Prostitution and Slander
The uproar over Rush Limbaugh’s degrading and insulting comments about law student Sandra Fluke has included calls for him to be removed from the airwaves for his slanderous remarks. This presents an excellent opportunity to revisit some of the principles of defamation law that I discussed in my earlier post, You Dirty Rotten ^@#$%^.
Ms. Fluke, a Georgetown Law School student, testified before an ad hoc committee made up of Pelosi and several of her Democratic colleagues to give her public testimony on behalf of the Georgetown Law Students for Reproductive Justice, a number of whom attended the hearing with her. Since Georgetown is a Jesuit institution, it does not provide contraception coverage in its student health plan. She wished to share the voices of women who suffer from this policy and to speak on their behalf in advocating for the Obama administration’s insurance mandate.
The next day, Limbaugh let loose. Let’s look at his most incendiary statement:
What does it say about the college co-ed Susan (sic) 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, right? 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, we would be the Johns, no…. uhhhhhhh….Okay she’s not a slut she’s round-heeled, I take it back.
Fluke says that she has been told by legal experts that “I might have a case” if she were to sue Limbaugh for slander. [This followed the odd statement from Congresswoman Carolyn Maloney (D., N.Y.) that “we will be filing a slander suit against Rush Limbaugh,” suggesting further that the perfect lawyer for the case was prominent women’s rights attorney Sybil Shainwald. I don’t know if Cong. Maloney was speaking for Fluke or not, but it would be highly inappropriate for her to say such a thing if she weren’t. What does she mean, “we?”]
Plaintiff’s personal injury lawyer Max Kennerly says:
Fluke “definitely” has a defamation case against Limbaugh if she chooses to pursue it. He suggests that Limbaugh’s comments that Fluke was a “slut” and “prostitute” “embedded false statements of fact,” were thus defamatory and that a judge might allow a jury to decide the case [Ed: see below].
“His statements implied facts about somebody’s sex life, that she was promiscuous and trading sex for money,” Kennerly said.
Kennerly’s post refers to this opposing viewpoint from Russell Smith at Legal As She Spoke:
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.)
He also looks at Mark Rendazza at Legal Satyricon:
In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson v. News Am. Publs., 672 N.E.2d at 1221; Howard v. Town of Jonesville, 935 F.Supp at 861; Smith v. Atkins, 622 So.2d at 800. …
The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996).
Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.” [Ed: Rendazza is saying that a judge would not allow a case to go to a jury, but would dismiss it before trial; he is also ignoring the bigger threat, the use of the word “prostitute.”]
Kennerly takes this position:
As much as Rush Limbaugh might sound like some drunk in a bar, he speaks for a major media organization, and his assertions to the public carry a certain degree of weight as a form of reporting. His listeners don’t think it’s just Rush sitting in front of a microphone, they rightly believe there’s a whole team of people who help prepare and review the day’s content and that Rush, an experienced broadcaster, would pay attention to his comments for accuracy. When Rush describes a woman as asking a congressional committee to pay her for sex, and says the woman is having a lot of sex, many listeners will infer that Rush has, at a minimum, investigated the congressional testimony, and has concluded the testimony includes some factual basis for his remarks.
And that’s the crux of the biscuit: Do Limbaugh’s comments, examined in their totality, considering all the words used, the circumstances surrounding them, how they were disseminated and the audience to which they were addressed, imply the existence of undisclosed facts about Ms. Fluke that support his insult, or would his listeners take the comments to be “epithets, rhetorical hyperbole, or pure statements of opinion,” which, vile as they may be, he may express without committing slander?
Kennerly is not saying it is necessarily a winning case, just that he thinks “a judge might allow a jury to decide the case.” This is no small distinction (unless you’re the one paying for the defense lawyer). Kennerly simply believes that there would be a question of fact sufficient to avoid dismissal of the case as a matter of law (at what is called the “summary judgment” stage).
I do find interesting the title for Kennerly’s post, “Sandra Fluke Can Sue Rush Limbaugh For Defamation And IIED.” Well sure she can. This is America. Anyone can sue for anything, and there’s usually a lawyer willing to take the case.
There is certainly no shortage of bystanders urging Ms. Fluke to sue Limbaugh. He brought this on himself, his remarks were tasteless, unnecessary, inaccurate, and damaging to his own personal and financial interests – to say nothing of the damage to the politics he supports.
And I could say the same about remarks made by Keith Olberman, Al Francken, Jon Stewart, Glenn Beck, and a lot of other pundits and talk hosts out there who rely on ratings and attention to sell advertising and run their special brand of vitriol.
The problem is that if Limbaugh were to be tried and found not liable, that result would embolden the rest of them. Personally, I think the economic boycott is a more effective, and less risky, approach.
What a really wish is that they’d all just shut the hell up.
Filed under: Internet, law and lawyers | 20 Comments
Tags: keith olberman, prostitution, rush limbaugh, sandra fluke, slut