Hate to burst the bubble, she's a Public Figure, no doubt

[Kwarg]

The great progressive legal professor Jonathan Turley has penned a fantastic article describing in detail how Sandra Fluke has legal "public and/or limited public figure" status and he goes into great detail citing previous law arguing that Limbaugh's comments, no matter how disgusting they are, are not Defamation.

http://jonathanturley.org/2012/03/06/bad-advise-hoyer-encourages-fluke-to-sue-limbaugh/

[bluestateguy]

1. Jonathan Turley never fails to pee in the Wheaties

Therefore, I reject this.

[TheWraith]

53. I think the guy just enjoys being a contrarian.

It's hard to envision any common sense way in which being placed on a witness list makes you a "public figure" on the same level as, say, a member of Congress.

[Incitatus]

2. There's one lawyers opinion.

You know what they say about opinions.

[WillyT]

3. You Seem Particularly Happy About This... How Come ???

[Kwarg]

5. Because I can't understand how many threads

Are passing disinformation about the situation. It's like driving by a billboard with a typo four times a day, it makes you crazy. There is no lawsuit here, Sandra Fluke is a 30 year old political activist and...

Rush Limbaugh is a disgusting PIG.

[HangOnKids]

39. The Ol' Political Activist Canard

LOL. Really, I am laughing out loud.

[Electric Monk]

4. Did you mean to post that as a reply in this other thread?

http://www.democraticunderground.com/1002393327

[just1voice]

6. Torturers walk free, why would some name-caller be held accountable for something?

This whole fatass limpballs episode is yet another media display of worthlessness. America doesn't hold people accountable for high crimes much less slander. The same "media" that is making something out of a slut comment is the very same media that will pass more WMD lies along, this time about Iran instead of Iraq. The American media is incapable of discerning a thing, they chant slogans like cult members and expect all whom listen to chant along with them.

[Politicalboi]

7. He talks nothing about

Limpballs calling for sex videos. They're all making excuses for his behavior. How long will it be before she gets death threats? Wouldn't be surprised if that hasn't already happened.

[The Magistrate]

8. Turley Is As Wrong About This, Sir, As He was About the Legitimacy Of Impeaching President Clinton

[hlthe2b]

12. Mike Pappantonio essentially said the same thing... that for many reasons, she wouldn't prevail...

And I do trust his judgement on this. Civil litigation is his forte' after all.

[onenote]

19. Turley may be wrong about the final outcome of a suit, but not about her public figure status

That issue is not open to serious dispute. Whether or not his words meet the standard of defamation of a limited purpose public figure -- that could go either way in front of a jury, imo. Which is why I would expect Fluke to steer clear of the courtroom. She is clearly won the battle in the public's eye at this point and thus has more to lose from such a suit than she has to gain.

[pamela]

9. Doesn't burst my bubble.

Limbaugh had to apologize, he lost 30 sponsors and still counting, the GOP's war on women has been the top story for days, the party is in shambles and headed towards an open convention unless they can convince their base to get behind one of the most unpopular candidates ever and President Obama is rising in the polls as fast as the pukes are sinking. It would take a lot more than an article about one lawyer's opinion to burst this bubble.

[okieinpain]

29. and i'm still worried because they have tons of money. n/t.

[Fawke Em]

46. 43 sponsors...

[Firebrand Gary]

10. I so just TRASHED your thread. n/t

[The Second Stone]

11. I'm a defamation lawyer and I think she has a case

She is not a prostitute by any stretch, and the recklessness and malice of the patently false allegation of prostitution is actionable. Rush's defense would probably be that he was equating what she did with prostitution, but a jury doesn't have to buy that.

[COLGATE4]

21. I completely agree. I think Turley

is way off the mark here dragging out the 'limited public figure' defense.

[The Second Stone]

27. I think she is a limited public figure but that

doesn't allow him to call her a prostitute

[treestar]

35. Even a public figure can make a case, can't they?

Some standard of malice aforethought or the like. Rush was reckless and knew she was not a prostitute.

[The Second Stone]

85. Yep

for knowing falsity

[tsuki]

41. I spoke with an attorney friend of mine, and he said the

chance of the suit going forward would depend on the state and judge where the suit was filed.

He said it would be up to the judge to decide whether she was a "public" figure or a member of the public that spoke at an open meeting.

In FL, she would be a "public" figure since the state is controlled by the GOP.

[Hosnon]

13. "No doubt"? Even despite the fact that that hasn't been

determined by a judge and/or jury, one person's expert opinion is not determinative.

Aaaand fail.

[JDPriestly]

15. See my post No. 14.

Carol Burnett sued the National Enquirer for falsely reporting that she was drunk in public. She won a jury verdict.

Limbaugh did not just hurl a slur at Sandra Fluke. He lied about her statements in her testimony before Congress. And he lied so as to harm her moral and sexual reputation.

I think there is a good chance that the courts would understand that Limbaugh's lies could cause Sandra Fluke financial loss as well as personal harm to her reputation. That is because Sandra Fluke is a young woman in a demanding profession who will soon apply for jobs in a very competitive market. She may have to pass character tests. And what is more, she is unmarried and the public lies about her statements about her sex life could cost her social opportunities.

She has suffered very real damages. Someone could argue that the financial damages are speculative, but then if Carol Burnett could persuade a jury that she, as a comedian, suffered damages due to a lie about her drinking habits . . . .

[JDPriestly]

14. The problem is that Limbaugh lied about the statements in

Sandra Fluke's testimony, and he did it to make her look like something that he had no evidence that she was -- a sexually promiscuous woman.

He stated that she had testified that she was having so much sex . . . .

Limbaugh did not state that as an opinion. He stated that Sandra Fluke herself had made that statement. Limbaugh's problem is not that he expressed an opinion. It is that he lied about Sandra Fluke's sex life and about her statements about her sex life. He injured her reputation with regard to her sexual behavior. I believe that I recall a case in which Carol Burnett sued the National Enquirer and won a jury verdict.

Why did Carol Burnett sue the National Enquirer? She filed a lawsuit against the tabloid for libel in 1981. During that very same year, the newspaper reportedly told how she got drunk in public. According to the report, she was sensitive about that particular issue because her parents also had problems concerning alcoholism. It was a big development in the world of entertainment. It served as a landmark case, particularly for celebrities who were subject to defamation and false reports.

The verdict went in her favor, wherein the court awarded her $1.6 million for damages. As the tabloid appealed, the court reduced the verdict later on to about half of the original award, significantly reducing the award to $800,000. In the end, an out-of-court settlement took place between the involved parties. She later on gave part of the award to the Graduate School of Journalism at the University of California in Berkeley. According to her, the purpose of the move was to educate the students of journalism the downsides and bad effects of false reports and defamation against other people. For her, principle was one of the major reasons why she filed the lawsuit. Winning or losing was not a priority.

http://www.whyguides.com/why-did-carol-burnett-sue-the-national-enquirer.html

Sandra Fluke never mentioned her sex life or the sex lives of her fellow students. Limbaugh claimed she did. I wonder whether Turley has read Sandra Fluke's testimony.

[jsmirman]

16. On the public figure aspect, I have had no doubt that she is for these purposes

and that any thoughts otherwise were silly.

Being a public figure, of course, does not mean that you can't win a defamation case (it just means there's a much harder standard). But I didn't need an article to tell me that I thought the idea of a lawsuit was a pipe dream.

But I hate arguing about law here on DU because it rarely ends well. There's a difference between having a legal degree and responding to this stuff and the act of trying to divine meaning from the tarot cards, which is - at least generally - what it is like to read about these things when you do not have legal training (I know, because it's the heads or tails I tried to make of things pre-law school).

And no one apologizes later, when it turns out that your general instincts were on the right track, though they belittle what you tried to explain. You might let a friend with first aid training stitch you up in a pinch, but I'm having a doctor remove my gall bladder, thanks.

[Motown_Johnny]

17. good thing he won't be on the jury

I'm willing to bet this conclusion will be challenged in court.

[onenote]

18. Turley is correct that she'd be considered a limited purpose public figure, but

that doesn't necessarily mean she couldn't or wouldn't prevail in a defamation case. However, I think there is little to gain and much to lose in bringing such a suit. Limpy almost certainly has insured himself well against such claims and would be prepared to fight the case. It will take time and money and be as much of a burden, if not more, on Fluke. And since the public already perceives that she's been mistreated by Limpy, a victory doesn't really garner her that much, whereas a defeat would be most damaging. As for monetary damages, she doesn't have to prove she was damaged by being called a slut and prostitute -- the fact of damages would be presumed. The amount, however, would need to be proven and Limpy likely would argue that she wasn't damaged financially, that in fact the publicity surrounding his name calling made Fluke a hot commodity and enhanced her standing financially. Would a jury buy it? I would hope not, but juries can do weird things which is why if I was Fluke I would keep this in the public arena and out of the courtroom.

[exboyfil]

20. How about she states upfront that any judgement

would be given to Planned Parenthood. Could discovery be timed to be around the election? Could be useful.

She should only go down this path if her personal history is without issues (ie no nutty boyfriends like Bristol Palins). I know nothing about her, and I really don't care but Rush's people will. They might even find folks to lie. She should tell her friends to get methods for recording conversations. Maybe even set a few traps for Rush's investigators.

It is a way to keep it alive and point out how much of a non apology Rush really gave. It would be useful to get Rush's comment about who bought her condoms in middle school on the public airwaves. That is a chlling comment.

[onenote]

22. such an announcement might actually hurt her

First, you can't guarantee that the jury will consist only of people sympathetic to planned parenthood. Second, Limpy's lawyers would use such an announcement to argue that she didn't suffer any real damages and is simply seeking to use the case to benefit a non-party to the litigation. Bad strategy.

[Sparkly]

23. Turley doesn't seem familiar with this...

He writes:
"She chose to appear in public and give interviews on her views and lifestyle."
No, she didn't discuss her lifestyle at all.

"Second, there is protection in the common law for opinion."
What Limbaugh said went way beyond "opinion."

"Third, the mitior sensus doctrine would become an issue, though it might not prove a barrier to Fluke in this case. The doctrine requires that, when two or more interpretations of a word are possible..."
Again, this goes way beyond the use of any one word (which is why comparing it to Ed Schultz's remark is ridiculous).

"Finally, there is the question of free speech. While I detest the comments, Limbaugh has a right to speak on such issues."
Again, this isn't about anything he said on "issues!"

Why is Turley so unfamiliar with this? Even Gene Weingarten seems to know more:

(From "Chatological Humor: Why 'fair comment' is not a defense for Rush Limbaugh&quot
In short -- though Limbaugh doesn't address this in his mealy-mouthed, backhanded "apology" -- Limbaugh just made it all up, then went hog-wild, oinker-frenzy-wild, elaborating on it so he could call her names. Calling people names is bad, but calling people names based on your own invented calumny is the textbook definition of slander. The First Amendment does not protect you from that, nor should it. Even on an issue of public debate, and even if the victim is a public figure, as Ms. Fluke was here, "fair comment” is not a defense if you made up the central fact, and the central fact is wrong and is damaging and if your intent was to injure. I’m no lawyer, but as I see it: Check, check, check, check. I hope Ms. Fluke knows a good lawyer; if she doesn’t, one will find her, I suspect: The pockets here are really deep, though constricted and attenuated a bit: A LOT of flibbity-flabbity belly fat there, Rush. You really should do something about that, in your well-merited retirement.
http://live.washingtonpost.com/gene-weingarten-120306.html?hpid=z5

[Ikonoklast]

24. Matters not. Limbaugh fabricated quotes and attributed them to Fluke.

He created the entire thing out of whole cloth.

Hate to burst your bubble, but that is actionable, and Turley is a floating turd in the punchbowl.

Must be why you like him.

[Kwarg]

32. Professor Turley is a great legal mind

In addition he is a great PROGRESSIVE legal mind. Disregard the Clinton opinion and Turley's record is brilliant from the liberal perspective. In addition he is a really nice guy!

[ProSense]

36. He just

In addition he is a great PROGRESSIVE legal mind. Disregard the Clinton opinion and Turley's record is brilliant from the liberal perspective. In addition he is a really nice guy!

lost a case, which the judge literally booted from the courts.

Turley is a Ron Paul supporter. He supports Citizens United.

He's is not my idea of a "great PROGRESSIVE legal mind."

[Ikonoklast]

38. Thank you, beat me to it.

Turley, like Greenwald, is just all aglow over with support for the CU decision as some kind of 1st Amendment victory for all of us.

They are both fantastically wrong.

And they are both Libertarian more than they are any kind of Progressive.

[Major Hogwash]

55. Ron Paul won zero states last night on Super Tuesday.

He was in Nampa, Idaho yesterday begging for votes. He was up north earlier in the day as well. He made at least 5, maybe 6, stops here in Idaho in the last 2 weeks.

He received about 12% of the vote for his troubles.
Romney was almost at 70% when I stopped watching the results last night.
I didn't know Turley supported Ron Paul, but that tells you just how much Turley is out of touch with reality.

Not only does Ms. Fluke not reach the public figure threshold, as defined by the law, simply for being called to testify before Congress, but as it has been noted many times, her testimony was not about her sex life.

[great white snark]

56. +1

His mind leans more Libertarian.

[mmonk]

25. I disagree with Turley.

If not for someone wanting her testify, she would be unknown to the majority of the nation.

[onenote]

30. and her agreeing to testify is what makes her a limited purpose public figure

its not even a close question. But that doesn't mean she's fair game to be slimed by limpy. And to the extent she can convince a jury/court that limpy's statements were outside the area of public concern that her testimony addressed, she could claim that for the purpose of those comments she should be considered a private person. But all things considered, I would bet good money that she'd be considered a limited purpose public figure and that limpy's comments were germane enough to be judged according to the standard applicable to claims by limited purpose public figures. Of course, she could still win even under that standard.

[mmonk]

31. By that standard, anybody asked to testify in any public hearing

can be defamed publicly even though public knowledge of that person is negligible to non existent. That would be quite a weak defense on the person that defames that individual.

[Recursion]

34. Yup. You have accurately stated the legal situation (nt)

[onenote]

40. No. By that standard, anyone who agrees to testify on a matter of public concern

has to show that defamatory statements about them that are pertinent to the subject of their testimony were made with "malice" (i.e., made with actual knowledge that the statements were false or with reckless disregard as to whether they were true or false). Its a higher standard, but not an impossible standard.

By the way, its well-established in the law that merely filing a lawsuit can make one a limited purpose public figure if the subject of the lawsuit is a matter of general public concern (e.g., a class action on the safety of a product), even though public knowledge of the average joe or jane that filed the lawsuit is non-existant. That's why its called a "limited purpose" public figure.

[ProSense]

37. Most

"Of course, she could still win even under that standard."

...definitely, and primarily because the limited public figure also is murky. To claim that one testimony makes her a limited public figure is questionable. The fact that Limbaugh dragged her into the public spotlight is also a factor.

Putting this out there to quiet talk of a law suit is silly. She can definitely sue that vile bastard, and has a very good chance of winning.

[onenote]

44. You are mistaken.

There is nothing remotely questionable about the claim that "one testimony makes her a limited public figure." Its not even a close call. SCOTUS precedent establishes that one is a limited purpose public figure if one "injects himself or is drawn into a particular public controversy" Giving a single press conference has been held to be enough to apply limited purpose public figure status to someone.

Moreover, this situation involves more than "one testimony." Ms. Fluke appeared in the committee room the day of the "men only" hearing and after requests to have her testify were denied, she left the hearing room and spoke to reporters. She then appeared at the hearing the Democrats called to give her a voice and I'm fairly certain she spoke to reporters after that hearing ended as well.

Again, the fact that Fluke is a limited purpose public figure with respect to the subject of her testimony does not in and of itself mean that she is fair game to be slimed by Limpy. There are additional issues, including whether his statements were sufficiently germane to her testimony and whether they were made with actual malice.

I think Fluke might be able to win a defamation suit against Limpy. But she also could lose. And I don't see enough benefit from her winning a suit over a matter in which she already has won in the court of public opinion to risk the damage that would be caused if she lost.

[ProSense]

49. Again

There is nothing remotely questionable about the claim that "one testimony makes her a limited public figure." Its not even a close call. SCOTUS precedent establishes that one is a limited purpose public figure if one "injects himself or is drawn into a particular public controversy" Giving a single press conference has been held to be enough to apply limited purpose public figure status to someone.

Moreover, this situation involves more than "one testimony." Ms. Fluke appeared in the committee room the day of the "men only" hearing and after requests to have her testify were denied, she left the hearing room and spoke to reporters. She then appeared at the hearing the Democrats called to give her a voice and I'm fairly certain she spoke to reporters after that hearing ended as well.

Again, the fact that Fluke is a limited purpose public figure with respect to the subject of her testimony does not in and of itself mean that she is fair game to be slimed by Limpy. There are additional issues, including whether his statements were sufficiently germane to her testimony and whether they were made with actual malice.

I think Fluke might be able to win a defamation suit against Limpy. But she also could lose. And I don't see enough benefit from her winning a suit over a matter in which she already has won in the court of public opinion to risk the damage that would be caused if she lost.

...you're defining circumstances that were the Republicans' and Limbaugh's doing.

The OP argument is basically that this status precludes a lawsuit, and that's hogwash.

<...>

For limited-purpose public figures, the actual malice standard extends only as far as defamatory statements involve matters related to the topics about which they are considered public figures. To return to our basketball example, the actual malice standard would extend to statements involving the player's basketball career; however, it would not extend to the details of his marriage.

As regards figures who become prominent through involvement in a current controversy, the law is unfortunately rather murky. In general, emphasis is placed not on whether the controversy is a subject of public interest, but rather:

• The depth of the person's participation in the controversy.
  
• The amount of freedom he or she has in choosing to engage in the controversy in the first place (e.g., if they were forced into the public light). See Wolston v. Reader's Digest Association, 443 U.S. 157 (1979).
  
• Whether he has taken advantage of the media to advocate his cause. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).

Keeping in mind the difficulty of making the determination of who is a limited-purpose public figure, we've collected the following cases which might be helpful. Courts have found the following individuals to be limited-purpose public figures:

• A retired general who advocated on national security issues. See Secord v. Cockburn, 747 F.Supp. 779 (1990).
  
• A scientist who was prominent and outspoken in his opposition to nuclear tests. See Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188 (1966).
  
• A nationally-known college football coach accused of fixing a football game. See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
  
• A professional belly dancer for a matter related to her performance. See James v. Gannet Co., 40 N.Y.2d 415 (1976).
  
• A Playboy Playmate for purpose of a parody. See Vitale v. National Lampoon, Inc., 449 F. Supp 442 (1978).

Courts have found the following individuals not to be limited-purpose public figures (and therefore private figures):

• A well-known lawyer and civic leader engaged in a very public trial involving police brutality. See Gertz v. Robert Welch Inc., 418 U.S. 323 (1972).
  
• A socialite going through a divorce who both collected press clippings on herself and held press conferences regarding the divorce. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).
  
• A Penthouse Pet for purposes of parody. See Pring v. Penthouse Int'l Ltd., 695 F.2d 438 (1982).

- more -

http://www.citmedialaw.org/legal-guide/proving-fault-actual-malice-and-negligence

She should sue the pants off him.

[onenote]

57. wrong again

The situation was not the repubs and limpy's doing. The relevant situation is not what happened after Ms. Fluke became a limited purpose public figure. Rather, the determination of whether one is a limited purpose public figure is based on what happens BEFORE the alleged defamation occurs. Ms. Fluke became a limited purpose public figure for the purpose of the issue of contraception policy and her testimony on that subject the moment she appeared -- voluntarily -- before a Congressional panel and spoke to reporters about it. That this is the case is not even remotely in question and any attorney who advised a client otherwise would be committing malpractice. Really.

I urge you to compare this situation to the ones in the highlighted portion of your post where limited purpose public figure status was not found. The first, Gertz, involved a lawyer who was falsely accused of having helped framed a police officer convicted of murder and, for good measure, of being a "communist." The court conceded that individuals could become limited purpose public figures when they inject themselves into matters of public concern. Gertz didn't meet that test because, as the court found,
"He took no part in the criminal prosecution" of the police officer and he "never discussed either the criminal or civil litigation with the press and was never quoted as having done so." Fluke, of course, took part in the hearings on contraception policy and spoke to the press about them.

The Firestone case involved a divorce -- deemed by the court not to be sufficiently a matter of public concern to warrant designating the litigants limited purpose public figures. The subject of Fluke's testimony obviously and undeniably is a matter of great public concern.

As I have previously suggested, while there is no question that Ms. Fluke is a limited purpose public figure with respect to the subject of contraception policy and her testimony thereon, whether limpy's statements are sufficiently germane to those subjects is not as clear. While I think it more likely than not that a court would conclude that limpy's spew was sufficiently related to the subject of contraception policy and her testimony thereon, I would not rule out the possibility of a court concluding otherwise.


As for the third case listed, Pring v. Penthouse, I have absolutely no idea why it is included since it had nothing to do with the limited purpose public figure doctrine. Indeed, the description of the case is completely wrong. The case did not involve a Penthouse Pet, it involved a beauty pageant participant (Miss Wyoming) who claimed that a fictional story published by Penthouse describing a Miss Wyoming (with a different name than plaintiff) performing oral sex on her coach and a judge was about her and was defamatory. The court never discussed the issue of whether the plaintiff was or was not a limited public figure -- it didn't need to since it found that the plaintiff couldn't win a libel case because the story was plainly "fantasy" and not intended to be believed as a depiction of an actual event.

Again, not to pick a fight, but you simply are wrong in contending that Ms. Fluke would not be considered a limited purpose public figure for both the purpose of the subect of her testimony (government policy regarding contraception) and the controversy over whether she should have been permitted to testify before the full Congressional panel.

[ProSense]

58. You know

Again, not to pick a fight, but you simply are wrong in contending that Ms. Fluke would not be considered a limited purpose public figure for both the purpose of the subect of her testimony (government policy regarding contraception) and the controversy over whether she should have been permitted to testify before the full Congressional panel.

...that's a neat trick. The "controversy over whether she should have been permitted to testify" was the result of the Republicans' actions and has nothing to do with Limbaugh.

Still, it's interesting that without a court weighing in, you've already decided her status, especially since there are opinions to the contrary.

[onenote]

61. Please link to an analysis of why she wouldn't be a limited purpose public figure.

And I notice that you didn't try to show how this case is anything like the other cases cited in your post.

By the way, while I like and respect your posts on DU (and often join you in responding to some of the Obama haters and fantasy mongers), I'm curious to know what you meant when you said that "its intersting" that I've already decided her status. I will give you the benefit of the doubt and not conclude that you were insinuating anything about where my sympathies lie in this matter. Ms. Fluke has been done a terrible wrong. But sometimes, under our laws, people who are done terrible wrongs don't have a judicial remedy. The Supreme Court has decided that in order to protect the free flow of speech under the Constitution, false statements in some situations can only be actionable if a higher burden of proof can be met.

I've repeatedly stated that it may be possible for Ms. Fluke to meet the higher standard of proof applicable to limited purpose public figures. I've read analyses that go both ways on that point. But I've yet to read an analysis that applied the limited purpose public figure standard and the cases decided under it to the facts of this situation and concluded anything other than that she meets the test of a limited purpose public figure for the subject of her public testimony on a matter of public concern and the controversy surrouding whether she should have been allowed to testify.

[jsmirman]

65. You're

in a fair amount of trouble.

Trying to discuss legal matters with people who are not lawyers and have no legal training, but are positive that they know everything there is to know about the law - and will relentlessly and inaccurately bludgeon you with arguments that simply do not respond to the legal questions of a situation - will always prove painful.

I wish you luck and the power of infinite patience.

[ProSense]

67. This

Trying to discuss legal matters with people who are not lawyers and have no legal training, but are positive that they know everything there is to know about the law - and will relentlessly and inaccurately bludgeon you with arguments that simply do not respond to the legal questions of a situation - will always prove painful.

...is a discussion forum, and not a legal one. There is no requirement for any specific expertise to engage in a discussion.

[jsmirman]

69. Ha ha

We've found something we agree on. I agree that you have every right to engage in any discussion, even if you want to tell a doctor how to address a broken femur.

My advice, however, is not directed to you.

[onenote]

83. Turns out you were right.

Apparently having expertise, legal citations, etc. is not enough for some folks. They are going to believe they are right because, well, they want to believe they are right.

[ProSense]

66. By no

I will give you the benefit of the doubt and not conclude that you were insinuating anything about where my sympathies lie in this matter.

...means was I insinuating that you sympathize with Limbaugh (if that's what you're implying). We disagree about the weight of her case, that is all.

[onenote]

71. Thanks for clearing that up.

I didn't think that's what you were doing because it would be out of character with what I know of your posts. But I was concerned that maybe in the heat of debate you might have misread my position. We're good (but you're still wrong on the weight of her case when it comes to the issue of whether or not she's a limited purpose public figure!).

[rustydog]

26. Because Turley says so? I saw an article in Raw Story, i believe, where another professor

argues, very well, that she is NOT a public figure. being called to testify does not make one public. Then it is the CONTEXT of Rush-bo's comments that make them slander, not satire.

[onenote]

28. I saw a reference to that article, but couldn't find his rationale for why she isnt' a public figure

Whether she was "called on" to testify or volunteered to do so, testifying in a public hearing and then following up with television and newspaper interviews on the subject absolutely makes Fluke a limited purpose public figure. That doesn't make her fair game to be shit on by limpy, but anyone who thinks she has the same status as a private citizen lacks an understanding of the law on this subject.

[treestar]

33. Legal argument always has two sides

Someone representing her could make arguments in her favor. Only the courts can make a conclusion and those can be appealed.

[gaura purnima]

42. I don't even want to go there.

The point is that Rush deals in satire. So anything that comes out of his mouth, I question. It's no accident that he and Howard Stern share a birthday--I put them in the same category. They say what sells and make lotsa $$$$ by doing so.

Same as Bill Maher, you know?

[Bluerthanblue]

43. strange though, that Howard Stern was continually fined

by the govt- why was he picked on so continually, to the point where he went satelite?

[gaura purnima]

45. As I recall, that was in the wake of Janet Jackson's BoobGate

And I also believe that it's possible that he was being targeted for expressing displeasure against Dubya. His demographic was very much one coveted by Republicans--bluecollar White.

[onenote]

51. While the Janet Jackson situation may have been the straw that broke the camel's back

and convinced Stern to abandon broadcasting for satellite, most of the fines that were imposed on his programming were meted out during the Clinton and Bush I era.

http://en.wikipedia.org/wiki/FCC_fines_of_The_Howard_Stern_Show

[CJCRANE]

50. Stephen Colbert does satire.

What Limbaugh does is not satire IMO.

[Arugula Latte]

47. So it's okay to viciously smear and attack her for three days!

Okay. Got the subtext.

[hifiguy]

48. I am an attorney and I disagree with Turley

The Bloated Sack clearly lied about things he had, and could have, no knowledge of. That is the hornbook definition of malice even in cases involving public figures. And if any citizen who testifies at a legislative hearing is a "public figure", that definition has changed an awful lot since I was in law school. She has a case for slander. Period.

[xxqqqzme]

52. His argument on the modern

definition of 'slut' is shallow. limpballs defined it in his rant - "a slut....a prostitute...". I further do not understand public figure - she was not a 'public figure' when she testified. She might be considered that now - but again it was limpballs making it so.

[onenote]

70. as you acknowledge, you don't undestand "public figure"

So I will try (again) to explain. The Supreme Court has held that one becomes a limited purpose public figure when one "voluntarily inject[s] himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues."

In this instance, Ms. Fluke "injected" herself into the public controversy over contraception policy by volunteering to testify at a public Congressional hearing on the subject. She also "injected" herself into the related controversy over the repubs refusal to allow her to testify by talking to reporters about that decision and by volunteering to appear at the "counter hearing" that was held on the subject.

The point is not whether she was a public figure before she testified. She became a public figure (for limited purposes) WHEN she testified.

And let me add my usual disclaimer (since some think that my explaining the law somehow indicates hostilty towards Ms. Fluke.) While she undoubtedly is a limited purpose public figure with respect to the subject of contraception policy and the subject of her being refused leave to testify at the first hearing, that doesn't mean she can't possibly win a defamation case against limpy. However, anyone who thinks its a slam dunk for her to win is fooling themselves and fooling others (and I daresay that no lawyer actually advising Ms. Fluke on her legal options would suggest she had a slam dunk case for fear of finding themselves on the wrong end of a malpractice suit). Judges and juries do all sorts of unpredictable things.

Finally, let me return to the Supreme Court's opinion in the Gertz case (which, by the way, found that the plaintiff in that case was NOT a public figure, limited purpose or otherwise): "Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, at 279: "Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred." The First Amendment requires that we protect some falsehood in order to protect speech that matters."

[MicaelS]

54. Let the courts decide

I want to see this go to trial. Even if Fluke loses, Limbaugh will have to get on the stand and defend his statements. Not just about Fluke, but about other women. That will be the chance to expose him for what he really is.

[onenote]

59. His statements about other women won't be relevant.

And the possibility that a court would conclude that rush's bile was hyperbole or whatever and find against Fluke is far too great to risk. You can't control juries and you can't control judges. Fluke has the burden of proof. She would have to show that limpy had actual knowledge that she wasn't a slut or prostitute -- something I doubt she could prove since its clear that Limpy did not have any knowledge one way or the other. (Its a weird standard, but his not knowing its true isn't the test--its his having actual knowledge that it is untrue). She would have a much stronger case under the back up standard -- that limpy spoke with reckless disregard as to truth or falsity of what he said. But even then, she also could be opening herself up to questioning about her own sex life and there is no reason for her to put herself through the abuse she will take at the hands of limpy's lawyers. (Remember, the plaintiff bears the burden of proof in defamation case).

[ProSense]

60. Your arguments

And the possibility that a court would conclude that rush's bile was hyperbole or whatever and find against Fluke is far too great to risk. You can't control juries and you can't control judges. Fluke has the burden of proof. She would have to show that limpy had actual knowledge that she wasn't a slut or prostitute -- something I doubt she could prove since its clear that Limpy did not have any knowledge one way or the other. (Its a weird standard, but his not knowing its true isn't the test--its his having actual knowledge that it is untrue). She would have a much stronger case under the back up standard -- that limpy spoke with reckless disregard as to truth or falsity of what he said. But even then, she also could be opening herself up to questioning about her own sex life and there is no reason for her to put herself through the abuse she will take at the hands of limpy's lawyers. (Remember, the plaintiff bears the burden of proof in defamation case).

...are devil's advocate ones, and even still, you indicate that she could have a case. I'm not seeing fear as a justification for not suing that vile bastard.

[onenote]

62. Its easy for any of us who are not directly in the line of fire to offer up suggestions

Maybe she will sue. Some people are publicly advising her to do so. Others are publicly advising her not to do so. Based on my experience with this sort of litigation, I would make sure she was fully aware of the risks before she made the decision to sue. Maybe that's playing devil's advocate. Maybe its just smart.

[HangOnKids]

63. The OP Has Left The Building! n/t

[Poll_Blind]

64. +1

PB

[jsmirman]

72. Which does not remove the viewpoint advanced

from "the marketplace of ideas" you reference in your signature.

Your statement is purely meta and says nothing about the topic under consideration.

[HangOnKids]

74. My Comment Was To Let People Know There Would Not Be A Reply From The OP

Bye now.

[Taverner]

68. Not sure I agree with him on that

Even trying to testify does not make you a public person...

[onenote]

73. I'd like to see a citation that backs you up on that.

Got one?

[Taverner]

75. Here:

http://legal-dictionary.thefreedictionary.com/Public+person

A description applied in Libel and Slander actions, as well as in those alleging invasion of privacy, to anyone who has gained prominence in the community as a result of his or her name or exploits, whether willingly or unwillingly.

If a plaintiff in a libel or slander action qualifies as a public figure, he or she must show that the libelous or slanderous conduct of the defendant was motivated out of actual malice as required in the case of new york times co. v. sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

public figure n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star, or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).


So the qualifications are:

1 - Prominence in the community. Testifying before congress does not automatically make you such.

2 - A personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star, or sports hero. - she doesn't fit those categories either.

[onenote]

78. ah, the dangers of playing amateur attorney

You have just quoted a definition of the what makes a person a public figure for all purposes. Unfortunately for you, the Supreme Court has recognized two (some would say three) categories of public figures. The aforementioned "public figure for all purposes" and the "limited purpose public figure". (The third category, rarely applied, is the "involuntary" limited purpose public figure).

Here is what the Supreme Court said on the subject (a slightly more meaningful source of legal authority than an online legal dictionary):

From Gertz v. Welch (decided after NY Times v. Sullivan) -- "Respondent's characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions."

[Taverner]

79. By that logic, anyone who's been on America's Funniest Home Videos is a public person

And yes, I am no attorney. I studied media law in 1996. and the definition was troublesome even back then.

[onenote]

81. No, but its possible that appearing on a TV show can make you a limited purpose public figure

Your example misses the mark since its unlikely that anything on America's Funniest Home Videos would constitute a "public controversy" (or as some courts label it, a matter of "public concern&quot -- which is an essential element of being deemed a limited purpose public figure.

On the other hand, if someone voluntarily goes on Nightline to discuss whether the Senate should have confirmed Justice Roberts (a clear matter of public controversy and concern) and then talks to reporters about that subject, there is no doubt that such person, even if they had never appeared on TV before) would be deemed a limited purpose public figure for the purpose of the subject of Robert's confirmation. Consequently, if Limpy went on the air the next day and called the person a child pornographer because he/she spoke against Roberts' confirmation, the plaintiff could sue, but would be treated as a limited purpose public figure. In that case, I think the plaintiff would have a reasonably good chance to overcome the burden imposed by the limited public figure standard and could establish actual malice and win the suit. Ms. Fluke also might be able to succeed in establishing actual malice -- some people say she could, some think she couldn't. I don't take a position on that issue. I do know, however, that it wouldn't be a slam dunk and that there are risks in bring such a suit that Ms. Fluke should consider whatever she ultiamtely decides to do.

[Taverner]

77. Might I add that the public/private person debate is one of the greyest areas of law

[onenote]

82. citation?

Around the edges there are always gray areas. This case isn't one that is around the edges.

[joeybee12]

76. And this is why we have court cases, because one lawyer's opinion

is simply his opinion...another lawyer could argue differently...and if he/she makes a better argument, he/she wins...lawyers are rarely stating facts but opinions, and this is Turley's.

[CatWoman]

80. good ole DU

hasn 't changed a bit

[GeorgeGist]

84. apparently ...

there is some doubt that JT is a 'great progressive legal professor'.

[Sgent]

86. Thoughts...

One... she probably is a limited public person for the purposes of slander.
Two... she could very easily prevail even given one. Malice and reckless disregard for the truth.

That being said, a lawsuit on her behalf would be idiocy:

1) Damages would be very difficult. Limbaugh could (reasonably IMHO) argue that he has enhanced her image rather than hurt it in monetary terms.

2) She would have to go through discovery -- and since his claims involve her sexual activities, her entire personal history would be open to public scrutiny.