Sandra Fluke Can Sue Rush Limbaugh For Defamation And IIED

Update: I spoke with Geraldo Rivera on 77 WABC about the issue (MP3 file here, segment starts at 13:00), and with LXBN TV, with the below video:

The Philadelphia Daily News has an article today quoting me on the Sandra Fluke / Rush Limbaugh defamation scandal:

Max Kennerly, a lawyer with The Beasley Firm in Center City, thinks Fluke “definitely” has a defamation case against Limbaugh if she chooses to pursue it.

Limbaugh could argue that he was simply rendering an opinion protected by the First Amendment or, alternatively, that the statements would be seen as so outlandish that nobody would believe they were true.

But Kennerly said 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.

“His statements implied facts about somebody’s sex life, that she was promiscuous and trading sex for money,” Kennerly said.

Kennerly also said that Premiere Networks, Inc., a subsidiary of Clear Channel Communications which syndicates the radio show, could also be liable for “publishing” Limbaugh’s words.

The potential for a lawsuit has been a hot topic lately, with Google telling me it has 15,000 results for “limbaugh defamation” in the past week. Separating the wheat from the chaff, I’ve found two detailed legal analyses.

Russell Smith at Legal As She Is Spoke goes through the old favorites like New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., to conclude there’s nothing there:

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.

Marc Randazza at Legal Satyricon takes a different tact, bringing in some lesser known cases, and argues that “slut” is now protected opinion:

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.”

I’d add to Randazza’s mention of Bryson, which allowed a “slut” defamation lawsuit, the case of Anson v. Paxson Communications Corp., 736 So. 2d 1209 (Fla. 4th Dist. Court of Appeals, 1999), which allow a defamation claim against radio shock jocks who called the plaintiff a prostitute.

Smith and Randazza make reasonable arguments, but I disagree, given the full context of Limbaugh’s remarks. Let’s go back to what Limbaugh actually said: 

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.

All the emphasis is on “slut” and “prostitute,” but to understand them you have to view the context. Right before the insult is a description of her testimony — Susan Fluke “[went] before a congressional committee and essentially [said] that she must be paid to have sex” — and right after the insults is a statement about her personal life and finances — “She’s having so much sex she can’t afford the contraception.”

And that’s where Limbaugh gets in trouble. Here’s Sandra Fluke’s actual testimony. Standing alone, Limbaugh’s description of Fluke’s testimony might be protected as “fair reporting,” and his conclusions about her sex life and finances might be protected as “opinion,” but together the statements create the appearance of a factual foundation for his “slut” and “prostitute” remarks.

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.

The real case on point is Milkovich v. Lorain Journal, 497 U.S. 1 (1990).

If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.” 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.’” See Cianci, supra, at 64. It is worthy of note that at common law, even the privilege of fair comment did not extend to “a false statement of fact, whether it was expressly stated or implied from an expression of opinion.” Restatement (Second) of Torts, § 566, Comment a (1977).

Some commentators have raised the specter of Synder v. Phelps, better known as the Westboro Baptist Church case, in which the Supreme Court overturned an intentional infliction of emotional distress (IIED) verdict arising from the church’s bigoted and nonsensical protest of a soldier’s funeral. And Fluke might have an IIED claim: as David Frum notes, this wasn’t a casual insult, but instead “It was a brutally sexualized accusation, against a specific person, prolonged over three days.”

But in this case, the IIED claim will rise or fall on the same free speech issues as the defamation claim, so I don’t think Synder is really on point — the core issue there revolved around the right of the church members to be standing on the public property from which they were protesting, and the Supreme Court itself said the opinion was “narrow” — but it does raise another important issue.

The Roberts court has been on a sustained mission to use the First Amendment as a weapon against democracy, by using it to strike down reasonable campaign finance laws in Citizens United and by using it to invalidate laws limiting the ability of pharmaceutical companies to use confidential medical records to target doctors for high-pressure marketing. Drug companies already have in the works several test cases where they claim a First Amendment right to market drugs for unapproved uses.

Our current Supreme Court has one motto: might makes right, so I don’t doubt they’re licking their chops at the thought of striking down health regulations, securities regulations, and, really, anything they can find. But they need some sort of political cover for that, and the cover story they’re going with now is “we’re just really protective of the First Amendment,” even if the data shows otherwise. If the Fluke v. Limbaugh case made it to the Supreme Court — which is unlikely, considering that far fewer than 1% of cases make it to filing a petition for certiorari, and the Supreme Court grants less than 1% of those petitions — I could see a 5-4 majority finding his speech constitutionally protective to help portray themselves as guardians of free speech.

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  • http://twitter.com/MillerAndZois Miller & Zois, LLC

    What exactly is her injury? Forgive me, but she seems a little too giddy with all of the attention she is getting. I’ll bet $100 she is glad this happened.

    I’d rather we condemn these comments and save lawsuits for people who are really injured.

    • http://www.litigationandtrial.com/ Max Kennerly

      I’ve heard callers into radio shows state that she testified she was having so much sex she couldn’t afford her contraceptives – a factual statement which isn’t remotely true, and comes entirely from Rush. The “damages” are that some large number of people now know her as the woman who went before Congress and talked about all the sex she was having while a student at Georgetown. Were it not for Rush, no one would think that, and now potentially millions of people do. I don’t doubt she’s receiving hostile emails and phone calls too; hell, I get emails and phone calls if I’m tangentially mentioned in the newspaper, much less made a centerpiece national story for a week. That’s all due to Rush.

      Might she also have benefitted from it? She might have. That’s an entirely appropriate defense for Rush’s lawyers to raise, but that’s an issue for a jury to decide. On the issue of whether or not she can file a lawsuit and get to a jury, I think the answer is undoubtedly yes.

      ________________________________

      • Enron Share Holder

        Sandra Fluke did not testify under oath in front of a Congressional hearing, she participated in a “press conference” staged to look like testimony. This would be another pitfall if she decided to pursue litigation. An excellent defense (and I am sure if it came to be, Limbaigh would have a fantastic legal team) would be that this event was staged and was in no way as it appears to be. Sandra Fluke was not testifying in front of lawmakers and she was not a qualified expert witness.

        This is just hot button topic grand standing used by political interests to manipulate the populace. Contraception is not an issue today in our country. If someone is made fun of for participating in a political stunt to attempt to get legislation mandating that someone else pay for a consumer item, it is fair game. I do not know for a fact that Ms. Fluke is an “activist” yet I would imagine that it could be easily discovered.

        • http://www.litigationandtrial.com/ Max Kennerly

          You’re correct that it wasn’t a formal hearing, and that would further support Limbaugh’s (presumed) defense that she was, at least, a limited purpose public figure because she put herself into the spotlight. But that doesn’t give Limbaugh license to misrepresent was she said; indeed, it makes it worse for him, because it’s harder for him to argue that he was commenting on a governmental hearing.

          I think she might even call herself an “activist,” a term that everyone thinks is positive for activists on their side and negative for activists on the other side, though I doubt she somehow planned for Limbaugh to go off the deep end and call her offensive names while misrepresenting her testimony. I doubt she thought about Limbaugh or any other radio / TV host at all; she just wanted to get her friends’ stories out there. You should read her written statement, it’s linked in my post.

          ________________________________

        • Ponyjon

          I dunno, I think it was a formal hearing to a subcommittee not the whole chamber.

        • http://www.litigationandtrial.com/ Max Kennerly

          I believe she was not approved to testify before the House Committee on Oversight and Government Reform, and so instead was called to “testify” before the House Democratic Steering and Policy Committee. It’s my understanding the latter is not technically a House of Representatives Committee, but instead a Democratic Party committee comprised of House Democrats.

      • http://twitter.com/MillerAndZois Miller & Zois, LLC

        I can’t speak to whether she can. You are obviously well versed in the law. But I disagree with you a little bit factually – I think the context makes a bigger difference then you do. And how to we define a lot of sex anyway? I do think from the context this woman is/was probably having sex regularly. How much is a lot? To Rush, once a week was probably a lot in college. (But as Kathleen Parker said recently, speaking of what she thought was Rush’s college experience, there is no virtue in abstaining in something in which you had no opportunity. ) I don’t think the standard should be “what some clown might think.”

        But I’m talking about what she SHOULD do. We have clients – people minding their own business tending to their families – who suffer real injuries. I’d rather we use our judicial system for them as opposed to someone taking a quote out of context when all reasonable people understood what he was saying.

        I realize this is all a little rambling!

        • http://www.litigationandtrial.com/ Max Kennerly

          Take a look at her written statement and come back to the issue. She didn’t do anything at all to interject her sex life into this; she spoke entirely about medical issues that other women she knew had, such as PCOS, and how this interfered with their treatment.

          The only reason we’re talking about her sex life is because Limbaugh spent several days falsely describing her remarks, and adding some derogatory names to make it worse.

          Consider an analogy in another context. A doctor speaks at a conference about the problems involving medicare billing coding and how it encourages waste and inaccurate reporting, and the next few days a radio talk show host goes on and on about how the doctor admitted he/she was ripping off Medicare, calling the doctor a “fraud” and a “cheat.” I think few would say there’s no claim for defamation.

          Some “reasonable people” seem to think Sandra Fluke went and talked on and on about the amount of sex she was having. That’s simply untrue.

          In the big picture, I think the practical consideration should govern if she brings a suit or not. Is her reputation really damaged in her community? Would anything be accomplished by bringing suit? Bringing a defamation case against a major media figure is no joke – you can be assured that if he is sued Limbaugh will bring his full resources to
          bear, with plenty of private investigators trying to uncover every last
          bit of dirt, true or false, about your past.

          I can’t answer that question. Only Sandra Fluke can. Far be it from me
          to presume I know if she’s damaged by this or not; I bet she’s lost
          plenty of sleep and hasn’t been able to focus on anything since it
          happened.

          ________________________________

    • Guest

      I bet there are loads of people in the middle of America, many of whom are probably listening to AM Talk Radio right now, who think she’s a prostitute. It bothers me immensely that you seem to think she deserves zero compensation simply because YOU believe “no publicity is bad publicity.” If it were my reputation, it would bother me a lot to know that people thought my name were synonymous with prostitution.

      • Freddie Mac

        Do you really believe that people actually believe she is literally a prostitute in the classical sense of the word? Anyone with half a brain knows he was joking. Maybe in bad taste, but nobody is going to believe what he said regarding her as literal fact.

        Suing him for that would be like suing you for defamation because you just insulted his listeners’ intelligence.

        • http://www.litigationandtrial.com/ Max Kennerly

          Perhaps you should read my post before commenting.

          —– Reply message —–

  • Anonymous

    It’s quite obvious from the comments defending Rush posted on numerous blogs that many, perhaps most of his listeners take his words on faith.

    Millions of people now believe, on Rush’s words alone, that Fluke is or should be considered a prostitute, that she has sex virtually non-stop, and that she was literally asking Congress to give her thousands of taxpayer dollars so that she personally can purchase all the contraceptives that Rush has led them to believe she personally requires.

    And every single part of that is a lie, as well as a horrible insult to her reputation. If that doesn’t satisfy the elements of slander, we might as well throw all the lawbooks right out the window onto that huge bonfire Rush’s people are building.

    The IIED claim should be easy to prove as well. Even to hear of an innocent woman being called these names is hurtful, not to mention knowing that millions of people heard them. The level of emotional distress she has experienced as the direct object of Rush’s vile tirades must be mind-boggling.

  • Rwsmls

    Rush himself brags that he is right 98.8% of the time. In this case the operative word means of course correct because in the other context he would never admit being left even 1%

  • http://petemorin.wordpress.com/ Pete

    I find it hard to believe that a reasonable person would believe that Rush’s comments were intended as a factual “reporting” of Ms. Fluke’s testimony before a Congressional panel (however it came to be), any more than they’d believe Keith Olberman’s “reporting” on Senator Scott Brown or any other Republican he’s elected to scorn. As utterly vile and offensive as RL’s comments were, I reflexively regarded them as parody as soon as I heard them as recorded (I do not listen to him).

    Here in Massachusetts, in a defamation case, whether a statement is fact or opinion is a question of law to be determined by the court, preferably at the summary judgment stage. I agree with you that whether this case were to reach a jury depends entirely on where it was brought – although the notion of unfettered forum shopping due to RL’s nationwide reach is a little dubious to me.

    I would also respectfully take issue with those who do not listen to (or have never listened to) Limbaugh divining the state of mind of the typical Limbaugh listener. Limbaugh’s audience demographic has always skewed very high in both income and education – since the very early days in which scores of restaurants around the country (mostly concentrated in downtown business districts) set aside entire dining rooms during lunch time as “Rush Rooms.” I know it would seem unappetizing to many critics to eat and listen to him simultaneously, but believe it or not, many conservatives are both intelligent and independent thinking, and do not take everything the man says as fact. Quite the opposite, because they are used to his hyperbole.

  • Rwshjb

    What would you call a female college student that is single and having difficulty paying her contraception expense?

    • http://www.litigationandtrial.com/ Max Kennerly

      Thanks for the comment – your misunderstanding of what Sandra Fluke testified about demonstrates the problem with Rush’s remarks.

      • Rwshjb

        I paraphrase: Fluke stated she and many of female students have difficulty with the $1,000 yearly expense of contraception. In my era a female college student with this problem would be called a “slut”. Therefore a reasonable prudent person could agree with that particular term

        • http://www.litigationandtrial.com/ Max Kennerly

          You’d call a woman “slut” because they were diagnosed with PCOS?

        • Rwshjb

          Give me a break. It was about her attempting to have Georgetown provide birth control.

        • http://www.litigationandtrial.com/ Max Kennerly

          You’d do well to read her actual testimony.

        • Rwshjb

          I’m 76 and having problems with this smart phone..
          She appeared in front of a staged event byvdemocrats. I did hear only part of her “testimony” and it was obvious to this old man and my contemporaries this was about birth control.

        • http://www.litigationandtrial.com/ Max Kennerly

          I refer you to my prior answer.

  • MG

    Is that your office in the video? With those windows, it looks like a church!

    • http://www.litigationandtrial.com/ Max Kennerly

      That’s the library of our firm. The building was indeed originally the Episcopal Diocese of Pennsylvania, built 1894.
      We have an interactive tour on our website, but it might be broken at the moment, we’ve been working on it:
      http://www.beasleyfirm.com/beasley-building/

  • Stan Colenso

    Do I believe that the vast majority of Rush’s listeners believe that his statements are true, and not mere sarcasm or hyperbole? Absolutely.

  • http://profiles.google.com/brad.madison Brad Spencer

    First Rush totally distorted and misrepresented Fluke’s words to be about wanting birth control pills for herself and then he built on that distortion to be able to use the characterization he used against her. Rush’s “opinion” and Rush’s “hyperbole” grew almost exclusively out of Rush’s distortion, not out of any aspect of Fluke’s character, behavior, or words. It is pretty clear the intent of the distortion was to change the nature of the discussion precisely so he could use the characterization and words that he did use. Whether or not Fluke can or will sue I cannot say, but the way Rush went about it devastatingly injures the defense he appears to wish to employ.

  • http://www.facebook.com/people/Brad-Darby/100003345558732 Brad Darby

    Sue Rush right down to the ground. And don’t forget to take his silly little “golden microphone” that he’s so proud of.

  • Boater1956

    Why can she sue? She has made herself a public figure by her televised testimony in front of a congressional meeting? She volunteered and was not supeoned for her statements. This sounds like BS under Rush’s right to free speech under the constitution.
    In addition, she is a “professional tester” purposely making inccurate and outlandish statements in a public forum.

    • http://www.litigationandtrial.com/ Max Kennerly

      It’s interesting that you say she was “purposely making inaccurate and outlandish statements in a public forum.” What was “inaccurate and outlandish” about her testimony? The only purposely inaccurate statements were the statements Rush made about her testimony, inaccurate statements you seem to have believed.

      ________________________________

    • Anne Van Nostrand

      sorry you are unable to grasp the words spoken by Susan Fluke
      like RL you might consider offering as many words to correcting your statements regarding “inaccurate and outlandish statements” after reading her testimony

      i am not an advocate of any idea in this case beyond being responsible as stated above

  • Anne Van Nostrand

    so sad … the issue here is “truth” -
    not 1st amendment and not side taking in yet another law suit for money
    it is obvious that without reading the exact wording of Susan Fluke, one would assume she is asking for what Rush Limbaugh has said on his program
    however she is not asking for anything that can be related to RL’s words
    therefore – SF and all others need to exert energies in having RL make as loud and as long a retraction of his words, and acknowledge his illiteracy concerning the Fluke testimony,
    rather than giving more attention to the issue in terms of outrage, it is the responsibility of all people and media to account for their actions – in deed and word
    in short:
    do not allow RL or SF to don the “martyr robes of glory” by simply refusing to allow RL not to be responsibile, or SF not be an example of leadership and reason, in the forever acknowledgement of truth and justice

  • Thomas Allen

    I listen to Rush Limbaugh occasionally. I always presume that he exaggerates and uses hyperbole. I take very little of what he says as literal truth. I understand that his use of the word “slut” was opinion and fully understand his words as political commentary in response to Fluke’s testimony as an advocate for taxpayer supported contraception for sexually active law students, not solely as prescribed medical treatment for an ovarian problem. The clear context of her testimony was that contraception should be paid for the taxpayers, regardless of the reasons for which women seek contraception. The example of the ovarian problem was simply used to generate sympathy. Most people who demand taxpayer supported contraception want the taxpayers to pay for contraception for their personal convenience, when a trip to the corner convenience store could yield a pack of condoms at around $.50 per condom. No one needs a free $30.00 per month prescription when condoms would suffice. This matter deserved political response. I agree with everyone that his comments were crude and badly chosen, but I certainly did not think Rush Limbaugh was making factual statements that had the effect of defaming Sandra Fluke. If anything, she defamed herself by making the statement she made before that special Democrat committee. Just because one woman needed female hormones to regulate her periods is no basis for taxpayer supported birth control for all women. To be fair, I don’t think the taxpayers have any duty to pay for Viagra for any man. That, too, is a matter of pleasure and convenience and taxpayers have no duty to pay for anyone’s pleasure and convenience.