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

Proving defamation is awfully hard when you're a public figure. If Sandra Fluke wants to pursue her critics, here is what she will have to do.

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.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Jack Kelly March 09, 2012 at 04:03 PM
I believe your first paragraph is VERY important here that shouldn't be glossed over by the readers as it contains several "key" terms ("limited purpose", "issue you commented"). I've personally commented quite a bit about this incident (because I work in the media) and have taken issue with people who said he "used the wrong words." (just like when someone -- mainly on the right -- play the "what about the 'mean stuff' said about [public figure -- like Palin]). The latter is a false equivalent (although some of the stuff said has been inappropriate and has no place -- period). What Rush did went beyond using the "wrong words" in a statement. It's what he did for almost 3 hours over a 3-day period--and that was unleashing an all-out assault on a private citizen. Nobody knew who Fluke was until Rush did what he did--HE made her a public citizen w/his slander/defamation. Without a doubt, Rush acted with reckless disregard in regards to his 3-day, almost-3 hour assault. I don't think anyone (outside of Rush fans and partisan puppets) wouldn't agree that his comments were not directed against Ms. Fluke personally -- he used her name personally. She was not attacked for her testimony or her position. She was attacked as a person, reputation and behavior (all of which were false). It's more pathetic that Clear Channel/Bain Capital allowed him to continue this and expose themselves to a costly lawsuit (they've suspended DJ's for a lot less).
Jack Kelly March 09, 2012 at 04:18 PM
And I knew it wouldn't be long until someone played the Maher card (I just wrote this in a response to the author of this article). You've already lost your argument going this route. Typical partisan "finger-pointing" with the "well, they do it, so we can, too" defense. Plus, you don't know a damn thing about me or my leanings, so spare me your partisan talking point you're getting from right-wing radio. You're playing the double-standard just like the left does. Since you weren't adult enough to come up with a real response & had to deflect to the ignorance you've heard from the right-wingnuts as your "response", read my comment to the author of this article. Calling someone a "c-nt" or a "t-at" is never appropriate. But we're not talking about what's appropriate and what's not (and people like you are dissembling when you do that). The article is about whether what was said is essentially actionable in a court of law. Calling someone like Palin -- who IS a public figure -- a (very disgusting) name to make a joke is not. And the same can be said for the still-whiny-after-3-years losers on the right who say VERY nasty stuff about Mrs. Obama. If you're unable to actually have a mature discussion about the TOPIC of this article, and have to resort to the stupidity you're hearing from the right, then you'd be a better fit at Ohio or Cleveland dot com. You do not appear capable of discussing this WITH YOUR OWN THOUGHTS.
Jack Kelly March 09, 2012 at 04:31 PM
Tom, You're once again dissembling. Anyone can toss out numbers/data to fit THEIR argument. Just LIKE what you're doing now; you're picking-and-choosing data/information to steer the discussion away from stuff the original intent. As usual (as it's been my experience with others who can't think for themselves), you're not able to stay on topic & have to drift to distract from the fact that you can't truly discuss this issue. Your response -- just like many others -- COMPLETELY missed the point of her testimony. But, that is NOT what this topic is about. This article is CLEARLY about the potential LEGAL fallout from all of this (which is something no one has really touched on). And it's an article I am very interested in hearing more about -- esp. since the author is an attorney who can add his professional knowledge/expertise to this. If you want to regurgitate the uneducated and pandering ramblings of a drug addict, then take it to the appropriate forum. I'm not going to waste my time on someone like you who has proven that you have to regurgitate the partisan bullcrap you hear because YOU are not capable of thinking on your own.
tom m March 09, 2012 at 04:34 PM
nothing partisin about your comments either.. sorry but I must go to work now ...to pay for all the social programs you support ...and do not worry in a few more weeks it will be warm enough for you to again stand out on public square with your "we are the 99%" signs
Buzz Beeler March 09, 2012 at 10:03 PM
I think in this type of case the victim must show the remarks caused a specific harm and in this case based on the circumstances - Limbaugh's comments are baseless - and in fact she became a cause célèbre for a specific agenda.
Jesse March 09, 2012 at 10:48 PM
I see your defense perspective, Mr. Spirgen. As a plaintiff's lawyer, I disagree. She has been slandered. He called her a slut, said she was having so much sex she can't afford birth control, she should be in pornos. . . Clearly this was a vicious attack and slander. Must she prove she's not a slut? I think not. Also, don't forget public disclosure of private facts. Although he obviously had no knowledge of her sex life, which was never open to the public, he represented that he did and she was promiscuous. Completely actionable and damages are presumed when it's an attack on one's sexual reputation. Given the malicious nature of the attack, punitive damages and attorney's fees would also be in order.
Jack Kelly March 10, 2012 at 12:45 AM
"Hate", James? You're another one who needs to stop using words you don't know the meaning of. When one is unable to stay ON TOPIC (and in this case, it was solely about the LEGALITY, not whether it was appropriate; there are umpteen other places that have beat that loaded questions-like aspect to death) and you have to continually fall back on regurgitating what the right-wing bloviators have been spitting out all week -- THAT HAVE NOTHING TO DO WITH THE TOPIC -- you're changing the topic, and therefore incapable of discussing the topic at hand. It doesn't have to do with a difference of "views"--it's a difference of deflecting to change the subject. I also suggest you learn how to read (either before or after you learn how to construct a coherent sentence that has punctuation). Nowhere did "Tom" play the free speech card (in fact, I saw nowhere that he even inferred it). But since you did, this is NOT a free speech issue. Slander and defamation are not protected speech and are actionable in a court of law. Perhaps you should actually educate yourself in something before you cite it. I learned this in a high school government class and learned more about it in some basic law courses. As far as CC/Bain Capital, since my career is in the industry, I'm very familiar with them. And, your "cake and eat it, too" reference...uhh, what?! One thing your post proved: someone like you should not jump into unfamiliar territory w/those of us who are.
Afi-Odelia Scruggs March 10, 2012 at 01:24 AM
@BuzzBeeler, you might want to reconsider the statement in light of this information from ExpertLaw.com http://www.expertlaw.com/library/personal_injury/defamation.html "Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se: Attacks on a person's professional character or standing; Allegations that an unmarried person is unchaste; Allegations that a person is infected with a sexually transmitted disease; Allegations that the person has committed a crime of moral turpitude;
John Meola March 10, 2012 at 01:38 AM
"The problem for Sandra Fluke is that she is not a private citizen, not any more." Can you provide a legal citation supporting that statement? I'd like to know on what basis you make it. Based on the circumstances of Fluke-Limbaugh matter, I must agree with Jesse on this.
Dennis Spirgen March 10, 2012 at 02:12 AM
Jesse: I am taking neither a defense perspective, nor a plaintiff's one. I am pointing out the nature of the legal issues. Many people consider Mr. Limbaugh's comments indefensible, but I can assure that that were he to be sued, he would find at least one very capable lawyer to defend him.
Dennis Spirgen March 10, 2012 at 02:40 AM
I invite all my readers to review the law, the facts and make up their own minds. I'm not here to tell you what the answer is (unlike some radio talk show hosts). For citations on "limited public figures," start with the U. S. Supreme Court case of Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, at page 351. For Ohio cases, check out Daubermire v. Sommers, 2004-Ohio-914; Scaccia v. Dayton Newspapers, Inc., 2007-Ohio-869; and Great Lakes Capital Partners, Ltd. v. Plain Dealer Publishing Co., 2008-Ohio-6495.
Colin McEwen March 10, 2012 at 05:26 AM
Some of the comments on here have gotten personal. Please stick to the topic — great discussion, by the way — and avoid personal attacks. Thanks.
Buzz Beeler March 10, 2012 at 02:47 PM
Colin, I deleted my comment out of guilt, however upon reflection I have to take issue with your assessment. I made it clear I did not condone Limbaugh's comments. Mine were in response to Ms. Scruggs on a variety of issues. I do not attack people personally and it is quite difficult to discuss a topic such as this without looking at personal issues that were introduced to the public by Ms. Fluke. You don't testify before Congress and discuss such matters and expect it not to get widespread attention. I checked and Google has 98,000,000 results listed. Hardly a private matter for Ms. Fluke. There are numerous connotations in this discussion including peoples stances on morality, politics, entitlements, religion and so on. If you look up the word that Limbaugh used here is what it says: http://en.wikipedia.org/wiki/Slut The definition alone is quite complex, or as they say - not so cut and dried. Since the questions were posed to me, I looked at it objectively by focusing on motive (to go public in a demonstrative way) the language used, and the legal ramifications as in harm to the individual. When you research the availability of contraceptives, you will find that they are readily available and free, thus begs the question of motive. I feel I must take exception to your use of - "avoid personal attacks.", especially when the topic deals with the issues presented by the writer of the blog.
Colin McEwen March 10, 2012 at 05:41 PM
Buzz, I am sorry. There seems to have been a misunderstanding. My comments weren't specifically directed at you. I was referring to people attacking each other on this thread.
Buzz Beeler March 10, 2012 at 06:19 PM
Colin, no problem on your part. For me it is. It's called being impetuous. I have done this before. Like getting your hand stuck in the cookie jar and wondering if you got caught. Heck this is tame. On the other side where I come from you need to wear a bulletproof vest. Good blog and topic for discussion. Glad to see you're keeping an eye on things. It's bad when things get out of hand and passions run high, especially when people can't control them. It doesn't help when they can't put together a complete sentence either.
Buzz Beeler March 10, 2012 at 06:21 PM
I was just looking at nearby places and wondering where am I. I never realized how large this site really is regarding the coverage areas. I just wish I knew how to get to many of these areas.
Jack Kelly March 10, 2012 at 06:30 PM
Uhh, Tom, you want to compare resumes? I don't need to post my entire bio on Patch to "impress" internet tough-guys (cowards) who flex their modem muscle behind an alias like you...esp. since you don't have the sack to actually post a real name. If no one wants to read my (alleged) "vile" comments (waaaahhh), then no one is under any obligation to read my comments, or anyone else's for that matter. You going to continue to whine & b*tch because you got schooled? You probably should until you stop being a puss acting all tough behind a first name.
Sonia Gwynes March 10, 2012 at 09:32 PM
"When you research the availability of contraceptives, you will find that they are readily available and free, thus begs the question of motive." Readily available and free? That statement is hogwash. A recent Akron Beacon Journal article related to cost and free wasn't an option: http://www.ohio.com/news/nation/100-or-1-000-wide-price-range-for-birth-control-1.269575 "The providers whom women rely on for their contraceptive method can also affect women’s ability to prevent unintended pregnancy. Half of U.S. women seeking contraceptive care are served by private obstetrician-gynecologists; one in four go to publicly funded family planning clinics; and the rest see family physicians, internists and other private providers. Typically, women who rely on public clinics are more disadvantaged, younger and more likely to be from a minority racial or ethnic group than those seeking care from private providers. These differences may affect the types of services offered and providers’ perceptions of their patients’ difficulties using contraceptives. Unfortunately, many women have difficulty preventing unintended pregnancy simply because they cannot afford the more effective, prescription methods of contraception." (http://www.guttmacher.org/pubs/2008/05/09/ImprovingContraceptiveUse.pdf) Also, funding for the U.S. government's Title X program, which funds low-cost, confidential family planning services, is 61% lower today in constant dollars than it was in 1980...
Patty March 11, 2012 at 01:09 PM
Unfortunately, a legal arguement is rarely so black and white as Mr. Spirgen seems to want us to believe. We know this from simple observation of what type of lawsuits not only get filed, but make to a courtroom. I would think that Mr. Spirgens experiences with the law, would have taught him that by now. We do not become public figures quite as easily as Mr. Spirgen suggests.
John Meola March 11, 2012 at 05:01 PM
Thank you. I read the cases you cited and still must disagree with your argument that she is a limited public figure. Further, even if she was, certainly the accusations Limbaugh made against her constitute actual malics.
Dennis Spirgen March 11, 2012 at 05:47 PM
Patty: You certainly are right that legal arguments are rarely black and white, but that doesn't mean that you can never reach a conclusion. A person becomes a public figure on a particular issue when she voluntarily inserts herself into the public debate on that issue, and short of calling a press conference, Sandra Fluke could not have inserted herself more clearly into the debate on contraception than by testifying before Congress. That's my legal analysis and my conclusion. If you analyze the issue differently, feel free to make your argument. As you say, no position is beyond dispute, not even mine.
Jack Kelly March 12, 2012 at 12:38 AM
Another comment and you're further proving that you're bordering on moron. Why don't you and Tom admit that you're related or know each other (since you're both highly uneducated in this matter, and the last names). My offer is there to you like it was to your pal/relative "Tom", care to share resumes and accomplishments? Insult some cowardly nobody like you is not the same as someone with millions of listeners SLANDERING someone. And Rush can be sued. Either crack open a dictionary and educated your backside (for once), or STFU. Either before or after you wish to compare resumes/accomplishments. Yeah, hold it up the screen, kid.
Jack Kelly March 12, 2012 at 12:55 AM
Let's be honest: if Rush did NOT even address this woman AT ALL, we wouldn't know who this woman was from the next person. Just because you testify in front of Congress does not open up a can of worms for you to be slandered and defamed like Ms. Fluke was. Criticizing the *testimony* for whatever reason is one thing; THAT is fair game. NOT attacking the individual in a slanderous way. Her 'testimony' was completely fabricated for the Dittoheads. \ This woman was testifying on behalf of a colleague who had cysts on her ovaries and HAD to take birth control because of it (and there are many women who do have to take birth control for non-pregnancy prevention purposes). This woman wound up having to have one of her ovaries removed because she was no longer able to afford to high monthly out-of-pocket costs. She was testifying that under this new mandate, that religious institutions could prevent women like her colleague from getting NEEDED birth control for health reasons that did not involve pregnancy prevention. Essentially, Ms. Fluke was testifying to tell the government to butt out. But, that's not the story that was told. The story told to -- on average--several-million listeners PER DAY that she was testifying for HERSELF because of HER sex life ('she was having so much sex she couldn't walk straight', among other things stated). And these were presented as statements of fact. The "availability of contraception" wasn't even the issue.
tom m March 12, 2012 at 01:19 AM
save it jack all your comments just show that you just hate rush period admit it you despise him and this has nothing to do with Ms. Fluke and everything to do with a chance to attack him at all costs
Jack Kelly March 12, 2012 at 01:35 AM
Mr. Spirgen, you most certainly insert yourself into an issue by testifying in front of Congress. But, to a point. That opens up the door for your TESTIMONY to be criticized, as well as you. Again, to a point (i.e. if she has a history of talking about these issues, is part of a group, etc.). But, just because she's some 'activist' doesn't automatically make her a public figure in the sense the average person (she was actually a past-president for some group on Georgetown's campus). I could claim to be an activist for Ridding the Internet of Stupidity (RIOS), but I'm still a private person. Testifying in front of Congress does not mean that you can be slandered and defamed -- let alone by taking your testimony and completely fabricating it by representing, as statements of fact, that you're a slut and a prostitute with very specific multiple claims about your physical sex life; you have to be paid to have sex; (you're asking the government to pay for your birth control because) you're having so much sex you can't walk straight; not to mention wanting videos, etc. This was NOT a one-time slip-of-the-tongue, if you will. This was a deliberate, personal attack (her testimony was not attacked) over three successive broadcast days. Not to mention an attack on women on birth control, in general, at times. If Fluke files suit (she should!), this will not make it to a court room. It'll be a costly out-of-court settlement among Rush & a few other entities.
tom m March 12, 2012 at 01:57 AM
Jack H Radio's 17th comment just to remind everyone that he still hates rush (he hates him he hates him he hates him)
Jack Kelly March 12, 2012 at 02:02 AM
Tom, The educated adults are talking here. I'm still waiting for you to share your resume to see what you actually do for a living -- that is IF you even have a career like the majority of us commenting here actually do. If you want to troll, find a chatroom. Me having a disliking for Rush has nothing to do with this. I actually used to listen to Rush regularly as he used to be entertaining, and I even laughed at some of the things he said. Up until a few years ago when I got sick and tired of hearing the same 2 or 3 subjects every day, ad naseum. Now, he just comes off ignorant, juvenile and--many times--hateful. His core audience wants to be told what they WANT TO HEAR, even if it's not true (same as other talkers). When it comes to discourse at the level it is today, he is mainly responsible for that (and there are PLENTY of former listeners of his who have the same sentiments). It's okay that you don't understand how this works, that's fine. There's nothing wrong with admitting that. But don't come along here and start arguing with those of us who DO KNOW and try to tell us differently with your OPINION (which is not based in facts). There are many who are trying to get him yanked off the air and I think that's ridiculous. He's going to have to take responsibility for his actions off-the-air even if he won't do it on the air (again, goes back to appealing to his core). And this will be a costly screw-up--he should know better than that.
tom m March 12, 2012 at 02:12 AM
Jack your last comment was very nice very polite and very mature with no verbal insults I am very proud of you for finally acting like a adult (I knew yoou could do it) and now that I know you can actually behave I will not be replying to anymore of your posts
Jason Balfour March 12, 2012 at 01:04 PM
Rush Limbaugh is a big fat liar and a "booger Hooker" That's being nice I think he should be deported and charged with treason just for how he acts let alone all the stupid stuff that comes out of his mouth.
James Thomas March 12, 2012 at 02:53 PM
Just when I thought * had cornered the market on unreasonable discourse. Jason Balfour, either bring something intelligent to the forum or keep your sophmoric opinions to yourself.

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