Posted on 03/05/2012 10:38:29 AM PST by Scoutmaster
I've seen references in some of the threads on Rush Limbaugh, Sandra Fluke and Limbaugh's apology, wondering whether Fluke will sue Limbaugh for defamation or libel. I'm not an expert in this area, but here are a few thoughts.
First, for those who haven't read Fluke's testimony, and although it may well have been factually incorrect in many ways, Fluke never mentioned her own sex life or use of contraceptives. She was going to be called by the Democrats as a expert primarily how women with medical issues that could be treated by oral birth control were being denied 'medical care' in the form of oral birth control because it was also a contraceptive.
Right after being introduced, Fluke said:
"When I look around my campus, I see the faces of the women affected by this lack of contraceptive coverage. [I]n the last week, I have heard more and more of their stories. On a daily basis, I hear yet from another woman from Georgetown or from another school or who works for a religiously-affiliated employer, and they tell me that they have suffered financially and emotionally and medically because of this lack of coverage.“And so, I’m here today to share their voices, and I want to thank you for allowing them – not me – to be heard.
Fluke then went on to share the stories of six other women (who may or may not exist). As an example, Fluke told of a friend who allegedly has polycystic ovarian syndrome, and her birth control prescription is 'technically covered by Georgetown’s insurance because it’s not intended to prevent pregnancy', but the 'gay' friend was denied coverage because the insurance company interviewed her and decided that she really wanted birth control to prevent pregnancy.
The stories were almost all about women who allegedly had medical issues that should have been treated with oral contraceptives, but payment for the medical treatment was allegedly denied because it would have meant paying for a contraceptive. Most importantly, none of the stories was about Fluke, Fluke's sex life, Fluke's use of contraceptives, Fluke's cost of contraceptives, or Fluke's need for contraceptives.
Remember, Fluke was supposed to be an expert on the issue of why oral contraceptives were needed for all of these non-sex purposes.
When Rush Limbaugh called Fluke a "slut" and a "prostitute" repeatedly over the course of four days, he constantly made specific allegations about what Fluke had said. Among the four days of comments, Limbaugh said Fluke was "a woman who is happily presenting herself as an immoral, baseless, no-purpose-to-her life woman." Which is odd, because Fluke never spoke of her own life. Rush claimed Fluke had testified that "she's having so much sex she can't pay for it," although Fluke never said she was having sex or using contraceptives. Limbaugh said things like:
What does it say about the college coed Susan Fluke [sic], who 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. She wants to be paid to have sex.
None of the statements about her sex life that Limbaugh attributed to Fluke were true, because Fluke never spoke about her sex life or her use of contraceptives. But Limbaugh repeatedly called Fluke a "slut," and a "prostitiute" based on her statements that he made up.
Rush blew it. He made hours of specific demeaning (at least to conservatives) allegations about what Fluke said, and those allegations weren't true. And he called her insults (at least to conservatives) based on the false statements he attributed to her.
So what if she sues for defamation? It's clear that Limbaugh made hours of claims attributing statements to Fluke that she simply didn't make. If you deny that then you need to read Fluke's statement and compare it with the statements Limbaugh attributes to her. It's hard for Limbaugh to assert that he didn't intend 'slut' to be a bad thing. He said he'd be ashamed of her if she was his daughter, and many similar comments. And let's put aside for a moment the issues of whether she suffered damages and how she would prove them.
Since New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a public figure suing for defamation must prove that that the defendant/publisher had 'actual malice,' which means the defendant must have known that the statement was false or acted in reckless disregard of its truth or falsity.
Was Sandra Fluke a public figure? Simply appearing before Congress, or appearing in the public, isn't enough to make one a public figure. If Sandra Fluke had been subpoenaed to appear before Congress and had been required to make her statements as testimony, she almost certainly would not have been a public figure. Fluke also wasn't a standard public figure at the time she gave her presentation because she hadn't earned that role by being 'pervasively' in the news.Gertz v. Robert Welch, Inc., 418 U.S. 323, 345. Without further research into the issue, it sounds to me as if Fluke fits this description; she has worked in this area and agreed or offered to appear before Congress. And you can't kid anyone; we know it was in order to influence the issue of the Obamacare mandate on payment for contraception.
If Fluke is a public figure, what is the standard she must prove? The actual malice standard requires that she prove Limbaugh knew that the statement was false or acted in reckless disregard of its truth or falsity.
"Actual malice" is very had to prove. It goes beyond mere neglect in fact-checking, or not meeting professional standards. Generally the publisher must have an actual doubt as to the truth of the statement, or a "high degree of awareness of . . . probable falsity.'" St. Amant v. Thompson, 390 U.S. 727, 731 (1968)
So . . . I'd love to hear some experts in the area of defamation of public figures weigh in, but my quick-and-dirty is that if Fluke were not a public figure, it's clear that Limbaugh defamed her repeatedly. (And we'd get to the issue of whether Fluke could prove damages; in her sphere, being called a 'slut' by Rush Limbaugh may have improved her future earning potential.) He attributed demeaning statements to her that she simply didn't make, and he did it repeated on national/international radio over a period of four days. Then he called her some unflattering terms based upon his own false attributions.
Fluke looks like a limited pubic figure for the purpose of her presentation. Did Limbaugh act with a high degree of awareness that his attributions were probably false? That's a very tough standard to meet, although just because the standard's tough to meet won't keep a liberal attorney from suing Limbaugh and keeping this issue in the headiness and Limbaugh on the hot seat.
I wish her luck : )
I would wager, that she has MAJOR baggage.
She is also tormenting a Jesuit college by her history...does Obama really want to go there?
How many times does Rush have to apologize for doing what the left wing MSM does relentlessly ?
Thanks. Scoutmaster thought you were. See #96.
A lot of them were shot down before they could crash into a ship :)
She has been said to be a lesbian and a Buddhist.
Reads as though her intellect is just as contradictory.
(Buddhists don’t condone sexual immorality nor fornication, so why would she advocate contraception if she were honestly Buddhist? Why would she advocate contraception as a lesbian, unless she sleeps with more than one person?)
It’s laughable that anything she ever says is given a modicum of attention. No legal practitioner would be respectable associating with her. She has no substance. She is just a hound for publicity and it will be quickly fleeting.
Agreed, on all counts.
We need to back up.
I'm going to summarize, so I'm going to take shortcuts. When I speak of Fluke suing Limbaugh, it would be for defamation. That's a general term for an untrue disparaging statement that one person makes about a second person, and that is communicated to a third person. Sometimes you'll hear it called 'libel' if the statement is written. "Slander' used to mean oral statements, but sometimes is used for oral or written statements. But let's just call it defamation.
There aren't any real barriers to bringing a defamation suit. There are meaningless sanctions against attorneys for bringing frivolous claims, but for the most part, if you can dream it, you can file it.
One defense to defamation is that you spoke the truth. In Limbaugh's case, he claimed this woman said a lot of things about her sex life. She didn't. He claimed she was of low moral character specifically because of these things she didn't really say . . . and he said that was why he called her these insulting names. But the insulting names aren't the key. Just accusing her of saying all of the things he claimed she said, and she didn't say, is enough.
Public figures - and that term has a very, very specific meaning in the context - have an almost impossible time winning a lawsuit when they claim defamation. Under a long line of cases that start with one called Times v. Sullivan, public figures must show 'actual malice' to win a claim of defamation. Good luck.
"Actual malice" means that the person went way beyond not adhering to standards of professionalism or fact-checking, and even having a hint that what they said might not be true. It's essentially saying that, for a public person to win a claim of defamation, the person who printed or said the defamatory statement must have know (or acted with reckless disregard of the truth - but that phrase is used in a special way that makes it almost meaningless) that what they said was untrue.
So - it's a big deal as to whether a person is a public figure. If they're a public figure, you can say anything you want about them up to and pehaps including an absolute lie, unless you know it's a lie. And good luck proving that the person who said it knew it was a lie. Understand?
It sounds pretty easy to be a public figure. We all know public figures. But most public figures aren't necessarily "public figures" for the purposes of defamation law. You have to be a celebrity, politician, or major business leader (well, pretty much).
You can be a 'limited public figure' when you "thrust [yourself} to the forefront of particular public controversies in order to influence the resolution of the issues involved." The U.S. Supreme Court adopted that language, which was formulated by a Federal Court of Appeals.
That sounds like Fluke and, if so, Fluke would have to prove that Rush Limbaugh acted with actual malice to prove he defamed her.
But, like all law, it's not that simple. Federal law says you have to conduct a 'particularlized determination' to see if somebody is a limited public figure. And, for defamation, you can't take into account any of the infamy or attention that the party got as a result of the statements that are alleged to be defamatory.
So, when Sandra Fluke finished speaking, how public a figure was she, even on this topic? Was she so public that it was in the public interest to let people talk about her without requiring them to undertake normal professional standards of fact-checking? Or was she just a person entitled to the same protections again defamation that 99.9% of the public gets?
As for her fame, you can't take into account anything Limbaugh said, or anything that was on TV or the internet about her as a result of Limbaugh. Was she a limited public figure absent that? And if she was, was it fair game to talk about the topic she talked about and only the topic she talked about? Because Fluke never mentioned her sex life. Fluke never mentioned her use of contraceptives.
If you accuse somebody of a crime? That's defamation per se (unless they committed the crime). Serious sexual misconduct? That's defamation per se (unless they engaged in the misconduct).
I'm a lawyer and I'll tell you I don't know the answers. Anybody who definitively says Fluke was a public figure is absolutely wrong, in my view.
I think Rush could be in trouble. I'm not certain Fluke was a limited public figure. Despite her public appearance, I don't think she was in a position where courts would view her as being so public that it was in the public interest to let people comment on her personal life without conducting routing fact-checking or adhering to standard practices. Limbaugh would have known he was wrong if he had even listened closely to her presentation or read it.
I'm certain I missed on some points and left out issues. It's hard to address legal issues, because there are always exceptions to exceptions. And posters on FR who aren't attorneys think they are and definitely state things like "Fluke's a public figure" when fifteen minutes ago they didn't know Times v. Sullivan existed. It's the attorneys who will admit there are grey areas.
Fluke has just made her liberal bones. She's golden once she leaves Georgetown as a result of this. Since her Cornell days, she's been involved in ultra-feminism. She's also been involved in some things that are commendable, such as the opposition of human trafficking (although I imagine she's only concerned with the trafficking of women).
You won't find out much about her because she's only thirty. She has that bizarre degree from Cornell, where she was involved in protesting pro-choice. And she's on every gender, feminist, and reproductive choice (that's a fancy phrase for abortion) journal and organization she can be on at Georgetown.
I can't find any record of what she did with her Women Lawyers of Los Angeles grant this summer, but I haven't researched deeply.
Wow, thanks for the thoughtful answer.
Disclosure: I am a legal ignoramus. Assuming that Fluke would legally be “not a public figure,” can Limbaugh claim that his comments were satire, and therefore protected? Obviously, he has a long history of controversial statements that he did not intend to be taken literally.
If you know of a relative unknown public citizen who is a conservative, and liberal like Maher or a group of liberals who spent four days attributing specific false statements to them in the manner Limbaugh did, I'd like for you to name names.
Yes, Jerry Brown may have called "Whitman" a whore. But he didn't mean that with respect to sex. And he didn't say it repeatedly over four days and twelve hours. And he didn't put words in Whitman's mouth about having sex as the basis for calling her a whore.
The liberal media, liberal commentators like Schultz, and liberal 'comedians' like Jon Steward are trashbags, but there's not a liberal-against-conservative incident comparable to this Limbaugh one.
Digging into Joe The Plumber's personal life was an affront Did anyone spend hours accusing him of saying things he didn't say and then slandering him as a result?
I don't think what Limbaugh did was "what the left wing MSM does relentlessly." If you can name names and tell me when it happened, then I'd be happy to change my mind.
We need to quit apologizing for Limbaugh. What he did was wrong. And what the liberal media does and how many times they did it doesn't affect whether what Limbaugh did was right or or not.
There's a large group here who thinks Rush was just forced to apologize and he shouldn't have done it, because Rush was right. But Rush was wrong
” If you can name names and tell me when it happened, then I’d be happy to change my mind.”
Are you serious?
1) I don’t have a photographic memory. There are many direct quotes posted here in the past couple of days made by leftists in the MSM attacking conservatives.
2) Rush apologized several times.
3) What possible good does it do for you to mention possible lawsuits against Rush? Yes, he was wrong, but he apologized......ENOUGH ALREADY!!
If you are limiting this to "non-public figures" (from a legal point of view), I don't know. But WRT swinish statements about women from the left (written by a Dem!):
Over the last 24 years, I have heard one left winger after another verbalize or by written word, every scandalous, obscene name for Rush Limbaugh, and all Rush ever did was joke about it. See you on another thread. This one only talks about possible scenarios from hell!
Yes, I'm serious. You made the comment. I asked you to back it up. If you had been able to back it up then I would have changed my mind.
"There are many direct quotes posted here in the past couple of days made by leftists in the MSM attacking conservatives."
Yes. One-time derogatory comments that were uncalled-for. Not twelve hour insult-a-thons (four days of three hour shows - and no, I don't think he spent the full time on this). And those direct quotes made by leftists weren't accompanied by hours of misleadingly telling us what the conservative said, when the conservative didn't say it, as the actual basis for defamatory comment.
I never said leftists didn't defame conservatives. I just said this was different. You said this was the same. I said name names, because it's not the same. It's never been done before by anybody on either side of the political spectrum. And people are excusing it and continuing to excuse it because it was a conservative.
You, for for example, seem to think Rush's attacks were same thing as the attacks of idiots on the left. They weren't, in scope or duration, or in the repeated false attribution of statements. So I asked you to name names.
What possible good does it do for you to mention possible lawsuits against Rush?
This is one of our magic forbidden topics? I didn't start it. I was addressing the fact it had already been mentioned on threads. You don't think Sandra Fluke and the DNS already had advisors thinking about this before Scoutmaster responded to some FR posters?
BS. Fluke postured for her position on TV before Congress. She is a public figure by any definition. She wasn’t summonsed to Congress. She wasn’t forced in any way to be on TV. She, herself, claims to be a public advocate. She also advocated using public funds for her sexual entertainment on broadcast television before Congress. Sorry, but you can’t lay claim she is a private person.
You do realize that ALL of Limbaugh’s comments were based on the ASSUMPTION she was providing honest testimony? That Limbaugh said, taken in context, that IF she needed $1,000/year to prevent pregnancy, THEN she was a slut?
The entire point Limbaugh was making was NOT that her MORALS were bad, but her MATH was...because it was obvious, taken in context, that Limbaugh NEVER believed she was having sex 3-8 times a day, 365 days a year!
It was an IF/THEN proposition, with the THEN being absurd enough to give the lie to the IF.
All:
Scoutmaster’s legal analysis is materially incomplete.
Let’s set aside the question as to whether Fluke is a “public figure” in this context, because ultimately it is not determinative of the viability as a practical matter of a claim of defamation.
Rush’s quote: “What does it say about the college co-ed [Sandra] Fluke, who goes before a congressional committee and essentially says she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex. She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex. What does that make us? We’re the pimps — the johns. No, that’s right — pimp is not the right word.”
There are two sets of statements on which Fluke might claim Rush defamed her:
1. Calling her a “slut” or “prostitute.”
2. Claiming that Fluke herself was using birth control pills and paying for them, when in fact strictly speaking Fluke spoke only about unnamed persons, not necessarily herself.
As to the first set of statements, this is going to present difficulties for Fluke for two reasons. First, Rush has a rather solid argument that his use of the words “slut” and “prostitute” were not in the ordinary use of the terms, but were specially defined by the context in which he spoke them to mean someone who demands and receives contraceptives paid for by someone else for use in having sex. People can agree or disagree with the proposition that someone who demands free birth control pills paid for by others in order to have sex makes that person a “slut” or a “prostitute” but that is moving into the realm of opinion and not actionable under defamation law.
Even setting aside that argument, as to the word “slut,” because truth is a defense to defamation, the question of her personal promiscuity would become a relevant issue for discovery and presentation to the trier of fact. One would think it unlikely that she would be interested in having the facts of her sexual life investigated and presented in court.
As to the second set of statements, a necessary element of a defamation claim in these circumstances is a tendency to harm the reputation of the plaintiff. It is simply not tenable for Fluke to argue that the public falsely believing that she takes birth control pills or pays for birth control pills somehow harms her reputation when she has been such a strident advocate for contraception.
We need to factor the above into the legal analysis and they render a defamation claim by Fluke against Rush very problematic.
All of which is not to say I support Rush’s original statements. I think he went overboard here and I don’t like seeing us descend to the level of the nasty Left.
Will Sandra Fluke Sue Rush Limbaugh (Vanity)
Vanity| March 5, 2012 | Scoutmaster
If you didn’t start it, who DID?
“Yes. One-time derogatory comments that were uncalled-for. Not twelve hour insult-a-thons “
“I never said leftists didn’t defame conservatives. I just said this was different.”
Really, “different”? What are you, a 12 year old little girl? Different? Either someone slanders or defames someone or they don’t. Different? How? Because liberals are supposed to get a pass when they do it?
Bill Maher going one and one about Sarah Palin and calling her a c*** is somehow different? Wanda Sykes at the Whitehouse stating, “Rush Limbaugh, I hope the country fails, I hope his kidneys fail, how about that?”
Sounds like you hate Rush and that is all there is to your comments.
Ummm. Go back three days. There are already news articles about whether Fluke is going to sue Limbaugh for defamation. Democrat lawmakers are already urging her to sue Limbaugh for defamation. There are already 'law' blogs where people are discussing it, and whether Fluke is a limited public figure. In different states' blogs, attorneys are discussing which per se rules apply to which comments of Limbaugh.
Consider me barrel racing. I'm not the first event at the rodeo.
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