Fluke Appearance Before Congress Draws Harsh Criticism, But Is It Libel?

We all know the story about the genie in the bottle who grants his master three wishes.  The genie fulfills the literal words of each wish, but in a way that actually hurts the master. This is the origin of the modern warning, “Be careful what you wish for.”

The controversy surrounding Sandra Fluke demonstrates the danger of wishing to be a public figure.

When Ms. Fluke agreed to testify before Congress regarding access to contraception, she also agreed to become a public figure.

She clearly opened herself up to harsh criticism from people who disagree with her position, but did she also give up her right to be protected against libel and slander?

The answer, in some respects, is yes.

Private citizens have broad legal protection against unfair criticism. If a person or organization harms your reputation by making a false statement about you, you can sue for defamation. 

If the false statement is verbal, it is called slander; if the false statement is written, it is called libel.

It may surprise you to learn that you do not have to show that a statement is false to prove defamation. 

If you can show that a statement damaged your reputation, the burden is on the defendant to prove that the statement was true as part of his defense.

What you do have to prove is this: First, you have to show that a statement was made about you personally, not just about a group to which you may belong. Second, you have to prove that the statement involves a provable fact, and not just an opinion.

Finally, as a private citizen you have to show that the defamatory statement was made negligently, that is, that the defendant failed to use reasonable care to check his facts. In general, the more outrageous a statement is, the more investigation a defendant would have to do.

The problem for Sandra Fluke is that she is not a private citizen, not any more.  American society expects public figures to accept much harsher criticism and even abuse as part of the price for being given power and influence.

Therefore, the law requires a public figure to show a much higher level of fault to prove defamation.

If Ms. Fluke were to sue Rush Limbaugh, for example,  it would not be enough for her to prove that he was merely negligent. She would have to prove that Mr. Limbaugh made a defamatory statement of fact against her with actual malice, knowing that the statement was false, or with reckless disregard for the truth. 

To borrow a phrase from Sen. Al Franken, Ms. Fluke would have to show that Rush Limbaugh is a big fat liar.

Ms. Fluke may not always be a public figure. If she does not continue to participate in the public debate on reproductive rights, she could eventually move out of the public spotlight and regain her status as a private citizen.  If she does, she will also regain the broader protection against defamation that most of us enjoy.

At some point, Sandra Fluke may start to wish for a little less attention and a little more privacy, but I have the feeling it may be a long time before she can get that genie back into the bottle.

Have a question or a suggestion? Contact Dennis at dspirgen@SpirgenLawFirm.com.

Patch posts are general discussions and should not be used as advice on any specific legal matter. If you need legal advice on a particular situation, please consult an attorney.