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To: ding_dong_daddy_from_dumas
Dumas, you asked about the legal question of whether Fluke can be called a “slut” since she's not necessarily a public figure.

The short answer is that Fluke has no legal case and she knows it, which is why she's using the court of public opinion.

This has direct practical application to us. If we didn't have New York Times v Sullivan, the key case in modern American libel law, much of what appears on Free Republic could get Jim Robinson into a lot of trouble.

Here's the longer answer, which may be of help to people who worry they'll get in trouble for what they say.

Under the legal standards of New York Times v Sullivan and subsequent case law, Sandra Fluke is, at a bare minimum, a “limited public figure” and probably would now be considered a public figure since she has repeatedly sought public attention for herself and her views.

That means she's basically fair game for almost anything thrown at her unless she can prove the allegation is not only

1) false

but also made with

2) actual malice and
3) reckless disregard for the truth.

Those three tests for a libel lawsuit against a public official, public figure, or limited public figure are almost impossible to meet. There are reasons the National Enquirer and similar tabloid publications get away with what they do to celebrities and other public figures.

Before we yell and howl about the courts enabling media irresponsibility, let's look at why American libel law protects irresponsible behavior. As a member of the media, I support New York Times v Sullivan. Go look at the John Peter Zenger case in colonial America, which precedes and underlies our First Amendment — elected officials should not be able to use the courts to stifle critics. Zenger was thrown into jail for publishing articles exposing corruption by the colonial governor of New York, and his lawyer convinced a jury to ignore then-existing British law and refuse to convict him because the articles about the governor's corruption were true.

However, even if Fluke is considered a “private figure,” there's no way for her to win a libel lawsuit unless she can show that an allegation made about her was actually false. Calling someone a bad name, even using severe terms of abuse, does not rise to the level of libel. A case about a century ago involving the “Cherry Sisters” vaudeville act established the legal principle that statements of opinion, no matter how severe they may be, are not libelous.

Bottom line: If the word “slut” is a factual allegation, Fluke would have to prove it factually wrong. If the word “slut” is a statement of opinion, she has no case at all.

As a law student I'm sure Fluke already knows all of that. She may win a case in the court of public opinion but she's not going to win in a court of law.

35 posted on Monday, March 05, 2012 3:36:16 PM by ding_dong_daddy_from_dumas: “That is a legal question, and I am certainly no expert. But I can imagine the argument: “Should a citizen who comes before congress be subject to such damaging claims with no legal remedy?” (They could try to make the case that her fame was not really her own doing, but it happened beyond her control). And as I have said before, the Left excels at judge-shopping. Her object would not be primarily to win in court (although Limbaugh might settle out of court), but to create a legal/political media circus. I hope this does not happen, because I don't see it as a political plus for conservatism, unless some character like Hillary gets caught doing something illegal or undeniably sleazy (from the point of view of “moderates”).”

105 posted on 03/06/2012 6:07:28 AM PST by darrellmaurina
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To: darrellmaurina
However, even if Fluke is considered a “private figure,” there's no way for her to win a libel lawsuit unless she can show that an allegation made about her was actually false.

Well, after an Obama-sympathetic bankruptcy court threw out seemingly solid precedents to reward auto unions, I hesitate to predict with certainty what a court will do, but I think Fluke should lose such a court case. Another question is whether Obama and minions could use the case to win a propaganda struggle.

112 posted on 03/06/2012 1:53:30 PM PST by ding_dong_daddy_from_dumas (Fool me once, shame on you -- twice, shame on me -- 100 times, it's U. S. immigration policy.)
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