Fund Your Utopia Without Me.™

08 March 2012

Fluke Was Not A "Private Citizen"


Over the last week, many on the Left, including that genius, Steny Hoyer, have been encouraging Sandra Fluke to sue Rush Limbaugh for calling her a "slut" and a "prostitute."

Please, please, please, with sugar on top...and chocolate sprinkles...and marshmallows...and pistachios...and Oreo crumbles...and chocolate chunks...and Reese's Pieces...and walnuts...and M&Ms...and chocolate whipped cream...and Irish coffee-flavoured whipped cream...and a, make that three cherries!

Sandra Fluke was not a "private citizen" and she has no case against Rush:

A plaintiff, who is a public figure, that is alleging defamation must show that the allegedly false statements were made with actual malice.  In other words, the plaintiff must prove that the defendant made the statements with knowing falsity or with a reckless disregard for the truth, New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mutual Insurance, 779 N.E.2d 167, 171 (N.Y. 2002).  And, a public figure does not have to be a household name, elected official, celebrity, etc.  Public figures can include limited-purpose public figures, who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).  In fact, limited-public figures can include those that even "involuntarily" inject themselves into controversies Someone "well-known in the profession, but not outside of it" can be a limited-public figure for defamation case purposes, Daniel Goldreyer, Ltd. v. Dow Jones & Co., Inc., 687 N.Y.S.2d 64, 65 (N.Y. App. Div. 1 Dept. 1999).  Likewise, someone well-known in a "movement, but not outside of it" can be a limited-public figure for defamation purposes.  Ms Fluke is certainly well-known within the reproductive rights movement.

As indicated above, it is not required that a plaintiff be a well-known person or household name for her to be considered a public figure for defamation law purposes.  He or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999). It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”).

She appeared at the “Catholic Students for Women’s Health” press conference on 9 February 2012 at the National Press Club, which was carried on C-span, where she expressed support for Obama's contraception mandate.  She "testified" before a panel of House Democrats on Capitol Hill.  She voluntarily "thrust herself into the forefront of the contraception mandate debate in an attempt to influence its resolution."  She made the decision to inject herself into a contentious, national debate.  She opened herself up to the possibility that she would be ridiculed.  She waived any "private citizen" claim she might have had long before she "testified" before Maerose Prizzi's kaffee klatsch on 23 February 2012.  If she is upset that the klieg lights burned her, then she has only herself and the Democrats, who pimped her, to blame.  Rush Limbaugh is not to blame.  The Constitution is certainly not to blame.

As a public figure, in order to prevail in a defamation case, Fluke must prove the “actual malice” on Limbaugh’s part. I'm sure that Ms Fluke believes that Rush's statements were "malicious," but "actual malice," does, in fact, have a precise legal definition:  known falsity or a reckless disregard for the truth.  See: Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attack..." 

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). 

The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. 

P-L-E-A-S-E beg her to sue.  Truth is an absolute defence in a defamation trial and the burden of proof for Ms Fluke, a public figure, will be very high considering that she'll have to prove that she is not a slut, that Rush knew that she wasn't a slut, and, with actual malice, said that she was one, as opposed to offering his opinion of her character.

I can just see the days of anal exam depositions where Rush's lawyers question her about every sex partner, every sex act, every sexual position, etc., that she has ever had, done, etc.  I can also see the depositions of her sex partners.

Gee, what happens if she turns out to be a lesbian?  While birth control pills can be used to regulate menstrual cycles, I promise you that, if it comes out that she is a lesbian and was up on Capitol Hill demanding "free" contraception, which people hear and think "pregnancy prevention," she will be a bigger laughingstock than she is now....and her whole mission will have failed.

She can then slither back to Ho Plaza at Cornell where she used to protest against pro-life groups, Christians, the military, capitalism, and the rest of the OWS agenda.

Moreover, Rush did not call her a slut as a fact.  As Professor Eugene Volokh wrote, "if in context it is clear that the word is “rhetorical hyperbole, a vigorous epithet used by those who considered [B]‘s negotiating position extremely unreasonable,” then the accusation is constitutionally protected opinion — it is basically an assertion that B’s accurately described conduct is morally similar to blackmail, a statement of opinion (and perhaps clearly understood hyperbole). So the Court held in Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970).

Limbaugh’s saying that Fluke’s testimony “makes her a slut” and “makes her a prostitute” falls into the same category: Listeners would understand is as “rhetorical hyperbole, … vigorous epithet[s] used by [Limbaugh,] who considered [Fluke's advocacy] extremely unreasonable,” an assertion (however over-the-top) that Fluke’s demands are morally similar to a prostitute’s insistence on getting money for sex. That is a statement of opinion and constitutionally protected."

Lastly, she does NOT have a right to health insurance or contraception from Georgetown University.  Neither Obamacare nor the contraception mandate apply to students.  Her "testimony" was as irrelevant as she is.

Did I remember to say "Please" and mention the sprinkles?

Exit Questions:

If an American, who attends a Tea Party event is a "Teabagger," is an American, who marches in a SlutWalk, a "slut"?

Would someone like to ask the Development Editor of the Georgetown Journal of Gender and the Law, who wrote “Employment Discrimination Against LGBTQ Persons," whether she had anything to do with the planning and/or participated in the SlutWalk that occurred in Georgetown on 13 August 2011 with the support of faculty and student groups from Georgetown University Law Center with the aim of “reappropriating the word 'slut'"?

Hint:  Ms Fluke was a well-known protestor at Cornell and is at GT.


"There is a new ‘hot topic’ at various alleged Feminist sites that exemplifies yet another reason why leftist self-named Feminists should really be called Femisogynists. Their agenda is purely a political one and it’s one that is actually harmful to women. The end now justifies the means to the point that the new in thing to do in Leftist Feminist/Femisogynist circles is to “embrace sluthood”. No, really. A most recent example from that hotbed of objectification and subjugation of women disguised as feminism,"

See:  My Sluthood, Myself.

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