Did Rush Limbaugh Defame Sandra Fluke?

Update: A more complete analysis is here.

I received an inquiry asking if Rush Limbaugh calling Sandra Fluke a “slut” would be the proper basis for a defamation claim. I do not believe it would be. In order to have a valid defamation claim you must have:

1. A false statement of fact
2. About the plaintiff
3. That harms the plaintiff’s reputation

False Statement of Fact?

For most of our history, stating or implying that a woman was unchaste would give rise to a claim for defamation per se. In fact, in recent history, a number of courts have specifically held that describing a woman as a “slut” is defamatory per se. See, e.g., Bryson v. News Am. Publs., 672 N.E.2d 1207, 1221 (Ill. 1996); Howard v. Town of Jonesville, 935 F.Supp 855, 861 (W. D. La. 1996) (stating that a woman is “sleeping with everyone” at her place of employment and is incapable of performing her job duties “would appear to be defamatory on its face”) (punctuation and footnote omitted); Smith v. Atkins, 622 So.2d 795, 800 (La. Ct. App. 1993) (calling a woman a “slut” is defamatory per se).

However, I believe that this theory is a throwback to the days when women were essentially the sexual property of their controlling male. A daughter who was unchaste became less valuable to her father, and a wife that was unchaste was less valuable to her husband.

Times they are a changing…

In 2005, an ex-girlfriend of KISS lead singer Gene Simmons sued after VH1 ran a “rockumentary” in which she was portrayed, she claims, as an “unchaste woman.”

The plaintiff, Georgeann Ward, said that a portrayal of her as promiscuous was defamatory. The defendants argued that “changing social mores could affect how certain sexual conduct is viewed by the community, and that what was defamatory at one time may no longer be the case.”

While the New York state court refused the defendants’ motion to dismiss the lawsuit, the judge did suggest that the proper “legal authority or social science data” might convince a court that saying a woman is promiscuous is no longer automatically defamatory. The two sides have since settled, but I believe that this is an accurate portrayal of modern thought. Things might be different in Mississippi or other third world jurisdictions, but a case brought in DC (where I would imagine the claim would be brought) would likely be examined through 20th century, and not antebellum, eyes.

Professor Lisa Pruitt of the University of California at Davis School of Law said that although it might be more difficult for a woman to sue today when she is defamed in a sexual manner, the change in the law is “a net gain for women because it signifies, through law’s expressive function, that women’s most important attribute is no longer their sexual propriety.” (source)

Accordingly, it would be awfully ironic to hear someone supposedly championing women’s rights arguing that defamation law should stop its march forward and that a sexist standard should be applied to her suit.

Absent such a bold maneuver, this element would probably wither under scrutiny as a statement of protected opinion.

What is the standard for someone to accurately and factually be described as a slut? Clerks suggests that if a woman performs oral sex on 37 men, that this might be the line. I really don’t know. I think that most women would say that the line is well below 37. Then again, I wouldn’t really call any woman a slut (unless it was a term of endearment – some women giggle when you call them that). I just don’t make value judgments about someone’s sexuality. If a woman or a man is promiscuous and they are happy — they can be a slut if they want, or not.

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.

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

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.”