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
Mespo,
And I’d love to hear the tale the unwind….. I think you’d make a great advocate for ms fluke….. I think she’ll be painted as a quasi public figure… Although I disagree with what the bastard said…. I think that the districts that have jurisdiction will side with shielding him…..
It’d be a great victory in most of the 9th circuit….
Ms. Fluke was no fluke
DonS,
“Maybe I’m thinking too much”
Could be.
When someone steps is a big steamy pile of dog poop, nobody is laughing at the dog. 😀
DonS,
” … using legal process and the threat of remunerative damage seems to be the hallmark of calling out opponents.)
I agree. Let’s go back to dueling.
Talk about cutting to the chase . . .
Screwing needs? Hell, Viagra has been paid for without any discussion … for years. Erectile Dysfunction … if it’s dysfunctional, amputate. How’s that for self sufficiency?
What it seems like most rational folks are saying is whatever gets the most mileage toward putting the bully in his place, but also recognizing the importance of advancing the underlying issues.
The moral high ground is all find and dandy, but in our litigious society, using legal process and the threat of remunerative damage seems to be the hallmark of calling out opponents. Of course, there’s an awful lot of good mileage being gotten going the PR route and introducing Rush’ despicable character all over again. I would guess some of that public discussion would end, particularly on the part of a plaintiff going public.
I’m thinking, too, that garnering points by playing off a sympathetic female stereotype (not that Fluke is just that) has just a twinge of sexism that makes me uncomfortable. Maybe I’m thinking too much ; )
George Stephanopolous cracked open the door for the debate. Obama kicked it open a month later. The only thing that they did not count on was Rush’s response. He played right into their hand.
Come on, you needn’t be so obvious in your partisanship, yet so oblivious to the hypocrisy inherent in it. Your comment strongly implies that the Democrats are using this as a distraction from the real economic issues we face.
It is Ms. Blouise. Despite the small signs of recovery in January we are getting ready to fall hard once again. The democrats don’t want to talk about the economy. Don’t want to talk about gas prices and don’t want to talk about the real unemployment.
Out of the blue and into the deep
Overall point: Where is it that we as a nation have to pay for people’s screwing needs? Pay for it yourself on an “as needed” basis I say. Oh, it’s a health issue? Then we should pay for our law student’s food, no? I mean that’s only a matter of health for the student yes? Then carry that to the nth degree. I say “screw that”. Why don’t we concentrate of self sufficiency?
I’m with mespo.
Plus I’d love to see Rush on the stand having to admit that what he does isn’t really news.
It would almost be worth the trial alone just to see that.
I don’t think Ms. Fluke should sue simply because it would then be played as Rush being victimized by a “gold-digger” who had smartly planed this all along. She would therefore better serve her valuable cause by remaining above the fray. This is what is doing Rush harm.
Blouise.
Yep. Smile.
Something more that Obama’s site must be engaged here.
Sue the f—ers on all fronts.
“Forget about JOBS JOBS JOBS”
Bdaman,
Come on, you needn’t be so obvious in your partisanship, yet so oblivious to the hypocrisy inherent in it. Your comment strongly implies that the Democrats are using this as a distraction from the real economic issues we face. When we discuss political party’s distractions from economics it seems that those you favor would prefer talking about abortion, contraception, homosexuality, higher education and a host of other peripheral subjects, rather than the economy. I know you’re smart enough to see that, so why is it so important for you to dissemble, rather than discuss? You would be better served making a logical case for your political beliefs, rather than concentrating on chimera’s and attempting to upset discussion on threads.
And do not discount the suggestion that this could also be seen as another front actively pursued by those striving for female equality, in the ill advised Republican Party’s openly declared War on Women.
There’s a lot more going on here than just Limbaugh’s and O’Reilly’s running off at the mouth.
She may qualify as a limited-purpose public figure and there may be a retraction statute that helps Limbaugh but if “Actual Malice” can be established through the discovery process and the added icing of “intentional infliction of emotional distress” be applied then we have a lovely case for the jury. And … a very important appeal s process to follow.
It would be expensive but I doubt she’ll have any trouble finding superb legal representation, or paying for it. I do believe a fund has already be discussed.
I think Rush to Judgment will be found liable for libel /slander for written or spoken lies. The question will be whether the sponsors of Rush To Judgment can be liable as well. I am not barking up the wrong tree here. They pay him to yell on the radio and television. His bark is their bark.
We need to post the names of his sponsors so that we can boycott them.
mespo,
I agree.
AY
As a non-lawyer I don’t know the answer and I defer to all those here who are, but would being a public or quasi-public figure mitigate Limbaugh’s quite obvious “…deliberate falsehood or reckless disregard for the truth”?
I suggest that a downright pleasant way to explore the merits of a case against Limbaugh would be to watch the movie “The People vs. Larry Flynt”. Probably many here remember that trial. I was very interested in it at the time and followed the case closely. I was amazed that the movie was as substantial as it was on the personal story and more specifically the regarding the legal story and issues at play. This current case is the bizarro universe version of that situation.
Where Flynt printed a disclaimer on the offending ad. Limbaugh did not give notice that he would be presenting information that was not factual and that information would be crucial in forming an opinion, or accepting his opinion, of Fluke.
Flynt made no implication that the ridicule Falwell would be subjected to by Hustler were based on a true action of Falwells. Limbaugh had to knowinging fabricate his recitation of Flukes testimony out of whole cloth as a basis for his diatribe and he presented, several times, that willful lie was fact.
Flynts claims, while outrageous, were so outrageous that they were not believable by anyone. Limbaugh’s characterization of Fluke relies on the fabricated testimony and hinged on people not knowing how hormonal contraception works. A good case can be made that much of his audience does not know how it works nor do they know that the same medication is used for non contraceptive health problems. In fact, his conclusion relies on that lack of understanding.
While some people knew she was an activist, as she introduced herself at the top of her testimony, her celebrity was in all likelihood opaque to the overwhelming majority of his listeners and the public at large. She was not a public person of magnitude.
“Slut” and “Prostitute” are both pejoratives to a large segment of the population and Limbaugh’s demographic has a large number of those persons that would find persons factually labeled as such to be worthy of scorn. They are overwhelmingly conservative, over 50, white, male and making more than 50K a year.
I think she’s got a good shot with the right lawyer.
Even if I have it entirely wrong legally about the instant matter have another look at the movie- it’s first rate.