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
Sandra Fluke ‘Definitely’ Can Sue Rush Limbaugh
By Andrew Chow, JD at FindLaw.com
Tue Mar 6, 2012
http://www.reuters.com/article/2012/03/06/tagblogsfindlawcom2012-injured-idUS286979719420120306
Law student Sandra Fluke can “definitely” sue Rush Limbaugh for slander over the talk-show host’s ugly remarks on his radio program, legal experts say. Fluke seems to be leaving her options open.
“I’ve certainly been told I might have a case,” Fluke, 30, told The Daily Beast on Friday, “but it’s not something I’ve made any decisions about at this point.”
The next day, Rush Limbaugh apologized for calling Fluke a “slut” and a “prostitute” over the air. Liberal activists are clamoring for legal action.
Rep. Carolyn Maloney, D-New York, initiated the call for Sandra Fluke to sue Rush Limbaugh, according to The Daily Beast. Maloney, speaking at New York Law School, suggested firing back at Limbaugh with a civil lawsuit alleging slander.
Slander is a type of defamation in which a hurtful statement is spoken. To win a slander lawsuit, a victim must prove someone made a false statement that was “published” to at least one other person, and that the statement caused injury.
Public figures must also prove actual malice — that the statement was made with intentional disregard for the truth.
In Sandra Fluke’s case, she is not a public figure, lawyers told the Philadelphia Daily News. Fluke can “definitely” prove Limbaugh made the hurtful comments and “published” them to millions of listeners, one attorney said.
Rush’s potential defenses — such as free-speech protections and that he was just joking — may not hold up with a jury, the attorney told the Daily News.
“His statements implied facts about somebody’s sex life, that she was promiscuous and trading sex for money,” the attorney explained. The company that syndicates Limbaugh’s radio show may also be liable for “publishing” the comments, the attorney said.
As for Limbaugh’s apology, a judge or jury may consider it in coming up with a damage award. Sandra Fluke may be thinking about that as she considers suing Rush Limbaugh.
Messpo and Rafflaw,
There’s the ACLU. I hear you laughing. Try Soros. Or are you seeking a plaintiff?
Shall we notify the OWS to occupy CC headquarters?
That should be a change for OWS and CC.
How Social Media Has Rush Limbaugh – And His Advertisers – On The Run
http://www.forbes.com/sites/erikkain/2012/03/06/how-social-media-has-rush-limbaugh-and-his-advertisers-on-the-run/
rafflaw:
Well, first we need a client.
Mespo,
Let’s give it a whirl!
Bob Kauten,
I will not share … 😉
mespo,
I heard a few good attys up here mention the same thing. There is more than one way to skin a bobcat.
bda,
It was the truth, besides, I don’t like to see someone else reprimanded for my deeds.
rafflaw:
I do too. I think when Rush doubled down and said he’d get Ms. Fluke and all the G-town female students aspirin to put between their knees teh day after his vile comments, Clear Channel should have stepped in to stop him. Sounds like a breach of the standard of care to me.
Off topic,
here’s post from Ipad2’s pros and cons in the NYTimes, and my reply.
Acid Black Boston suburbs
As I’m reading the article and comments on my IPad, I wonder why all the negativity? I have 15 Internet connected devices in my home, IPads, desktop, laptops, net book, video game systems, etc and the one used everyday is my iPad. DT and LT dont work well in the bathroom, gym, car, train, etc. OBTW, GSA and other Federal institutions are testing IPads.
March 6, 2012 at 7:03 a.m.
idealist707 Stockholm
write my question off as coming from a backward person.
of the 15 devices, how many are for your use?
Do you have an optical fiber access?
Have your kids shown signs of epigenetic adaptation to the new environment like more eyes, more ears. more etc.
Does your wife say: “not tonight honey, i’m already plugged in to my favorite (redacted).”
March 6, 2012 at 5:27 p.m.
Mespo,
I like the idea of going after Clear Channel for negligence.
Woosty
Thanks. It is a dangerous bummer. Seem for us it is deer and small rodents are the bearers of ticks. Have to get the yard grass clipped and the yard taken care of. That was why I got one last summer on a short visit there.
Remember when the neighbor was away and someone came to feed her two cats, one cat came to us with her head full of 5-6 ticks. We took them away. She later adopted us.
Tip of the hat and a 😉 to you Ms. Blouise
Blouise and others who use heatlh care,
Here we pay a bit over 25-30 dollars for a doctor visit. For a child—nothing.
The cost for a specialist visit, normally through referral or part of long term treatment, is 50 dollars. All medical costs are capped at 270 dollars a YEAR. After that it’s FREE . I can go wait for 30 minutes in the morning to get to see a doctor at the clinic. Can get time with my own within a week or 10 days.
Drugs judged by the system as subsidizable (most prescription) have their purchase cost reduced on a sliding scale. The larger your yearly bill gets then greater the rebate. After the cap is reached then it’s free.
My major cases (heart opn, cancer) costed peanuts for me. The insurance companies don’t make a dime. They don’t even exist, except for the one percenters who want ass-kissing (excuse me, that’s what they want).
Bureacratic decisions don’t exist for you as a patient. The hospitals have tough goals to reach and budgets are skinny. Latest is un-medically indicated tests will not be done simply on patient request. Talk to your doctor, not your bureaucrat. Not your insurance company company either. Nor your death panel. We don’t have them
Costs to the nation and us through taxes?
We pay half what you do nationwise and get better care. This is true for the whole of Europe. We are healthier than you, have much much less overweight, and almost NO obesity. You can go for hours and not see a single obese person. NONE. Are we a nation of health fanatics? NO.
Are we all taking health preparations? Very few. Are we food conscious? Yes. Are we diabetic? To a much lesser degree. Do we have heart attacks (coronaries), Ýes, mostly smokers and diabetics. Do we have throat cancers. Yep, and 85 percent are former smokers. Do we smoke much? Only young teenaged girls.
Life style does seem to count. Do we commit suicide. Mostly the older during winter and spring. No comparative figures.
Is it paradise? Hell no.
Does big pharma play the system? You betcha, but they also get kicks in the butt too. My statin, atorvastatin, was taken off the list at the 10mg dosage. Why? Too big a cost. Other good ones were much cheaper.
.
Do Doctors play the game. Well they get reimbursed by the system at a standard rate for the work done. Or they can stay out of the system and charge their patients what they want.
Who controls it? Basically a two-tiered system. Central, and then specialized agencies (drugs), and the county which acts as an orderer to the hospitals, clinics etc so they can plan. Orders then are placed for the care in bulk and charged as it is done.The county has a withholding on income. So they have budgetary restraints.
When are you going to get rid of the ticks?
Income comparisons are important too. My impression is that 50,000 USD will get you a lot more there than it will here. .
idealist7071, March 6, 2012 at 2:06 pm
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you do NOT want to mess w/borrelia…if you mean you have ticks in your yard? get some ducks and geese! plant TONS of mint and my all time favorite pest control; diatomaceous earth….
brewers yeast in the pets food will help keep them unattractive to bloodsucking things….
AY:
Thanks, AY. Actually I defended a libel case to conclusion once in the Circuit Court of the City of Richmond. Lost it, too. The Plaintiff collected $1.00 in damages. I suspected the foreperson read Leon Uris.
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Gene H:
I think we should make out a case for negligent comedy resulting in damages. Rush has to be a comedian since he’s certainly no political commentator.
Seriously, maybe we should consider a pilot case alleging negligence against Clear Channel for negligently broadcasting the slander. Ms. Fluke could possibly establish negligence on the part of Clear Channel or EIB by showing that it did not act with a reasonable level of care in publishing (i.e. permitting the broadcasting) of the statement. We all know about the 3 second delay button. I’d take on that limited purpose public figures as in Gertz. Hell, even Gertz beat that.
Mespo,
That was one of the finest novels I have ever read….QB-VII….. Most harrowing as well….
Blouise,
“Don’t blame bda … I’m the one who did it via Viagra.”
The mind boggles with possibilities…
Let us not forget that Georgetown University provides contraceptive coverage for its faculty and staff–just not for its students.
Woosty,
Understood 🙂 (as in, never doubted)
Bob Kauten,
Don’t blame bda … I’m the one who did it via Viagra.