I think the modern difference is not whether the statement was put into writing but whether the defamatory statement is fixed in a perceivable medium (libel) or whether it’s transitory or ephemeral speech (slander). Since Limbaugh’s radio program has been recorded and played back, it’s libel, not slander.
That alone may be fatal.
But there’s another issue. In Bryson, plaintiff was the object of a published piece in a magazine that referred to her as a slut, and she objected to being called unchaste. As that court pointed out, Illinois law provided:
As in the common law, it’s necessary that the charge be false.
As a civil plaintiff, Ms Fluke cannot refuse to answer questions. And the defendant can ask if she is, in fact, chaste, because her negative answer to that question would vitiate her claim.
I don’t know anything at all about Ms. Fluke, except that she has contraceptive costs of $3,000 per year. If she’s a virgin, you’re right: once the limited purpose public figure hurdle is solved, perhaps she could sue.
But if she can’t claim she’s chaste, as the plaintiff in Bryson alleged she was, then I’m thinking there’s a truth problem.
Uh huh.
From RNATB’s first case, Bryson v. News America Publications, Inc., 672 NE 2d 1207 (Ill. 1996):
(emphasis added)
This is a necessary element. The complaint must allege that that statement is false – in other words, that the plaintiff is chaste.
Agreed, RNATB? Agreed, Euphonious Polemic?
In Smith v. Atkins, 622 So. 2d 795 (La Ct App 1993), the court said in defining defamation:
The court goes on to point out that in Louisana, when an accusation is defamation per se, both falsity and injury are presumed and the burden shifts to the defendant to rebut the presumption, which did not happen in that case – that is, the professor did not rebut the presumption.
This case does NOT mean that falsity is irrelevant. Agreed, RNATB? Agreed, Euphonious Polemic?
Finally, as RNATB’s own post acknowledges, no case he mentions addresses the issue of the plaintiff’s being a limited purpose public figure, which is the case here with Ms. Fluke.
Agreed, Euphonious Polemic?
Consistent with your thorough analysis, RNATB?
Yes. I wouldn’t have called it a thorough analysis. More of a thorough refutation of your (and Simplicio’s) implication that being called a slut is not actionable in itself (either because it is not a statement of fact or because it is too vague).
I don’t know any more than you do about Ms. Fluke, so I don’t know if the presumption that the claim was false would be rebutted. I will point out that even if the implication that she is not “chaste” is not factually true, she could still proceed on a non per se basis.
ETA: I also neither know (nor care) exactly how Limbaugh phrased the accusation, which is obviously a key issue.
No, you don’t know that she has contraceptive costs of $3,000 per year. You are committing the same fallacy that Mr. Rush did; you have not even read what she actually said. Try reading her actual testimony before you put words in her mouth.
She said:
For you to conflate this into “She has contraceptive costs of $3,000 per year” is disingenuous at best, and if you tried to introduce this claim into a court proceeding, I think you’d be shredded.
I agree with you on the slut issue. Slut’s a loosely defined word and Limbaugh can plausibly claim that Fluke falls within the definition.
But he’s not going to be able to sell that argument on prostitute. Limbaugh can’t claim he invented his own definition for prostitute and that’s what he was calling Fluke.
A prostitute gets paid for sex by the person she’s having sex with. A prostitute is performing illegal acts. Is Limbaugh going to be able to argue that these definitions apply to Fluke? No.
And that’ll be the cross-examination: “Ms Fluke, has anyone ever paid you to have sex with them?” “No? Okay thanks.” “Mr Limbaugh, did you have any evidence that somebody paid Ms Fluke money to have sex with them?” “No? Okay, thanks.”
A court isn’t going to blindly look at the dictionary definition of “prostitute.” It’s going to look at the entirety of what Limbaugh said. Was he actually stating as a fact that Fluke had exchanged sex for money in violation of anti-prostitution laws? It’s pretty clear that he didn’t. He set up a (ludicrous) comparieson between a woman wanting government coverage for contraception and prostitution.
Why does she have to prove she is chaste?
Per the several definitions of “slut” given earlier in the thread the word implies promiscuity. By your definition anyone who is not a virgin is a slut which I think takes that too far.
Not to mention Limbaugh also implied she was a prostitute.
Now, a court deciding where a line is drawn for promiscuity is another matter.
She doesn’t have to prove she’s chaste, but the defense could defeat her claim by proving she isn’t. Because the court was applying the doctrine of defamation per se, the plaintiff enjoyed a presumption that it was false because lack of chastity was an implication of the use of “slut” and made the word actionable. In an ordinary defamation claim (not a per se claim) she would not enjoy the presumption of falsity, but the defense would have to prove she was actually promiscuous (or whatever definition the court chose to apply).
No, he actually did say that. Once again, his quote: “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.”
He didn’t say she wants to be paid money so she can have sex. He said she wants to be paid to have sex.
Weeeellllll…
Having seen videotape of Limbaugh (whom I will not refer to as ‘Rush’ in deference to the band) delivering the slut and prostitute lines he’s clearing reading from prepared remarks in front of him. It wasn’t off the cuff.
Your quote contradicts your point. No reasonable listener could possibly interpret that quote to mean that Limbaugh is stating as a fact that Fluke is actually a prostitute, that is, exchanging money for sex in violation of anti-prostitution laws. It is clear that he is analogizing something else to prostitution.
No reasonable person is going to hear that and think that they can call up Fluke and ask for her rates and go over to her brothel and have sex with her in exchange for money.
OK. I don’t agree I’d be shredded, but I do agree that she didn’t say that.
Maybe flayed a little?
The main point is that Rush (deliberately?) misconstrued Fluke’s testimony, which was about contraception for women in general at her school. He twisted her testimony, and made it seem like she was asking for money* personally *for her own contraception needs.
She never used herself as a personal example. Not once. The only individual she discussed was an anonymous friend with polycystic ovarian syndrome, who was denied a prescription to help with this medical condition.
Yet Rush chose to personalize her testimony, and changed it to seem like she was wanting birth control for herself. In fact, she was testifying on behalf of others.
I think that this point might come up in a future lawsuit. Members of the public (like you) now think that she testified that she wanted her own birth control to be paid for by others. This is the fault of Mr. Limbaugh. He should be liable for this falsehood.
How about this then:
“She wants to be paid to have sex. She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex.” (CITE #4)
So, he says she wants to be paid to have sex which would make her a prostitute.
That’s still not a claim of fact that she is an actual prostitute.
The fact that he talks about the taxpayers paying her to have sex makes it pretty clear he isn’t saying she’s a literal prostitute.
I read her testimony itself, and my best recollection was what I posted – it took going back and reading again the lines you posted to see that she sort of ran things together, first talking about $3,000 over the entirety of law school, and then bringing herself up but only in the context of having a public interest scholarship. My summary was wrong, but understandable enough that I think mild flaying would be about the worst consequence.
Well… no. She used her own circumstance as being on a public interest scholarship to highlight how much money $3,000 is.
But she does want her birth control paid by others:
She explicitly says she favors the regulation made pursuant to the Affordable Care Act that mandates contraception coverage. And that regulation requires that insurance companies pay for her contraceptives.
Right?
She wants to be paid by you, me, and the taxpayers.
Not by a client who would actually have the sex with her.
You know, I hate how this happens. I’m spending time and effort defending the words of a buffoon, an idiot, a drooling fool.
And why? Because it’s not enough to say he’s a fool. No, no – he has to be guilty of some sort of civil wrong, some actionable tort.
He’s not. You can’t twist it to make it so. He’s a slack-jawed mouthbreather - why isn’t that sufficient for everyone? I can nod happily and agree, and stop defending this waste of oxygen.