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Tuesday, March 06, 2012

Public figures

Was Sandra Fluke a private figure at the time Limbaugh made his statements? Hadn't she thrust herself into the spotlight on this issue by seeking to testify at the Issa hearings, appearing in the media to make her statements, and eventually testifying at the Democrat-run shadow hearing? This is not to justify what Limbaugh, Heaton, or other conservatives have done. But it is to raise the questions of: 1) Whether the proferred argument that Limbaugh is perceived as having overstepped because he went after a private person is accurate and 2) What happens in any defamation/IIED lawsuit that Fluke might file.

Update in response to comments: I generally agree with the various commenters that a lawsuit against Limbaugh is going nowhere for reasons unrelated to the public/private distinction. I am more interested in the first question, which I want to elaborate on: One explanation for why so many people have rebelled against Limbaugh--why this situation is different--has been that he attacked a private person. But if Fluke is a public figure (even for these limited purposes), then isn't she just as fair a target for criticism as any other participant in the public debate over these issues (say, the head of NARAL or Planned Parenthood or any of the other "Feminazis" he is always ranting about)? Which is not to say that Limbaugh's comments about Fluke were justified. Only that they are no different than what he has been saying for 20 years.

OK, I think I'm done talking about this.

Posted by Howard Wasserman on March 6, 2012 at 01:35 PM in Current Affairs, First Amendment, Howard Wasserman | Permalink


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The question is why members of the public have reacted so strongly to Rush's statements about Ms. Fluke when he has said terrible things about other people. Whatever the legal definition of public figure, private figure, public figure for a limited purpose, may be, I do not believe most people think in those specific legal terms. They would not think that if they appeared at their local zoning board meeting-- or in front of Congress even, for a once shot deal-- that they would be turned into a "public figure." They would, likely, describe themselves as a private citizen voicing their concerns about government.

Posted by: Anon | Mar 8, 2012 1:58:00 PM

If we imagine two categories, "public" and "private," then it may make sense to consider her in the former. But (as far as moral outrage goes) there's no compelling reason to so limit ourselves. Fluke was obviously a public figure to a certain extent, but really she was a private citizen exercising the ability that all of us should be able to more easily exercise, and petitioning the government for redress. She's a public figure in the same way that law professors who sign amicus briefs at the Supreme Court are.

Does she open herself up to a bit more justified scrutiny because she expressed her opinions in a rather powerful and open way? Of course. Does that mean she's in exactly the same category as people who run interest groups or lobby for a living? Of course not.

Posted by: Andrew MacKie-Mason | Mar 8, 2012 1:43:25 AM

As to the update, if she is a public figure for "limited" purposes, is she really akin to the "head of NARAL" who is a public figure w/o such a qualifier? This isn't the first time at the rodeo for him including against "limited public figures," so yeah he has been doing this for a long time. It is an issue probably because of how much Ms. Fluke and the contraceptives thing is an issue & as Jon Stewart recently showed, his remarks basically match many from "real" journalists on FOX and others.

Posted by: Joe | Mar 7, 2012 7:47:16 AM

Actually, I don't think whether she is a public figure technically matters as a matter of formal doctrine. If you are a public figure, the standard gets elevated to actual malice. But here I think there is a pretty good case of reckless disregard. I seriously doubt that Limbaugh had any reason to believe that Ms. Fluke is a prostitute. Thus, the actual malice standard would be met.

The bigger problem is that I don't think any reasonable person would understand Limbaugh to be making a factual statement, rather than merely hurling insults (much as how calling someone a "bastard" is usually understood as an insult rather than a literal statement of fact). Even under the standard for private persons, an insult that is not a statement of fact would not be actionable in defamation. Granted, public figure status might matter for an IIED suit, but those are pretty hard to win anyway.

Posted by: TJ | Mar 6, 2012 9:55:31 PM

I found this a good discussion of the "horrible but protected" stance:


An interesting question might be if he called the friend Ms. Fluke talked about a "slut," but even there, though it might be somewhat useful as a thought experiment, it not really the point.

His speech is protected but disgusting. Wouldn't be the first time.

Posted by: Joe | Mar 6, 2012 6:56:20 PM

Well, except apparently many people have taken his statement as a statement of fact. His charge that Ms. Fluke had lots of sexual partners played into a misreading (likely deliberate) of how birth control pills work. Whether a woman on the pill has sex once a year or 365 times a year, she has to take the pill every day. He spoke as if the number of pills equated to the number of times a woman had sex. Perhaps some of his listeners are, but I find it hard to believe that Limbaugh is that stupid. It was a malicious statement.

Posted by: HH | Mar 6, 2012 5:44:16 PM

For purposes of defamation law, Ms. Fluke would be a limited-purpose public figure under Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and Waldbaum v. Fairchild Publications, Inc., 627 F. 2d 1287 (DC Cir. 1980). To the extent that Rush's comments are germane to the subject matter of her testimony, they would be subject to the NY Times v. Sullivan actual malice standard. It's hard to see what the defamation claim would be in any event, as I doubt that a reasonable person would understand Rush's comments to be statements of fact.

That Rush's statements are protected by the First Amendment hardly means that they are acceptable, nor does the legal test mean that Ms. Fluke's status as a previously unknown law student is irrelevant to the public discussion. In any event, it would have been nearly as outrageous for him to call a clearly public figure like Kathleen Sebelius a "slut" for opposing the Blunt Amendment. Blatant sexism and misogyny is beyond the pale whether or not the target is a public figure.

Posted by: AF | Mar 6, 2012 3:52:10 PM

See 19 ALR 5th 1 Section 99[b]

Posted by: KK | Mar 6, 2012 2:02:23 PM

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