Could it be considered a false statement if he made it with no knowledge of unchaste behavior on her part? It seems that would be the only way to keep her sex life private; if the burden were placed on him to put forward the evidence that he had at the time he made the statement. The burden should not be on her to prove her chastity, but on him to prove his statement was made in good faith, that he was speaking with actual knowledge of unchaste behavior. If he wasn’t, then he defamed her.
I don’t know the law specifically; I’m curious though as to why this would or would not be valid.
I don’t think that’d fly, just because that’s not what “false” means. Brown Eyed Girl, you have all ten fingers intact on your hands. That statement is either true or false, but if it’s true, nobody would say my claim was false simply because I lack special knowledge about your hands. The truth value of the statement is independent of the knowledge of the speaker.
I really don’t see that law becoming relevant to the case; if it did, it seems likely that it’d get struck down on the grounds that it’s very silly.
Under American law, truth is an absolute defense to a claim of defamation and the plaintiff bears the burden of proving that the statement is false. It’s not enough for her to prove that Limbaugh couldn’t have known whether it was false or true.
Fluke could probably get past the early stages of court proceedings (certainly far more frivolous claims have) but Limbaugh is the modern equivalent of someone who buys ink by the gallon, and even people who despise him will be defending him for the greater principle involved. Earlier I said her best response (should she feel the need to make one) was dismissive and belittling of Limbaugh and I stand by it.
I, like others in this thread, would love to see a citation for this claim. Has Sandra Fluke ever even said she’s had sex at all? For all we know, *you *are more of a slut than she is.
She claims she’s never had sex. She calls as witnesses people she has dated to testify that she refused to have sex. And then Limbaugh gets to present similar evidence – Tweets, Facebook posts, testimony of friends, acquaintances, boyfriends, and relatives. She’ll have to open up every corner of her life to allow Limbaugh to find out if there’s any evidence that tends to show that she’s not a virgin. I’m not sure whether there’s a privilege that applies, but it’s possible that Limbaugh might even get to subpoena her medical records.
It would be ugly, that’s for sure. And it would be strange, as well, since we live in a society that has gone through the sexual revolution. That’s pretty why this kind of action is obsolete in social and practical terms, even if it still exists on the books in some states.
How is that not an unfair burden? Essentially asked to prove a negative. Also, how is testimony treated as evidence? Would the court really consider the testimony of a shunned and potentially bitter suiter? What’s to stop some guy who got a irked by being turned down from testifying that, “Yes, she put out and I rocked her world”? They do that all the time.
Be it unfair or not, in a slander case in the US, the burden is on the plaintiff to prove the alleged slander is untrue. If she can’t do it, then she can’t make the suit.
In any case, this seems to me like a total red herring. The chances that someone testifying about birth control to congress is a virgin seems really low to me, and it’s demeaning to our political discourse to even consider discussing it. Yes, Limbaugh already demeaned the discussion, but that doesn’t mean we should be speculating about Fluke’s private life. Instead, if she’s going to make a suit, it ought to be on other grounds, e.g., his claim that she’s asking people to pay her to have sex, something she unambiguously did not do.
Well, that’s the problem created by a cause of action that allows you to sue people for calling you a slut. I don’t see any way around it.
Testimony is one of the principal forms of evidence in our legal system.
It’s up to the finder of fact – whether the jury or the judge – to listen to the testimony and decide how credible it is.
Well, there is the fact that testimony is sworn and is subject to punishment for perjury. And there is also the fact that, as I said, it’s up to the finder of fact to determine whether the testimony is credible.
I just suggested a way around it. The burden of proof should be on the person who made the statement. Either he had direct evidence of her lack of chastity and was making a statement of fact or he was talking smack, in other words, defaming her.
What does he care if he perjures himself? How is she going to prove he’s lying? We’re back to proving a negative. And how exactly does a man verify his claim that he had sex with a woman? This all boils down to he said/she said, which isn’t all that reliable when it comes to private sexual activity.
Once again, how does one prove they have never had sex. Is absence of evidence to the contrary evidence itself?
I am not speculating about Fluke’s sex life per se, but I think it is relevant only from the standpoint of questioning current law on defamation, which seems illogical, aside from its profound intrusiveness into private matters. It provides too much power to those who commit defamation and too little to its victims to prevent or recover from it.
Further, it seems to negate universal values of discretion in terms of sexual activity and uses terminology that is vague and outdated. What is chastity in legal terms? Is a wife who engages in intercourse only with her husband chaste? Do you have to be a virgin to be chaste? Is is chaste to discuss sexual activity openly?
In a civil case, the parties can be required to testify against themselves.
That is: if sued for the defamation per se of saying ‘slut,’ Limbaugh could ask Fluke, under oath, if she was a virgin. And she would have to answer, truthfully. (Actually, she could refuse if her answer criminally implicated her, but the court could consider her refusal to answer as an admission.
You have two choices: either “slut” is a matter of opinion, or it has a defined meaning that can be proved false.
If it is a matter of opinion, then Limbaugh can’t be sued for defamation for saying it.
If it has a definite meaning, what is it? At common law, it meant accusing a woman of engaging in fornication, sexual intercourse between unmarried persons, or adultery.
Do you propose to craft some other definition, and somehow impose that definition on the whole world?
That violates more than one tenet of the American legal system. The person bringing the claim must bear the burden of proving it. I see no injustice in that. Nobody is forcing her to sue Limbaugh.
Again, merely “talking smack” is not defamation.
If you’re going to bring a socially outdated cause of action, you’re setting yourself up for adhering to a set of socially outdated standards.
Either we’ve gone through the sexual revolution or we haven’t. Either a person’s sex life should be held to legal standards or it shouldn’t. If you really believe in modernity, you shouldn’t be bringing defamation claims like this in the first place.
And you prove you are not a slut, how again? By a lack of evidence that you are?
Is it?
What is unmarked persons? Does the fornication rule apply to a woman who is a rape victim (a one in six possibility)? Did you mean to imply the rule applies only to women and not men insofar as women can be sluts, but men cannot?
Legislation or case law. As in, new. And does it need to apply to the whole world or are we simply discussing U.S. law?