Bad Advice: Hoyer Encourages Fluke To Sue Limbaugh For Defamation

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

154 thoughts on “Bad Advice: Hoyer Encourages Fluke To Sue Limbaugh For Defamation”

  1. Lotta,
    I was writing to you and vice versa. thanks for the clarification.

    As for self-deprecation, i spend too much time on that myself.
    As for style of writing, thanks for clarifying it was not a concealed put-down.
    Assuming friendship, was surprised at the Rush post which could not understand the relevance of at all.

    Myself I really admire your out of the box thinking, just as I admire Mike S’s often for me unique views, and Gene H’s logical tour-de-forces on the way to reason, etc. But for me, my associative way of putting it together is MY WAY, as Sinatra often sang.

    Going to bed. Trying to avoid sleeping pills. Have had them too long.

  2. Bill Maher wants you to forgive Rush
    A privileged white guy who makes sexist comments would like us to pardon a privileged white guy for doing the same
    By Mary Elizabeth Williams

    This week in rich, delicious irony: A privileged, middle-aged man known for making sexist, derogatory comments would like America to forgive a privileged, middle-aged man for making sexist, derogatory comments.

    After admitting that he does “Hate to defend #RushLimbaugh,” Bill Maher went on to tweet Tuesday, about the radio host: “he apologized, liberals looking bad not accepting. Also hate intimidation by sponsor pullout.” Wait, who looks bad here? My sides, they’re splitting!

    Maher, of course, is a professional provocateur, a guy who views himself as an equal opportunity fly in everyone’s ointment. But he’s also the man who recently gave a cool million dollars to Obama’s super PAC and once suggested “don’t ask, don’t tell” be overturned purely “because it will make Rush Limbaugh explode like a bag full of meat dropped from a helicopter.” As such, he no doubt felt uniquely qualified to appeal to the left’s sense of justice. And no doubt there are plenty of talking heads – the ones who erroneously keep insisting that liberals and feminists have no problem with Maher’s track record of offensive remarks – who’d go along with him.

    But as a matter of fact, lots of us were revolted when Maher called Sarah Palin a “cunt” and a “dumb twat,” and were grossed out by his ill-timed assessment of Lara Logan’s “intrepid hotness” last year. We actually don’t find sexism adorable just because someone lets Marc Maron on his show.

  3. woosty,
    Are you saying that I:
    1. am a verbose person in Rush’ class?
    2. am a liar in his class?
    3. am a writer of complete incoherence like Rush?
    4. would cover whatever truth there is by a pile of shit?
    5, all of the above?
    6. none of the above?
    7. ______________ ? (fill in your choice of words)

  4. Idealist,
    “Idealist707, whatever works for you. I find a good spell checker works for me though even that doesn’t help sometimes”

    A spell checker (spelling correction/editing application) may not be what you need, It’s what I need because I don’t spell well but it often doesn’t help me with faulty content due to deficiencies related to logic, knowledge etc. Haha, a self-deprecating joke but true; I spell badly.

    Regarding your sometimes stream-of-consciousness style: whatever works for you. An observation of your writing style does not imply a flaw. It was not a judgment, just an observation.

  5. Lotta,

    Sorry for my not understanding. In what way would a spell checker help?
    Spelling? Coherentness. Brevity? ????
    Never had one. Used to be tops in spelling. Now?
    AY likes his, and the access to world news sites it gives him. For me 1000 pages of shit is still shit. Sieving out the truth is tough, however you do it.

    Yes, it works very well in terms of feeling that I express what I feel. So do we all, I presume. As for approval ratings and response, seems like my one-liners get response most often. My note on the ants’ activity level and god’s thoughts on that, got hoorahs from Gene H. and AN.

    Should tell a wordy devil like me something.

  6. B- I am not going to do your research for you but citing a site that is unabashed liberal bashing does not promote your point, just your bias.

  7. Hmmmm so what Robertson could be said to be saying is that paying for the contraception would be okay as long as the woman is married?

  8. Pat Robertson has weighed in on the issue and Rush’s take on it:

    ” Robertson: You know there was a woman, the law student at Georgetown University who appeared before a congressional committee, and she said that students needed $3,000 a year for contraception and that they couldn’t afford it. As I understand, the Catholic school was supposed to pay for it. Now Catholics say that fornication, if you will, sex outside of marriage, is a sin. This woman is saying ‘I’m going to be committing sin but I want you to pay for my sin.’ Now am I overstating that? Rush Limbaugh got a little bit over the top on that thing but is that what it amounted to?”

    Man, I’m glad he explained what all the controversy was about.

    via a link on Raw Story:

    There is also video.

  9. Idealist707, whatever works for you. I find a good spell checker works for me though even that doesn’t help sometimes 🙂

  10. Woosty,
    I’ve been labeled so here by some. Have no idea what it is.
    Myself, have found that my attempts to conciously controlled writing don’t merit showing—–I hear catcalls. Due to admittedly no formal or solidly based knowledge.
    But I have found over a very short period that letting it flow as it will; does best for me. It all started with an idea from a quantum scientist who found the most fruitful ideas came from associative thinking, not purposeful serial.

    Nice to run into you when and whatever.

  11. Thanks Elaine.
    For opening that seamy side of America. Never encountered it when I lived there. Now the internet makes any glob of spit a national comic——he thinks. And some make millions on it. It’s a wonder that Rush doesn’t need triple mike spit shields.

  12. if i read mr. turley correctly, anyone who is interviewed, for whatever reason, by a reporter, opens themselves up to libel, slander and defamation because, in his opinion, they’ve now become a “limited public figure”. somehow, i have my doubts that that’s what the USSC intended. i could be wrong. what mr. limbaugh actually did was make statements of fact:

    1. he stated, as fact, that ms. fluke is a slut.
    2. he stated, as fact, that ms. fluke is a prostitute.

    these are not, by any stretch of the imagination, opinions. opinions are always protected speech, knowingly false statements of fact are not. even for a public figure, making a public, knowingly false statement of fact isn’t protected completely, as mr. turley well knows.

    that mr. limbaugh is an entertainer, and his show is labeled entertainment, doesn’t give mr. limbaugh free rein to defame, slander and/or libel people, when his statements fall outside the (broad) orbit of opinion. had he prefaced his comments with “i think”, or “in my opinion”, he’d be totally in the clear, from a legal perspective anyway. not so much in the arena of public opinion.

    no, it isn’t:

    “Truth is a defense…..”

    perhaps to your friends and family, but rarely, if ever, to the general public.

  13. Thank you Elaine…..


    Public figures….. Truth is a defense…..

  14. Bdaman,
    You might ave more credibility if you used links from non biased sites. (For a laugh read the comments, if there is any doubt about who reads the site where the article is posted.. Oh and by the way interesting in their “analysis”
    They ignored the part of one the quote they cited where the AMA was in agreement with the authors, Fluke et al: ” the American Medical Association has declared the lack of coverage to be discrimination”

  15. I am an ac tivist for women in pain awareness, so if I testified in public that sex is sometimes an antidote to pain and sleeplesness (since it can calm and relax) I guess Limbaugh could say I was a public figure who advocates every women with pain becoming a slut.
    (In my med. mal case the doctor defendant who was a “name” got away with outright perjury, the Pa. Superior Court calling his testimony perjurious; yet no one cared, including the Pa. senate or Gov Ridge (who named and confirmed Dr. Jannetta as Pa Sec’t of Health 4 weeks after my lawyer forced me to take a settlement with which I disagreed.) People with “names” get privileges and with impunity lie and commit illegal acts (Limbaugh and his drugs) that the regular guy could never even think of doing or getting away with. (I know I have gone to this anecdote before but thght it was relevant.)

  16. Lessons From Limbaugh
    Katha Pollitt on March 5, 2012

    Limbaugh says disgusting hate-filled things about women all the time. His fans think it’s hilarious. The media insiders think it’s naïve and boring to complain: that’s just the way Rush rolls. Slate’s Dave Weigel, for example, points out helpfully that Rush is “a private citizen who hasn’t endorsed any presidential candidate,” so it’s unfair for the “Democratic media complex” to attack him for this bit of “classic Rush, sort of.” (Apparently it’s no big deal for Rush to smear his vile viciousness all over Sandra Fluke, a private citizen.) Maybe the Republican primary debates, in which candidates compete for the titles like Most Opposed to Plan B for Rape Victims, have woken people up, because Rush’s attack on Fluke has drawn fire—a wave of outrage from feminists, liberal columnists and bloggers, including petitions to his sponsors, several of whom have pulled their ads. Even President Obama got involved, with a phone call to Fluke expressing support. Rush issued a half-hearted self-serving apology: “In the attempt to be humorous, I created a national stir. I sincerely apologize.” Rick Santorum, last seen blaming birth control for rising rates of single motherhood, commented on CNN, “He’s being absurd but that’s you know, an entertainer can be absurd.” Mitt Romney was no knight in shining armor either: “I’ll just say this, which is, it’s not the language I would have used.”

    Meanwhile, the wingnut media has doubled and tripled down. Bill O’Reilly: “You want me to give you my hard-earned money so you can have sex?” Pam Geller: By all accounts she is banging it five times a day. She sounds more like a prostitute to me. She must have an gyno bill to choke a horse (pun intended). Calling this whore a slut was a softball.“ Ace of Spades: “A shiftless rent-a-cooch from East Whoreville.” Jawa Report posted a photo supposedly of Fluke with a “Semen Demon” tattoo above her butt.

    What do we learn from this story besides that Limbaugh apparently believes you have to take an additional pill every time you have sex, like, um, the Viagra pills he was found with when he returned from a Dominican vacation? (The Catholic church has no problem with covering boner pills, by the way, and they are routinely covered by insurance.) We learn that there is no point even bothering to point out that many women take the pill for non-contraceptive reasons—not only will the bishops will still do their best to keep women from it, misogynists like Limbaugh won’t even notice. They don’t know anything about ladyparts—Cysts? Endometriosis? —and they don’t care. They don’t care either that almost all women use some form of birth control at some point—wives, mothers, women who may not even like sex. Even lesbians! When the topic is anything remotely connected to female sexuality, every woman is a ho, a prostitute, a slutty-slut-slut, from a teenage virgin who needs to control her acne to a tired and put-upon 40-year-old mother of five. Even the feminazis! Those slutwalkers were really on to something.

  17. Idealist, I have a disrupted sleep schedule; more to the point, North American commerce and lifestyles are set up bass-ackward. A night owl as it were and frequent volunteer for the first shift: 11:00PM – 07:30AM when I worked outside the home. I’ll go to sleep soon.

    You’re a stream-of-consciousness kinda guy aren’t you?

    I went to Mother Jones to find out what was in the bill in question and it discussed the morning-after pill and linked to the language on Sen. Coburn’s web site. When I went back to check it on Coburn’s website it was not there though. Maybe it was in an early draft. CEJ did good to explain the political motives for the bill.

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