No lifelong journalist is fond of the idea of libel lawsuits; we spend our lives encouraging and justifying vigorous reporting and robust expression of opinion no matter how outrageous or unpopular it is or how much it discomforts its subjects.
In a democracy, it’s crucial that everyone, not just journalists, has latitude in discussing public affairs. It’s also crucial that punishment for political speech be rare, which is why, under existing law, it’s very difficult for public officials and other public figures to win libel judgments.
Thanks to digital technology, the public square where democracy is practiced is larger and more accessible than ever. Consequently, the activity in it is also more inflamed, unrestrained and irresponsible than ever. Those conditions not only increase the likelihood of libelous statements but also magnify their damage.
Everyone who voluntarily enters that broader public square is, by definition, a public figure and thus has limited legal recourse against defamatory statements. But it’s time to discuss whether it is healthy for democracy when, as increasingly happens, commentary goes beyond the facts and is uttered with reckless disregard for the truth.
In the latest example of this phenomenon, talk radio’s Rush Limbaugh called the activist law student Sandra Fluke “a slut” and “a prostitute.” As has been his practice during years of vocal combat, he framed those words in a context that is narrowly defensible under law: If she, he said, “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.”
That’s arguably an opinion about a matter of legitimate public concern. It is clearly a very (excuse the expression) liberal and distorted interpretation of what she was saying, but it probably clears the high bar against libeling her.
But then he said of the unmarried student, “She is having so much sex she can’t afford the contraception.”
That’s not an opinion; that’s an unqualified assertion offered as fact.
In order to successfully sue for libel, a public figure must demonstrate that the statement was made with actual malice, which means having knowledge of the falsity of the charge or recklessly disregarding its truth or falsity.
Certainly Limbaugh had no knowledge of Fluke’s sex practices, and her testimony made no reference to her own sex life; for all he knows, she is chaste. Limbaugh could not have knowledge of what he was alleging and obviously did not care whether or not it was true. That would sound to most people like reckless disregard for the truth.
But there’s yet another hurdle faced by a person seeking relief from defamation: Truth is an absolute defense. Can Limbaugh prove that Fluke was “having so much sex she can’t afford the contraception”? Can Fluke prove she wasn’t? How?
While some judges, lawyers and legal academics believe that the protections from libel judgments afforded the media are unjustifiably stringent, journalists and other heavy users of free speech argue otherwise.
But in a society in which everyone has a megaphone and nearly everyone becomes a public figure, common decency requires reasonable restrictions so that bullies and careless or reckless newcomers cannot destroy the reputation of anyone who happens into the public square. In a fairer world, Limbaugh would owe Fluke.