Did Limbaugh slander Sandra Fluke?

[Whack-a-Mole]

@Really_Not_All_That_Bright

If no reasonable person could think you were being literal then your comments can’t have been defamatory in nature.

I think the problem I am having here is someone is clearly impugning someone’s character in a very public way but it is ok as long as the actual words used cannot be construed to be literally true.

[Acsenray]

@Really_Not_All_That_Bright

Are you talking merely about the prostitute angle, or about Limbaugh’s comments in general? Because I think the potential exists of a valid claim under the “slut” line for the reasons set forth above. Not so much on the prostitute bit.

Well, that bit was about the prostitute angle.

As far as the “slut” part is concerned, I don’t buy that it’s a claim of fact either, but rather an opinion. In our society today, we don’t have any kind of objective standard for what’s a slut, and considering that the majority of people no longer have 19th century views on women’s chastity, I don’t think that you can make a plausible argument that he is making any particular sort of claim of fact. It’s just an opinion.

@Whack-a-Mole

How far does this go as a defense to libel?

I can call someone any name in the book and as long as I can claim no reasonable person could think I was being literal then what I said is ok?

It does not matter that my comments are clearly slanderous/libelous in nature?

It’s not defamatory in nature unless it is a straight-faced claim of fact (a false one at that) and it goes far.

Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988), held that Hustler magazine did not libel Jerry Falwell in publishing a parody Campari advertisement that quoted Falwell as describing losing his virginity to his mother in an outhouse, because it was not a claim that any reasonable person would believe to be true.

[Sampiro]

@Typo_Knig

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.

[Slight hijack]I read that wondering “Does this guy get paid to write things like this or is he just a blogger on Washington Post’s space?” Then I read he’s won two Pulitzers. I couldn’t be more anti-Limbaugh in this matter, but that opening was good as neither humor or as satire; it was just discombobulated neener-neenering.[/slight hijack]

[andros]

@Whack-a-Mole

I think the problem I am having here is someone is clearly impugning someone’s character in a very public way but it is ok as long as the actual words used cannot be construed to be literally true.

Welcome to tort law.

[Bricker]

@Kimmy_Gibbler

The Legal Satyricon also examined this issue, but did not reach your conclusion. In short, courts may be less willing to extend defamatory per se status to unchastity in light of evolving sexual mores.

I think this is correct. What is your intuition as to the propriety of holding someone liable for defamation per se if they said “So-and-so has an inappropriate number of sexual partners.”? But it seems to me that this is just a less inflammatory way of saying “So-and-so is a slut.” It is well-settled that the First Amendment does not only protect courteous speech, so speech communicating the same content needs to enjoy the same protection.

Thanks for an excellent link, Kimmy. I particularly liked:

House Minority Whip Steny Hoyer came out and said that Sandra Fluke should sue Limbaugh for defamation for famously calling her a “slut.” (source). And a Philadelphia attorney, Max Kennerly, told his local newspaper that he thinks Fluke has a case. (source)

She has no such thing, and shame on those who say that she does. It isn’t that Rush Limbaugh needs to be shielded from these barbs. It isn’t that Sandra Fluke actually might be emboldened to sue. The problem with these uneducated and erroneous statements about the viability of such a suit is that they act like a blizzard wind blowing through the marketplace of ideas. They spread misinformation among the proletariat, who didn’t have the benefit of an education in Constitutional law, and consequently believe Fluke might have a claim based on Rush’s impolitic statements. And the next time one of these moronic proles gets butthurt about something someone says, they’ll be right on the phone to the closest bottom feeding lawyer they can find.

I breathlessly await Euphonious Polemic’s reaction to the analysis in that link.

[Cheesesteak]

@Acsenray

Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988), held that Hustler magazine did not libel Jerry Falwell in publishing a parody Campari advertisement that quoted Falwell as describing losing his virginity to his mother in an outhouse, because it was not a claim that any reasonable person would believe to be true.

Does calling a woman a prostitute rise to this level of ridiculousness? Some women, even college women, turn to prostitution to earn money, it’s not unheard of, not even remotely. For all we know, she turned tricks to pay her way through undergrad.

[Bricker]

@Whack-a-Mole

How far does this go as a defense to libel?

I can call someone any name in the book and as long as I can claim no reasonable person could think I was being literal then what I said is ok?

It does not matter that my comments are clearly slanderous/libelous in nature?

“Clearly” to who?

What irritates me, W–a-M, is you seem to adopt a belief, and then insist that the law must be consistent with your belief, despite evidence to the contrary.

[Whack-a-Mole]

@Acsenray

Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988), held that Hustler magazine did not libel Jerry Falwell in publishing a parody Campari advertisement that quoted Falwell as describing losing his virginity to his mother in an outhouse, because it was not a claim that any reasonable person would believe to be true.

I’d say that case is not illustrative of this case.

1. Falwell is clearly a public figure.
2. The claim was exceptionally absurd.
3. It was a one-off claim.

In this case Fluke is not a public figure.

This claim is not, on the face of it, an absurd one. Prostitution is alive and well in this country and not unusual in-and-of itself.

If you take the larger context Limbaugh ran with this for days and while he quit with the direct claims of her wanting sex for money he continued to paint her as a person who wants lots and lots of sex and wants others to pay for it. A person who has guys “lined up around the block”.

Further, as I noted above, others continued the claim with comments such as a “shiftless rent-a-cooch from East Whoreville.” (Not saying Limbaugh should be sued for what others write but noting other presumably “reasonable” people picked up on Limbaugh’s rant and kept going with it.)

[Bricker]

@Cheesesteak

Does calling a woman a prostitute rise to this level of ridiculousness? Some women, even college women, turn to prostitution to earn money, it’s not unheard of, not even remotely. For all we know, she turned tricks to pay her way through undergrad.

But that’s not what he said. Indeed, if she were earning money in that manner, she could cover her own contraception costs as overhead. (No pun intended)

No, he clearly specified he was talking about her asking for money from the taxpayer to pay for her contraceptives. That is not prostitution.

[Whack-a-Mole]

@Bricker

“Clearly” to who?

What irritates me, W–a-M, is you seem to adopt a belief, and then insist that the law must be consistent with your belief, despite evidence to the contrary.

Seems to me I was asking a question there and not asserting what the law is.

[Acsenray]

@Cheesesteak

Does calling a woman a prostitute rise to this level of ridiculousness? Some women, even college women, turn to prostitution to earn money, it’s not unheard of, not even remotely. For all we know, she turned tricks to pay her way through undergrad.

Of course it’s possible that “She’s a prostitute” can be a false statement of fact. The context is important. Does any reasonable person listening to Limbaugh in this instance believe that he’s making an actual claim of fact?

For the sake of example, say Joe Blow gets the attention of a Fox News camera and says, “I, Joe Blow, am a regular customer of Fluke. On several occasions, I have paid her to have sex with me, and I expect to do so again tonight. She is a prostitute.” Well, that’s completely different from what Limbaugh is doing, isn’t it?

On the other hand, Mackenzie Phillips wrote a memoir in which she stated that she had had an ongoing sexual relationship with her father, John Phillips of the Mamas and the Papas. How does that compare to the Falwell thing?

[Bricker]

@Whack-a-Mole

.

In this case Fluke is not a public figure.

Really?

Did you read any of the links offered for limited purpose public figure?

Did you read this paragraph from Kimmy’s link:

Sandra Fluke is a Public Figure

When you purposely inject yourself into public debate, you lose your status as a “just minding my own business” private citizen.

When a plaintiff alleging defamation is a public figure, he or she must show that the allegedly false statements were made with actual malice – that is, knowing falsity, or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). Such public figures can include limited-purpose public figures who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). It is not necessary for a plaintiff to be a household name to be a public figure, either; he or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999). It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”).

Fluke was testifying before Congress, on National TV, in a debate that she willingly ran toward. She purposely dove into the spotlight, and if the spotlight burned her, that’s her problem — not my beloved Constitution’s problem.

As a public figure, in order to prevail in a defamation case, Fluke must prove the “actual malice” on Limbaugh’s part. While Fluke probably thinks that the statements were “malicious” (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth.

I’m very curious. Did you read either of those, or anything else, on the issue of being a public figure? How did you conclude she is not a public figure? What cases or definitions did you rely upon to reach that conclusion?

'Cause it sure seems to me that you just … said it. You read nothing, learned nothing. You just spat it out, with no basis.

Am I wrong? Did you investigate it, even a little?

How?

[Simplicio]

@Whack-a-Mole

I think the problem I am having here is someone is clearly impugning someone’s character in a very public way but it is ok as long as the actual words used cannot be construed to be literally true.

Its not really OK, he’s losing advertisers and a sizable chunk of the public is obviously angry at him. I think that’s probably a better route for the public to express displeasure then have courts try and parse when someone’s character is being “impugned”.

[Bricker]

@Whack-a-Mole

Seems to me I was asking a question there and not asserting what the law is.

Not as I read. I read your question as incredulous, disbelieving refutations of what you were being told.

But OK. Maybe I read that tone wrong. My bad.

@Whack-a-Mole

In this case Fluke is not a public figure.

HERE, you were asserting what the law is.

Yes?

[Little_Nemo]

@Acsenray

If I call Limbaugh a douchebag and then go on to cite all the reasons that he is a douchebag, then are you going to thing that I am making a statement of fact that Limbaugh is a rubber device used to administer vaginal irrigation?

How are you not grasping this simple concept? Rush Limbaugh said Sandra Fluke is a prostitute. It’s that simple.

The fact that Sandra Fluke isn’t a prostitute doesn’t mean that Rush Limbaugh didn’t say it. It just means it was slander when he said it.

If Limbaugh had called Ashley Dupre a prostitute it wouldn’t have been slander because Dupre actually was a prostitute.

[Acsenray]

@Little_Nemo

How are you not grasping this simple concept? Rush Limbaugh said Sandra Fluke is a prostitute. It’s that simple.

The fact that Sandra Fluke isn’t a prostitute doesn’t mean that Rush Limbaugh didn’t say it. It just means it was slander when he said it.

Hustler quoted Jerry Falwell as saying that he had sex with his mother in an outhouse. The Supreme Court said it was not defamatory. Reconcile that.

[elucidator]

@Bricker

But that’s not what he said. Indeed, if she were earning money in that manner, she could cover her own contraception costs as overhead. (No pun intended)

No, he clearly specified he was talking about her asking for money from the taxpayer to pay for her contraceptives. That is not prostitution.

IIRC, that was his assertion, that demanding money to have sex? Well, what does that make her? A slut, a prostitute. A flimsy analogy, to be sure, but his, originally.

[Whack-a-Mole]

@Bricker

Not as I read. I read your question as incredulous, disbelieving refutations of what you were being told.

But OK. Maybe I read that tone wrong. My bad.

HERE, you were asserting what the law is.

Yes?

I am incredulous but I was also really asking. Don’t see why the two can’t co-exist.

And I retract (or rather realize I was wrong) to say she is not a public figure. I did miss the bit about the limited purpose public figure.

Still, seems to me actual malice and/or a reckless disregard for the truth is at play here. Limbaugh has not asserted even anonymous sources for his claims. Near as I can tell he did no work whatsoever to assess the validity of his claims. Sure seems like a reckless disregard for the truth to me but then I do not know what a court requires for that.

As for malice, well, Limbaugh is nothing but malice personified but I grant that may be hard to prove in court.

[Acsenray]

@Whack-a-Mole

Still, seems to me actual malice and/or a reckless disregard for the truth is at play here. Limbaugh has not asserted even anonymous sources for his claims. Near as I can tell he did no work whatsoever to assess the validity of his claims. Sure seems like a reckless disregard for the truth to me but then I do not know what a court requires for that.

As I’ve been saying, a court requires that the allegedly defamatory statement be a false statement of fact. And to be a false statement of fact, a reasonable listener must believe that it is literally true.

So a court is not even going to get as far as the question of actual malice or reckless disregard for the truth.

[gamerunknown]

They spread misinformation among the proletariat, who didn’t have the benefit of an education in Constitutional law, and consequently believe Fluke might have a claim based on Rush’s impolitic statements.

Yes, that’s pertinent to this thread, where test cases and definitions of “malice” and “public figure” were discussed? “Impolitic statements” is a non-retraction of a bigoted and erroneous ad hominem attack. Not to mention that you’ve been the one consistently parsing her speech to imply that she personally utilised contraception, when there is no unambiguous evidence of her doing so. It’s not hard to think of why: a personal claim would not be received lightly by the administration of a Catholic organisation, while stating the case in general terms is just about acceptable.

Edit:

And to be a false statement of fact, a reasonable listener must believe that it is literally true.

Which is where if she can demonstrate a pecuniary effect within the statute of limitations she may have a case.