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://www.brennancenter.org/content/event/glenn_fine_discusses_government_oversight/
Talk about apples and oranges,sit down for this one.
RFK Jr.: Inhofe is ‘call girl’ for Big Oil
“Leave it to Robert F. Kennedy Jr. to one-up Rush Limbaugh in the name-calling department.
“Speaking of prostitutes, big oil’s top call girl Sen Inhofe wants to kill fuel economy backed by automakers, small biz, enviros, & consumers,” the New York-based environmentalist wrote Tuesday on Twitter.”
http://www.politico.com/news/stories/0312/73702.html
Isn’t the social media being used to take Rush rightfully down….
I wonder if it’s time for another cotin…….
Lotta,
You were brilliantly rolling w/ Badman. So good will clip and paste to my archive.
Took a nap and woke just 30 minutes ago. The vivid dream still echoing in my mind. What was it? A vision of the coming America, when the corporatists have ultimately one, re-formed the country to suit it, and the people are suitable re-molded in the functioanally and modes desired.
Will write about it later:
But for now: the blacks were all the same shades,, reduced to 3/4 persons with demeaning tasks, mumbling softly when questioned, bowed and quietly servile. The office environments spoke of places of constricted passage, no more than one at a time, every 10 steps equipped with a plastic barrier which could close or open lightning fast as you approached. You never knew how it would react to your approach, no green or red light.
The cafeteria was arranged so that max groups were restricted to four, but most were for two, ie one on one. etc,etc.
gotta eat my lunch now. you must have a night job or live in Hawaii from the hours you keep.
Blouise to DonS at 11:06am, …”if it’s dysfunctional….amputate (and in the next posting) “…duels”
—————
LOL, I don’t know how I missed that yesterday but it gets my day off to an outstanding start. Occam’s Razor applied literally 🙂
[‘Cutting to the chase’ was a pretty darn good response too, Don!]
Thank you both 🙂
Rush Limbaugh and the poisoning of the GOP brand
How the least-liked “news personality” in America became the symbol of the GOP — and just poisoned their brand
By Steve Kornacki
3/6/12
http://www.salon.com/2012/03/06/rush_limbaugh_and_the_poisoning_of_the_gop_brand/
Excerpt:
Sponsors are still bailing on Rush Limbaugh, who is apparently uninterested in expanding his very limited apology to Sandra Fluke, the woman he called a “slut” on his radio show last week. Limbaugh still seems unlikely to lose his show over this, and the controversy may even rally his core audience around him. But in the broader court of public opinion, the past week has undoubtedly served to worsen his already serious image problem.
Just before he made his comments about Fluke last week, a Harris poll found that Limbaugh is the most disliked “current affairs personality” in the country — by far. Given a list of 26 different television and radio hosts and commentators, 46 percent of respondents picked Limbaugh as their least favorite, well ahead of second-place finisher Bill O’Reilly, who was chosen by 31 percent. On the flip side, only 9 percent cited Limbaugh as their favorite personality.
There was a time about a decade ago, back when he nearly landed a spot on “Monday Night Football” and ended up on ESPN’s NFL pregame show, when Limbaugh seemed to be branching out and fashioning himself as his generation’s Howard Cosell, a provocative broadcaster for all occasions, adored and detested in equal numbers. But the transition to sports didn’t quite work out, and since then Limbaugh has been defined as a fundamentally political figure, one with a devoted following on the right but few fans anywhere else on the political spectrum (or among the nonpolitical masses). He is a broadly disliked public figure.
TPMDC
Senate Republicans Backing Off Contraception Wars
Sahil Kapur March 7, 2012
http://tpmdc.talkingpointsmemo.com/2012/03/senate-republicans-backing-off-contraception-wars.php?ref=fpnewsfeed
Excerpt:
From one top GOP senator openly lamenting the fallout of the ongoing fight over contraception, to the author of the controversial legislation at the heart of that fight effectively conceding defeat in the upper chamber, signs mounted Tuesday that suggest Senate Republicans want to put the birth control controversy to bed.
“You know, I think we’ve got as many votes as I think there were to get on that,” Senate GOP Conference Vice Chairman Roy Blunt told TPM Tuesday afternoon after a weekly Capitol briefing. “I think the House side may take some further action. That debate will go on for a long time, though I don’t know that there’s anything else to happen in the Senate in the near future.”
The concession marks a departure for the GOP leadership, which as recently as last week insisted that Republicans were on the right side of the issue and would fight on.
Blouise,
An Ohio voter story:
86-Year-Old Ohio Veteran Can’t Vote After Government-Issued ID Is Rejected At Poll
By Travis Waldron on Mar 6, 2012
http://thinkprogress.org/justice/2012/03/06/439324/86-year-old-ohio-veteran-cant-vote-after-government-issued-id-is-rejected-at-poll/
Excerpt:
Paul Carroll, an 86-year-old World War II veteran who has lived in the same Ohio town for four decades, was denied a chance to vote in the state’s primary contests today after a poll worker denied his form of identification, a recently-acquired photo ID from the Department of Veterans Affairs. The poll worker rejected the ID because it did not contain an address, as required by Ohio law.
Carroll told the Cleveland Plain Dealer that he got the ID from the VA after his driver’s license expired because he doesn’t drive anymore:
“My beef is that I had to pay a driver to take me up there because I don’t walk so well and have to use this cane and now I can’t even vote,” said Paul Carroll, 86, who has lived in Aurora nearly 40 years, running his own business, Carroll Tire, until 1975.
“I had to stop driving, but I got the photo ID from the Veterans Affairs instead, just a month or so ago. You would think that would count for something. I went to war for this country, but now I can’t vote in this country.”
CEJ,
Coburn’s a real piece of work, he was hip-deep in the Terri Schiavo case.
Also, during the hours leading up to the health-care reform vote:
“At 4 p.m. Sunday afternoon — nine hours before the 1 a.m. vote that would effectively clinch the legislation’s passage — Sen. Tom Coburn (R-Okla.) went to the Senate floor to propose a prayer. “What the American people ought to pray is that somebody can’t make the vote tonight,” he said. “That’s what they ought to pray.”
It was difficult to escape the conclusion that Coburn was referring to the 92-year-old, wheelchair-bound Sen. Robert Byrd (D-W.V.) who has been in and out of hospitals and lay at home ailing. It would not be easy for Byrd to get out of bed in the wee hours with deep snow on the ground and ice on the roads — but without his vote, Democrats wouldn’t have the 60 they needed.”
http://www.wvablue.com/diary/5411/coburn-prays-for-sen-byrd-to-die-fall-ill-break-hip-etc
Bdaman, Your link regarding the Democrats failure to ban drugs for erectile dysfunction to sex offenders is disingenuious. The bill also banned any abortifacients. People here aren’t stupid enough to buy that particular bill of goods you’re trying to sell with that link.
“This amendment would ensure health care providers are not forced to participate in abortions or discriminated against because they choose not to perform abortions. The federal government should never require health care providers to violate their deeply held moral, ethical or religious beliefs or discriminate against them because they choose to exercise their consciences and not be involved with abortion. This amendment would protect health care providers from being required or coerced to perform abortions.”
http://www.politico.com/livepulse/0310/No_Viagra_for_sex_offenders.html
and look where we are now.
Here is a list of companies who still advertise on Rush Limbaugh shows:
Amberson (drug to cut belly fat); Lear Capital (precious metals); Winning Our Future (Newt Gingrich promotion); Income At Home; Nova Armament (guns for ladies); John Deere (tractors et al); HotProps (foreclosed properties); NetWork Properties (foreclosed properties); U.S. Dept of Veterans Affairs (your tax dollars for Rush); Right Size Health (fat loss);
United Health Care; Ackerman Monitoring Devices; Regal Gold; Merit Financial; Robert Steinberg for mesothelioma litigants; Hillsdale College (free classes on the U.S. Constitution)
So if you dont have a fat butt, dont like Gingrich, dont need precious metals, are a woman with a gun already, already have a tractor. not a tax payer or veteran, dont need the Right size fat boy clothes, dont need a monitoring device, have enough gold in the closet, dont have mesothelioma and already took your course on the constitution…. then you can watch Rush or listen to the Rush show and not be influenced by any of the aforesaid corporations seeking to eak out a living from your wallet. I am writing my Congressman and the Dept of Veterans Affairs about their ad.
Many advertisers loudly fled Rush these past two days.
Advertisers who would be appropriate: Rush To Judgment House (whore house in Vegas); Catholic Church; Fat Boys Anonymous; One Flew Over The Cuckkcu Nest (newly released); Praise The Lard (book on fat boys getting into heaven); Hot Air Baloons R Us; Nestle Crunch; Liberty Mutual Health Ins. policies for fat people; Oxycotton; any condom manufacturer; Viagra; John Deere Tractors.
Lotta,
Good call out of Badm above. That ridiculous bill was an amendment introduced by Sen Coburn, (the same Dr Coburn, Rev Coburn, who brokered the odious blackmail deal for the scurrilous Sen John Ensign who as residents of the tax-evading C street house…to tiring to tell the tale of this tawdry tangent tonight … back to the amendment) with the very attractive title, just begging, daring the Dems for a yes vote; knowing that if any amendment was passed and attached to ACA the bill would have to go back to the House for another vote, thus Coburn was attempting to derail the ACA; the Dems did not take the bait even though they could see how people like Badman would spin it.
Badman your concern for price of viagra is too little too late, America’s corporations would have been much better off if they had signed on to single payer/medicare for all sooner, instead of fighting against their own best interest. We will get there eventually.
[Attempted to use the ‘edit word’ function in my spell check to use another/different word and when I hit ‘enter’ to save the edit it posted the un-corrected response in its entirety to the blawg – no changes are saved until the entire doc is finished and spell check is closed. Ack! Sorry about that.]
Bdaman, Your link regarding the Democrats failure to ban drugs for erectile dysfunction to sex offenders is disingenuious. The bill also banned any abortifacients. People here aren’t stupid enough to buy that particular bill of goods you’re trying to sell with that link.
Also, your heartburn with Fluke being an activist, which is how she introduced herself to the committee is just misdirection and sour grapes on your part. I infer that you would rather have the deck stacked with a cluster of male church affiliated activists and no response or contrary argument being made. Tough, that isn’t the way it works.
your arguments on this matter are devolving to a caricature of the typical Republican talking points. If there weren’t any female activists (or females) with a differing point of view from the Bishops then there wouldn’t be any opportunity for vilification by a hater/chauvinist pig like Limbaugh- bitch had it coming- blame the victim, feel sorry for the poor chauvinist. Yea, yea, heard it all before. Have another cup of tea.
I apologise in advance to all creatures of the porcine persuasion everywhere
Bdaman, Your link regarding the Democrats failure to ban drugs for erectile disfunction to sex offenders is disingenuious. The bil also banned any abortifacnts. People here aren’t stupid enough to buy that particular bill of goods you’re trying to sell with that link.
Aso, your heartburn with Fluke being an activist, which is how she introduced herself to the committee is just misdirection and sour grapes on your part. I infeer that you would rather have the deck stacked with a cluster of male church affiliated activists and no response or contrary argument being made. Tough, that isn’t the way it works.
your arguments on this matter are devolving to a caracture of the typical Republican talking points. If there weren’t any female activists (or females) with a differing point of view from the Bishops then there wouldn’t be any oportunity for villification by a hater/chauvanist pig like Limbaugh- bitch had it coming- blame the victim, feel sorry for the poor chauvanist. Yea, yea, heard it all before. Have another cup of tea.
I apologise in advance to all creatures of the porcine persuasion everywhere.
“Joe the Plumber” … yep, the real Joe the plumber looks like he’s losing on the republican side so it’ll probably be Kraus – v – Kaptur.
It’s still only Cuyahoga county not fully reported and with 90% in, in the rest of the state and Romney ahead by 6000 … it’ll probably be Romney but it’s still 38% to 37%
Dennis conceded
Paul lost North Dakota to Santorum.
Santorum is spending his money in the South.
Romney just pulled ahead by 5,000 votes with 87% reporting. 13% still out but that’s big cities where Romney is favored. So far it’s Romney at 38%, Santorum at 37%. Paul is way behind Newt.
Romney is about 4500 votes ahead now. He outspent Santorum 12 to 1.