Posted on 03/05/2012 10:38:29 AM PST by Scoutmaster
I listened to it.
You have my condolences. If you were like me, you were fighting all kinds of emotions. I was angry that the media was covering this fraudulent 'presentation' to Democrats, during a recess, by somebody who had already been determined not to be an expert, and who wasn't allowed to give testimony to Congress on the issue.
On the other hand, before you tell people "[h]er testimony said she paid some huge amount for tuition and shouldn’t be expected to pay $3000" for contraception, I respectfully suggest you grab some anti-nausea medication and watch her again on YouTube, or, better and less damaging to your retinas, read her statement, as posted on FR. She never mentioned her tuition. And as for the $3,000 figure, she said that students could pay 'over' $3,000 during law school, which is three years long, for prescription contraceptives not covered by insurance. I interpret that, as do many others, as being 'over' $1,000 per year.
I'd respectfully suggest you've confused what you heard on Rush Limbaugh, or from somebody who listened to Rush Limbaugh, with what Sandra Fluke said. Fluke never mentioned her tuition at all. On March 1, Limbaugh said:
Here the numbers at Georgetown right now. Georgetown law costs $45,000 per year, $20,000 for room and board, sex not included. So tuition and room and board is 60 grand a year and this woman's up at Congress asking for thousands of dollars in birth control pills.
Source: http://www.rushlimbaugh.com/daily/2012/03/01/left_freaks_out_over_my_fluke_remarks
I almost completely agree. However, in my profession and social life I often find myself in a group where a small number of conservatives are discussing topics with a large number of liberals.
It kills the ability to discuss topics when a fellow conservative starts spouting 'facts' that are demonstrably false, particularly when the source of those 'facts' is Rush Limbaugh. It's embarrassing and if there were open minds to the conservative viewpoint, you've lost an opportunity to sway them to your side.
On this board we still have countless people repeating things Sandra Fluke "said" that she didn't say. Limbaugh said she said them, but he made it up.
I don't know about you, but I'm already suffering from friendly fire at work and in social events by fellow conservatives who 'know' what Fluke said. And they don't.
So what would you do? Is it appropriate to try and educate people so they don't make conservatives look like idiots in the discussion by repeating 'truths' that were 'spoken' by that gasbag Fluke, but she never said?
This is our "I can see Alaska from my backyard" moment. And conservatives are being as gullible as people who watched Saturday Night Live and think Sarah Palin actually said that. Don't you flinch when people claim Palin said that? Do you correct them? Do you think they are morons for believing that? Are you prepared to set up a bunch of conservatives to go forth looking like 'backyard Alaska' idiots? A hefty chunk of FR posters still believe Fluke talked about her sex life and how she was a slut.
You wrote: "Her testimony said she paid some huge amount for tuition."
I said she never mentioned her tuition in her statement.
You said you listened to her statement.
I said "I'd respectfully suggest you've confused what you heard on Rush Limbaugh" with what Fluke said, because she didn't mention tuition. I gave you the quote from Limbaugh and the link.
You say I have my head in the sand. That's quite possible. I agree with you that her statements were carefully crafted liberal nonsense. However, she never made any statement about her tuition, and that was the point of the discourse between the two of us. I don't want you to be embarrassed if you try to tell liberal friends that Fluke talked about her tuition, because she never mentioned it. Rush Limbaugh did.
The first article I read on this subject mentioned that Ms. Fluke resented that some were suggesting that she choose another school that is more affordable and would allow for her or other females to attend law school AND have insurance that would cover birth control. She said she should not have to compromise on the quality of law school. It was very insulting to all those hard working lawyers who did compromise because they could not afford otherwise. This was before Rush jumped on the poor innocent virgin who wants a Catholic university to cover birth control pills as well as sex change operations.
Was Fluke a political activist prior to her testimony before Congresscritters? Was she the president of some women’s club on campus? I think she’s a public figure. And she’s not a physician. She’s not a scientist. She’s a political activist on a mission to force religious institutions to do something that she wants because she thinks it’s a good thing. If she or her list of victims want to attend a school that has insurance that covers birth control pills for birth control purposes, they are most likely going to qualify to attend other law schools. If money is a factor, then a cheaper law school can settle that problem. No need for federal government intervention. No one forces anyone to attend a very expensive university. Do I wanna keep my ovary or do I wanna attend Georgetown? Do I wanna have a cell phone or do I wanna keep my ovary? Do I wanna push this insurance company into providing the coverage that I am supposed to be receiving according to the policy? Do I wanna lose an ovary?
I'm not an expert in defamation law. Being president of a women's club is not going to make you a pubic figure by itself. Let's back up. In this context, "public figure" is a specific term that's used to decide what standard of care the press has to use in researching facts about you before they print them, under the progeny of Times v. Sullivan. "Public figure" doesn't just mean what you, or I, or the conservative on the street wants it to mean for the purpose of defamation law.
She is not a public figure. No way, no how. Pubic figures are pervasively in the media, like celebrities and politicians. She wasn't pervasively in the media before this.
The issue is whether she is a 'limited public figure,' after you do a 'particularized determination.'
Here - and after last night's reading, I'm changing my mind - I think she became a limited public figure under the Gertz text only when she appeared before Congress. Gertz says that people become limited pubic figures when they "thrust themselves to 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.
However, there are cases after Gertz on points like (a) if appearing before a body, like Congress, you generally must do it voluntarily (which she did); and (b) you must avail yourself of the media (which she did, when appearing before the Democrats); and (c) you must actually get media coverage (which she did).
For people who become a limited public figure as a result of advocacy, they are are only a limited public figure with respect to the topic on which you advocate (there are cases saying the rest of their lives, and other topics, are not open).
Before speaking to the Democrats, Fluke doesn't appear to have been a limited public figure on contraception. She was an advocate for liberal women's causes, yes, but she was missing the media coverage component for contraception. At Cornell, she received media coverage when she protested a pro-choice display, and she protested in favor of abortion rights. My reading of the law is that the media coverage of her abortion rights activism would only made her a limited public figure on abortion rights, not contraception rights.
Does that make sense? Any First Amendment lawyers out there?
I really, really don't want to know your source on the 'virgin' information. And Rush didn't reference the article you read, based on a brief review of the transcripts of his shows. Over the course of four days, he simply made up things and claimed that Fluke said them. And people still believe that Fluke said them. People here swear that Fluke said them, because they heard it on Rush.
But she didn't. He made it up.
Did Rush start talking about this girl on Tuesday of last week? I haven’t read his transcripts. The first I heard of him mentioning the Virgin Sandra is on Wednesday.
He talked about her on Tuesday the 29th, claimed she talked about her sex life, and called her a slut and a prostitute. The next day, in response to liberal complaints about 'slut' and 'prostitute,' he really, really went off on her again. The transcript is several computer pages long, even in a small, small font. He used the same terms, and base, and immoral. He keeps attributing to her certain things he claims she said about her sex life - three guys a night, etc. And he gets carried away and just gets worse and worse. And he makes it seem as if she said those things - and he was effective, because have people here who still believe she said them, and that she talked about her sex life.
Then he came back and did it again, on a lesser scale, the next day. Then . . . his attorneys talked with him. Slut is defamatory per se in a number of states. The Georgia Court of Appeals addressed the issue as recently as 2008 - and Limabaugh specifically used it in the connotation that she was sleeping with lots of guys. Prostitute is defamatory per se almost everywhere. Damages are presume. Limbaugh loses a 'reasonable belief' defense. If she sues, he has the burden of proof. He has to show either (a) by a preponderance of the evidence that she is a prostitute or is promiscuous, or (b) that she's a limited public person under the progeny of Times v. Sullivan.
At least that's where I am in my analysis.
Tuesday was the 28th. He talked about her on Wednesday the 29th. The 28th was a primary day. No talk of Sandra Fluke on that day. He talked about her for three days. Not four. If you are going to go off about Rush, then you’d better get your facts straight.
“Then he came back and did it again, on a lesser scale, the next day. Then . . . his attorneys talked with him. Slut is defamatory per se in a number of states. The Georgia Court of Appeals addressed the issue as recently as 2008 - and Limabaugh specifically used it in the connotation that she was sleeping with lots of guys. Prostitute is defamatory per se almost everywhere. Damages are presume. Limbaugh loses a ‘reasonable belief’ defense. If she sues, he has the burden of proof. He has to show either (a) by a preponderance of the evidence that she is a prostitute or is promiscuous, or (b) that she’s a limited public person under the progeny of Times v. Sullivan.”
I don’t know where you get your information. Obviously not Florida law.
First of all the defendant in a suit bears no “burden of proof” - the burden falls on the accuser.
He doesn’t have to show anything - she would have show he knew his allegation to be false when he made it.
Florida threw out its law about defaming a woman’s chastity long ago and rulings of Georgia courts bear no weight in Florida.
No. I hope the weather is nice in Florida, wherever you are. Is calling somebody a 'prostitute' (i.e., accusing them of criminal behavior) still per se defamation in Florida?
Both 'slut' and 'prostitute' are per se defamation in some states. As to the word 'slut,' you could start with Smith v. Stewart, 660 SE 2d 822, 831-832 (Ga. Ct. App. 2008). I sent you to pages 831-832 because that's where the court cites Smith v. Atkins, 622 So.2d 795, 800 (La. Ct. App.1993) and Bryson v. News America Publications, 672 N.E.2d 1207, 1217(I) (1996), "per se" defamation 'slut' cases from other jurisdictions which the Georgia Court of Appeals cites favorably on its way to holding that 'slut' is per se defamatory in Georgia. "Slut" may no longer be defamatory in Louisiana and Illinois, but the court would have to go against precedent there. "Prostitute" is more problematic, because that's not only sexually degrading, that's an accusation of criminal behavior. A bigger ding on the 'per se' meter, no?
First of all the defendant in a suit bears no “burden of proof” - the burden falls on the accuser.
You are absolutely right. I took a shortcut. Assume a per se defamation state, in which once you prove Limbaugh called you a 'slut' or a 'prostitute', and that it was heard by a third party, damages are assumed (because its per se defamation, that's the rule), so now it turns to Limbaugh.
And that point, Limbaugh has the burden of proof of an affirmative defense. Truth? (Showing by a preponderance of the evidence that she is a prostitute or is promiscuous, as I said). Or limited public figure? The progeny of Times v. Sullivan, as I said.
If there's no per se rule in Florida, then I don't think Fluke would choose Florida as the place she would file suit, right?
“I don’t know where you get your information. Obviously not Florida law.
No. I hope the weather is nice in Florida, wherever you are. Is calling somebody a ‘prostitute’ (i.e., accusing them of criminal behavior) still per se defamation in Florida?
Both ‘slut’ and ‘prostitute’ are per se defamation in some states. As to the word ‘slut,’ you could start with Smith v. Stewart, 660 SE 2d 822, 831-832 (Ga. Ct. App. 2008). I sent you to pages 831-832 bec-”
Last first.
Rush lives in Fl and the action occurred there. She would have to file there, and in his home venue.
You appear to have gotten confused by “burden of going forward”.
The case would be DOA by virtue of damages - a required element. How was she damaged? If anything she benefitted.
Is she going to seek $1 plus costs?
Rush gives her $1 and the judge denies costs - case closed.
Or 50 million punitive damages? That requires the act be a crime - the state got rid of its defaming chastity law.
If she asked for big damages Rush would file a motion to dismiss and probably get it.
Defamation is only actionable if it results in harm, loss or damages - otherwise it’s mere free speech.
All that happened to Fluk is that she became Pumpkin Queen of the Loony Left.
Let me jump ahead. Would you agree that publication on the Internet of the transcript of a broadcast is 'publication' for purposes of defamation law, separate and distinct from the broadcast? And that publication of a second day's broadcast transcript is another distinct 'publication'? (My understanding is that most courts apply the 'single publication rule' to the internet, so that each day each transcript is still available for viewing on the internet is not a separate and distinct publication, but that not all courts apply that rule.)
With respect to publication on the Internet, what's the 28 U.S.C. § 1391(a)(2) venue for a federal action brought based on diversity of citizenship ("a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred")? I've never researched where "substantial part of the events [occur]" with respect to publication of an internet site."
I take it you are saying there are absolutely no federal districts other than Florida where Limbaugh is subject to personal jurisdiction under 28 U.S.C. § 1391(a)(3), regardless of where the spoken action occurred.
When you say: "[t]he case would be DOA by virtue of damages - a required element," I believe you are saying this because you are presuming that there is no per se defamation.
You've kindly advised me that Florida does not recognize 'slut' to be derogatory per se, and for that, I thank you.
(1) Does Florida still recognize any form of pe se defamation?
(2) If so, is accusing somebody of criminal behavior per se defamation in Florida? Does it have to be felony criminal behavior or a crime involving moral turpitude, as in some states?
(3) Is calling someone a "prostitute" defamation per se in Florida?
If you don't know the answer to the questions, it's not a problem. I'm tired of the whole Sandra Fluke subject, and Sandra Fluke. I'm rather unfairly asking you these questions instead of researching them myself because you're a Florida lawyer and seem to know something about Florida defamation law.
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