Steny Hoyer to Sandra Fluke: You should probably sue Rush, you know

Given the insane mileage Democrats are getting from this story, he could probably get David Boies to represent her pro bono. Anything to keep the headlines coming.

Someone, I forget who, tweeted a few days ago that they’d happily bet ten grand that Fluke will get a cameo speaking appearance on one of the first nights of the Democratic convention. Anyone want to take that bet? Bear in mind, Obama’s already dialing up women’s colleges and inviting himself to speak at commencement in hopes of squeezing every last drop of war-on-women goodness out of this fiasco. At the rate we’re going, Fluke might introduce him at his acceptance speech.

“I’d like to see her take him to court,” said Hoyer, who was in Selma for the annual Bridge Crossing Jubilee. “She is not a public figure and, for that reason, she should be able to sue for slander, libel or whatever else might be involved.”…

Joseph Lowery, former president of the Southern Christian Leadership Conference, said he is familiar with “vintage Rush Limbaugh.”

“(Fluke) has ample room to sue him and I hope she does because he’s gotten rich off the mess he causes,” said Lowery, who joined Hoyer and other national leaders in condemnation of Limbaugh.

She’s got two problems trying to beat him on a defamation claim. One: Hoyer’s probably wrong when he says she’s not a “public figure” for First Amendment purposes. Courts will treat someone as a “limited-purpose public figure” under certain circumstances; according to the EFF’s summary of the law, typically that applies to someone who “(a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across.” Fluke voluntarily testified before Congress and, lord knows, she has all the access to the media she could ever want. Assuming she’s a “limited-purpose public figure,” that means she’d have to show that Rush was more than just negligent in calling her a “slut” but acted with reckless disregard for whether it was true. Not an impossible standard to meet but more difficult, and his extended apology today may affect the calculus. The other problem is that, at bottom, he was making a crude joke more than a sincere accusation of fact. His point was that if you want someone else paying for your birth control then you’re kinda sorta being paid to have sex, in which case you’re kinda sorta a prostitute. That analogy is obviously different from claiming earnestly that someone’s promiscuous, but Rush did go on and on and on with it, especially in riffing on the absurdity of the $3,000 figure, so who knows how a jury would disentangle it. Would the line, “She’s having so much sex it’s amazing she can still walk, but she made it up there,” be viewed in the larger context of the point he was making or would it be viewed as a bona fide assertion of fact? I don’t know. Defamation lawyers, any insights?

You’ll be pleased to know that Bill Maher, the chief villain in Kirsten Powers’s j’accuse of liberal men this weekend, has a nifty new HuffPo post up talking about what it’s like to grow up a poor man and then donate $1 million to Obama’s Super PAC, Priorities USA. Among the people circulating his post on Twitter: Bill Burton, senior strategist and co-founder of … Priorities USA. You know, I’m starting to think they might not give back the money.

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