A DISCUSSION OF LAW AND JOURNALISM

Slander Lawsuit Won’t be a Fluke

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By Ryan Morrison

Judging by ratings alone, Rush Limbaugh’s radio show was crumbling. Desperate for attention, Mr. Limbaugh took a ride on a carousel of scandals, ranging from claims that Michael J. Fox was faking symptoms of Parkinson’s disease to an ill advised reference to our president as “Barack the Magic Negro.”

Most recently, on February 29 Mr. Limbaugh not only decided to call Sandra Fluke, a Georgetown  law student testifying before Congress on contraception’s role in women’s health, a “slut” and a “prostitute,” but in the process, he also showed that he has zero understanding of how birth control works. That’s no big surprise, though, since facts seldom have any bearing on his opinions. His quote:

“Three thousand dollars for birth control in three years? That’s a thousand dollars a year of sex — and, she wants us to pay for it. … They’re admitting before congressional committee that they’re having so much sex they can’t afford the birth control pills! What does it say about the college co-ed Sandra Fluke, 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.”

Mr. Limbaugh seems to believe that you take some pills every time you have sex, when in fact, as every seventh grader who’s taken a health class knows, a woman on birth control takes one pill every day to adjust her hormones in a way that makes her unable to conceive. It doesn’t matter if she has sex once a year or ten times a day, it’s still one pill, every day.

Middle school science aside, Mr. Limbaugh still said some pretty terrible things about a woman who was testifying on the need of birth control for her friend who suffered from ovarian cancer. The media has advised Ms. Fluke to sue Mr. Limbaugh with some outlets already predicting an easily won slander suit. This latest offense in the Rush Limbaugh Horrors Hall of Fame has already cost him several of his biggest sponsors. And while fellow LASIS reporter Russell Smith disagrees, I think it will cost Mr. Limbaugh even more.  

According to Black’s Law Dictionary, slander is “a defamatory assertion expressed in a transitory form such as speech.” In contrast, libel is that same assertion but expressed in a fixed form, such as writing.

The courts have split on where radio falls, but slander is harder to win. Basically, slander is claiming something that’s nasty and untruthful about someone else. To stop everyone on a New York City sidewalk from suing each other for slander, it can’t be just an opinion but must be asserted as fact.  And actual harm (damages) must be proved by the victim, which is hard to do.

But there are exceptions to having to prove actual harm.  If something is considered “slander per se,” in other words, speech so obviously despicable that courts presume that the victim suffered harm, then no special damages need to be shown.

Here are the four horrible slander per se applies categories: 1) A crime involving moral turpitude; 2) A loathsome disease (usually understood to be a sexually transmitted disease);
3) Conduct that would adversely reflect on one’s business or profession; and (here’s the money shot), 4) Unchastity (particularly concerning women). And we have a winner!

Mr. Limbaugh’s comments easily fit into the definition of slander per se, which means we now must examine if our jolly friend has any defenses he can assert. The four main defenses against slander are: 1) opinion; 2) truth; 3) privilege and malice; and 4) public figure doctrine. Since he very clearly said, “It makes her a prostitute,” (not “I think she is prostitute”), and since, ladies and gentlemen, the evidence will show that Mr. Fluke is not a prostitute, neither the opinion nor the truth defense have a chance. The third defense, privilege, usually refers to speech that is privileged, such as testimony offered in court.  Again, not gonna’ work here. And did you ever hear of third year law student Sandra Fluke before?  Me neither.  Nor did anyone except her friends and family.  By any stretch of the imagination, she’s not a public figure.

Our legal system, though, has recognized something called a “limited purpose public figure.” And this was the crux our own Russell Smith’s piece.  He believes Ms. Fluke falls into this category, however, as much as I respect Mr. Smith and enjoy his writings, I whole-heartedly disagree.

When determining who is a limited purpose public figure, the courts have looked at the following criteria: 1) The depth of the person’s participation in the controversy; 2) The amount of freedom the person has in choosing to engage in the controversy; and 3) Whether the person has taken advantage of the media to advocate her cause. Ms. Fluke only participated in one minor testimony and did not use the media at all until Mr. Limbaugh attacked her and put her in the spotlight. The kind of circular reasoning necessary to say she became a LPPF from the slander itself, and therefore should be considered a LPPF in regards to the slander, has never been used to win in court. While she freely chose to participate in the controversy, that factor has also never been used to prove someone’s status as a LPPF, only disprove it. I would be shocked if any court put Ms. Fluke in this category.

Further, understanding this is a difficult thing for a court to determine, it is important to see who has received LPPF status in prior cases. There was a retired general who advocated on national security issues, a scientist who was prominent and outspoken in his opposition to nuclear tests, and a nationally known football coach accused of fixing games. These were all respected and well-known members of their fields.  A law student speaking a single time on women’s health issues isn’t even remotely a public figure, even of the limited purpose variety.

So watch out, Mr. Limbaugh – when both President Obama and Speaker John Boehner agree you crossed the line, you’ve probably crossed the line.  And sue away, Ms. Fluke. The law is on your side.

Comments

7 Comments »

7 Responses

  1. richard myers says:

    Ryan Morrison, i think you need to read the link more carefully, and rewrite your first sentence with regard to date.

  2. Editor says:

    @ richard myers: You’re right, the article was from last May 2011. We kept the link, removed the words that moved the timeframe to 2012. Thanks so much for letting us know.

  3. J. D. says:

    What about the allegations that she’s a “slut?” Does this mean that, if she brings suit, a court would have to hear evidence about her sex life to prove or disprove a putative defense of “truth?”

    And really, what’s wrong with being a woman who wants to have and enjoy sex? It is certainly not a bad thing!

    I’m not saying that what Limbaugh said is not offensive and not worth suing over (because it is horrifically offensive), but the response to it highlights a worrying change in rhetoric. The pill is a good thing partially *because* it allows women to have sex as much as they want while decreasing the risk of conception.

    The Pill’s health benefits are great, but the sexual freedom it allows is at least equally important to its health benefits (certainly, in terms of aggregate impact, it is probably *more* important) and by abandoning that rhetoric in favor of a more “moralistic” approach they’re allowing those opposed to birth control to control the tone of the proceedings.

    This article says this better than I can: http://www.bilerico.com/2012/03/in_defense_of_sluts.php

  4. Jolana Head says:

    Please, if there is any legal way to put a stop to Mr. Limbaugh, do it. He attempted to silence important information regarding women’s health.
    For Mr. Rush and the thousands of listeners, it was “entreatment”. Unfortunately for many women, this issue could be life and death.

  5. Marisa Gallego says:

    Forget the word slut. He called her a Prostitute. He said she was having sex in the 6th grade. He said she was having so much sex, he was surprised she could walk to class. Calling her ‘slut’ is probably the least of concern. He went way further. The media picked up on slut and prostitute because they were single words and easier to headline.

  6. Ryan Golden says:

    I would get slapped if I calledy girlfriend a slut. Don’t act like its empowering anything to make that a positive word.

  7. Lars Roose says:

    To my understanding: Sandra Fluke’s story was that her friend at Georgetown had ovarian cancer, and could not afford the hormonal birth control prescription meds that were the ONLY thing (besides radiation?) to treat it with, and before Fluke could walk thru the Georgetown U. Catholic heirarchy to explain this particular women’s healthcare issue, how hormonal birth control prescription meds wasn’t for birth control in every case, and it was specifically needed (in many cases) to fight cancer, and was basic to woman’s healthcare and should be included in the students healthcare insurance program, (as it was in the Georgetown University Employee’s healthcare insurance program), …her friend there had lost one of her ovaries.. That to a woman is like a man losing a testicle. We each got two barrels (shotgun talk : ) And for rush to have such reckless disregard for facts, and accuse this fine citizen and loyal friend of one in need of medical attention; for Rush to be so slimey when it had nothing to do with sex, but true healthcare needs for women, was way over the line. This is a slam-dunk legal case in favor of Ms. Fluke, but the stacked RWNJ high court will rule in a partisan way, as they almost always have. The good news, is, at some point in the near future, the makeup of that ‘captured’ high court will change.

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