Obama is obligated to sue Rush Limbaugh for defamation
Answering a question about the State of the Union Speech posed to him by Fox News’ Gretchen Carlson during a televised interview, Rush Limbaugh said the following -
I think this is the first time in his life that there’s not a professor around to turn his C into an A or to write the law review article for him he can’t write. He’s totally exposed and there’s nobody to make it better. I think he’s been covered for all his life. The fact that his agenda failed this year is the best thing that could have happened to this country.
Via Think Progress
While this is obviously not the first time Rush has uttered an outrageous statement about the president, this remark takes things to an entirely different place.
It’s one thing to voice political opinions, wish for the president’s failure, etc. It’s an entirely different thing to accuse Obama of plagiarism. Stating that the president had other people write his law review articles is a textbook case of alleging plagiarism and, absent a basis in truth, a clear cut example of actionable defamation.
Opinion, no matter how colored or unfair one might find it, is protected by the First Amendment. That’s why Rush has a job. But defamatory statements made with malice are not entitled to these protections.
As an attorney and a writer, I place accusations of plagiarism right up there with allegations of building Nazi death camps or plotting the death of John Lennon. Accordingly, if I were Barack Obama, I would have my private attorney filing a defamation suit against Limbaugh by the time Rush can learn how to spell o-x-y-c-o-n-t-i-n.
In making such a statement, Limbaugh is relying on the law that gives greater latitude in hurling such accusations at elected officials in the name of exercising his First Amendment Rights.
But Rush has this one wrong. The First Amendment protection is not a free pass to say such a thing unless one is prepared to prove the allegation is true.
In 1964, the U.S. Supreme Court altered the direction of libel laws in America in a landmark case entitled New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) . In its decision, the Court held that, given the importance of protecting the unfettered flow of ideas in the political area, a public official cannot recover damages based on allegations of libel unless the public official can prove actual malice.
The court goes on to define ‘actual malice’ as having knowledge that the statement was false or that the statement was made with reckless disregard as to whether it was false or not.
Unless Limbaugh has a reasonable basis to suggest such a grave offense, he can, indeed, be judged guilty of defaming the president and subject to paying money damages.
There is, however, an ultimate defense to a charge of defamation.
Was Limbaugh telling the truth?
Not according to a fellow student and member of the Harvard Law Review during Obama’s tenure.
Meet Bradford Berenson, an attorney who worked with Obama on the Harvard Law Review. As further proof that we in the legal profession take defamation charges very seriously you might be interested to know that Mr. Berenson isn’t just any old lawyer – he’s a lawyer who served in the Bush White House.
Here’s what Mr. Berenson had to say:
These charges are not accurate (emphasis added.) As a 2L [second year law] student, Barack wrote the same amount as all of his 2L peers, although by policy of the Harvard Law Review, no student writing is signed or attributed to individual authors. As a 3L, it is true that he did not write, but that is because he was the President of the Review. Because the President does so much editing, including of all the major faculty articles, he is not expected to author original pieces himself and almost never does so. I saw Barack hunched over manuscripts editing articles on many a late night at Gannett House. He simply could not have been elected President [of the Law Review] if he was not regarded by his fellow editors as being among the best legal writers and legal minds in his class.(emphasis added.)
I am rarely accused of being naïve when it comes to the reality of politics. It’s a nasty business. But there are times where the opportunity exists to draw a line in the sand in order to say that things are going too far.
This is one such time.
The president has an obligation to go after Limbaugh on this. It’s not about politics. It’s not about scoring points against his opponents. It’s about upholding the importance of the law and setting the boundaries of acceptable behavior in a free society.
This is also not just about the president. If Limbaugh, or anyone else, is permitted to knowingly or recklessly defame those who are either elected officials or seek office, how many candidates in the future will be unfairly and illegally slandered in an effort to skew public opinion in an illegal and vicious way? This is not what the First Amendment is all about. While the right of anyone behind a microphone to voice opinions serves the interest of the American people, flat out lying, either knowingly or recklessly, does precisely the opposite and simply cannot be permitted.
Obviously, it isn’t about the money. It’s about the abuse of free speech. I have no doubt that were Obama to proceed, any money awarded would end up with a charity or maybe used to pay down the national debt. .
This is also not about political sour grapes. On the contrary, this is about a principle every bit as important as other issues the president is taking on and one that serves public officials of either party.
The president has an obligation to pursue this matter in the courts. After all, if the President of The United States will not stand up for a hugely important principle, who will?