Posted on 03/05/2012 10:38:29 AM PST by Scoutmaster
I've seen references in some of the threads on Rush Limbaugh, Sandra Fluke and Limbaugh's apology, wondering whether Fluke will sue Limbaugh for defamation or libel. I'm not an expert in this area, but here are a few thoughts.
First, for those who haven't read Fluke's testimony, and although it may well have been factually incorrect in many ways, Fluke never mentioned her own sex life or use of contraceptives. She was going to be called by the Democrats as a expert primarily how women with medical issues that could be treated by oral birth control were being denied 'medical care' in the form of oral birth control because it was also a contraceptive.
Right after being introduced, Fluke said:
"When I look around my campus, I see the faces of the women affected by this lack of contraceptive coverage. [I]n the last week, I have heard more and more of their stories. On a daily basis, I hear yet from another woman from Georgetown or from another school or who works for a religiously-affiliated employer, and they tell me that they have suffered financially and emotionally and medically because of this lack of coverage.“And so, I’m here today to share their voices, and I want to thank you for allowing them – not me – to be heard.
Fluke then went on to share the stories of six other women (who may or may not exist). As an example, Fluke told of a friend who allegedly has polycystic ovarian syndrome, and her birth control prescription is 'technically covered by Georgetown’s insurance because it’s not intended to prevent pregnancy', but the 'gay' friend was denied coverage because the insurance company interviewed her and decided that she really wanted birth control to prevent pregnancy.
The stories were almost all about women who allegedly had medical issues that should have been treated with oral contraceptives, but payment for the medical treatment was allegedly denied because it would have meant paying for a contraceptive. Most importantly, none of the stories was about Fluke, Fluke's sex life, Fluke's use of contraceptives, Fluke's cost of contraceptives, or Fluke's need for contraceptives.
Remember, Fluke was supposed to be an expert on the issue of why oral contraceptives were needed for all of these non-sex purposes.
When Rush Limbaugh called Fluke a "slut" and a "prostitute" repeatedly over the course of four days, he constantly made specific allegations about what Fluke had said. Among the four days of comments, Limbaugh said Fluke was "a woman who is happily presenting herself as an immoral, baseless, no-purpose-to-her life woman." Which is odd, because Fluke never spoke of her own life. Rush claimed Fluke had testified that "she's having so much sex she can't pay for it," although Fluke never said she was having sex or using contraceptives. Limbaugh said things like:
What does it say about the college coed Susan Fluke [sic], who goes before a congressional committee and essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.
None of the statements about her sex life that Limbaugh attributed to Fluke were true, because Fluke never spoke about her sex life or her use of contraceptives. But Limbaugh repeatedly called Fluke a "slut," and a "prostitiute" based on her statements that he made up.
Rush blew it. He made hours of specific demeaning (at least to conservatives) allegations about what Fluke said, and those allegations weren't true. And he called her insults (at least to conservatives) based on the false statements he attributed to her.
So what if she sues for defamation? It's clear that Limbaugh made hours of claims attributing statements to Fluke that she simply didn't make. If you deny that then you need to read Fluke's statement and compare it with the statements Limbaugh attributes to her. It's hard for Limbaugh to assert that he didn't intend 'slut' to be a bad thing. He said he'd be ashamed of her if she was his daughter, and many similar comments. And let's put aside for a moment the issues of whether she suffered damages and how she would prove them.
Since New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a public figure suing for defamation must prove that that the defendant/publisher had 'actual malice,' which means the defendant must have known that the statement was false or acted in reckless disregard of its truth or falsity.
Was Sandra Fluke a public figure? Simply appearing before Congress, or appearing in the public, isn't enough to make one a public figure. If Sandra Fluke had been subpoenaed to appear before Congress and had been required to make her statements as testimony, she almost certainly would not have been a public figure. Fluke also wasn't a standard public figure at the time she gave her presentation because she hadn't earned that role by being 'pervasively' in the news.Gertz v. Robert Welch, Inc., 418 U.S. 323, 345. Without further research into the issue, it sounds to me as if Fluke fits this description; she has worked in this area and agreed or offered to appear before Congress. And you can't kid anyone; we know it was in order to influence the issue of the Obamacare mandate on payment for contraception.
If Fluke is a public figure, what is the standard she must prove? The actual malice standard requires that she prove Limbaugh knew that the statement was false or acted in reckless disregard of its truth or falsity.
"Actual malice" is very had to prove. It goes beyond mere neglect in fact-checking, or not meeting professional standards. Generally the publisher must have an actual doubt as to the truth of the statement, or a "high degree of awareness of . . . probable falsity.'" St. Amant v. Thompson, 390 U.S. 727, 731 (1968)
So . . . I'd love to hear some experts in the area of defamation of public figures weigh in, but my quick-and-dirty is that if Fluke were not a public figure, it's clear that Limbaugh defamed her repeatedly. (And we'd get to the issue of whether Fluke could prove damages; in her sphere, being called a 'slut' by Rush Limbaugh may have improved her future earning potential.) He attributed demeaning statements to her that she simply didn't make, and he did it repeated on national/international radio over a period of four days. Then he called her some unflattering terms based upon his own false attributions.
Fluke looks like a limited pubic figure for the purpose of her presentation. Did Limbaugh act with a high degree of awareness that his attributions were probably false? That's a very tough standard to meet, although just because the standard's tough to meet won't keep a liberal attorney from suing Limbaugh and keeping this issue in the headiness and Limbaugh on the hot seat.
Okay. But does that mean that she talked about how much sex she was having and that, therefore she's a slut? And does that mean she talked about how much sex she was having and that she needed contraception for it and wanted somebody to pay for her sex, so she's a prostitute?
No. Limbaugh could have attacked her statements about the medical conditions and all of that.
He chose to attack her personally. And he did so by claiming that she made certain specific statements to Congress (which she didn't make), and then said she was a slut and a prostitute because of the statements that she really didn't make.
Limbaugh struck out.
And on this board, people keep repeating (and making up) false things that she supposedly said. That bothers me as a conservative. I thought our currency was facts.
For what?? Exercising his 1st Amendment rights!!???
For what?? Exercising his 1st Amendment rights!!???
Excellent point. A kind of "suicide bomber" plaintiff, who risks no financial skin of her own, because even if she gets slapped with court costs, rich commies would come out of the woodwork, not only to pay her legal expenses, but also to set up a scholarship fund in her name.
And Obama and the leftist media would love it.
I realize that now. I thought when the word “testimony” is used in a legal setting, such as before Congress, it meant statements made under oath. The very word “testimony” in reports of this matter is dishonest. It was not testimony, it was just unsubstantiated gossip.
If she sues and wins against Limbaugh, then all I can say is that Sarah Palin will be raking in a lot of dough from all of her lawsuits.
You're required to conducted a particularized determination, according to Bruno & Stillman, 633 F.2d 583 (1980). So not everybody's going to agree on whether Sandra Fluke is a limited public figure.
And the fact that everybody knows who she is now doesn't help Limbaugh. The question is whether she was a limited public figure when she completed her presentation, and before Limbaugh launched into her.
That's because, if the main controversy that made the person a public figure is the alleged defamation itself, then the defendant can't point to that controversy as making the plaintiff a limited public figure. "Those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure." Hutchinson v. Proxmire, 443 U.S. 111, 135.
I imagine a lawsuit would not even start until after the election.
If she is considered a public figure under the law like Palin, Rush, Obama are, then it's pretty hard to sue for slander under the law.
Rush has apologized for losing it. He was wrong to lose focus. I did it, too. I can understand Rush not addressing the medical claims. What does he know about PCOS? I knew nothing about it until recently. I educated myself on the subject, however. I want to know more. I want to know why there seems to be an explosion of PCOS diagnoses. I want to know the relationship between birth control pills, including morning after pills, and the increase in ruptured ovarian cysts. I want to know long term effects of the “safe” morning after pills. I want to know sales rates for morning after pills. But Rush can’t talk about these things. Women do not talk about these things except on anonymous message boards on which they write panicked personal stories of the side effects they are experiencing. Where are the enterprising journalists? Would big media publish a story that made big pharmacy look bad?
The story sounds made up, or at the very least, exaggerated and distorted. It sounds way too much like a perfect victim story to be true.
What we do know is that Fluke is no expert on PCOS or any of the topics she gossiped about. She does not know anything about birth control and PCOS.
And let'[s remind the women that sexual transmission of disease is a bigger problem and you should be using condoms, too....but it's not about sex, or disease or the remote possibility of abstinence....it's about FREE!!!!!
She's clever....mixing medical conditions with "sex".
Something I noticed....the rhythm of Fluke's dissertation....sounds identical to Hillary's speech....I think as valedictorian perhaps....(I almost think Hillary wrote this for Sandra or perhaps its an old Hillary speech that was never "performed". What was in Hillarycare about this subject???
The story sounds made up, or at the very least, exaggerated and distorted. It sounds way too much like a perfect victim story to be true.
What we do know is that Fluke is no expert on PCOS or any of the topics she gossiped about. She does not know anything about birth control and PCOS.
She used a lot of "we" for someone who meant "they".
“The story at the Cybercast News Service characterized a portion of her testimony as sounding like (based on her own financial figures) she was engaging in sexual activity so often she couldn’t afford it. I focused on that because it was simple trying to persuade people, change people’s minds.” - Rush Limbaugh
It would be hard to win, since sane people would realize that Rush has done a lot of "offensive satire" in his career. But the object would not be to win in court, but to damage the conservative cause in the court of public opinion.
It seems to me that the Left is adept at judge shopping. And she is a law student. How convenient.
She is a public figure, and Rush already issued 2 apologies in a couple of days. A suit will backfire on the Dims, so it won’t happen.
She's not. She's not 'pervasively' in the news and public eye, so she's not a public figure under Times v. Sullivan.
The question is whether she's a limited public figure. It's true that she thrust herself into the spotlight on this issue, but was she really a public figure when she ended her presentation? How many people here knew who she was by name when she ended her presentation and before Limbaugh opened his mouth?
Federal law's clear that any of the notoriety she got as a result of Limbaugh's comments can't be used in determining whether she was a limited public figure for purposes of figuring out whether Limbaugh defamed her. You have to look at whether the public generally knew who she was before Limbaugh said anything about her.
I doubt one person out of 1,000 could have identified her, even after she finished speaking. And I mean as "oh, she's the lady who spoke about contraception before Congress" (well, the Democrats in a face proceeding).
I now think the connection is to Hillary. Hillary had a couple of bills in 2006 as Senator for free contraceptives and female services for poor women.
It might not happen, if only for the reason that Fluke is getting camera-shy. But if she did sue, it would keep the media talking about what the Left wants.
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