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.
He is her ticket to the big time celebrity hood- guest appearances as a pundit, plush book deals and televised interviews.
Unless of course she is an unlikable psycho which is very probable
Is Fluke a slut? Might not be to her advantage to drag her one ovary through the mud?
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).
No two events are ever exactly the same. The Left takes turns making vile comments. Is that better?
It's never been done before by anybody on either side of the political spectrum.
Again, no two events are ever exactly the same. Are you saying that Rush's swinishness in this case is worse than anything the Left has done?
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.
It's true that many posters made incorrect and unfair statements about Flake's testimony. But did Palin say "I can see Russia from my house?" Of course, that's not a quote using gender slurs, but I think if I had the time and energy, I could find a lot of lies of all kinds in such places as Daily KOS.
More subtly, they keep quoting parts of Rush's apology while omitting the best part:
"I acted too much like the leftists who despise me. I descended to their level, using names and exaggerations to describe Sandra Fluke. It's what we have come to know and expect of them, but it's way beneath me. And it's way beneath you. It was wrong, and that's why I've apologized, 'cause I succumbed. I descended to their level. Don't be mad at them or mad at her. Everybody here was being true to their nature except me. I'm the one who had the failing on this, and for that I genuinely apologized for using those words to describe Ms. Fluke."
I agree.
As you noted, we have posters here saying that Rush said was "factual," "appropriate," etc. That is really outrageous, and it contradicts what Rush himself said.
But I do not believe Rush's insults were worse that what the Left has been doing for so long. As evidence, I offer
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” Democrat lawmakers are already urging her to sue Limbaugh for defamation “
Sure, why not? They are what they are.
She’s a whore!!!
Rush was being nice calling her a slut!
No, I'm a non-practicing attorney. This is the point at this I apologize for being a lawyer and encourage you to come up with more creative and damning insults regarding attorneys. And I'll join you and try in match you as we insult attorneys.
Different? Either someone slanders or defames someone or they don’t.
Now, here's where you lost me on at least two levels. First: "Slanders or defames." Slander is a subset of defamation. If you slander someone, then you necessarily defame them. Defamation includes libel, which is written defamation, and slander, which was traditionally limited to spoken defamation, but is now frequently used to include both spoken and written defamation.
But there is no "slanders or defames." There's "slanders and defames."
Now we get to the second level. Compare:
(1) Jon Stewart calls Cathy Conserative a 'slut.' And it's over.
(2) For four days, Jon Steward devotes virtually his entire show to telling you what Cathy Conserative said about her sex life. None of it is true; she never said it. Stewart would know that by simple exercise of fact checking. Jon Stewart tells us that Cathy Conserative talked about having so much sex she couldn't walk. And that based on what Cathy Conserative said, she was probably having sex with three guys a day. And that Ingraham said X, and Y, and Z, and A, and B , and C, and D, and E. And Stewart went on and on about what Cathy Conserative said about her sex life . . . but none of it was true. And Stewart said Cathy Conserative was a slut because of what Ingraham said, and as evidence, Stewart offered a statement he claimed Cathy Conserative made (which she didn't make). And Stewart kept this up for four days, hours at a time, making up things that Cathy Conserative is alleged to have said.
Now both (1) and (2) are out of bounds. I guarantee you we'd be squealing more on FR about (2). It's not true that defamation equals defamation equals defamation. Each false statement is a separate offense. And the longer you go on, and the more you make up statements and attribute them falsely to the other individual rather than just calling names, the worse it gets.
If people don't understand that at this point, I don't think they will.
“She makes these views clear in an article she co-edited with Karen Hu in the Georgetown Journal of Gender and the Law. The title of the article . . . is “Employment Discrimination Against LGBTQ Persons” and was published in the Journal’s 2011 Annual Review.”
Sorry, the slut is a public figure. She constantly seeks public attention.
So, if I call someone’s previous employer and all they say is “Fluke? She is a slut”, they cannot be sued simply because they didn’t “go on” about it?
Didn’t think so. You are trying to split a hair that doesn’t exist.
Rush: “Everybody here was being true to their nature except me.”
“it contradicts what Rush himself said. “
Not really. Rush was definately speaking between the lines. He was supporting his notion that Fluke is a slut but that he usually is a bigger man than to call her one. He knows liberals are sluts and that their entire being is about “do it if it feels good”. To know Rush is to know this.
You get the stupid vanity of the week award.
Great tagline!
"The Da Vinci Code Part 4: Limbaugh's apology"
His apology was a definite improvement over the original insults. We can think whatever we want about Fluke, but IMO what Rush originally said on the radio was too explicit.
I'm glad you cleared that up. You were making a legal point. At first I though you meant that what Rush did was morally worse than the totality of similar remarks Chris Matthews, Keith Olbermann, Bill Maher, Matt Taibbi, Ed Schultz, etc. have made.
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It gets the story off the nightly News.
I see Crystal Ball( MSNBC) and others are calling for libs to continue pressuring advertisers and stations to pull off of Rush.
They are bragging about Rush losing two radio stations, a drop in the bucket compared to Rush's empire. The one that must hurt is losing Carbonite.
Carbonite was run by a well known lefty. Maybe they were a big money maker for Rush but I never thought much of them.
I appreciate you posting your opinion on this and not just repeating what the last 10 posters said. There is a follow the herd mentality with some.
Maybe. but I bought 2 years of Rush-24-7 after Obama won the election and I would download the shows and I found it very annoying each show when Rush would weave Carbonite into his political monolog.
I became a fan in 1992 and this is not the Rush of those days.
You mean, instead of 468 stations, Rush now only has 466....OMG!!
: )
You should have heard Rush’s local show in Sacramento in 1988...........R A W......but funny as hell!
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