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. “and he Limbaugh] was analogizing the receipt of government funds for contraception to prostitution — something covered under opinion defenses.)”

    But this was not factual. Sandra Fluke was testifying about a student medical plan at Georgetown that doesn’t provide contraceptive coverage due to the religious objections of the Catholic church. Georgetown students pay for this insurance themselves. Public funds are not involved and Fluke did not ask that the government pay for her contraception.

  2. “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.”

    I wouldn’t say that Limbaugh’s words were “knowing falsehood”. He had no way on knowing if they were true or false.
    His words were definitely “reckless disregard of the truth”.

    On might argue that “slut” and “prostitute” are simply common name-calling.
    However, he did repeatedly claim that the was “having so much sex that…” and talked of how her parents might feels knowing that their daughter “was having so much sex…”.
    He clearly did no investigation into what she said. I doubt that he conducted any investigation into how much sex she was having. If he were sued, then any possible defence would have to produce the investigative files that he possessed at the time of his accusations.
    His clear intention was to bully and damage her.
    If she is now a public figure, it is only his behaviour that has made her into one.
    Even if she was a public figure, the nature of his attack went way beyond any bounds of decency.

    It would be useful if she did sue him.
    He attacked her in order to suppress her speech. His highly personal and defamatory attacks exercise a chilling effect where ordinary people might hesitate to exercise their right to free speech. If people like him come to understand that they have a personal price to pay for that sort of behaviour, then the standard of discourse may improve.
    Suing him would be of public benefit.

    Claiming that he gets a free pass because of the First Amendment is to bring the Constitution into disrepute.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ”

    These are noble intentions.
    Does anyone seriously believe that the intention of the First Amendment was to give Limbaugh a licence to do what he did – without any consequences?

    Any law or rule that confers rights should end with “- but don’t be a dick about it”.

    This is a case where a court should decide that Limbaugh was being a dick.

  3. Rush Limbaugh Scandal Proves Contagious for Talk-Radio Advertisers
    Ninety-eight major advertisers—including Ford and Geico—will no longer air spots on Premiere Networks’ ‘offensive’ programs. Insiders say the loss will rock right-wing talk radio.

    Rush Limbaugh made the right-wing talk-radio industry, and he just might break it.

    Because now the fallout from the “slut” slurs against Sandra Fluke is extending to the entire political shock-jock genre.

    Premiere Networks, which distributes Limbaugh as well as a host of other right-wing talkers, sent an email out to its affiliates early Friday listing 98 large corporations that have requested their ads appear only on “programs free of content that you know are deemed to be offensive or controversial (for example, Mark Levin, Rush Limbaugh, Tom Leykis, Michael Savage, Glenn Beck, Sean Hannity).”

    This is big. According to the radio-industry website, which first posted excerpts of the Premiere memo, among the 98 companies that have decided to no longer sponsor these programs are “carmakers (Ford, GM, Toyota), insurance companies (Allstate, Geico, Prudential, State Farm), and restaurants (McDonald’s, Subway).” Together, these talk-radio advertising staples represent millions of dollars in revenue.

    Valerie Geller, an industry insider and author of Beyond Powerful Radio, confirmed the trend. “I have talked with several reps who report that they’re having conversations with their clients, who are asking not to be associated with specifically polarizing controversial hosts, particularly if those hosts are ‘mean-spirited.’ While most products and services offered on these shows have strong competitors, and enjoy purchasing the exposure that many of these shows and hosts can offer, they do not wish to be ‘tarred’ with the brush of anger, or endure customer anger, or, worse, product boycotts.”

    There are already tangible signs that the three dozen national and local advertisers that have pulled their ads from The Rush Limbaugh Show are having a financial impact.

    For example, the ads that ran on Limbaugh’s WABC show in New York on Thursday consisted primarily of public-service announcements. Among the few actual advertisements were spots from the Mitt Romney–associated super PAC Restore Our Future (featuring negative attacks on Newt), Lear Capital, and the conservative Hillsdale College. Media Matters has been monitoring national trends along the same lines. When PSAs for nonprofit organizations like Big Brothers/Big Sisters and the United Negro College Fund run in place of actual advertisements on radio, it means the show starts losing money for the local station. And make no mistake, money is the only barometer of success the industry ultimately cares about.

  4. rafflaw,

    Did you see this story?

    Students Silently Protest Professor Who Defended Limbaugh, Ridiculed Fluke
    By Alex Seitz-Wald on Mar 9, 2012

    Thirty University of Rochester students held a protest Wednesday afternoon in the classroom of an economics professor who had defended Rush Limbaugh’s verbal assault on Sandra Fluke and said the Georgetown student deserved to be mocked.

    In a blog post, Professor Steven Landsburg said he essentially agreed with Limbaugh stance, writing, “Her position — which is what’s at issue here — deserves [no respect] whatsoever. It deserves to only be ridiculed, mocked and jeered. To treat it with respect would be a travesty.” He said he did not agree with Limbaugh’s use of the word of “slut” to describe Fluke, but said “prostitute” was mostly fair, while a “extortionist” was even better.

    The post prompted a statement of condemnation from University President Joel Seligman, who said, “I am outraged that any professor would demean a student in this fashion. To openly ridicule, mock, or jeer a student in this way is about the most offensive thing a professor can do. We are here to educate, to nurture, to inspire, not to engage in character assassination.”

    At the beginning Landsburg’s class Wednesday afternoon, the students, formed a line between him and the class as he continued the lecture.

    Ironically, Landsburg wrote a book called More Sex Is Safer Sex.


    Here’s an excerpt from and a link to the professor’s post about Limbaugh and Fluke:

    Rush to Judgment

    Rush Limbaugh is under fire for responding in trademark fashion to the congressional testimony of Georgetown law student Sandra Fluke, who wants you to pay for her contraception. If the rest of us are to share in the costs of Ms. Fluke’s sex life, says Rush, we should also share in the benefits, via the magic of online video. For this, Rush is accused of denying Ms. Fluke her due respect.

    But while Ms. Fluke herself deserves the same basic respect we owe to any human being, her position — which is what’s at issue here — deserves none whatseover. It deserves only to be ridiculed, mocked and jeered. To treat it with respect would be a travesty. I expect there are respectable arguments for subsidizing contraception (though I am skeptical that there are arguments sufficiently respectable to win me over), but Ms. Fluke made no such argument. All she said, in effect, was that she and others want contraception and they don’t want to pay for it.

    To his credit, Rush stepped in to provide the requisite mockery. To his far greater credit, he did so with a spot-on analogy: If I can reasonably be required to pay for someone else’s sex life (absent any argument about externalities or other market failures), then I can reasonably demand to share in the benefits. His dense and humorless critics notwithstanding, I am 99% sure that Rush doesn’t actually advocate mandatory on-line sex videos. What he advocates is logical consistency and an appreciation for ethical symmetry. So do I. Color me jealous for not having thought of this analogy myself.

  5. Sandra Fluke wasn’t the only one Limbaugh was attacking
    By Bonnie J. Morris
    March 9, 2012

    Like so many others, I was appalled by Rush Limbaugh’s attack on Georgetown law student Sandra Fluke, whose brave testimony about the need for birth control coverage led to his characterization of her as a “slut” and a “prostitute.” But I’ve watched this debacle unfold with multiple perspectives as an insider. I’m a woman, a Washingtonian and a U.S. citizen interested in maintaining that delicate separation of church and state. And I’m also a women’s studies professor. At Georgetown University.

    My home campus is George Washington University, but since 1996 I’ve taught part time at Georgetown, too: one class every semester. I teach material that includes the history of reproductive rights and U.S. feminism. How’s that received, at a Jesuit campus? Answer: In the classroom, and on my teaching evaluations, there’s no problem at all. Georgetown students are just as interested, appreciative and respectful as those in my GWU classes. I respect their views, too, of course; the level of civility in our discourse couldn’t be higher.

    On the other hand, since (A) I don’t need birth control and (B), if I did, it would be covered by my GWU benefits, I’m not affected personally by Georgetown’s policies toward its students and workers. But I am affected personally, in every nerve of my body, by Limbaugh’s name-calling.

    As a women’s studies professor, I deal every day with how words such as “slut” — and a lack of access to contraception — affect the young women I mentor. That we’re returning to this sort of mentality, akin to stoning the female non-virgins among us, with the attendant double-standard for sexually active young men, is as frightening a parallel to Taliban-style intimidation of women as anything I’ve seen in a while. We seem to be suffering historical amnesia toward all that women fought to overcome in our culture. Even as I write this, my students are wrapping up midterm essays on how until very recently the control of women’s “good reputation” — calling them immodest and unchaste — limited opportunities for girls outside the home.

    Or at least I thought it was until very recently. Are we crawling back in time? In his vitriol, Limbaugh asserted that basic health care for women amounts to paying them to have sex. That kind of rhetoric will never lead to compromise and understanding. But there is middle ground if we look for it. Even at a Jesuit school like Georgetown, the pro-life position should be flexible enough to grasp that the pill is also prescribed for serious medical conditions, including the sort of irregular bleeding and other uterine problems that can keep students (and faculty) out of class for weeks.

    But the larger point is that an attack on any young woman’s reputation feels like a personal attack on all women who are, in this bizarre historical moment, once again being forced to stand before the judgment of Great Men.

    Twenty years ago, when Anita Hill had her reputation impugned before an entirely male committee, quite a few women were sufficiently enraged to run for Congress. And many won, thanks to female constituents who said: Enough. That’s the kind of statement that needs to be made again. When one of us is bullied, all of us are bullied.

    Yeah, it’s personal.

  6. Went to Wootsy’sstillacat link (although hate to possbly give limbaugh one extra page view statistic.) I love what he says “They are not canceling the business on our stations. They’re just saying they don’t want their spots to appear in my show” after sayting how advertisers cancelling has nothing to do with his show.
    He also says people just don’t understand how this all works but we do, and he does. They don’t want to appear connected with his show. Period.
    I guess he is hoping if you are (put your own word here) enough to watch and believe him and Fox news you will accept any distortions and lies he tells..

  7. Rush Limbaugh Is Really Sorry That He Had to Apologize

    Last Friday, I wrote about people who actually bother to apologize for offensive and harmful behavior. Sincere admissions of guilt deserve special attention, in part because it’s now standard for national figures to either hide from their mistakes or just go through the motions of pretending they’re sorry.

    I guess it’s obvious that I have Rush Limbaugh on the mind.

    Recently, he made himself and the political right look ridiculous by verbally abusing Sandra Fluke, the Georgetown University law student who tried to testify at a congressional hearing about the cost of birth control.

    In her statement (now posted on YouTube), Ms. Fluke drew attention to a friend who was prescribed birth control pills for a medical condition, and had to pay for the treatment out of pocket. She said nothing whatsoever about her sex life.

    But in Mr. Limbaugh’s propaganda chamber, her testimony became a declaration of sexual promiscuity. He accused her of expecting taxpayers to pay her to have sex, and suggested that she post videos of herself having sex on the Internet. He called her a “slut” and a “prostitute” and said she was “round heeled.”

    On Saturday, after several advertisers withdrew their sponsorship, Mr. Limbaugh issued a statement in which he said, “I sincerely apologize,” but really just distorted Ms. Fluke’s message in a whole new way. “I think it is absolutely absurd that during these very serious political times, we are discussing personal sexual recreational activities before members of Congress,” he said. “I personally do not agree that American citizens should pay for these social activities.”

    Except no one is requiring Americans to pay for other people’s sex lives, and the only person talking about “personal sexual recreational activities” is Mr. Limbaugh. While he acts like a 13-year-old peering through a crack in the door of a changing room that he thinks is a strip club, the rest of us are trying to have a sensible discussion about a public health issue.

    The hypocrisy is grating. As Maureen Dowd put it in a withering column in Sunday’s Times: “Rush and Newt Gingrich can play the studs, marrying again and again until they find the perfect adoring young wife. But women pressing for health care rights are denigrated as sluts.”

  8. Elaine M.
    Thanks for the Maher info. Using female genitalia for deriding someone stinks, meaning slang variants.
    My experience is little—like all except The Simpsons program, which is standard fare over here.
    But the little I’ve caught on the net hasn’t been machismo or sexist, but even the political bit gives a queasy feeling.
    Thanks for placing him.
    As for the one million to Obama. I guess he wants to be assured a few golf rounds and a few photo ops to show his sponsors. Quid pro quo, I think the lawyers here call it.
    Thanks to Youtube I don’t get the ads. Just his surly humor.

    Jon Stewart, how about him? Sky high for me.

  9. Lotta,

    Here’s an after-thought on the Rushian style exemplified by your link.
    Here he goes: ögtcejtadmcövöcfnamwmö gqpcxugc cfjas h

    Can’t you see him doing cunnilingus on his women. He just starts the blabber motor, and they’re in heaven.

    Laughed myself, of course. Thus this repeat. That’s associative thinking.

Comments are closed.