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On Rush Limbaugh, Obama, Libel Law and the Harvard Law Review

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  • On Rush Limbaugh, Obama, Libel Law and the Harvard Law Review

    Rush Limbaugh says a lot of things. That’s his job. Many on the right find great wisdom in his comments. Many on the left, well, don’t.

    In any event, he’s a lightning rod — and gets threatened with libel lawsuits from time to time. So that folks are throwing the words “libel” in the same sentence as “Limbaugh” really isn’t newsworthy. But we’re going to mention the most recent dustup because it deals with the Harvard Law Review, and therefore encroaches onto our turf.

    Here’s the deal: Shortly after President Obama’s State of the Union address, Limbaugh, in an interview with Fox News, made the following statement about Obama:
    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.

    The whole statement is undeniably provocative, but the line that has folks especially riled up, it seems, is this notion that Obama didn’t write his own Law Review article while a student at Harvard.

    It’s quite an assertion. But is it libelous?

    Over at the liberal-leaning True/Slant, Rick Unger is making the case that not only does Obama have a valid libel claim against Limbaugh, but that he is “obligated to sue Rush Limbaugh for defamation.”

    Writes author and lawyer Rick Unger:
    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.

    Of course, the big hurdle with defamation cases against public officials is that the standard is higher than it is for cases against private individuals. In order to win, a plaintiff need show that, among other things, a false utterance was made with actual malice.

    Interestingly, on the ‘whether it was true front,’ we introduce Sidley’s Brad Berenson, a former associate White House counsel under George W. Bush. Berenson, a classmate of Obama’s at HLS, reportedly told the Web site Think Progress:
    These charges are not accurate. As a 2L . . . 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.

    And on the actual malice front? The seminal Supreme Court case New York Times v. Sullivan, lays out this standard:
    ‘Actual malice’ [is defined] 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.

    In regard to this, Rick Ungar says:
    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.

    LBers, any thoughts? Of course President Obama isn’t going to file suit. But it’s a fun legal/intellectual exercise nonetheless. Would Obama have a colorable claim?

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