House Minority Whip Steny Hoyer (D-Md.) has called on Georgetown Law student Sandra Fluke to sue Rush Limbaugh for calling her a “slut” and a “prostitute” on his radio show. Hoyer insists that the reprehensible comments are also actionable libel. He is half right.
There is no question that Limbaugh’s attacks on this law student are reprehensible and outrageous. Limbaugh repeated the statements in later shows and later days to show that he was not backing down — taunting his critics. Then, advertisers began to drop his show and Limbaugh suddenly had a change of heart and apologized. (Much like the nationwide tour of apology by Bill Maher over his post-9-11 comments on Politically Incorrect, the host found that there are limits even for celebrities who pride themselves on being untouchable or unrepentant). Limbaugh essentially claimed a poor choice of words . . . that he used over and over again. Limbaugh’s apology has not helped slow the exodus of sponsors.
Hoyer’s desire to see the matter in a defamation filing, however, ignores some barriers to recovery. First, Fluke is a public figure or limited public figure. She chose to appear in public and give interviews on her views and lifestyle. It was a courageous choice but a choice that triggers the standard under New York Times v. Sullivan requiring that she satisfy the higher test for defamation of either knowing falsehood or reckless disregard of the truth.
Second, there is protection in the common law for opinion. Ironically, Limbaugh can cite the late conservative columnist Robert Novak. Novak made his reputation as one of the most biased and hard-hitting columnists from the right. In Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), Novak was sued and a court ruled in his favor on the basis that everyone knew he was not writing as a disinterested journalist. In Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), he and his co-writer Rowland Evans were found:
The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.
Just as Novak was not viewed as a news reporter, Limbaugh benefits even more from the protection since his show in not intermingled with authentic news in a newspaper. He is an unabashed critic with a reputation for outrageous commentary.
Third, the mitior sensus doctrine would become an issue, though it might not prove a barrier to Fluke in this case. The doctrine requires that, when two or more interpretations of a word are possible, courts should accept the non-defamatory meaning. In Bryson v. News Am. Publs., 174 Ill. 2d 77; 672 N.E.2d 1207 (Ill. 1996), the Illinois Supreme Court considered a lawsuit over “the March 1991 edition of Seventeen magazine that referred to the plaintiff as a ‘slut’ and implied that she was an unchaste individual.” The Court applied the doctrine and noted that contemporary meaning must be considered in the use of the doctrine:
The defendants finally note that our appellate court has held that it is not defamatory per se to call a woman a slut. Roby v. Murphy, 27 Ill. App. 394 (1888). . . Roby was decided more than 100 years ago. It is evident that neither the law of defamation nor our use of language has remained stagnant for the last century. Terms that had innocuous or only nondefamatory meanings in 1888 may be considered defamatory today. See, e.g., Moricoli v. Schwartz, 46 Ill. App. 3d 481, 5 Ill. Dec. 74, 361 N.E.2d 74 (1977) (rejecting the defendant’s claim that the term “fag” should be innocently construed, because the dictionary definitions for that term included “cigarette” and “to become weary”; stating that the plaintiff “is a fag” amounted to a charge that the plaintiff was homosexual); Manale v. City of New Orleans, 673 F.2d 122 (5th Cir. 1982) (referring to the plaintiff, a fellow police officer, as “a little fruit” and “gay” falsely charged the plaintiff with homosexuality and was defamatory per se); Tonsmeire v. Tonsmeire, 281 Ala. 102, 199 So. 2d 645 (1967) (“affair” is commonly understood to mean unchastity rather than a platonic association).
At the time Roby was decided, Webster’s dictionary defined the term “slut” as “an untidy woman,” “a slattern” or “a female dog,” and stated that the term was “the same as bitch.'” Roby, 27 Ill. App. at 398. Apparently, when Roby was decided, none of the dictionary definitions of “slut” implied sexual promiscuity. Moreover, the Roby court found that, even in its “common acceptance,” the term “slut” did not amount to a charge of unchastity. Roby, 27 Ill. App. at 398.
We cannot simply assume that the term “slut” means the same thing today as it did a century ago. Many modern dictionaries include the definitions of the term “slut” cited in Roby, but add new definitions that imply sexual promiscuity. See, e.g., Webster’s New World Dictionary (2d Coll. ed. 1975) (“a sexually immoral woman”); American Heritage Dictionary 1153 (2d Coll. ed. 1985) (“[a] woman of loose morals” “prostitute”). Moreover, in the present age, the term “slut” is commonly used and understood to refer to sexual promiscuity. See Smith v. Atkins, 622 So. 2d 795 (La. App. 1993) (law professor called a female student a “slut” in class; appellate court found that term was libelous per se).
Limbaugh could argue that the use of “slut” raises the question of whether the term is used so widely in modern discourse that it is no longer taken literally. That would be difficult here in the context of the statements. (Ironically, he might fare better with “prostitute” since that is clearly opinion and he was analogizing the receipt of government funds for contraception to prostitution — something covered under opinion defenses.) Limbaugh could argue that a more innocent meaning of slut is simply someone who sleeps around — a term no longer treated as socially stigmatizing.
Finally, there is the question of free speech. While I detest the comments, Limbaugh has a right to speak on such issues. He could claim that, while unpopular, he views a woman who has an active sex life before marriage to be a slut as his personal opinion. He can even argue truth as a defense. That would come with two obvious liabilities, of course. First, he is already sinking fast in terms of sponsors. Such a legal defense would only deepen the divide. Second, he is likely to find a jury that is less than pleased with such a defense.
On balance, I believe that this is protected speech and would not be viewed as defamation. While I understand and share Hoyer’s anger over the comments, filing a torts lawsuit would not advance Fluke’s cause.
What do you think?
The House’s second-ranking Democrat said Sandra Fluke, who was swept up in a national furor when Limbaugh called her a “slut” and a “prostitute” because of her stance on contraceptives, needs to explore legal options against the radio host, Hoyer said. A Georgetown Law grad himself, Hoyer called Limbaugh’s comment “reprehensible.”
“I’d like to see her take him to court,” Hoyer said, according to a report in the Montgomery Advertiser. “She is not a public figure and, for that reason, she should be able to sue for slander, libel or whatever else might be involved.” See also: Rush on air: Apology was heartfelt.
Hoyer was in Selma, Ala., for the annual Bridge Crossing Jubilee marking the “Bloody Sunday” events of 1965.
Fluke was thrust into the national spotlight when she wasn’t allowed to testify in front of a congressional hearing on the Obama administration’s contraception rule. She spoke before an informal Democratic hearing late last month about the need for easier access to birth control, prompting Limbaugh’s remarks.
Limbaugh on Saturday apologized for his comments, but that hasn’t done much to quell the backlash. The controversial conservative commentator has lost eight advertisers, with AOL being the latest to drop, according to the Associated Press.
Source: Politico
My test would be how much, if any, damage to Limbaugh, could be had by bringing suit, not on whether she could legally prevail. Kind of like why more banksters should be prosecuted. The deterrent effect. But I’m not exactly a legal purist. Seen too much justice for me but not so much for thee and all that..
“….New York Times v. Sullivan requiring that she satisfy the higher test for defamation of either knowing falsehood or reckless disregard of the truth.”
Raff, mespo rcampbell….
I wonder if ms fluke could be deemed a quasi public figure since she put herself in the spotlight… Just sayin….
Huffington Post
If she can muster the will, Sandra Fluke should pursue a lawsuit against Rush Limbaugh. The right-wing’s echo chamber has enabled them to attack personally private citizens and public figures with impunity, explaining, dissembling, trivializing, and overwhelming decent discourse.
Pursuing a lawsuit against Limbaugh, through depositions and a trial, would expose at least part of the right-wing underworld, make more advertisers concerned about associating with him, and, most importantly, impose consequences on him for his actions in the language Limbaugh understands — money damages.
Sandra Fluke would have a strong case against Rush Limbaugh for defamation (the general legal category that includes libel and slander). She may also have a case against Bill O’Reilly, who did not use the word “slut,” but did say that Ms. Fluke was asking the taxpayer to pay her for sex. [Incidentally, another lie — although not legally actionable by itself — is that this had anything to do with taxpayers. The issue is private insurers, not the government, providing full coverage for women’s health].
Given a skilled advocate, I believe Ms. Fluke would be able to prove, to the satisfaction of the majority of the jury, that she did satisfy the higher test for defamation of reckless disregard of the truth on Limbaugh’s part.
An added plus would be all that wonderful discovery concerning Limbaugh.
Sooner or later people like Limbaugh go too far … that’s when you jump on ’em. That is, of course, if they have anything worth taking.
My opinion is the opposite of Prof. Turley’s. I’d say that “slut” is an opinion, and protected as such, but “prostitute” is a statement of fact, and therefore actionable. Did Ms. Fluke exchange sexual acts for money? No? Then she is not a prostitute (and it is clear that Mr. Limbaugh did not use the word in its metaphorical sense, as he demonstrated by his demand that she post sex tapes on the Internet) and she should sue for defamation.
I agree with Mespo that she may have success in using Rush’s own words to prove she was not a public figure before he allegedly defamed her.
“What do you think?”
Maybe the law could be improved. She was doing a public service by giving witness testimony. Let a jury decide.
So, by having the audacity to appear before congress and provide testimony one gives up the rights of a private citizen and becomes a public figure? Then it is true, the law is an ass.
I have no idea if she even wants to file suit or what the possibilities of success are but this whole process of demonizing people who dare speak against the great GOP machine has to be brought to heal. They sent the flying monkeys out to spy on and harass the family whos 12 year old son testified on SCHIP. They have spewed garbage at others for similar reasons. This is just the latest & one of the worst cases. The woman did not speak about her sex life, or even suggest she had one.
If the law cannot stop this filth what can? Please don’t suggest human decency because as defacto head of the GOP Rush has shown he understand neither of those words individually or combined.
Ms. Fluke should sue and give the money to one of the women’s health organizations that she works for.
The degree to which Ms. Fluke was or wasn’t a public figure is important to me, as a potential juror. I suppose that will be settled at trial, if there is one.
Personally, I await the day when I can visit Limbaugh’s drug soaked grave to soak it a little further.
I think a plausible case could me made. Ms. Fluke was no public figure when the comments were made. Rep. Dan Izza, arch conservative, refused to let he testify deeming her an unqualified mere citizen. Limbaugh clearly defined his meaning in his comments when he said, “What does it say about the college co-ed Sandra Fluke, 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.” Prostitution is a crime in most states raising the issue of slander per se. He then encouraged her to put her “sex tapes” on the internet. Judging by the reaction from Limbaugh’s own advertisers many in the community find his comments defamatory and not subject to dual interpretation. (“Mr. Limbaugh, with his highly personal attacks on Miss Fluke, overstepped any reasonable bounds of decency.”- Cabonite CEO David Friend)Juries are pretty good at figuring out exactly what you meant and does anyone really doubt that every invective out of Limbaugh’ mouth is full of actual malice? Imagine this case before a federal jury in San Francisco with the Ninth Circuit as the appellate court and I think a little pucker might come across the orifice of the right-wing Wizard of Odd. Come on JT, this is a David vs. Goliath story I’d lov to try.
This seems unsound advice…..
Seems a pretty fair assessment to me. My only confusion is your using the word “advise” rather than “advice”. Not familiar with legalese and can see a fit, sort of, but “advice” still seems more appropriate.
I can’t agree. Indeed, I am of the opinion that Rush Limbaughs’ apology (sic) was taken up only upon advice of counsel, rather than a particular fear of lost sponsorship. The whole apology reads like a very specific attempt to dig himself out of a very deep legal hole. Sandra Fluke has a very strong case and he knows it.
Defamation holds because of the specific, repeated and quite blatant misrepresentation of the testimony of Sandra Fluke. Limbaugh repeatedly asserted that Fluke testified to “having so much sex”, both as a primary cause of the cost of contraception and as a sole motivation for contraception. He, in fact, made an effort, not just to call her a slut, but to logically draw the line between her purported behavior and the word, even though her behavior is a complete fabrication on Limbaughs part and in direct contravention of her testimony. His description of her testimony is factually false in several way: A) she never testified regarding any sexual activity or made any statement linking birth control and sexual activity; B) Limbaugh, against all medical and financial evidence, attempts to deliberately conflate the cost of contraception as a function of the quantity of sexual activity, in attempt to smear her; and C) her testimony at length describes medically necessary reasons for contraception which have nothing to do with sex as well as description of the inability of specific married persons (on whose behalf she was testifying) to afford contraception, again without mention to quantity of sexual activity. Here, Limbaugh is, by proxy, accusing a married person of being a slut, which would (I don’t doubt your agreement) be equally problematic for him.
In short, Limbaugh makes the claim that she deliberately advocated for contraception solely based upon her desire to have quantities of consequence free sex in complete disregard for her actual testimony: it is a clear misrepresentation of her testimony both in disregard for what she did say and wholesale manufacture of motives not present in her testimony. The words “slut” and “prostitute” derive from that claim and that is the basis for the very strong suit Sandra Fluke has against Limbaugh.
I hope she sues him into oblivion and then bequeaths all the money to Planned Parenthood…
Don’t know about the law suit, but I will say it is good to see more advertisers are dumping Limbaugh. Guess it just took the first for the others to find the courage follow suit. Anybody know who the first company was? I’d like to buy their product or at least send a thank you note.
And the point about public, semipublic and private persons.
Where does the borders go?
Employment, payment of other kind, percentage of time, categorizing as general student activity. Does OWS participation make me a public figure?
Guidance please.
BFN
Didn’t read it all, got to go to gympa.
Can’t agree, not even with the premises of known untruths.
Limbaugh must instead, in order to cast such libel to such a wide audience unavailble to her reply possibilties, and widespread damage to the victim, have the burden of providing proof. That’s my opinion.
And considering the limited space etc begs the whole question of the damage this causes. Just rumors can destroy a candidate, subvert issues, etc. Here is a full fledged nationwide, thanks to media coverage, campaignl
Based on the nature (time, intent, etc) of the program, he goes free.
Ridiculous. But if the law says so, then we should change the law.
It was one thing when one newspaper started something, now the whold media stampedes after the latest crap. Shoudl he be slaughtered for that.
Yes, for misuse of the public trust in what is delivered that way.
No truth at all, by his own final halfway retraction on choice of words.
Not admitting guilt nor that it was untruth he spread.
Guess it takes a professor to not to see that. With all due respect for JT, but not necessarily the precedents used. not the development of the law now unequivocally protects the powerful——as usual.
Sorry for splitting my verbs, it’s the swedish way. hard to stop.
We learn more about Ms.Fluke everyday. Gone is the notion she is just a 23 year old law student who needs her prescription filled on somebody elses dime.
Sandra Fluke, Gender Reassignment, and Health Insurance
http://mrctv.org/blog/sandra-fluke-gender-reassignment-and-health-insurance
And again it was all planned, all of it. From Stephanpolus calling out Mitt Romney on abortion to where we are now.
Forget about JOBS JOBS JOBS
I agree with your assessment that Ms Fluke is getting bad advise. Although the lawsuit would receive sensational news coverage. Ultimately a loss by Ms Fluke would be used by Rush as vindication and give him even more notariety. Why help him in this way?