Sandra Fluke 'Definitely' Can Sue Rush Limbaugh

[ProSense]

Sandra Fluke 'Definitely' Can Sue Rush Limbaugh

By Andrew Chow, JD at FindLaw.com

Law student Sandra Fluke can "definitely" sue Rush Limbaugh for slander over the talk-show host's ugly remarks on his radio program, legal experts say. Fluke seems to be leaving her options open.

"I've certainly been told I might have a case," Fluke, 30, told The Daily Beast on Friday, "but it's not something I've made any decisions about at this point."

The next day, Rush Limbaugh apologized for calling Fluke a "slut" and a "prostitute" over the air. Liberal activists are clamoring for legal action.

<...>

Slander is a type of defamation in which a hurtful statement is spoken. To win a slander lawsuit, a victim must prove someone made a false statement that was "published" to at least one other person, and that the statement caused injury.

- more -

http://www.reuters.com/article/2012/03/06/tagblogsfindlawcom2012-injured-idUS286979719420120306

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
[email protected]

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.”

<...>

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

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http://www.niemanwatchdog.org/index.cfm?fuseaction=background.view&backgroundid=614

[kestrel91316]

1. Limbaugh's actions were AND ARE not just aggravated, not just egregious, but MALICIOUS.

[ProSense]

3. If Limbaugh's

lawyers suggested he apologized, the advertisers bailing after the "apology" could be a sign of both public pressure and the fact that the he was completely insincere.

[mmonk]

14. Agreed. It wasn't exactly reasoned debate.

Clear intent to defame.

[GodlessBiker]

2. I hope she goes after him; she just has to prove damages. That's sometimes the toughest part.

[izquierdista]

6. Especially while she is winning.

Damages in the short term, but not every law student has the President calling them and millions of people rallying to their side. Ironically, Limbaugh has made sure she will have plenty of offers awaiting her when she graduates.

[COLGATE4]

11. In Slander cases

she doesn't have to plead specific Economic damages. She can plead General Damages as well as Punitive Damages. I would think a court would be willing to assess both against Limpballs.

[zbdent]

4. in his insults, I don't believe he even reported any of her statements accurately ...

which, in normal circles, is called:

LYING!

[Bigmack]

5. NOT a lawyer, but one of my former students who is one, sent me this...

Prosser and Keeton on Torts. Fifth edition. West Group.

(Distinction)“…It is then said that (1) the area of dissemination, (2) the deliberate and premeditated character of it’s publication, and (3) the persistence of the defamatory conduct are factors to be considered on whether or not the form of communication has the potentially harmful qualities characteristic of written or printed words. The position is also taken by a special section that broadcasting of defamatory matter by means of radio or television is libel, whether or not it is read from a manuscript, for the reason that such defamacast has the potentially harmful qualities characteristic of the written or printed word which has historically been regarded as libel.”

(Unchastity) “…Most courts, however, have now rebelled at the reproach to the law involved in such a result, and have held that an oral imputation of unchastely to a women is actionable without proof of damage without regard to whether it charges a crime.”

[Major Hogwash]

7. Indubitably. No doubt about it whatsoever.

Gil and I agree. Yet, I have to add that it would make Ms Fluke somewhat of a target for every dittohead out there, but she would win, hands down.
Whether she wants to become the 21st Century's Joan of Arc and go after Rush for doing this to her is her decision, though.

[ProgressiveProfessor]

8. For every one of these claims, there are claims to the contrary

Given that they are made by lawyers, I figure both are correct.

[el_bryanto]

9. yes - she has a case, but it seems far from an open and shut case.

Rather the sort of case that let's lawyers buy new boats.

Bryant

[COLGATE4]

12. When Limpbaugh called her a 'prostitute'

he committed Libel Per Se, that is, Libel without any ifs, buts or ands. The only defense would be the Truth, i.e. if he could prove that she has sex with strangers for money. Somehow I doubt it.

[onenote]

17. Not exactly

Libel per se means that Ms. Fluke does not have to introduce any evidence that she suffered harm -- harm is presumed. However, she would have to still prove all of the other elements of the case and establish an amount of damages if she seeks compensatory damages. (My guess is that since, imo, she would have to prove actual malice, she will ask for punitive damages since once you've established actual malice you've basically made out your case for punitive damages).

[COLGATE4]

20. Thanks for adding that. You're right.

But General Damages don't have to be proven the same way Compensatories are. And she can certainly make out a case for Punitives.

[onenote]

15. You are correct that it is not an "open and shut" case. Defamation cases rarely are.

First, notwithstanding the unsupported assertions by unnamed lawyers that the actual malice standard wouldn't apply to an action brought by Ms. Fluke against Limpy, the reality is that, based on the standard established by the Supreme Court in Gertz v. Welch, she is virtually certain to be found to be a "limited purpose public figure" for purposes of the subject of contraception policy and her testimony thereon (and also with regard to the controversy surrounding the denial of her request to testify). That said, I would not rule out her successfully meeting the actual malice standard. But its not a slam dunk. Judges and juries are unpredictable and there will a lot thrown at them in this case by Limpy's lawyers.

So the real question is not whether Fluke can sue -- of course she can. The question is whether the benefits of success outweigh the risks of defeat. That's a question she needs to decide and she needs to get a complete, honest assessment of the case and how it might play out, not just a superficial analysis of the kinds I've seen on the web. She is a law student and a smart one, so I have no doubt she will seek out and consider the best advice she can get before deciding what action to take.

[Kalidurga]

10. I think what Rush did was a form of assault

when he said that because he is paying for her contraception(which is a lie anyway) that he wants something for that he committed assualt in my opinion. He invaded her privacy. It was further aggravated because it was sexual in nature because he asked for video. There was so much wrong in what Rush did that it is hard to grasp. But, I wouldn't be surprised if not only Fluke felt violated but other women as well.

Think of the outrage that if everyone that received public funds was to videotape their activities and post them online. Families on welfare having to have a camera in their home showing how they live on public funds, people that give food stamps having to show what food they buy and how they prepare it. People taping visits to the emergency room because they get medical assistance. People showing their commute to work because they travel on public streets... Where exactly would it end?

[COLGATE4]

13. Perhaps generically speaking

but not legally.

[Aerows]

16. She should

But she's going to need a lot of courage to do it. Right wing nut cases will be after her forever.

She's the only one that can decide if she's up to it. I think she probably is, and if she does, she will win, but I'm just speculating.

[WhoIsNumberNone]

18. Good. I hope she takes pig-boy to the cleaners

If she wants to gather a few exhibits on the damage it's done to her, I'd suggest checking out the Rants & Raves secction on Craig's List.

[Junkdrawer]

19. From what I'm hearing, if the case has enough merit to make it to discovery....

Limbaugh and Clear Channel will settle rather than subject Rush to the discovery process.

My best guess.

[mmonk]

21. Probable if it went that far.

[onenote]

23. yes. but remember that discovery is a two way street

I wouldn't be so certain that Clear Channel and limpy would settle. If they settle they encourage more suits. If they fight, they discourage them. They can drag out the discovery process with objections and what not and they can make their own discovery demands.

If Fluke sues -- and its her decision -- I don't think limpy rolls over by any means.

[Scurrilous]

22. Good. n/t

[Tarheel_Dem]

24. And I hope she does. K & R. (nt)

[DCKit]

25. Me too. Then she can either pay off her education, or donate the money to Planned Parenthood.

Either one would piss OxyRush off to no end.