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.”

31 Responses to Did Rush Limbaugh Defame Sandra Fluke?

  1. Kathleen Casey says:

    Besides what would be her monetary damages? She expressed on interest in social justice/public interest law didn’t she? This is getting goofier all the time. Punies, $1.00. If a claim were to get that far.

    • If she does have a claim in defemation per se, she doesn’t need to prove harm to collect general damages because they are presumed.

      • Alexis says:

        She’s a limited purpose public figure. She inserted herself into a public controversy with the intent to affect its outcome. She’d have to prove actual malice. She wouldn’t have a fat kid’s chance in dodgeball of meeting that standard.

        • Sure. The post was about amount of damages. My point was that she doesn’t have to establish damages in defamation per se. I agree with you on your analysis (see below).

        • Jeopardy says:

          No, not malice.
          Malice or Reckless disregard for the truth.

          I think she could meet that standard. She wasn’t even talking about herself – she was discussing people she knows who need birth control for medical reasons.

  2. Josh B says:

    What about his suggestion that she is a prostitute?

  3. brittney says:

    What about calling her a prostitute?

  4. I am not sure whether I agree. Rush broadcast his message into all kinds of states. The plaintiff could choose a favorable forum where the category still has considerable bite.

    For example, you point out that Bryson as undermines your position, but the case probably remains controlling law in Illinois, particularly with respect to the “slut” issue. Leyshon v. Diehl Controls N. Am., Inc., 407 Ill. App. 3d 1, 7, 946 N.E.2d 864 (2010), reh’g denied (Jan. 25, 2011), appeal denied, 949 N.E.2d 1098 (Ill. 2011) (citing with approval Bryson v. News Am. Publications, Inc., 174 Ill. 2d 77, 94, 672 N.E.2d 1207 (1996)); see also Stanley v. Carrier Mills-Stonefront Sch. Dist. No. 2, 459 F. Supp. 2d 766, 774 (S.D. Ill. 2006) (citing Bryson, 174 Ill. 2d 77, 94 with approval as to the defamatory nature of the word “slut”). Several New York courts, which I would consider to be a fairly liberal jurisdiction, have suggested that “slut” could be slander/libel/defamation per se. Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 413, 885 N.Y.S.2d 247, 252 (2009) (“A communication that states or implies that a person is promiscuous is defamatory . . . .”); Torain v. Clear Channel Broad., Inc., 651 F. Supp. 2d 125, 152 (S.D.N.Y. 2009) (“statements about [the plaintiff’s] past sexual conduct, including [the speaker’s] undisputed use of the terms ‘slut’ and ‘whore,’ can give rise to per se liability for defamation . . . .”); Leser v. Penido, 20 Misc. 3d 1127(A), 872 N.Y.S.2d 691 (Sup. Ct. 2008) aff’d, 62 A.D.3d 510, 879 N.Y.S.2d 107 (2009) (statements including the word “slut” were sufficient for a claim in libel per se); Ward v. Klein, 10 Misc. 3d 648, 652, 809 N.Y.S.2d 828, 832 (Sup. Ct. 2005) (quoting Bryson, 174 Ill. 2d 77, 94 with approval as to the defamatory nature of the word “slut”). And what could stop the plaintiff from suing in a more obviously conservative jurisdiction, like say Georgia, where an appellate court recently upheld a finding that passages that included the word slut were defamatory per se. Smith v. Stewart, 291 Ga. App. 86, 97, 660 S.E.2d 822 (2008).

    More importantly, I would look at the other things Rush said. Inasmuch as “slut” may be ambiguous in some circumstances–I would agree with you on that–the use was not ambiguous in this context. He was clearly speaking about her sexuality, and blatantly commented on how much sex she was having. Those statements would give rise to a claim in defemation per se. I suppose Rush may claim they were satire or parody, but a reasonable listener could have construed them otherwise.

    • I think he’d have a good rhetorical hyperbole defense (take a look at my reply to Hank on this). Furthermore, she put her sexuality out there. She made public statements about her need for birth control. Rush has a legal right to comment that any woman who is engaged in premarital sex is a “slut.” He might be a douche for it, and you might disagree, but it isn’t as if he just tossed her into the public light on this.

      She’s a public figure, by her own doing. Rush has a right to consider her to be “slutty” and to compare her to a prostitute. Defamation is not there for the assuagement of butthurt. Although, I gotta say, if she were looking to make a case, you’ve done a really good job of setting up the counterpoint.

      • As I think on it, and in light of your arguments, you’re right (thankfully). This is hyperbole. She is at the very least a limited purpose public figure with respect to her sexuality. She was testifying to congress on a major issue of public importance and debate. If she sued, she should lose.

        I do think a plaintiff could get past a trial judge on this one, though. Say Rush gets Mark Martin for a judge–or perhaps a female equivalent who gives weight to an amicus filed by MacKinnon and co.

        But even if she won at trial, the plaintiff should lose on appeal. Yeah. I agree with you.

  5. He didn’t just call her a slut — which, as you say, may simply be a matter of opinion. He also called her a prostitute, which strikes me as a matter of fact. His theory was that, because she wanted insurance reimbursement for contraception, she was essentially asking to get paid for sex — which, of course, would make her a prostitute. Purely from the point of view of logic, his reasoning seems pretty weak to me.

    IANAL, and I’m not speaking to the question of malice, but I wouldn’t be surprised if calling someone a prostitute was considered to be defamatory.

    • Rhetorical hyperbole. If Rush said that she was actually engaged in prostitution, then that would be potentially defamatory. But, you can say someone committed attempted murder, for example, without them actually doing so. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law); Lampkin-Asam v. Miami Daily News, Inc., 408 So. 2d 666 (Fla. 3d DCA 1981) (even otherwise defamatory words are hyperbolic, and thus protected speech when taken “in their proper context.”); Horsley v. Rivera, 292 F.3d 695, (11th Cir. 2002) (a claim that plaintiff was an “accomplice to homicide” protected as rhetorical hyperbole when taken in context); Fortson v. Colangelo & NY Post, 434 F.Supp.2d 1369 (S.D. Fla. 2006) (when words literally accuse plaintiff of a crime, there is no defamation when the context makes it clear that it is rhetorical and hyperbolic speech).

      For more on this, take a look at this letter.

  6. This is less a test for suit, and more a test for level of idiocy for actually listening to Rush Limbaugh.

  7. Scott Jacobs says:

    And here I thought the truth was always a defense against such a lawsuit… :)

  8. OJ says:

    In a discussion about defamation I noticed this nugget: “Things might be different in Mississippi or other third world jurisdictions…” Oh, sweet irony! P.S. I’m not from Mississippi.

  9. Sam Stoia says:

    Rush not only called her a slut and a prostitute; but he said that she was having sex with several partners a day. That’s not an opinion based comment but a fact based comment. Moreover he grossly misrepresented her testimony at the hearing. Therefore, Rush’s comments fall squarely in the slander elements. I do hope she sues him.

  10. MYoung says:

    I do hope she sues him. She does have a case, and a good one. All you guys are jockeying around it. It is slander and defamation, plain and simple, with malice.

  11. Chuck Rudd says:

    I think Limbaugh was an idiot for saying this, but I don’t see how Fluke has grounds for litigation.

    First, she’ll benefit financially from being targeted by Limbaugh, though I suppose that if Limbaugh’s intent was to discredit her then that’s really what matters in the eyes of the law. I don’t really know. Such is a common occurrence in our media-centric society today. We’re so entrenched in our various camps that a person can become a celebrity by merely falling on the wrong side of a hated group.

    But even then, Limbaugh was leading his audience through a sort of proof. “If x, then y.” He didn’t call her a slut straight up; he said that “if Fluke asks for us to pay for her sex then that makes her a slut.”

    • Chuck, that’s not at all what he said, there was no “if-then,” he called her a slut (straight up) and a prostitute, in simple, declarative sentences: “What does it say about the college co-ed Sandra 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.”

      • Hank, either way, that still doesn’t make it legally defamatory. I can call you a “velociraptor klansman,” and it doesn’t make it legally defamatory. Context matters.

        • Marc, I wasn’t commenting on the defamation issue, just pointing out that Chuck’s characterization of Mr. Limbaugh’s comments was inaccurate.

          And besides, it would be ridiculous for you to call me a “velociraptor klansman.” Velociraptors are extinct. I happen to be a bigfoot klansman. Please get your facts straight.

  12. […] Defamation Did Rush Limbaugh defame Sandra Fluke? (the “slut” issue). Randazza says “no” and his argument makes sense to me. […]

  13. Jim Masteralexis says:

    If you were representing Rush would you want this case to go to a jury? I would not. He slandered her. I hope she sues him.

  14. Cate Lively says:

    According to the NY times rush said Fluke was
    “having so much sex, it’s amazing she can still walk”

    that sure sounds like a statement of fact. For three days Rush demeaned Fluke and made statement that Fluke talked about her sex life. Fluke did not talk about her sex life.

    You would think in three days times Limbaugh could have found out the truth about Flukes statements. He did not. That sounds like malice to me. The statement Fluke gave was all over the news and the internet and from limbaugh’s critics. he choose to ignore the truth about flukes statements

  15. […] also looks at Mark Rendazza at Legal Satyricon: In other words, “slut” is properly regarded as little more than a statement of opinion. But […]

  16. Glen says:

    Rush Limbaugh did more than call Sandra Fluke a slut, he also implied she was a prostitute among other things, and this defamation continues on opinion boards across the nation.
    Continuing harm from Mr Limbaugh’s statement.

    • Actually, Mr. Limbaugh didn’t IMPLY that Ms. Fluke was a prostitute, he SAID that she was a prostitute. (To save Marc the trouble of posting a reply, just pretend that he has just re-entered the conversation to point out that, “either way, that still doesn’t make it legally defamatory.”)

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