Why don’t we let the person who used the word indicate what he meant the word to mean?
If it means non-virginal outside of marriage, then he can publicly state that every woman who has ever had sex outside of marriage is a slut. I have a feeling Rush isn’t going to want to testify that he thinks the vast majority of American women are sluts.
Or he can state that he meant something more restrictive, and make it easy for Fluke to prove she isn’t a slut, by his definition.
If you are saying that someone is lying about you, then it’s your burden to prove it. Again, I see no injustice in that.
I think he meant “unmarried” and got caught by autocorrect.
Well, these are just historical questions about the law. And I believe there are actually answers to them. I’m not an expert in this area of the law, but in theory there are already answers.
And, yes, historically, this kind of action could only be brought by a woman. Generally speaking, men had no cause of action for someone’s impugning their chastity. Again, if you’re going to bring an outdated cause of action, you’re going to be subject to outdated standards.
What a real believer in the sexual revolution would say is something like: “It’s not society’s business what an individual chooses to do with respect to his or her sexuality. All choices are equally valid, so being accused of sexual licentiousness causes no harm.”
Limbaugh doesn’t have to say what he means. He’s the defendant. It’s up to Fluke to establish that “slut” has some meaning to the broad public and that that meaning harms her reputation.
What are you on about? Nobody has suggested otherwise.
I understand what the law apparently is. I’m questioning the logic and equity of it. It is not logical to require a plaintiff to prove a negative – and nobody, yet, has explained how this is actually accomplished – when it is a trivial matter for a defendant to provide evidence as to the validity of his statement. If you disparage an individual, you are either a) stating a fact (prove it) or b) impugning the reputation of an individual with malice. Inherently, under the current burden of proof on the plaintiff, the victim has no legal recourse against anyone making public statements that impugn his/her character for profit and whatever other motives of the defamer in the event she is unable to convincingly prove a negative. 
This makes little sense and supremely unjust.
Pardon me, I don’t have my urban dictionary on me. Was it threatening? Probably not. Was it inflammatory? Without a doubt. But it was also:
An intentional, unprivileged, false communication, either published or publicly spoken, that injures another’s reputation or good name.
Yes, I included false. Not disputing that. My issue is that the burden of proof is on the plaintiff and not, logically and justly, on the defendant who uttered the defamatory statement.
Horseshit. Defamation is not socially outdated. It still happens, has real victims, and causes actual damage. People are still judged in important realms, such as work, school and interpersonal relations, by their reputations. In case you hadn’t noticed, this woman is asking for nothing more than coverage for legally prescribed health care and she is her personal reputation is being dragged through the mud by the media. Her sexuality should have absolutely nothing to do with her testimony and yet it does, thanks to Rush Limbaugh and the inflammatory statements he made.
Now, when she goes for an interview for an internship, or goes out on a date, how unlikely do you think it’s going to be that the interviewer, or date, associates her name with the word “slut”? Then, if they do and decide to judge her negatively for it – and not offer her a job, or basic respect – what recourse does she have? How could she possibly know, unless they admit they based their actions on that impression, that she has suffered actual damages for it?
I don’t give a shit about the sexual revolution. I’m talking about the law. We could be having the same discussion if instead Limbaugh said she was a cheater, or a fraud, or corrupt. Only at least then there would be some concrete definition of what a cheater or a fraud or a corrupt individual was. Well, maybe the latter is subjective, too; I don’t know.
I do believe in modernity and I believe bad law should be reversed, regardless of the topic that brings it’s inadequacy to light.
Apparently, this isn’t a new and original idea, either. I found an abstract of a paper from the Columbia Law Review and another in William and Mary Law Review, but I don’t have access to them.
Your testimony could establish a prime face case. You merely have to plead the case, and to state, under oath, that you are chaste, and then the burden would shift to the defendant to prove otherwise.
But he is entitled to discovery. He can ask you, under oath, for the names of all romantic partners, and then ask them, under oath, if they had sex with you.
“Unmarried.”
No, if the only act of sex was rape, there is no fornication.
I am unable to find a single case of per se defamation where a man recovered after having his chastity impugned.
Any state legislature can craft a new cause of civil action.
However, given the extremely broad reach of the First Amendment, in my view it is virtually impossible to imagine a modern-day standards cause of action that makes ‘slut’ defamatory.
And you prove a negative how again? Prove that you are not corrupt.
Who mentioned anything about the sexual revolution? What difference should that make to me? But it can cause harm because people who are less evolved than am I are still in positions of power to affect negative outcomes in one’s life based on their perception of an individual.
I’m not out to change people’s perceptions of sexuality. I can’t help it if there are repressed people out there who enjoy feeling superior to others. But I can take issue with a law that leaves an individual no recourse to right those wrongs.
That’s not true. Both Bricker and I have explained some of the types of evidence are relevant in cases like this. The defendant will get the right to interview everyone in the plaintiff’s life who might have knowledge about her sexual activity and put them on the stand. There might also be other kinds of evidence, such as Facebook posts or Skype conversations.
But that’s conclusory. It’s not a defamatory statement until the plaintiff proves that it is a defamatory statement. The plaintiff doesn’t get the benefit of the doubt just from making a claim. Plaintiffs can go around making all kinds of claims. It is logical and just to make the plaintiff bear the burden of proof. Otherwise, you have a huge chilling effect on free speech.
The idea that a person (specifically a woman) has a special need to maintain an image of chastity and thus should have a special cause of action to defend it is outdated. It’s the concept of a “slut” that’s outdated. If you maintain that calling a person a slut should be actionable, then you’re reviving a pre-sexual revolution standard for female sexuality.
It should be outdated, but it’s not. The fact that it was used in a national broadcast in a non-ironic way means that someone is intentionally using the term in order to intentionally and falsely besmirch the reputation of Fluke, in the belief that a lot of his audience will think less of her for it. Whether this should or should not matter is of no relevance to the fact that it does.
That’s fine. But then you have to live with the definition: an unchaste woman.
Or you want to define the term some other way.
How?
No, we don’t have to live with that definition because you see, language evolves.
It’s defined in modern terms primarily as sexually promiscuous. Look it up a few times.
So why don’t we shed the archaic definition, shall we? Now, we define sexual promiscuity. It’s a bit subjective, no? How many is too many? How casual is too casual? Let me guess. You know when you see it, right? :dubious:
The way that this kind of claim has always been proven in court. Bricker and I have given numerous examples. I guess I’ll have to do it again.
You put people on the stand testifying to your chastity. Simple. The jury gets to decide whether to believe them.
Then Limbaugh gets to investigate your life and figure out if there is evidence that shows you aren’t chaste. If he finds witnesses, he gets to put them on the stand and the jury gets to decide whether to believe them.
This is pretty basic functioning of the civil law system. There’s really no mystery here.
And, yet the Louisiana Supreme Court managed to do so. As did the Illinois Supreme Court.
So the only way for a victim of defamation to defend their reputation is to allow the accuser to dive into their private life a second time. Brilliant. And you don’t see what’s wrong with this? The victim of defamation of this type (e.g., sexuality) should not have to prove anything other than the defamer maliciously impugned her reputation. That is logical, simple and just.
The First Amendment permits us to speak the truth, regardless of whether it impugns anyone’s reputation. Don’t you see a problem in reversing that presumption by putting the burden of proof on a defendant in such a case?
Um, no. Not always.
Did you read what you linked to?
It says that damages need not be proved separately if someone falsely makes one of those statements. The plaintiff still bears the burden of proving that the statements aren’t true.
Under the First Amendment, truth is an absolute defense to a claim of defamation, and that applies to state law as well.
nm
Read that sentence again, very carefully, and notice how it says that the presumption applies to damages, not to whether the statement is false.
That’s kind of interesting. I wonder whether there are any cases in which a Catholic priest or monk brought such a lawsuit; those are the only cases I can think of where it’d be a really big honking deal.
So, it is to assume that Limbaugh speaks the truth? That’s despicable. And if he does not, the victim’s only recourse is to involuntarily subject her private life to public scrutiny, which is completely out of the ordinary for any other private individual to be required to do.
So, essentially, any jackass can publicly make any untoward comment about anyone else and get away with dragging their private life through the mud. Sure, if he’s a liar, he might have to pay legal fees, but now the world gets to peer into the private life of a private individual. Or he gets a judge (or jury) who is sympathetic to him (or his notions) and or adverse to the victim, and suddenly she can’t possibly prove a negative to their satisfaction. Hell, it’s been happening to women for centuries. Why change now?
Do I see a problem with putting the burden of proof in that case on the defendant? Hell no. No more than I see a problem with being prohibited from yelling, “Fire!” in a crowded theatre. Not all free speech is conducive to societal benefit.