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
http://thehill.com/blogs/blog-briefing-room/news/214445-obama-invokes-his-daughters-in-response-to-limbaugh-controversy I thought of my daughter, too, because she came very near to attending Georgetown Law and would have been one of those women Limbaugh trashed.
Bron,
I think you missed my point.
That was then. This is now. The greed on the part of insurance companies and their shareholders have put an end to any sanity that might have existed in the financial end of the medical field. (They claimed to crack down on doctors in order to control premium prices when, in actuality, doctors exorbitant and ever-growing fees were eating into insurance company profits. The happy partnership ceased to exist.)
Now, government is the only answer and Obama’s plan was a step in the right direction. We need more.
That’s what happens to a society when corporations rule. Everybody end up in the shitter … including the corporations.
I feel the need to console Bdaman, who has striven so valiantly to divert this conversation to irrelevant subjects.
Alas, despite Bdaman’s best efforts at liberal-baiting, the conversation remains on the original topic: Whether or not Rush Limbaugh can be sued for his misogynistic, vile, ignorant lies about Ms. Fluke.
Sorry, Bdaman, the preponderance of this conversation has been exchanges between intelligent adults. Despite your efforts.
Woosty,
you got me most worked up with the beginning. The swollen ticks didn’t get me hot, but you did otherwise. Would like more.
Guess ticks don’t do anything other than remind me of all borrelia antibiotic cures (3); and the vaccinations against the virus.. Got ’em in the yard now. Nymphs too. Shh ttt!
Female Veterans Demand Rush Limbaugh’s Show Be Pulled From American Forces Network
By Faiz Shakir on Mar 5, 2012
http://thinkprogress.org/media/2012/03/05/437800/female-veterans-demand-rush-limbaughs-show-be-pulled-from-american-forces-network/
VoteVets, a coalition of Iraq and Afghanistan veterans, released a letter today from a group of female veterans calling on the American Forces Network to drop Rush Limbaugh from its programming.
Miranda Norman (who is a VoteVets.org Senior Advisor), Kayla Williams, and Robin Eckstein, all Iraq War Veterans, and Katherine Scheirman, former chief of medical operations in the U.S. Air Forces, released the following statement:
“Rush Limbaugh has a freedom of speech and can say what he wants, but in light of his horribly misogynistic comments, American Forces Radio should no longer give him a platform. Our entire military depends on troops respecting each other – women and men. There simply can be no place on military airwaves for sentiments that would undermine that respect. When many of our female troops use birth control, for Limbaugh to say they are “sluts” and “prostitutes” is beyond the pale. It isn’t just disrespectful to our women serving our country, but it’s language that goes against everything that makes our military work. Again, we swore to uphold our Constitution, including the freedom of speech, and would not take that away from anyone – even Limbaugh. But that does not mean AFN should broadcast him. In fact, it shouldn’t.”
AFN is owned and operated by the Department of Defense, funded with taxpayer dollars, and accessible to troops serving overseas. Pentagon spokesman George Little says the military’s network will continue to air Rush Limbaugh’s radio program and is “unaware of any plans to review that decision.”
Fluke has a case, and whether she may win is a question for the court. As all good lawyers know, winning is not the only purpose of a law suit. By suing Limbaugh, Ms. Fluke may put a monkey on Limbaugh’s back. To get the monkey off, Mr. Limbaugh has to meet with and pay his attorneys. Mr. Limbaugh, and his employer, will have to produce documents and testimony during discovery. Mr. Limbaugh will have to sit in court during long and protracted proceedings in which every ugly statement he has ever made on the air will be repeated in front of him and recorded in the public record. Mr. Limbaugh will have to take the stand and try to justify his hate speech. Most importantly, Mr. Limbaugh will have to bleed money. If Fluke wins, then she’ll have vindication and money. If Fluke loses, she will have caused Mr. Limbaugh more pain and discomfort than anyone has so far.
Did you hear this news?
Rush Limbaugh To Be Honored With Bust In Missouri Statehouse
http://www.huffingtonpost.com/2012/03/05/rush-limbaugh-missouri-state-capitol_n_1321433.html
WASHINGTON — The Hall of Famous Missourians in the Missouri State Capitol is filled with the busts of famous people from the Show-Me State. There are political figures (Harry Truman, John Ashcroft), writers (Laura Ingalls Wilder), musicians (Scott Joplin, Charlie Parker) and even a game show host (Bob Barker). Right-wing radio personality Rush Limbaugh, who is currently embroiled in controversy after he called a female law student advocating for contraception coverage a “slut,” will soon be joining that esteemed group.
On Feb. 13, Kansas City, Mo. sculptor E. Spencer Schubert posted on his blog that he was in the process of sculpting busts of Limbaugh and Dred Scott, a slave who unsuccessfully sued for freedom for himself and his family in the famous 1857 case Dred Scott v. Sandford, to go into the Missouri State Capitol.
Bron,
The prices for health care will not explode as much as they have without Obamacare. I have always kept an eye on my insurance premiums, but I and the rest of americans have no real control of the costs and we have watched them skyrocket. Besides, it is only free for those who cannot afford it. The rest of us will be paying premiums that are controlled in some degree by the government.
Blouise1, March 6, 2012 at 12:28 pm
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hahahahahaha!
I have NO illusions!…..just looking for the right ‘switch’….
“I thought everyone should be required to buy their own insurance and equated it to car, life, house etc. If individuals are required to pay for it themselves, everybody will be paying attention to the premiums.”
OF all the brilliant things written on this blog, this is the best one yet.
now no one will be paying attention because everyone will be paying.
If health care is expensive now, just wait until it is free.
Woosty,
“( how’s my rhetoric??? 🙂 )”
Beware Super Sleuth!
Woosty,
Had to go back and check what I said when. 😉
Exactly. Insurance companies who serviced Employer provided health care had an open field and doctors/hospital went along for the ride. As soon as insurance companies started paying for medicine (drugs), the drug companies jumped on board the gravy train.
Employers were enjoying the write-offs. Back in the late 60’s a doctor office visit for a cold was $15 in the Cleveland area. Today that same visit is slightly under $200 and would be higher if the insurance companies hadn’t stopped paying whatever the doctor decided to charge. And drug companies …
Insurance companies even got their way in Obama’s plan.
Imagine what car repairs would be if Auto insurance had been a Employee provided benefit.
Corporate entities are definitely gigantic swollen ticks on the butt of humanity.
Professor Turley writes that “there is protection in the common law for opinion”. The Supreme Court has said though, that the label (“opinion”) doesn’t matter. Milkovich v. Lorain, 497 US 1 (1990). In that case, the Court allowed a defamation suit to proceed, even though the assertion was contained in a signed editorial column (an “opinion” piece).
Turley writes that the problem is that Limbaugh’s comments were made in a context (Limbaugh’s show) where we don’t expect facts. But the comments in Milkovich were also made in a clearly labeled opinion piece, yet the Court found that the comments were nonetheless actionable. The Court dissenters in that case, Brennan and Marshall, stressed that the piece was a signed editorial column, but majority said that the language, not the context, was the crucial factor.
Here, Limbaugh’s assertion is that Fluke is a slut and a prostitute. Those words might mean that Fluke sells sex for money, but more reasonably, in context, mean that Fluke is promiscuous. Something, in other words, that can be proven false, and might be actionable, if taken literally.
But the problem is that listeners would not understand the terms to be literal. They would understand that the conclusion (“slut”) is based only on the fact that Fluke wants to have public payment for contraception. And that (not just the fact that it comes from the Limbaugh show) is what makes this lawsuit unlikely to succeed.
Blouise1, March 6, 2012 at 11:04 am
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🙂
Blouise1, March 6, 2012 at 11:22 am
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people can no longer afford the premiums….salaries are stagnant, Corporate profits are not. hen you subsidize 1 side of the equation and not the other the imbalance will manifest eventually. Insurance companies, corporations…they have all been sheilded by gov in the name of trickle down economics for so long, and the individuals that they chew up and spit out are viewed simply ‘not important enough’ to protect. The loss of practical application in our chain of reason and economic actuality has created this beast of imbalance…..and turned the Insurance industry and other Corporate entities into gigantic swollen ticks on the butt of humanity.
( how’s my rhetoric??? 🙂 )
http://www.thedailyshow.com/watch/mon-march-5-2012/extremely-loud—incredibly-gross
idealist707, You have small cars and fast trains. Here republicans are against expanding the rail system and mass transit.
I hear ya Ms. Blouise
Oh and it was no fluke she encouraged people to visit Media Matters while on the view.
Blouise,
Put in a single payer system, then can assure you somebody will be watching the costs, damn closely. Efficiency first, the patient second.
All folks who have cars.
Here the price of gas is USD EIGHT PER GALLON. And seems about that in the whole of Europe.
bda,
I’m going to tell you a secret. Back in the late 60’s I told Tex that I did not approve of Employer Provided health-care as a benefit. Employers used it as a write-off and the insurance companies knew no one would be watching too closely … as did doctors and hospitals. I thought everyone should be required to buy their own insurance and equated it to car, life, house etc. If individuals are required to pay for it themselves, everybody will be paying attention to the premiums.
Of course, nobody listened to me. Now it’s too late.
Ms. Blouise you know how I feel about viagra and who should pay for it. I posted on the other thread about it. No one wanted to discuss it.
Dems reject amendment to ban Viagra for sex offenders
Democrats killed an amendment by Republican Sen. Tom Coburn to prevent the newly created insurance exchanges from using federal money to cover Viagra and other erectile dysfunction drugs for rapists, pedophiles and other sex offenders. The amendment failed 57-42
http://www.politico.com/livepulse/0310/Dems_reject_amendment_to_ban_Viagra_for_sex_offenders.html
and
GM Spends $17 Million Per Year on Viagra
http://www.consumeraffairs.com/news04/2006/04/gm_viagra.html