By Richard A. Joyce

Redstone Review V.P.

PUEBLO – Rush Limbaugh, that paragon of poison-tipped propaganda, may soon become the basis for an article in the Harvard Law Review, as well as for the next landmark libel suit in the United States.

That’s because shortly after President Obama’s recent State of The Union address, Limbaugh may have libeled him. In an interview with Gretchen Carlson on Fox News (now posted on YOUTUBE), Limbaugh said, in part:

“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.”

Because the attack is so typical of Limbaugh, it slid by many as just another outrageous opinion from one who issues such every time he opens his mouth, to the delight – and dismay – of many.

But one Southern California lawyer sees it differently. In an article for Truth/Slant, Rick Ungar writes:  “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.”

Ungar isn’t referring to malicious intent or ill will. He’s talking about the definition of malice put forth by the U.S. Supreme Court in the landmark libel case, New York Times v. Sullivan (1964), in which the court said public officials cannot win damages in a libel suit unless they can prove actual malice, i.e. prove that the defamatory utterance was made with knowledge that it was false or with reckless disregard for whether it was true or false.

The high court has said many things about libel in that and other cases, including that there is no such thing as a libelous opinion, provided it is pure opinion, even though outrageous. It is likely Limbaugh would defend the statement above on that ground, which is why Ungar makes the point about malice.

Those who know libel case law recognize the dots he is connecting, but for those who don’t, here’s how it works. If I publish a statement, whether in print or in broadcast, saying the president is a crook who is ripping off taxpayers at an alarming rate with this program and that, I am uttering pure opinion and using hyperbole (exaggeration) to make the point.

But if I say, instead, that the president is a crook who is ripping off taxpayers at an alarming rate with this program and that and being handsomely rewarded for it by certain special interest groups, I have coupled opinion with implied fact, as if I have some special knowledge of kickback deals, and I may have opened the door to a successful libel suit against me.

So, to sue Rush Limbaugh for libel, a public official such as the president would have to prove in court:

1. That the statement made was defamatory, i.e. that it damages the president’s reputation.
2. That the statement made is false.
3. That the statement made is not pure opinion, but directly states or implies a false and defamatory fact.
4. That the statement was made with actual knowledge that it is false or is made with reckless disregard for whether it is true or false, which is the Supreme Court’s definition of actual malice.

The statement does imply knowledge of a fact: that a law professor wrote an article for which Obama received credit, and the statement damages not only the reputation of the president but also of the Harvard Law School faculty, a group small enough to be libeled, based on other Supreme Court decisions.

And according to a Bush administration lawyer, Bradford Berenson, who was a classmate of Obama at Harvard and worked with him on the Harvard Law Review, the statement is false.

“These charges are not accurate,” Berenson said in an article published on the website Think Progress. “As a 2L (second year) 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 if he was not regarded by his fellow editors as being among the best legal writers and legal minds in his class.”

So, we have publication by Limbaugh of a false, factual statement that damages the reputation of Barack Obama. The only question remaining is whether Limbaugh acted with reckless disregard or with actual knowledge of falsity when he made the statement.

But that can only be determined in court, where Limbaugh would have the chance to prove that the statement is true in its substance. Truth is an absolute defense in a civil libel suit.

Unfortunately, Obama is not likely to file that suit, much to Ungar’s dismay.

“The president has an obligation to go after Limbaugh on this,” he wrote in his article. “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.

“ . . . 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?” Good question.

In the absence of an Obama lawsuit, the answer may be, we will – not in court, but by transmitting this episode to all who will listen, and by refusing, ourselves, to listen at all to anything Limbaugh has to say.

Richard A. Joyce is associate professor in the mass communications department at Colorado State University-Pueblo. He was the managing editor of the Canon City Daily Record. He can be reached at phase15@mac.com.

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