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.
All of the statements Rush Limbaugh made about the amount of sex Fluke claimed she was having? They were false. Limbaugh's claims that Fluke was a 'slut' were specifically based (by Limbaugh, in Limbaugh's on word) on Limbaugh's erroneous claims that Fluke talked about the amount of sex she was having, or the cost of her contraception.
FR posters who have figured that out have asked on some threads "is Fluke going to sue Limbaugh?" In response, I briefly touch on defamation of a limited public figure.
"Briefly," because I'm as far from an expert on Times v. Sullivan and its progeny as anyone.
Truth is a defense in a libel suit.
If that will keep the story in the headlines and keep advertisers from the show and push Limbaugh off the air, of course she will sue.
Math is absolute.... with the testimony she gave, applied mathematically PROVES she is a slut.... at least according to the websters dictionary definition...
Sandra fluke is a PR prostitute, being pimped by the DNC.
She will do what they tell her.
The lawsuit will likely be against Rush and against each and every station that carries Rush. After all when you have Hoyer(sp?) and Obama on your side . . . .
Not a snow ball’s chance in Hell.
It’s called “discovery” and there is NO way she will go under oath and answer questions. Too many things about how her ‘testimony’ was arranged would be fair game.
Not when the leftists get done with it
Many of you know I had shoulder surgery and am working one-handed.
I lost part of the post (as far as I can tell acting under the influence of Percocet).
Fluke was probably a limited public figure. That's an indivudal those "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345.
I lost part of the post because of the mis-use of tags.
That’s a very astute analysis. In fact, the only part I disagree with you about is that conservatives feel Rush’s comments were demeaning. I’m conservative, and I don’t feel that way at all.
Once question: since you read the woman’s testimony (and I have no intention of doing so — I’m not big on having women publicly enthuse over promiscuity) can you tell us where Rush got the $3000 figure?
Of course she’s going to sue him, but it has nothing at all to do with the merits, or lack thereof of any legal action. The entire point is to attempt to link Rush to the Republican candidate, whoever that turns out to be in the minds of “moderate” and “independent” voters, and at the same time, create problems for the candidate with the base if/when he attempts to distance himself from El Rushbo.
Oh, and it also helps that we’re not talking about the crappy economy.
For the Rat machine, this is, in their minds, a “win win win”.
I think it’s going to backfire, because the left will enjoy the theater, but it won’t really put the fire in their bellies, because they see it for what it is: theater.
On the other hand, the activist right is really going to get pissed off, the harder the ‘Rat strategy gets pushed, because we see it as further evidence of the craven demagoguery of the left. Which is also what it is.
I think Rush should hire her as a spokesperson for Twoifbytea for one million dollars per year, with the stipulation that she pose for nude photos with bottles of tea. Thus creating a self-fulfilling prophecy ;-)
Like the old joke, it’s just a question of negotiating the price.
We have a winner, folks. joe fonebone didn't read or listen to the testimony.
From Ms. Fluke's testimony:
“Without insurance coverage, contraception, as you know, can cost a woman over $3,000 during law school. For a lot of students who, like me, are on public interest scholarships, that’s practically an entire summer’s salary. 40% of the female students at Georgetown Law reported to us that they struggle financially as a result of this policy."$3,000 during law school, not per year.
No, she won’t sue.
First, an opinion cannot be libel or slander. It is an opinion.
Second, truth is a defense to libel or slander ... so, if she convinced a court that it was a factual statement (rather than an opinion), she’d have to endure the other side trying to prove she’s a slut. I doubt she’d want that adjudicated. It wouldn’t be pretty.
No chance.
SnakeDoc
Thanks for an intelligent discussion on this topic. I always like RUSH and this was the one time I was actually cringing listening to him. I watched some of her testimony and I couldn't understand why he was calling her a slut.
He clearly went over the line and I think it will sort itself out legally but I believe if she won some defamation suit she would deserve to win - I don't understand why he didn't realize how harsh it was to hear him speak like that.
Her testimony said she paid some huge amount for tuition and shouldn’t be expected to pay $3000 for birth control. She wants others to pay for it by having insurance pick it up...which means everyone’s insurance goes up to pay the cost of the drug plus administrative costs. That’s the nut of what Rush talked about.
A responsible person either says to themselves ‘I want to have sex and need to get protection and put it in my budget’, or says ‘wow, I may have to abstain until I can afford it.’ He tied her testimony to the similarities to prostitution. Then, when the math is done, and you add the amount of condoms one could purchase for $3000 it means multiple times per day every day.
The rest of her testimony was typical liberal sob stories that help justify more government.
Yeah. And you owe me a Diet Coke some day for making me go back to be certain I am absolutely correct in phrasing this.
Yeah. Fluke, the expert, who was talking about generalities, said:
Without insurance coverage, contraception, as you know, can cost a woman over $3,000 during law school.
Law school is three years long. That's $1,000 per year.
Well, from enrollment to graduation is less than 36 months, but you get the idea. She never said $3,000 per year. And she didn't say her contraception cost $3,000. She was being offered as an expert who talked about medical issues and contraception, as Limbaugh pointed out today when he explained why he apologized. And that's why she wasn't allowed to testify to Congress. She's not an expert on other women and the whole topic (she could have testified about herself).
Fluke keeps saying you can't get contraceptives from doctors...there's the untruth...Of course the doctor will give them for a condition including birth control but there are sometimes restrictions.
My doctor wouldn't write a prescription for me at age 35....because I smoked.....making me "stroke" material.
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