As our old friend Patrick Howley reported at The Daily Caller yesterday, Rush Limbaugh has threatened to bring a defamation suit against the Democratic Congresssional Campaign Committee (DCCC) for writing a fundraising letter which said that the conservative talk radio icon condoned rape. Back in September, Rush had been commenting on Ohio State University’s mandatory sexual consent rules.
Should Rush bring this suit forward, can he win it?
Erik Wemple at The Washington Post doesn’t think so:
First there’s the issue of Limbaugh’s status as the most public of public figures for the purposes of media law. Any libel action brought by public-figure Limbaugh must prove that the defendant acted with knowledge of the falsity of its statement or with reckless disregard of its truth. Virtually impossible, considering the number of folks who reached similar conclusions.
Beyond dealing with the issues of fact, a successful suit would need to show that Limbaugh suffered damages from the DCCC appeal, which stated that “Limbaugh will continue to perpetuate a culture of sexual assault until his advertisers pull their advertising from his disgusting show,” according to Glaser’s letter. Glaser also notes that the DCCC had boasted that “more than 191,000 have signed to demand his sponsors drop him.” Clay Calvert, a University of Florida professor, asks, “Could he show a loss of endorsement deals or lowered ratings caused by this letter? It seems doubtful.”
But what Wemple misses is that the courts have consistently ruled there are some statements that are so harmful that the plaintiff is not required to bring forth additional proof nor prove damages as in the case when person A writes that person B has committed a crime such as rape. This is known as defamation per se. In this particular case, the DCCC took Rush’s “No means Yes if you know how to spot it,” and turned it into a fundraising letter which read, “Make no mistake, Rush Limbaugh is ADVOCATING a tolerance of rape.” The DCCC didn’t say Rush had committed a rape, but that he was advocating that it was socially acceptable to do so. Given the heinous nature of rape and given the heinous nature of the DCCC’s statement, a court could certainly conclude the DCCC was engaging in defamation per se against Rush. The fact that other folks had reached a similiar conclusion to that of the DCCC is irrelevant.
But even if Rush were to win a defamation per se lawsuit against the DCCC the court might rule the damages were nominal. Rush could win a judgment of $1 (although given the malicious nature of the statements he could win more). Now if this is a matter of principle for Rush then fine. The DCCC and other liberal organizations might think twice before accusing conservatives of condoning rape or other serious crimes. But if he’s expectating signifcant monetary damages then he could end up paying a lot of legal fees with little to show for it.
The other thing to keep in mind is that the DCCC came off a horrible week in which saw the fewest Democrats were elected to the House of Representatives since the end of WWII. Steve Israel has resigned as Chair. They were in shambles. But a lawsuit from Rush Limbaugh could breathe new life into the DCCC and give them a raison d’être. Rush might have been better off to keep the DCCC deflated.
But if Rush does proceed with the suit and wins a large judgment then he could donate his winnings (after legal expenses) to a charity such as The Girl Scouts of America. Rush Limbaugh would come out on top and that would really annoy liberals.
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