It’s a bit more complicated than that, pikey pete. That’s why we’re in the middle of page three. 
I’ll defer to your legal expertise, Bricker, but I don’t see that here. Just like how nobody could reasonably believe that Rush was calling her a prostitute, no reasonable person would believe that he had knowledge of her private sexual activities in order to be in a position to comment on them or reveal them in a way to infringe on her privacy.
I vote with:
Asshole: Yes.
Tort: No.
Yup.
Not true. Rush heard her testimony. He reported she said something.
Except, of course, the only truth to his reporting is that she spoke. He misrepresented virtually very word that came out of her mouth.
But would the argument be made that, in this day and time, calling her unchaste would not be “highly offensive to a reasonable person”? Or would all the commentary be taken together, in which case, it definitely fit that requirement?
Correct. So a listener could conclude that Rush was accurately reporting what Fluke said, giving rise to the “false light” claim.
The difference is that saying “slut” is either hyperbole and opinion, or it’s judged by the archaic factual standard of ‘fornicator.’ That is, under that standard, any unmarried person engaging in sex even once is unchaste and cannot complain about being called unchaste.
But saying she’s having so much sex that her finances are implicated, though not defamatory, holds her in a false light. In my view, she has no chance in the slander analysis but a decent one in the false light one.
Question:
Der Trihs said:
Is this claim slander or false light or unobjectionable?
So far as I know, Fluke has not lost an ovary.
I am curious to see how this might be analyzed here.
You can’t defame a nebulous group.
True. But Der Trihs said that Limbaugh, specifically, claimed that a woman who lost an ovary was a slut. Limbaugh is not a nebulous group.
It wasn’t Fluke, but an acquaintance of hers who she testified about.
True. I just looked at the first half of the statement.
The second half, if it contains any false statement of fact is a false statement about Fluke. It might be difficult, given Limbaugh’s earned reputation and public persona, to argue that this actually harms Limbaugh’s reputation in any way.
DT, where did you get the ovary thing?
That’s part of the reason I still say it’s not reasonable to think he said anything. How do you have “so much sex” that you can’t afford the pill? If you have sex once every few months or if there is a line of guys outside her dorm room throwing a fiver in the hat waiting their turns, it is still the same price for oral contraception.
Did anyone reasonably think that because Rush said that she said she was screwing so much she couldn’t afford it that was a true character trait of hers? Did anyone reasonably rely on that statement to frown upon her? Was she damaged financially from it? If anything she’s gained financially from the media exposure.
I think that such a judgment would chill free speech. Imagine conservative posters on this board having “false light” causes of action when our views are restated as “he hates women/gays/blacks.”
To be fair, imagine liberal posters here having these suits claiming that we said they hate America?
I think that what Rush said, as ridiculous as it was, is protected speech.
Perhaps not, but a “reasonable” person that didn’t hear her testimony may have assumed that she was testifying about her own usage of contraception, which she wasn’t, or even about her inability to comfortably afford contraception, which again, she wasn’t. The Catholic Church has denied funding to people that have defended contraception and abortion use before, but her arguments were just about within what is theologically acceptable as far as I’m aware. If she applies for employment with them and they reject her based on a misapprehension of what her testimony was about exacerbated by him, that’d strike me as grounds for a suit (IANAL, most ridiculous acronym of all time).
If he presented himself as a mere comedian I wouldn’t consider it so egregious though.
That said, I’d be more concerned if this guy got fired. While what he said (if reported accurately) is pretty vile, some of my favourite professors espouse(d) extreme political views.
Wiki on false light: False light - Wikipedia Interesting stuff. The examples discussed at Wiki seem different though --for one thing statements about Fluke have arguably been corrected.
Via google news:
http://www.washingtonpost.com/opinions/a-witness-for-the-gop-gender-gap/2012/02/24/gIQAwpXsXR_story.html
Incidentally, if I understand this correctly there is a misdemeanor case to be made against Limbaugh: Gloria Allred, the famed celebrity lawyer, sent a letter to the Palm Beach County Attorney’s Office on Thursday saying prosecutors should consider a charge under an 1883 law making it a misdemeanor to question a woman’s chastity. Bricker’s definition of chastity upthread is noted. IANAL. I don’t know whether the civil definition of chastity would carry into the criminal context. IANAL. http://articles.boston.com/2012-03-09/news/31140508_1_gloria-allred-rush-limbaugh-county-attorney She cited a state law that says, “Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree.” Hm. It does say “Falsely” which means testimony about Fluke’s sex life would be fair game. http://www.timesunion.com/news/article/Lawyer-Prosecute-Rush-Limbaugh-for-defamation-3394632.php
I’ll hazard a prediction that Limbaugh won’t be convicted for these ~50 idiotic statements made over 3 days.
Would she have to show that she was damaged ($$) by whatever was said?
If she clearly has not been damaged, would a court allow it to go forward just to prove a point?
American federal courts are only allowed to adjudicate “cases or controversies.” They are not allowed to preside over a proceeding that is only proving a point. I believe that state courts are also subject to similar restrictions.
If a plaintiff fails to make a valid prima facie claim regarding any essential element of a claim and if harm is such an element, then the defendant would win summary judgment under Fed. R. Civ. P. 12(b)(6), failure to state a claim for which relief may be granted under the law.
If a plaintiff does allege sufficient facts to create a genuine outstanding question of material fact regarding whether she has been harmed that can only be resolved through examination of evidence, then a motion to dismiss under Rule 12(b)(6) would fail.
Slut is accurate. Prostitute is not, technically speaking.
Personally, I hope someone does sue him for slander and wins. It will set a nice little precedent with unintended consequences for it’s short-sighted supporters.
Care to elaborate on both these quoted points?