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.
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.