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.
And he used somewhat generic terms. I doubt somebody could successfully sue if, for instance, somebody called you or me an “idiot” in the media.
She was on some (at least one) MSNBC progressive opinion shows because I saw her there before Rush said any of this. I know I posted a comment here about it at the time. She was playing the 'Boo-hoo-hoo they wont let me testify act' almost weeping about her friend with nthe health problem.
That was after the Religous rights House committee rejected her, but before Pelosi’s women's health committee put her on TV/CSPAN. I watch those shows pretty regularly,
Would that be enough to count?
No, she is not.
I'm not certain you realize how steep the test is to be a pubic figure under Times v. Sullivan. A public figure is like a celebrity or politician. You have to be pervasively involved in public affairs to be a public figure. Did you know who Sandra Fluke was when she was speaking before those Democrats? Had she pervasively appeared in the public eye, involved in public affairs, before then? Nope. She isn't a public figure.
There is a category of persons, for the purposes of defamation, called limited public figures. You can become a limited public figure in a number of ways. When it comes to seeking publicity, the U.S. Supreme Court adopted a Federal Court of Appeals' definition for that. It's someone who has:
thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."
But even that's not a slam dunk that says Fluke is a limited public figure. Federal law says you have to conduct a 'particularized determination.' It's factual.
And federal law says you can't take into account any of the notoriety that Fluke got as a result of Limbaugh's comments - not his comments, or the publicity she got as a result of his comments. So you have to consider whether, when she finished reading her statement before the Democrats, and before Rush said a word, was she well-enough known to be considered a limited public figure? Someone so public that people could and should freely talk about her without worrying about adhering to normal standard of professionalism or fact-checking?
She’s eating up the publicity...So how do you prove you’re not a Dem Operative aka Dem Prostitute when you are just that.
Fluke is a Flake, with a phony undergrad degree, and a left wing activist. I say she disappears.
WeL Right out of Hillary’s valedictorian speech!! The torch has been passed.
WE: Right out of Hillary’s valedictorian speech.
No. First, that 'pervasively' in the news standard is really, really high. If, for example, you're the attorney representing a celebrity on some murder charge and you've been appearing nightly on five talk shows for a couple of months, you're probably not a public figure. You're a limited public figure. You have to be a celebrity or politician, or a high-power businessman to be a public figure.
So the question is whether she is a limited public figure. Even then, you can't take those shows into account because you're judging it from the time that Limbaugh talked about her, not now. You can't take into about any notoriety she got because of Limbaugh's comments, or any press she got because of Limbaugh's comments, or any shows she's been on since she spoke to the Democrats.
I believe the test is . . . when Limbaugh called her a slut and claimed she said these things about her sex life, was she a limited public figure. The precise moment before Rush first mentioned her, would the American public would have recognized her face or name? If you mentioned "contraception', what percentage of the American public would have had her face or name come to mind?
Of course Fluke will sue - he is an attention whore who has become a media darling and there are plenty of third parties who would love to use her as a pretext to sue Rush
The big joke here is that a few weeks ago she was an unknown nobody and now she is suddenly a celebrity.
Rush gave her a huge career boost so even if she were to sue and win a slander suit she would be hard pressed to claim any damages - its been a net positive for her.
” I’m not certain you realize how steep the test is to be a pubic figure under Times v. Sullivan”
No I don’t, and to me, it is the least important thing to stop her from suing.
1) She has a flake undergrad degree.
2) She is a left wing activist, who probably has a checkered past.....most left wing activists do.
Worse than that. It's not only phony, but it is training in the techniques of the greedy lying Left, which too many lawyers and judges take seriously. And apparently she will be another one.
I say she disappears.
I hope so. In a just would she would.
It’ll go all the way to SCOTUS!
People need to realize, that when you sue somebody with deep pockets, whatever you have said or done in the past(as well as political affiliations) will be there for the world to see. Rush can spend plenty on background checks, and private investigators : )
Is that the test to win such a lawsuit, or just to file one, or both? Thanks.
Wow. Shoot the messenger. She wouldn't have all of this publicity if Rush Limbaugh hadn't blown it by making up all of this stuff he claimed she said but she didn't say, and then called her names based on stuff he made up.
And if some of my fellow conservatives hadn't bought his lies hook, line, and sinker, and then repeated them over and over on FR (where I've been a member since February 1998), and added to them, even in response to people telling them to stop and read Fluke's statement.
Do you feel proud when conservatives lie or are misinformed? I don't. I thought hoped that separated us from liberals.
She would have to take that into consideration. But if she did sue, and Rush's investigators found out some embarrassing things that came out in public, guess how that would play in the media? "Rich right winger uses his power to continue to torment concerned citizen."
If she wants to be a Kamikaze, that may not stop her.
It's all about circles. Just because she's not known to ALL, doesn't mean she's an unknown. Valerie Plame would be another good example of an "unknown".
I'm having a heck of a time finding out anything about Fluke before 1999.
I hope the word "you" is not referring to Scoutmaster, who is obviously not a "Dem Operative?" I am hoping you are making some kind of argument about Fluke.
No....Not referring to scoutmaster...Good grief...
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