A DISCUSSION OF LAW AND JOURNALISM

No Slander in Rush Limbaugh’s “Slut” Comment

Rush Limbaugh

By Russell Smith

Rush Limbaugh is a dumbass. I can write this without getting sued for defamation because it’s hyperbole. No reasonable person could conclude that I’m stating an actual fact about Mr. Limbaugh. (Feel free to agree, of course, but it’s rhetoric, not provably true or false.)

Following that same line of reasoning, Georgetown University Law student Sandra Fluke can’t sue Mr. Limbaugh for his nasty comments about her – despite what you’re probably reading in the press.

Last week, Ms. Fluke testified at a Congressional hearing about health insurance that without insurance coverage, it costs the women at Georgetown $3,000 to pay for contraceptives during their three years in law school.

Mr. Limbaugh’s response will surprise nobody who’s familiar with his particular brand of loathesome. He said on his radio show last Wednesday that Ms. Fluke is a “slut” and a “prostitute.”  He followed that up on Thursday by calling Ms. Fluke and her supporters “feminazis” (he loves that word) who should publish videos of their sex life in exchange for public subsidies for contraception.

Mr. Limbaugh’s comments were lambasted by the national media, corporate sponsors and politicians. President Obama was so appalled that he called Ms. Fluke to tell her that her parents must be so proud of her and check she was OK..

On Friday, New York Representative Carolyn Maloney (D), while at New York Law School to introduce Senator John Kerry, ventured a bit off topic, remarking that “we will be filing a slander suit against Rush Limbaugh. What he’s really trying to do is silence a young woman. It’s unfair, it’s un-American.”

I’m not sure exactly what Ms. Maloney meant by “we,” especially because New York has no criminal slander statues under which Mr. Limbaugh could be prosecuted by the state. Presumably though, she was referring to a potential civil claim for monetary damages brought by Ms. Fluke. And while Ms. Fluke is reportedly less certain about filing a lawsuit, she did say that she is “entertaining” the possibility.

She shouldn’t bother.  

Here are some legal basics to start. Speech is protected by the first amendment.  Defamation is not.

“Defamation” is a term used to describe both libel, which are written false statements, and slander, which are spoken false statements. Ms. Fluke’s potential lawsuit against Mr. Limbaugh would be for slander.

Traditionally, to make out a claim for slander, the plaintiff needs to prove that the defendant made a statement about the plaintiff to someone else, that it was a false statement of fact, and that it harmed the plaintiff’s reputation.

In many jurisdictions, calling someone a “slut” or any other sexually derogatory term is considered defamatory per se. This means that Ms. Fluke would not even have to allege a specific harm – like the actual inability to get a job or boyfriend because of her new slutty reputation – caused by Mr. Limbaugh’s comments. As the Georgia Court of Appeals held in 2008, calling someone a slut is “injurious on its face.”

Since Mr. Limbaugh’s radio show is broadcast across the country, Ms. Fluke could cherry-pick a jurisdiction in which to file her lawsuit that considers the word “slut” defamatory per se. But that wouldn’t get her very far, because even if the lawsuit were filed in such a jurisdiction, Mr. Limbaugh would have two strong first amendment defenses.

The first harkens back to the Supreme Court’s 1964s landmark decision in New York Times Co. v. Sullivan. The Court held that if the plaintiff is a “public official,” she must prove that the defendant defamed her with “actual malice,” meaning the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court reasoned that public debate inevitably includes some false statements, so without “breathing space” for accidental falsehood, free speech would be unconstitutionally chilled.

Since then, the Supreme Court has applied the actual malice rule to people other than “public officials.” In 1974’s Gertz v. Robert Welch, Inc., the Court explained that the actual malice rule applied to people who “thrust themselves to the forefront of particular public controversies…[and] invite attention and comment.” These people are deemed “limited-purpose public figures” and must allege actual malice to succeed on a defamation claims related to the public controversies they involve themselves in.

So while it has been widely reported that Ms. Fluke’s status as a “private person” would aid her potential slander lawsuit, this just isn’t true. Not because being a private person doesn’t have its legal advantages in defamation cases, but because no court would consider Ms. Fluke a private person in her lawsuit against Mr. Limbaugh. Ms. Fluke’s participation in a Congressional hearing makes her a limited-purpose public figure on matters relating to contraception. Mr. Limbaugh called Ms. Fluke a slut in direct response to her testimony before Congress, so for his comments to be slanderous, Ms. Fluke will need to show that Mr. Limbaugh made them with actual malice – and that’s exceedingly difficult to do.

When filing her lawsuit, Ms. Fluke would need to assert facts showing that Mr. Limbaugh was aware that she was not a slut (which is virtually impossible), or facts that show Mr. Limbaugh  recklessly disregarded a risk that Ms. Fluke was not a slut. Considering the public’s horrified reaction, Ms. Fluke may well be able to show that Mr. Limbaugh’s comments were so careless that he grossly deviated from the steps a reasonable person would have taken before calling Ms. Fluke a slut. Still, the actual malice standard would impose unique and uncomfortable challenges for Ms. Fluke because she would need to affirmatively place her sex life into court proceedings in order to show that Mr. Limbaugh could have known of her chastity.

Even if Ms. Fluke is successful in asserting actual malice, a court would likely look favorably on the first amendment defense that Mr. Limbaugh’s comments were constitutionally protected hyperbole. In 1970, the Supreme Court decided Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, in which a real estate developer engaged in negotiations regarding the sale of a parcel of land with both the city council and another buyer. A local newspaper published several articles describing the developer’s negotiating tactics as “blackmail.” In holding that the articles were protected from a libel judgment by the first amendment, the Court reasoned that “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered the [developer's] negotiating position extremely unreasonable.”

Greenbelt stands for the point that a factual statement is not defamatory unless a person would reasonably believe the facts stated are meant to be true. In determining whether a statement is rhetorical hyperbole, the lower courts have made clear that examining the context of the statement is essential.

This is what Mr. Limbaugh had to say about Ms. Fluke:

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.

She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex. What does that make us? We’re the pimps.

The johns, that’s right. We would be the johns — no! We’re not the johns. Well — yeah, that’s right. Pimp’s not the right word.

***

So Miss Fluke, and the rest of you Feminazis, here’s the deal. If we are going to pay for your contraceptives, and thus pay for you to have sex. We want something for it. We want you post the videos online so we can all watch.

Disgusting? Yes; I don’t want to picture Rush Limbaugh anywhere near a sex tape. Illogical? Definitely; as Ms. Fluke testified, birth control is not just used to prevent pregnancy, but for other health reasons.

But did he assert as fact that Ms. Fluke is a slut or a prostitute? He did not. Mr. Limbaugh has long history of using his radio show to spout rhetoric and hyperbole. All of his listeners were perfectly aware that this was not an actual assertion about Ms. Fluke’s sex life, but a “vigorous epithet” slung at Ms. Fluke in order to advance the argument that her position on contraception is wrong

Is it a good argument? No. But is it one protected by the first Amendment?  Yes indeed.  It’s the American way.

As Supreme Court Justice William Brennan wrote, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

In the end, the backlash was too much for Mr. Limbaugh, who issued this apology on Saturday night.

He’s still a dumbass.

Comments

34 Comments »

34 Responses

  1. Atomik Snark says:

    I am neither an attorney, nor do I play one on tv. I respectfully disagree, however, with your argument:

    Mr Limbaugh asserted that Ms Fluke said she was ‘having so much sex she can’t afford the contraception’. He then dwelt on and expanded this theme, at very great length, in the harshest possible, purely personal terms, for fully three days.

    Yet, clearly and explicitly, literally in the very first minute of of her testimony, readily available on YouTube amongst many other readily available sources, Ms Fluke states that she is speaking as ‘a third year student at Georgetown Law School’ and ‘a past president of Georgetown Law Students for Reproductive Justice (LSRJ)’.

    She then further states ‘We as Georgetown LSRJ are here today’, also clearly indicating she is speaking not as an individual nor of her individual experience, but as a spokesman for LSRJ and other activist groups, to report the experience of other women. She speaks consistently in the plural, indicative of that representation. She speaks of herself in the singular only when she refers to what she, as an individual, knows of the situations of others, and of the general issues. No reasonable, rational person who had listened, however casually, to the very first two-and-a-half minutes of her testimony, would even remotely conclude she is speaking from her personal experience, with her statements rather of the form, for example, ‘When I look around the campus, I see women… I have heard more and more of their stories… they tell me they have suffered finanically, emotionally, and medically because of this lack of coverage…. I want to thank you for allowing them – them, not me – to be heard.’

    It is then immediately after these statements that she then says:

    ‘Without insurance coverage, as you know, contraception can cost a woman over $3,000 during law school. For a lot of students who, like me, are on public interest scholarships, that’s practically an entire summer’s salary. Forty-percent of the female students at Georgetown Law reported to us that they struggled financially as a result of this policy.’

    The greater part of Ms Fluke’s testimony then centers on examples of women with medical conditions unable to access appropriate treatment.

    It would seem to me that, given Ms Fluke’s actual testimony, to engage in a prolonged, vicious, personal attack on Ms Fluke as did Mr Limbaugh clearly evidences an absolute and utterly reckless disregard for the truth – I can’t, in all sincerity, think of any other accurate characterization given the particulars.

    That Mr Limbaugh, presumably a man of at least average intelligence and also presumably of some small skill with the English language, made the personal attacks as he did, for three days running, must perforce either reflect and evidence Mr Limgaugh’s not having troubled himself to listen to or so much as glance at a transcript of even the first two-and-a-half minutes of Ms Fluke’s testimony in reckless disregard and in actual malice, or that, having so listened and/or at least glanced at a transcript, that he willfully, and with actual malice, chose to engage in personal defamation in reckless disregard for the truth.

  2. WRiter11 says:

    I’ll make this quick, Atomik Snark.

    “I am neither an attorney…”

    The only relevant portion of your comment.

  3. George says:

    The Ollman test would very probably protect “slut” as hyperbole or opinion, and Gertz, Hutchinson and Wolston pretty mush solidify her status as a limited-purpose public figure…

    …but isn’t “prostitute” the potential for libel? Ollman (Milkovich) probably wouldn’t protect that, would it? Because it’s factually can be established?

  4. Prostitute says:

    You’ve conveniently left out that Limbaugh called her a prostitute, and since prostitution is illegal, has accused her of being a criminal. Do you seriously believe that it would be difficult to prove malice?

  5. i am an attorney says:

    For the sake of argument, what about this sentence in particular?: “She’s having so much sex she can’t afford the contraception.”

    Would you consider that to be part of the chain of conclusory hyperbole (she testified that she believes that birth control pills are very expensive for many women at Georgetown, therefore she must be having lots of sex [although this is not true, given the way the pill works], therefore she is a slut)? Or is there a plausible argument for viewing that statement in isolation as not being hyperbole, but simply an assertion of fact? Calling someone a slut is different from saying that person has a lot of sex, just as, for instance, someone calling Mr. Limbaugh a drug addict would be different from saying he (currently) consumes Oxycontin frequently.

  6. Alessandra says:

    “Rush calls a 21-year-old woman on his show a slut, and a prostitute.”

    In watching this political dog and pony show, I asked myself if the liberals who are railing against Rush are against pornography or if they railed against porn producers and consumers as they are railing against Rush. The answer is obviously no.

    Millions of people call women sluts and prostitutes through porn every day, and, as you know, a lot worse. On top of it, they all think that sexually degrading people (not only women) through pornography is great.

    I don’t see anyone with a liberal mindset complaining about it. I don’t see all the liberal flookies who are speaking as if they were respectful prudes about sexuality complaining about pornography.

    Why is it that when liberals call women sluts, the b-word, the c-word, and spend millions of hours fantasizing how they are going to degrade, whip, and rape them in pornography, it is all OK according to liberals? But when Rush calls a sorry, Gen Yer self-entitlement twit, a politically planted Democrat shill a slut, it is, all of a sudden, not OK?

    If you call all black people niggers it’s OK, but if you call one specific individual a nigger it’s not OK?

    Only liberal refuse to face how deformed their minds about about sexuality. I don’t think it is possible for people who endorse and/or stay silent about the sexually deformed discourse in pornography to be more hypocritical when they criticize Rush.

    After all, he only did in public what they do in private a million times a day.

    Who is the greatest affront to decency?

  7. Jerry says:

    Rush is so far off base it’s simply mind blowing. Like the first poster indicated, Sandra Fluke was speaking as a former leader of Georgetown Law Students for Reproductive Justice (LSRJ). She is speaking plurally, as a member of a group.

    For Rush to twist all of this to a) a singular discussion about herself (which it clearly never was) and to b) make it a discussion about “how much sex” anyone was having, bears ZERO relationship to the Congressional record.

    All of this ‘spin’ (to put it… diplomatically) is nothing more than a absurd construction in Limbaugh’s dark and twisted mind. An alternate universe.

    Most of the country was appalled by this behavior and advertisers were right to disassociate themselves from this misogynistic crap. Now it should be up to the station owners (Clear Channel’s Premiere Networks) and the investors (Bain Capital) to decide if they want to continue to support not free speech, but hate speech. That is up to them. (Could they end up making Roger Ailes look good by comparison, by not doing the right thing after he as least fired Glenn Beck for calling Obama a racist?)

    WIth the three day badgering Rush gave an innocent girl, it’s hard to see why she wouldn’t sue. With Clear Channel and Bain’s deep pockets, they would have to settle with her for a substantial fee just to get all this behind them. And we all need a better explanation of the law on this – the story above does not ring fully true.

    Lots of falsehoods in the comments, but suffice to say, this is not over yet.

    Will see sue? Should she sue?

    $10,000 bet?

  8. Alessandra says:

    WIth the three day badgering Rush gave an innocent girl, it’s hard to see why she wouldn’t sue.

    “an innocent girl?” LOL

    a five-year-old, is she?

    RUSH: Did anybody ask like I’m gonna ask now:
    “Why did Sandra Fluke want to go to a Catholic college?

    Georgetown’s a Catholic college. Why go there? Well, from the Washington Post: ” Fluke came to Georgetown interested in contraceptive coverage. She researched the Jesuit college’s health plans for students before enrolling. She found that birth control was not included.”

    Quote, “I decided I was absolutely not willing to compromise a quality of my education in exchange for my health care.” So why the hell go to Georgetown? Why didn’t she go someplace else? She wanted to go there to stir it up!

    She’s a plant, an anti-Catholic plant from the get-go on this.

    Here we have a woman, Sandra Fluke materialized out of nowhere, it seems, to testify before a committee to talk about the Republicans denying women their contraceptives.

    [on an election year!]

    But I finally asked myself, why go to a Catholic college? You want to have all the sex you want all day long, no consequences, no responsibility for your behavior, why go to a Catholic college?

    Washington Post: “Fluke came to Georgetown University interested in contraceptive coverage.”

    Now, stop and think of that for a moment. When you are reviewing schools for your kids to attend, do you look around at contraception coverage?

    LOL

    The Washington Post reports that Fluke “researched the Jesuit college’s health plans for students before enrolling, and found that birth control was not included.” And she enrolled anyway.

  9. Alessandra says:

    “Most of the country was appalled by this behavior and advertisers were right to disassociate themselves from this misogynistic crap.”

    It’s interesting that much of this same country is not bothered at all by the same misogynistic crap (and much worse) that is produced and consumed in millions of pornographic materials 24/7.

    Can you spell hypocrite?

  10. Edgar ( lawyer) says:

    Well spoken. But I think your review of the First Amendment defense was a little weak. lets’ look at the real world of litigation. She has a winner in this case.
    She files slander,per se slander and other defamation claims in a state with a good per se defamation statute and supporting case law. She also looks at a federal law claim as well. She likely setlles the case for a nice sum which she uses to pay for her law education. Mr Limbaugh’s big problem; how to pick a jury?

  11. elisabeth (lawyer) says:

    The PR from all of this will be great for this student, in reality. Think about it. She can coast on this.

    And not so great for Rush. http://politicalticker.blogs.cnn.com/2012/03/05/limbaugh-advertisers-jump-ship/?hpt=hp_c2

  12. Max Kennerly says:

    “But did he assert as fact that Ms. Fluke is a slut or a prostitute? He did not.”

    Except that he did assert that Ms. Fluke was a slut and a prostitute, and then railed about his tax dollars going to pay for all the sex she was having. Merely claiming it’s an “opinion” doesn’t grant him immunity; the statement plainly asserts and implies that Ms. Fluke is promiscuous and that she sells sex for money.

    I think you should review Milkovich v. Lorain Journal, 497 U.S. 1 (1990) and revise your post. Per Milkovich, “As Judge Friendly aptly stated: “[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words `I think.’””

  13. SM says:

    “”WRiter11 said: (Sunday 04 March, 2012 )
    I’ll make this quick, Atomik Snark.

    “I am neither an attorney…”

    The only relevant portion of your comment.””

    Um, I am an attorney and a fellow Georgetown graduate. While your 3L legal analysis is cute, it’s not really an objective brief so much as it is the best defense Rush can make. Also, you’re flat out wrong about her having the burden of proof to show that he knew it was false – he has the burden of proving that it was true. Why not a reasonable belief standard? Because you’re right, stating that a woman engages in sexual promiscuity OR criminal acts (i.e., prostitution) is slander per se AND it removes the potential to use a “reasonable belief” defense in many of the aforementioned jurisdictions (as it should). And I don’t think taking birth control qualifies as reasonable indicia of prostitution.

    So she doesn’t have the burden of proof on ANY facts in dispute. Rush has the burden of either 1)showing by a preponderance that she is a prostitute or is promiscuous or 2) using a 1974 Supreme Court case to argue that she is a non-public person who “[is] nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Good luck with that one – anyone who testifies before congress can be skewered now? The 9th circuit will have a field day with that one. Shit, any circuit would. Okay I’m going to allege that I am pretty sure Roger Goodell sneaks into players’ rooms at night and hits them in the head with clubs to concuss them.

    So while you would make a good defense attorney, don’t act like you’re being objective. Oh and good luck on the NY bar if you’re going to take sides in your essays.

    Note: these are my personal views, they are not legal advice and should not be taken as such, and do not represent the views of my employer or Georgetown University Law Center.

    And don’t bother tracing my IP, I’ve proxied multiple times to avoid trolling.

  14. first amendment attorney says:

    SM -
    No reason for you to have such a nasty comment. I note that this piece was posted on the site’s views room which is for opinions. I don’t think that this was an accident.
    And I work at a media law firm. Though we’d gladly take Sandra Fluke’s case for the good pr it would get us (and the possible settlement money), legally, the author’s right. This was clearly hyperbole. It’s not the author who wasn’t objective, SM. It’s you.

  15. Atomik Snark Still Not An Attorney says:

    I believe that if one listens to Limbaugh’s broadcasts or reads a transcript of same, while it might be possible to argue that his repeated statements that she was ‘a prostitute’ were hyperbolic, I would think (as a layperson, granted) that the fact that he explicitly defines ‘prostitute’ as her having by his representation insisted she be paid for having sex would be slanderous. Also, I believe a listener to the broadcasts and/or a reader of the trancripts would even more clearly conclude that he is not employing the word ‘slut’ hyperbolically. Rather, he chose to ignore the clear fact that she was unambiguously speaking not of herself but for others in order to make a direct and explicit personal attack upon her as an individual, stating that as she was clearly having ‘so much sex’ she was ‘a slut’. I would suspect that this would even more clearly constitute slander, but, as I’ve said, I make no pretense at legal expertise – please feel free to correct my understanding of applicable precedent, etc.

  16. Steve says:

    It’s not a great case, but I don’t think it’s a slam dunk for Limbaugh either. It could go in her favor at the trial court level, even if it’s something that would be overturned on appeal.

  17. Dwelf Gimble says:

    The author misses the point. If Ms. Fluke wanted actual damages, she probably wouldn’t even bother with any criminal complaint. As it is, this suit would be to demonstrate, in the sharpest relief possible, and reprove publicly the kind of baseness Mr. Limbaugh slings daily on his “show.” That would be the merit of the case.

  18. Dr. Arbuthnot says:

    SM:
    Since when does a plaintiff not have the burden of proof?. Always, in the American legal system. A burden may shift, but the intial burden is the plaintiff’s. Brush up on.Philadelphia Newspapers v. Hepps (1986).

  19. Doctor J says:

    Whether Ms. Fluke could win a suit for slander is not so much the issue as Clear Channel’s continued employment of Mr. Limbaugh. Your description of him as a “dumbass” is too polite. He is a blight on civil discourse and has been for some time. This time he has gone too far; Clear Channel should seize the opportunity to climb out of the sewer he has created and fire him. Then justice would be served.

  20. Tom says:

    I practice Constitutional law. Ms. Fluke simply has a strong case against Limbaugh for Slander Per Se, a tort.

  21. Tom says:

    She may also have a case against Clear Channel.

  22. Tom says:

    I’ve also taught Media Law at a top state university.

  23. Tom says:

    ipse dixit

  24. Tom says:

    Read your Prosser.

  25. Penny says:

    Looks like Gloria Allred thinks she has a case. I really don’t know if I trust her, though. She thought the mistresses of Tiger Woods had reason to sue him, if I recall!

    http://www.mediaite.com/online/gloria-allred-wants-rush-limbaugh-to-be-prosecuted-for-defaming-sandra-fluke/

  26. Marcel Kincaid says:

    “she would need to affirmatively place her sex life into court proceedings in order to show that Mr. Limbaugh could have known of her chastity.”

    So one is either chaste or a slut? You and Limbaugh have a lot in common.

  27. Marcel Kincaid says:

    Dr. Arbuthnot said: (Tuesday 06 March, 2012 )

    SM:
    Since when does a plaintiff not have the burden of proof?.”

    What a remarkably dense strawman … it’s as if you plucked one phrase from SM’s comment while ignoring all the rest. Slandering Ms. Fluke and knowing that she is not a slut are not the same thing. Sheesh.

  28. Marcel Kincaid says:

    “In watching this political dog and pony show, I asked myself if the liberals …”

    When sophistic defenders of Rush Limbaugh like Allesandra attack liberals, it just makes liberalism look all the better.

  29. Marcel Kincaid says:

    WRiter11 said: (Sunday 04 March, 2012 )

    ‘I’ll make this quick, Atomik Snark.

    “I am neither an attorney…”

    The only relevant portion of your comment.’

    Textbook ad hominem fallacy.

  30. Curtis says:

    “She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex.”

    That statement was not hyperbole. It was at the core of Limbaugh’s argument. And it was slanderous — damaging to Flukes reputation, and without any basis in fact or proof.

  31. Curtis says:

    “she would need to affirmatively place her sex life into court proceedings in order to show that Mr. Limbaugh could have known of her chastity.”

    No, LImbaugh has committed slander unless he can produce the proof that he has that is his basis for claiming “She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex.”

    That is a harmful, factual statement. It is not hyperbole. Limbaugh litterally states that Fluke has sex so often that she can’t afford the contraception, and that Fluke is asking other people to pay her to have sex. If Limbaugh has no proof of that statement, it is defamation.

  32. Curtis says:

    The Gloria Allred case is different. Allred is claiming the State of Florida has basis to sue Limbaugh based on some obscure Florida State law against insulting women. That is different from Fluke suing Limbaugh for personal defamation. Defamation is not a state criminal issue, but a civil issue where the complaint must originate from the person harmed.

    All we can do is wait until the statue of limitation for Limbaugh’s defamation behavior expires, probably about 12 months, to see if Fluke and her lawyers decide it is worth bringing to court or not.

  33. Jonathan Priest says:

    What about Limbaugh distorting her testimony, claiming she was advocating for free birth control paid for by taxpayers when that’s not at all what she was testifying about?

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