Should Sandra Fluke Sue Rush Limbaugh?

Georgetown University law student Sandra Fluke is a modern woman who ably reaffirms that it's not sinful for females to enjoy sex out of wedlock. Rush Limbaugh clings to the opposite and very outdated notion that such behavior is steeped in shame. He deserves to be mocked rather than taken seriously, but it's self-defeating for Limbaugh's critics to overreact to his disparagement of Fluke, because it breathes life into the very misconception they wish to expunge.

In most circles, it's no longer considered disreputable for a single woman to have sex, so why exaggerate the effect of a dinosaur feebly claiming otherwise? To call for a boycott of Limbaugh's advertisers is to attach more significance to a cheap insult than is warranted.

Likewise, it would be a terrible mistake for Fluke to sue Limbaugh, as she says she might do. Fluke would have to emphasize how harmful it is to be branded as sexually active, which would undermine her status as an advocate for contemporary women. It might also turn a detestable person (Limbaugh) into a somewhat sympathetic figure in the same way feminists who otherwise shunned Larry Flynt supported him when Jerry Falwell sued him for having published an offensive ad parody.

The other problem is that Fluke has no case. Legal bloggers Eugene Volokh, Ann Althouse, and Jeralyn Merritt have all written disapprovingly of Limbaugh's anti-Fluke commentary, but none of them see a lawsuit against the talk titan as a possibility even worth mentioning.

First Amendment attorney Marc John Randazza comes right out and says Fluke has no "basis for a defamation claim." He explains on his blog that there can be no libel without:

1. A false statement of fact

2. About the plaintiff

3. That harms the plaintiff's reputation

Limbaugh expressed an opinion about a belief (insurance policies should cover the cost of contraceptives) that Fluke publicly championed. That what he said was crude, illogical, and gratuitously insulting does not make it actionable. What saves Limbaugh is that he did not make a false and harmful assertion as if it were a fact. In other words, he didn't claim that Fluke had done or said something she hadn't actually done or said.

It seems many people are dwelling on Limbaugh's indecency to make themselves seem wonderful by comparison. They're neither advancing the cause of women nor weakening Limbaugh. His contract runs through 2016, and he'll be paid $38 million per year no matter how many sponsors drop out for a while. If Limbaugh has any talent other than his ability to mock liberals, I'm not aware of it. So I wouldn't play to his limited strength. It seems to me that he's getting a publicity boost and more fodder for his shtick.

Thanks to the boycotters, the main issue is now whether or not (or to what extent) Limbaugh should be scolded or punished. It would be better to focus instead on Fluke's argument.

As with most attempts to intimidate, discharge, or control an offensive speaker, the effort to silence Limbaugh is based on no discernible principle. His detractors are pretending he violated some rule that was known before he violated it. Misogyny can and should be repudiated without resorting to such arbitrary retribution. No speaker should have to wait until after the fact to find out what's prohibited.

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