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.

(Want to see some more gen-yew-wine misogyny? Don’t see that on MSNBC, do you?)

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.


20 Responses to “Prostitution and Slander”

  1. Ah, and that’s the crux of the problem: Rush will never shut the hell up.

    An advertising boycott is the best approach. Great post!

  2. Agreed, and money talks and the rest walks. But on that same note, where was any outrage when Bill Maher called Sarah Palin the “c” word and a tw- -?

    I don’t think HBO backed down or pulled his show from those caustic and imho, much worse comments. He even insulted Hillary Clinton during her presidential run.

    For me, I have my own political beliefs and do not listen to the rants of others, but I do take much offense when women of all political backgrounds are being degraded and insulted should they offer an opposing view.

    As for me, I quit watching HBO a while back. My own personal boycott.

  3. Excellent, and informative, post, Pete. Thanks

  4. 5 Mayor Biggie

    You’re welcome 😉

  5. Fascinating. Yes, rude invective it might have been but it seems to me this Rush fellow was just true to form. I can’t help but feel that when idiots like him manage to get both of their feet in their mouths like that, we should just let ’em get on with it. Of course, if it hadn’t been for Facebook, I would never have heard of this dude. We lead a sheltered life down here in the antipodes.

  6. Another excellent post and a great tutorial on how legal minds think. Thanks Pete.

  7. Thank you, Pete. I love when you talk legal. I’ve got questions: If she were to sue, does it matter that Fluke, up till this happened, was a private citizen and not a public figure?
    If she claims to have been defamed, is it enough that he said untrue, creepy things, or would she need to show that what he said caused damage? What about potential damages? Since she’s a law student could something like this have a potential negative impact on her career or other negative impact on her.

    • 9 Pete

      Yo, Marion! Lovely to see you!

      I think it’s fair to say that even Kennerly concedes that Flukes voluntary appearance before a Congressional assembly to testify on that matter, at that time, elevated her to the position “limited purpose public figure.”

      Except in limited circumstances of what is called “defamation per se,” a plaintiff always has to prove damages. The instances of “per se” defamation, historically, included allegations of criminal conduct, “unchaste” conduct, possession of a “loathesome disease,” or allegations of misconduct relating to one’s business.

      So in this instance, one might argue that RL’s commentary accused Ms. Fluke of being “unchaste,” or engaging in criminal conduct.

      These common law per se elements have naturally undergone a fair amount of change over time, but still vary from state to state. Ironically, the states that would be more inclined to preserve the more morally tradition rule would be the “red states” where the judges are conservative (dare I say) “cave men.”

      Still, it comes down to whether the insult is an allegation of fact or an opinion, in the mind of the reasonable person.

      • Do reasonable persons listen to Rush?
        My understanding is that his followers do take what he says as fact, and while he was comparing her to a prostitute in a convoluted way, he also alleged she said things in her testimony that she hadn’t.
        What I find chilling about this is that it wasn’t like she was a pivotal witness in a hearing about a supreme court nominee. She wasn’t allowed to give testimony at the “real” hearing. She “testified” by what even conservative media agree was a “mock” hearing — a small protest by the minority party. ( I think the reason why emotionally this has hit so many people is because she seems so ordinary. I realize that people like “Joe the Plumber” came in for a lot of yuks after they were in the spotlight, but most of that came up after he continued to want to expand his 15 minutes, and as distasteful and yes misogynist as remarks made by people like Bill Maher about women on every side of the political spectrum are, those are public figures.
        But aside from the legal issues, it just feels that the line between “news” and “entertainment” has just become hopelessly muddled.

      • 11 Pete

        yes, believe it or not, Marion, conservatives can be smart, too.

  8. 12 Jamy Buchanan Madeja

    So why is it that how often and with whom a woman has sex seems to be an older (pre)occcupation than the world’s oldest profession? One never hears of Congress or organized religions probing (sorry) what type of man uses sex aides (that is what Viagra is, right?) or how often. Please, in addition to “shutting them all up” can we all just get some, enjoy it, keep it to ourselves and treasure the good times while they last?

  9. Interesting post, Pete. I enjoy some of Limbaugh’s commentaries, this one was disturbing on several levels I don’t happen to feel that it’s appropriate that American taxpayers should pick up the cost of contraceptives for all women, I certainly don’t think it was appropriate of Limbaugh to make comments about Fluke in the manner he did. Opinion or allegation? Where’s the line when it’s made in public in the manner he did? Privately, he can say whatever he wants, but publicly, he should have accountability for his comments.

    I can’t help but be reminded of Virginia Slims tag line, “You’ve come a long way, baby”. Given the comments in the political arena the last few years and directed at women, apparently, not far enough.


  10. Yes again…this is a lovely and well written post; however, again we find another author guilty of not doing his research! And quite openly, what could destroy the reputation of any writer so fast as to print such a quagmire of rubbish? Oh – not to be taken lightly, one should do their research prior to producing anything – mind you, as I read discourse from other writers (attorney’s no doubt) I just became beside myself at the misrepresentation of the facts and of the story. If anyone reads Limbaugh’s statement it asks a question and then it withdraws everything.

    From Limbaugh’s quote: “…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.

    Okay, predicated upon what Limbaugh is addressing “that she must be paid to have sex. What does that make her?” Simply folks he could and indeed should have used what is referred to as ‘the world’s oldest profession;’ Up to this point no person has written anything about the use of the word ‘prostitute.’ As Limbaugh gets to the lexus of his rant, it is all about taxpayers paying for contraception and in this instance Georgetown is a Catholic institution which of course alludes to furthering legislation re: Freedom of Religion and the practice thereof, and how impersonal the Obama administration is tn trying to influence Catholics with his own personal legacy of Obamacare.

    Remember we do have a First Amendment to our Constitution that also deals with freedom of speech and mostly expression. I do not think it would be good for any one to file suit against Limbaugh inasmuch as he “Okay she’s not a slut, she’s round-heeled, I take it back.”

    Sorry for the length!! Thanks again for allowing me to comment!


    • What’s funny about this comment is that it points to a “lack of research” and “quagmire of rubbish” and then agrees with the conclusion, although on a ground that is legally irrelevant.

      Stop by any time, Jon-Paul. You make my profession fun.

      • Hey Pete:

        Glad you liked my comment. It is good and healthy to enjoy something and in this case yearns to keep one on their toes. Frankly, the only reason I popped-on bye was that another author had recommended that I check the site out.

        I really wish I had read “You Dirty Rotten ^@#$%^” first, prior to reading what I did. I’m sure you’d agree (or you should) that had I been on the bench, I highly doubt that I would take your case or the defamation suit from Ms. Fluke v. Mr. Limbaugh for the very reasons that I stated.

        Please, did you in fact do any research into this matter? Like law school research is how the question is intended. As I continued to read and I believe I mentioned this point that other writers – probably attorneys – had written as well. The quagmire that I refer to is how could so many of you, misrepresent, misstate, or create such chaos when the lot of you haven’t a clue as to the real events that occurred?

        Please don’t misunderstand what I’m trying to establish here. Some events relative to Ms. Fluke did happen. However, not where it involves Mr. Limbaugh. Personally I do not see where we come to the same conclusions whatsoever, inasmuch, as I am having difficulty locating your thesis statement – any supporting material – and again, what is your conclusion?

        I could sit for hours illustrating how and why it is clearly evident that your writing lacks appropriate research. However, that would be fruitless on a learned man such as yourself who is imbued with his work. I say this only as a response to your comment of “legally irrelevant.” I believe I am more influenced by Mr. Kennerly’s perspective insofar as he looks for facts in which to build a case.

        Glad to provide you with a laugh!

      • Sandra Fluke during her spill on CNN and other news organizations has stated, “…that she wasn’t bothered by his comments…and that they didn’t mean anything to her…” Therefore she not only is not entitled to damages – punative or compensatory – simply because she was not slandered, or hurt or bothered in any way with the exception of advancing her own political agenda.

        Anita is so correct when she states “…you couldn’t make this stuff up!” Here are just a few highlights pursuant to who benefits. Remember the House Committee on Government and Reform had been selected and charged for what was at issue: Religious Freedom. With precision the democrats we able to change the meeting to issues of gender bias, contraception, and blaming Rep. Issa for Chair misconduct. Why? Here’s how the meeting started: “What I want to know is, where are the women?” asked Rep. Carolyn Maloney (D-N.Y.) before walking out. First words uttered by all in attendance. Furthermore, Democrats withdrew the name of a witness Issa had accepted, Barry Lynn of Americans United for Separation of Church and State, because they wanted a woman to testify. Lynn submitted a written statement instead.

        Maloney pressed Issa to allow Sandra Fluke, a law student from Georgetown University, to testify about the impact of the new requirement that most health plans offer contraceptive coverage with no co-pay. Issa shot back that Fluke was rejected because she was “not found to be appropriate or qualified” to testify about religious liberty. He said liberty, not contraception, was the topic of the hearing.

        Two female Democrats walked out of a House oversight committee hearing on the contraceptive coverage rule Thursday morning, accusing Chairman Darrell Issa (R-Calif.) of manipulating committee rules to block female witnesses from testifying. Now then you tell me; the Chair says it is about liberty not contraception…who is trying to change the agenda to his committee?

        The media and press had already assembled in the corridor/hallways and get this….Sandra Fluke states to repoters about a friend’s experience that she had hoped to include in her testimony. The woman had lost an ovary to an illness that could have been treated with contraceptives that she couldn’t access and now was facing the possibility of infertility, Fluke said.

        “It’s striking that the chairman would say that the reason I cannot speak is that I’m not qualified to speak on the matter,” she said. “I feel that the women this affects are the most qualified to speak on this matter.”

        This is totally egregious! Here’s a person, who is deemed by the committee not to be qualified on Religious Liberties, who is espousing rubbish about contraception!! Yeah, it was a clear set up to get away from the agenda (religious liberties) and onto an entirely different issue (contraception).


  1. 1 Limbaugh and Maher « Libertarian Blog

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