and that a judge might allow a jury to decide the case.

“His statements implied facts about somebody’s sex life, that she was promiscuous and trading sex for money,” Kennerly said.

Kennerly also said that Premiere Networks, Inc., a subsidiary of Clear Channel Communications which syndicates the radio show, could also be liable for “publishing” Limbaugh’s words.

The potential for a lawsuit has been a hot topic lately, with Google telling me it has 15,000 results for “limbaugh defamation” in the past week. Separating the wheat from the chaff, I’ve found two detailed legal analyses.

Russell Smith at Legal As She Is Spoke goes through the old favorites like New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., to conclude there’s nothing there:

But did he assert as fact that Ms. Fluke is a slut or a prostitute? He did not. Mr. Limbaugh has long history of using his radio show to spout rhetoric and hyperbole. All of his listeners were perfectly aware that this was not an actual assertion about Ms. Fluke’s sex life, but a “vigorous epithet” slung at Ms. Fluke in order to advance the argument that her position on contraception is wrong.

Marc Randazza at Legal Satyricon takes a different tact, bringing in some lesser known cases, and argues that “slut” is now protected opinion:

In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson v. News Am. Publs., 672 N.E.2d at 1221; Howard v. Town of Jonesville, 935 F.Supp at 861; Smith v. Atkins, 622 So.2d at 800. …

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).

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.”

I’d add to Randazza’s mention of Bryson, which allowed a “slut” defamation lawsuit, the case of Anson v. Paxson Communications Corp., 736 So. 2d 1209 (Fla. 4th Dist. Court of Appeals, 1999), which allow a defamation claim against radio shock jocks who called the plaintiff a prostitute.

Smith and Randazza make reasonable arguments, but I disagree, given the full context of Limbaugh’s remarks. Let’s go back to what Limbaugh actually said: 

What does it say about the college coed Susan Fluke [sic], who goes before a congressional committee and essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.

She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex. What does that make us? We’re the pimps.

The johns, that’s right. We would be the johns — no! We’re not the johns. Well — yeah, that’s right. Pimp’s not the right word.

***

So Miss 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. We want you post the videos online so we can all watch.

All the emphasis is on “slut” and “prostitute,” but to understand them you have to view the context. Right before the insult is a description of her testimony — Susan Fluke “[went] before a congressional committee and essentially [said] that she must be paid to have sex” — and right after the insults is a statement about her personal life and finances — “She’s having so much sex she can’t afford the contraception.”

And that’s where Limbaugh gets in trouble. Here’s Sandra Fluke’s actual testimony. Standing alone, Limbaugh’s description of Fluke’s testimony might be protected as “fair reporting,” and his conclusions about her sex life and finances might be protected as “opinion,” but together the statements create the appearance of a factual foundation for his “slut” and “prostitute” remarks.

As much as Rush Limbaugh might sound like some drunk in a bar, he speaks for a major media organization, and his assertions to the public carry a certain degree of weight as a form of reporting. His listeners don’t think it’s just Rush sitting in front of a microphone, they rightly believe there’s a whole team of people who help prepare and review the day’s content and that Rush, an experienced broadcaster, would pay attention to his comments for accuracy. When Rush describes a woman as asking a congressional committee to pay her for sex, and says the woman is having a lot of sex, many listeners will infer that Rush has, at a minimum, investigated the congressional testimony, and has concluded the testimony includes some factual basis for his remarks.

The real case on point is Milkovich v. Lorain Journal, 497 U.S. 1 (1990).

If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.” As Judge Friendly aptly stated: “[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words `I think.'” See Cianci, supra, at 64. It is worthy of note that at common law, even the privilege of fair comment did not extend to “a false statement of fact, whether it was expressly stated or implied from an expression of opinion.” Restatement (Second) of Torts, § 566, Comment a (1977).

Some commentators have raised the specter of Synder v. Phelps, better known as the Westboro Baptist Church case, in which the Supreme Court overturned an intentional infliction of emotional distress (IIED) verdict arising from the church’s bigoted and nonsensical protest of a soldier’s funeral. And Fluke might have an IIED claim: as David Frum notes, this wasn’t a casual insult, but instead “It was a brutally sexualized accusation, against a specific person, prolonged over three days.”

But in this case, the IIED claim will rise or fall on the same free speech issues as the defamation claim, so I don’t think Synder is really on point — the core issue there revolved around the right of the church members to be standing on the public property from which they were protesting, and the Supreme Court itself said the opinion was “narrow” — but it does raise another important issue.

The Roberts court has been on a sustained mission to use the First Amendment as a weapon against democracy, by using it to strike down reasonable campaign finance laws in Citizens United and by using it to invalidate laws limiting the ability of pharmaceutical companies to use confidential medical records to target doctors for high-pressure marketing. Drug companies already have in the works several test cases where they claim a First Amendment right to market drugs for unapproved uses.

Our current Supreme Court has one motto: might makes right, so I don’t doubt they’re licking their chops at the thought of striking down health regulations, securities regulations, and, really, anything they can find. But they need some sort of political cover for that, and the cover story they’re going with now is “we’re just really protective of the First Amendment,” even if the data shows otherwise. If the Fluke v. Limbaugh case made it to the Supreme Court — which is unlikely, considering that far fewer than 1% of cases make it to filing a petition for certiorari, and the Supreme Court grants less than 1% of those petitions — I could see a 5-4 majority finding his speech constitutionally protective to help portray themselves as guardians of free speech.