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Should Fluke sue Limbaugh for defamation?

COMMENTARY | March 04, 2012

Gil Cranberg, an expert on libel law and no fan of defamation suits, would give the go-ahead. He says Limbaugh, by attacking the Georgetown Law student three days in a row, “intended to damage her and her reputation" and that "his actions were aggravated and egregious.”

By Gilbert Cranberg

Rush Limbaugh handed his lawyers a hot potato when he thuggishly attacked a Georgetown University law student, Sandra Fluke, for her support of contraception. Among other things, he called Fluke a “slut” and a “prostitute.” 

Limbaugh’s lawyers evidently urged an apology, for he then admitted that he “chose the wrong words….my choice of words was not the best…I sincerely apologize to Ms. Fluke for the insulting word choices.”

An apology is a good way to head off a defamation suit. Fluke is reported to be contemplating one. The downside of an apology is that in the event a suit is filed, anything admitted in the apology can be used in court. You can bet that Limbaugh’s admission that he “insulted” Fluke will be cited against him.

I am not a fan of defamation suits, either against the press or against individual journalists. Debate on public issues, the Supreme Court has said, should be robust and wide open. Defamation actions can inhibit debate. 

That said, I hope Sandra Fluke takes Limbaugh to court. Limbaugh is not a journalist in any sense of the word. Rather, he is a propagandist with a subspecialty in hate speech. His comments about Fluke were no slip of the tongue. He attacked the young woman on three consecutive days. He intended to damage her and her reputation. His actions were aggravated and egregious.

A libel action against him would require that he be deposed and compelled to disclose under oath how he chose her as a target and what prompted him to denigrate her as a slut and prostitute. That would be a valuable learning experience for Limbaugh’s large following.

Discussion in this country has coarsened, in no small measure because of so-called radio hosts and their anonymous callers. The print press has added to the pollution by printing the contributions of readers hiding behind anonymity. Sandra Fluke’s ordeal may yet have a happy ending if it gives pause to those who, like Limbaugh, find profit in hate speech.

Cranberg is co-author of Libel Law and the Press: Myth and Reality, published by Free Press in 1987, winner of the Society of Professional Journalists' award for journalism research.


Posted by Mike
03/04/2012, 06:42 PM

I agree completely. Limbaugh's comments were absolutely, unambiguously thoughtout and purposeful. That the FCC hasn't filed anything against him yet is surprising. I really hope that poor girl sues him, she had to endure ridicule for exercising her right to free speech, and on a national level.

Limbaugh deserves to take a huge hit for this, he insulted he over several days and then made a backhanded apology. No one should have to deal with this without recourse.

The Reckless Disregard/Actual Malice Question
Posted by Anonymouse
03/04/2012, 08:54 PM

I’ve seen some commentators (elsewhere) argue that Limbaugh has no problem in that, they say, it’s nearly impossible to show reckless disregard in such a case. While I’m neither an attorney, nor do I play one on tv this seems to me not to be the case, and I’m curious how you evaluate the question in that respect:

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 Limbaugh’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.

The bottom line
Posted by Marc
03/04/2012, 10:21 PM

I have pored over the transcript and read it many times over. The one conclusion that I have made is that nowhere does Ms. Fluke discuss or mention her personal life, let alone her sexual habits or frequency.

How Mr. Limbaugh can come to the conclusion that Ms. Fluke was "having so much sex she can’t afford the contraception" goes beyond the fray. There is nothing that I have read to support his view. Just about all of her testimony was spoken in the third person and very little about herself.

If Limbaugh's intention was to harm her reputation, he may have inadvertently turned the gun on himself, and for the first time in his career, may have to suffer the consequences in court.

Liberal Pornographers v. Rush - who is the greatest hypocrite?
Posted by AlessandraRef
03/05/2012, 03:07 AM

"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?

What Do You Mean By "Liberal"?
Posted by Erika Whiteway
03/05/2012, 03:30 AM

Assuming you mean the polar opposite of Rush Limbaugh, rather than "liberal" you might have used
"evolved": liberal is a meaningless buzz-word, but I am one, and I descry porn at every opportunity. I think the people you are mostly referring to are ignorant Neanderthals who think they are men and the women who have succumbed to the oppressive non-stop media that forever reinforces the male concepts of Mom/Virgin/Whore in all their various costumes, ensuring that we will all continue to suffer the self-indulgent but societally deadly war-on-women, which is a war on humanity itself. But men are too dumb to admit it. And it would ruin the ape-like glee they get from ****ing whatever moves and chest-thumping their conquests, aka, war, rape and pillage....

Every aspect of the world and the male/female relationship is created and defined by and for men. Whatever the status quo, that's the source. And women have no Constitutional rights, pal, did you know that? I rest my case.

Which attitude best represents liberalism regarding porn?
Posted by AlessandraRef
03/05/2012, 06:14 AM

What Do You Mean By "Liberal"?
Posted by Erika Whiteway
03/05/2012, 03:30 AM
Assuming you mean the polar opposite of Rush Limbaugh, rather than "liberal" you might have used
"evolved": liberal is a meaningless buzz-word, but I am one, and I descry porn at every opportunity.
Erika, I think you are lying if you say that there aren't millions of liberals who endorse and consume porn, which is just a deluge of slutty language and content.

And a lot of these liberals would assail Rush for calling this twit a slut if they haven't done it already.

These are the people I was referring to.

So, I do realize that there are some liberals who are appropriately against pornography, but you are not representative at all.

Posted by Rick
03/05/2012, 09:44 AM

Sue, Sue, Sue. Somebody needs to put people like Limbaugh in their place.

Sandra Fluke Clearly Has Grounds to Sue Limbaugh
Posted by SkeeterSanders
03/05/2012, 03:57 PM

I'm not an attorney, but I've worked as a journalist -- as a reporter, an editor and, until a year ago, a blogger -- long enough to know that when you accuse someone of being a criminal or of engaging in criminal activity without providing a shred of evidence to back up your accusations, you're a sitting duck to get sued for libel or slander and/or defamation of character.

This is especially true if you cast aspersions in print or on the public airwaves against a person who, like Sandra Fluke, is not a public figure.

Prostitution is a crime in 49 of the 50 states. And even in the one state where it's legal -- Nevada -- prostitution is still a crime in Las Vegas County.

By calling Fluke a prostitute, Limbaugh branded her a criminal. Without furnishing any evidence to back up his accusation, Limbaugh can be held liable for slander.

And by calling Fluke a "slut," the conservative talk-show host can also be held liable for defamation of Fluke's character.

Fluke has every right to take Limbaugh to court -- and his personal lawyers and those for Premiere Radio Networks, which distributes his daily show to more than 600 stations across the country know it.

His advertisers know it too -- and are pulling out to avoid being named co-defendants, should Fluke decided to sue.

The selective outrage machine strikes again
Posted by Mike H
03/05/2012, 04:27 PM

Kathy Griffin called Senator Scott Brown’s daughters "prostitutes" on CNN and no one says a word. Sandra Bernhard called Bristol Palin a hooker on The Joy Behar Show and not a peep from the outrage industry. ‘Elder Statesman’ Gore Vidal calls Roman Polanski’s rape victim a “young hooker” and gets a pass from the liberal outrage machine.
So, why the outrage over what Rush said?
The question is purely rhetorical because we all know damn well that being a good liberal means never having to say you are sorry and while lefties talk a good game about women’s rights they champion rapists when the perp’s politics mate up with their own.
That’s what’s such complete BS about Cranberg’s post. Liberals sit up in their ivory towers an hurl steaming piles of libel and slander down on who ever, when ever not because its true but because it advance as political or cultural end. Cranberg could give a rats you know what about what Limbaugh actually said, he’s just interested in using this to silence the political opposition.

Re: 'The selective outrage machine'
Posted by Anonymouse
03/05/2012, 04:48 PM

Have you seriously considered the possibility that in the past Mr Limbaugh's various vicious attacks and characterizations were comparable to those various vicious attacks from the other side which you cite, and that in the past they provoked comparable responses but that, in this case, if one considers Ms Fluke's testimony, which is readily available, and Mr Limbaugh's attacks, also readily available, that in this instance Mr Limbaugh went very far over the line into the territory of defamation, and if so, and if you've concluded he did not in fact cross that line, might you offer argument to that effect, rather than simply observing that talk radio and public discourse is nasty stuff – which seems a fairly thin defense, at least to me, a mere layperson

Posted by Calbengoshi
03/08/2012, 01:59 PM

The issue raised by the author's post was not whether liberals or conservatives are greater purveyors or customers of pornography, or whether they are more or less likely to engage in libel, slander or simply inappropriate ad hominem arguments. Instead, the issue was whether Ms. Fluke should sue for defamation.

Limbaugh likely could argue successfully that calling Ms. Fluke as "slut" was a statement of opinion, not a false statement of fact. However, calling her a "prostitute" without modification (e.g., "intellectual prostitute," "legal prostitute," etc.) most likely would be viewed as a statement of fact.

Assuming Ms. Fluke does not actually engage in sexual acts in return for remuneration and has not done so in the past, calling her a "prostitute" would be a false statement of fact. Assuming also that Ms. Fluke became a public figure by reason of her comments about not being allowed to testify before a Congressional committee and her subsequent testimony before a group of Democratic members of Congress, the question then would be whether Limbaugh made his false factual statement about her either with knowledge that it was false (unlikely because Limbaugh generally appears to be ignorant of the facts) or with a reckless disregard for whether it was false. My guess is that it would not be difficult to persuade a jury that Limbaugh acted with a "reckless disregard" for whether his statement that Ms. Fluke is a prostitute was false.

Posted by Drew Forsyth
03/08/2012, 05:01 PM

Mr. Cranberg -- What a splendid, balanced piece, with the foundation of your distinguished education, service in the infantry in World War II, considerable experience as journalist skilled with reasoning and its expression, emeritus standing after distinguished services as a professor of journalism, and believer in free speech who is reluctant to advocate litigation.

From behind his walled, guarded compound (begging the question why Mr. Limbaugh never meets in public sessions though he is such a believer in the importance of free speech), Mr. Limbaugh's lawyers may indeed have missed the red large red flag of "actual malice" that underlies the Supreme Court's opinions dating to 1964 that define immunity from defamation in matters of public discussion. You masterfully underscored the attacks were orchestrated to be carried out - for profit - over three days and that use of the term "prostitute" differentiates this case from those where other talking heads or public officials have defamed a lady. As Mr. Romney continues to receive large profits from Bain Capital, one of the owners of Clear Channel Communications - the firm which has paid or will pay Mr. Limbaugh hundreds of millions for his hate speech - how fitting that Mr. Romney is mute (which would not be the case if it was his daughter (if he has one) who was savaged). Thank you for your valuable analysis of Mr. Limbaugh's conduct that had nothing to do with the statements Ms. Fluke made to the Congress. If his goal was to intimidate a woman, he selected someone more intelligent and academically distinguished who is more than his match after the record he created. Drew Forsyth

Posted by Kini Cosma
03/12/2012, 11:43 PM

The Rush Limbaugh case is nothing compared to mine. For over 20 years I have been combating serious charges that have crippled me. This is not fair that a cute, young, law student can hop on top of the list screaming defamation when I have been screaming it all over the world for 20 years! This is why people become volatile using hatred to voice their concerns!

http://name-of-the-law.blogspot.com/ ...

http://www.ipetitions.com/petition/all-women-who-b ...

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