We’ll start this in GQ in the hope that a non-Pitworthy factual answer exists.
Washington Post columnist Gene Weingarten posted this past Tuesday his belief that Rush Limbaugh’s comments about Sandra Fluke meet the legal definition of slander, and that Fluke should sue Limbaugh into the ground.
The piece starts with a hugely insulting discussion of Limbaugh, which were it not peppered with facts might also be technically slanderous. You’ve been warned, here’s the link.
On the one hand, Weingarten is a long-time professional journalist who constantly pushes the limits of good taste. He darn well ought to know libel and slander law. On the other hand, Weingarten clearly despises Limbaugh with the fury of a thousand gamma-ray bursters. This may cloud his judgement. The gripping hand is I, too, would love to see Limbaugh driven to obscurity and financial ordinariness as a result of this fiasco.
Legaldopers, is Weingarten correct? Even if only technically correct? (Which, according to Bureaucrat # 001 is the best kind of correct.) Can Fluke sue? Were she your client, might you advise her to sue?
It seemed to me that while he alluded to her testimony, he stopped short of actually saying that SHE was a slut or a prostitute. Seems it was more along the lines of “what do you call someone who does that? A slut! A prostitute!” It’s a thin line.
There’s probably a case there. Limbaugh explicitly called Fluke a prostitute. He might have gotten away with calling her a slut because that’s more a matter of opinion. But prostitute has a pretty clearly defined meaning and Limbaugh even used it as such (“she wants to be paid to have sex”). I don’t see how he can argue that it wasn’t defamatory or that it was true.
Whether she wants the bother of a lawsuit is only something she can decide. Limbaugh called her a prostitute. Prostitution is a crime and immoral conduct, so it is in two ways libel per se. His statements surrounding the charges show a pretty vile bit of malice. I think she should shop for the best lawyer in the best jurisdiction for her case and sue Limbaugh. IAAL who practices defamation law. For what that is worth. I’d love this case.
Limbaugh said: “What does it say about the college coed Susan Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.”
I’d say he crossed the line and very clearly called Fluke a prostitute (taking into account he got her first name wrong).
IIRC, for per quod, or ‘garden variety’ slander, you have to prove that you can claim actual damages. That will generally mean lost income as a result of the slander or some other quantifiable injury. Slander per se means that what was said was inherently damaging and therefore no proof of damages is required.
Defamation is one of the civil offenses known as intentional torts. Such offenses are unlike most other civil causes of action in that in addition to actual damages, you are entitles to punitive damages. Essentially, you can ask for an amount over and above whatever injury you suffered so as to punish the defendant. Accordingly, punitive damages are assessed, at least in part, based on the defendant’s ability to pay.
I dunno. He explains what he means by prostitute, and while his explanation is pretty retarded, I think the context makes it pretty clear he wasn’t calling her a prostitute in the usual sense. Actual prostitutes don’t get paid by Congressional Legislation.
He did explicitly call her a slut though. Dunno how actionable that is.
Slander is really, really, really hard to get someone on in the US. There are enough loopholes in US law any competent lawyer should be able to successfully defend the claim.
For starters they could claim that Fluke, by the very act of testifying, had become a “public figure.” In that case in order to prove libel Fluke would have to prove that Limbaugh, acted with “actual malice” and with “knowledge that the information was false” or with “with reckless disregard of whether it was false or not.” That is a huge hurdle to pass.
Even if she isn’t considered a “public figure” (and she almost certainly isn’t), opinion is protected speech in the US. So Limbaugh’s defense could spin on the actual words used. He didn’t claim prostitution as a statement of fact, he might say, he just suggested that in his opinion this situation was “like” prostitution, not that she was an actual prostitute. This is probably a solid defense. In US law there is legal difference between, this:
“… essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.”
and this (as a theoretical example):
“On march 3rd of this year Rush Limbaugh engaged in sexual favors with a yak for money.”
One is an opinion. The other is a statement of fact.
On preview, I’m surprised Second Stone thinks this is winnable. But I would certainly concede to his expertise.
I think it is impossible to win such a case. For one thing, in the real world, Fluke would open herself up to a savage invasion of her personal life. Every person she ever kissed, every date who ever paid for dinner would be subpoena’d, never mind any actual “sordid” details. Plus, the line between public and private figure is extremely easy to cross–and once you’re a public figure, gloves are off. She volunteered to testify to Congress, so that almost surely removes the private figure defense. I recall reading of a libel case was dismissed because the plaintiff was a public figure–because the article which libeled the plaintiff made her a public figure.
Thanks, samclem. I was unsure of the correct forum.
I would not like to have my defense be “I really slandered someone else, your honor.” IANAL, but Rush is in big trouble if he’s depending on a jury to believe he meant a completely different female Georgetown law student named S. Fluke who was going to testify before Congress about insurance coverage of contraception.
I am so totally not a lawyer, but my impression is that this would fall into the realm of legal puffery. No reasonable person would draw the same conclusion that Rush did. No reasonable person would take what he said as factual. The claim also lacks specificity.
It seems this falls into the same range as a restaurant advertising their “world-famous cheeseburgers!” Nobody truly believes that someone in Akkra would recognize that restaurant.
Considering that Fluke’s testimony wasn’t even ABOUT contraceptive use of “the Pill”, but about therapeutic use for dysmenorrhea, Limbaugh’s characterization of her WAS provably false. And given that he repeated that characterization for three days running and had plenty of time to be informed on what she actually testified about, if he wasn’t “knowingly” lying about her, then he was negligently lying about her.
Given that it’s definitely not the first time Limbaugh has deliberately lied about the things he talks about on his show, I’m really hoping that this one sticks to him like superglue. Maybe it’s time for Limbaugh’s fact-checker to actually get a job where he has to work…