An article by the UK Daily Mail Online describes how this controversy arose. The House Oversight Committee under the leadership of Rep. Darrell Issa called five male witnesses to testify about how the President's order requiring health insurance companies to cover contraception violates the religious liberty of employers. Democrats were told that they could call one witness, and they chose to call Ms. Fluke. The Committee refused to permit Ms. Fluke to testify on the ground that she was not an expert on religious liberty. According to the Mail,
Ms Fluke later posted her testimony on YouTube. She spoke about a friend who had to take birth control to treat a disorder that caused ovarian cysts, and who subsequently lost her ovary, and of classmates who could not afford contraception.Phillip Elliott of the Associated Press reports Mr. Limbaugh's response to Ms. Fluke's proffered testimony. Limbaugh stated:
"What does it say about the college co-ed ... who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex."The following day Limbaugh said:
"If we're going to have to pay for this, then we want something in return, Ms. Fluke," Limbaugh said. "And that would be the videos of all this sex posted online so we can see what we're getting for our money."After many Democrats and a few Republicans responded with outrage to Limbaugh's remarks and several advertisers deserted Mr. Limbaugh's program, he issued the following apology posted on his website:
For over 20 years, I have illustrated the absurd with absurdity, three hours a day, five days a week. In this instance, I chose the wrong words in my analogy of the situation. I did not mean a personal attack on Ms. Fluke.
I think it is absolutely absurd that during these very serious political times, we are discussing personal sexual recreational activities before members of Congress. I personally do not agree that American citizens should pay for these social activities. What happened to personal responsibility and accountability? Where do we draw the line? If this is accepted as the norm, what will follow? Will we be debating if taxpayers should pay for new sneakers for all students that are interested in running to keep fit? In my monologue, I posited that it is not our business whatsoever to know what is going on in anyone's bedroom nor do I think it is a topic that should reach a Presidential level.
My choice of words was not the best, and in the attempt to be humorous, I created a national stir. I sincerely apologize to Ms. Fluke for the insulting word choices.
There are several issues that must be considered in deciding whether an action for defamation or intentional infliction of emotional distress would lie against Mr. Limbaugh for his three-day diatribe against Ms. Fluke. Did Limbaugh make statements of fact about Ms. Fluke or did he engage in hyperbole or parody? If these were statements of fact that were not parody, were they false? Were these statements made about Ms. Fluke personally or were they instead directed at other people or society generally? What was Mr. Limbaugh's state of mind: did he know that his remarks were untrue; did he utter them with careless disregard as their truth or falsity; or was he simply negligent in misstating the truth? For purposes of this controversy, is Ms. Fluke a private figure or a public figure? And were these statements about a matter of public concern or did they simply involve Ms. Fluke's private life? Three of these factors are discussed below.
STATEMENT OF FACT OR PARODY?
No action for defamation may be brought unless it involves a statement that is "falsifiable;" it must be possible to prove that the statement is true or untrue. Moreover, even a statement of fact is capable of being proven false, no action for defamation lies on behalf of a public figure if the statement may fairly be construed as "parody" not intended to be taken literally.
I think that it is clear that Mr. Limbaugh made statements of fact about Ms. Fluke that could be proven true or false. He specifically referred to her as a "slut" and a "prostitute," terms that have specific, well-known meanings. In fact, these terms are poster boys for words that would trigger "libel per se," the common law doctrine that allowed people to recover damages for defamation almost automatically. Because of the Supreme Court's interpretation of the First Amendment, however, the doctrine of "libel per se" no longer applies in these types of situations, so it is necessary to continue the analysis.
Even though Limbaugh's remarks were falsifiable statements of fact, Limbaugh would contend that they were "parody;" that no-one could have seriously believed that he was accusing Ms. Fluke of promiscuity. He would invoke the case of Hustler Magazine v. Falwell (1988), in which the Supreme Court in an opinion by Chief Justice Rehnquist ruled that the pornographer Larry Flynt could not be held liable for a fake advertisement that he published depicting Jerry Falwell admitting to having had sex with his mother in an outhouse. The Court stated:
We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. ...
Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated." The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here.
When Mr. Limbaugh finally came to his senses and delivered what he considered be an apology to Ms. Fluke he characterized his statements as "absurdity" and "an attempt at humor." In referring thus to his remarks he would appear to be raising the Hustler defense to both a cause of action for defamation and a lawsuit for intentional infliction of emotional distress. The obvious difficulty with the Hustler defense in this instance is that while it was clear that Rev. Jerry Falwell was a public figure, it is not at all clear that Ms. Fluke is. The "public figure/private figure" dichotomy is discussed below, but first I address whether this involved a matter of public concern or a matter of private concern.
PUBLIC CONCERN OR PRIVATE CONCERN?
In a lawsuit for defamation or IIED Limbaugh would defend on the ground that, like the Westboro Baptist Church, he was discussing a matter of public concern. In the case of Snyder v. Phelps (2011), decided a year ago this month, the Supreme Court ruled that the Westboro Baptist Church was not liable to the Snyder family despite the fact that the church mounted a demonstration during their son's funeral. The members of the church claimed that Marine Lance Corporal Matthew Snyder, who had been killed in Iraq in the line of duty, had actually died because God was punishing America for tolerating homosexuality. They also were demonstrating against the Roman Catholic Church, to which the Snyders belong.
The Snyders were undeniably private figures, and yet the Supreme Court found the Westboro Baptist Church to be immune from liability because their statements were not directed personally at the Snyders and because their statements involved "matters of public concern." Chief Justice John Roberts delivered the opinion for the majority. Here is the key passage of his opinion:
The "content" of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of "purely private concern." The placards read "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Fag Troops," "Semper Fi Fags," "God Hates Fags," "Maryland Taliban," "Fags Doom Nations," "Not Blessed Just Cursed," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You're Going to Hell," and "God Hates You." While these messages may fall short of refined social or political commentary, the issues they highlight – the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy – are matters of public import. The signs certainly convey Westboro's position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs--such as "You're Going to Hell" and "God Hates You"--were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues.Limbaugh's statements are every bit as vile as that of the Westboro Baptist Church. He would, however, contend that "the overall thrust and dominant theme" of his remarks on this subject "spoke to broader public issues." In this he would hope to be protected from liability for IIED to Ms. Fluke under the rule of Snyder v. Phelps. One problem he would face in asserting this defense is that his comments were not responsive to Ms. Fluke's point that women face serious health consequences when contraception services are not made freely available. Another difficulty Mr. Limbaugh would have is that his comments were directed far more specifically at Ms. Fluke personally than were the remarks of the Westboro church at the Snyder family.
PUBLIC FIGURE OR PRIVATE FIGURE?
Is Ms. Fluke a public figure or a private figure? This could be argued either way. Militating against finding Fluke to be a public figure is the fact that she does not hold public office nor does she exercise public power. Prior to this controversy she was unknown to the public. In support of finding that she is a public figure for purposes of this controversy is the fact that she was chosen to testify before the House Oversight Committee on the subject of the medical necessity for ready access to access to contraception.
The leading case on this subject is Gertz v. Robert Welch, Inc. (1974). In that case the John Birch Society defamed a Chicago attorney, Elmer Gertz, by calling Gertz a "Communist-fronter" and accusing him of being part of a conspiracy because he represented a family suing a Chicago policeman for murder. The key finding of the Supreme Court was that attorney Gertz was not a public figure. Speaking for the Court, Justice Powell stated:
In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.Unlike Gertz, Ms. Fluke publicly expressed her opinion about access to birth control. Neither, however, was she acting as an attorney in significant litigation. Whether she is or is not a "public figure" within the meaning of the law of defamation is not clear.
If Ms. Fluke is a public figure then the standards of New York Times v. Sullivan (1964) would apply, and in order to recover for defamation she would have to prove by clear and convincing evidence that Mr. Limbaugh knew that the statements were false or that he acted with reckless disregard as to their truth or falsity. Furthermore, she would be ineligible to recover punitive damages.
If on the other hand Ms. Fluke were found to be a private figure then this case would be governed by Gertz v. Welch and in order to recover for defamation she would only have to prove by a preponderance of the evidence that Limbaugh was negligent in making inaccurate statements about her. Furthermore, she could recover punitive damages if she could prove that Limbaugh knew that the statements were false or that he uttered them without caring whether they were true or false. Those punitive damages might amount to tens of millions of dollars.
If it were determined that Mr. Limbaugh made false statements of fact about Ms. Fluke that the average reasonable person would not know was parody, it would open the door to a suit for defamation. If it were also determined that Ms. Fluke were a private figure she might also be able to sue for intentional infliction of emotional distress. If in addition to those two findings it were determined that Mr. Limbaugh's statements relate to a matter of private concern rather than a matter of public concern then it is almost certain that Mr. Limbaugh would be held liable to Ms. Fluke.
On the one hand, it is clear that Mr. Limbaugh's statements were made in the larger context of the dispute over public funding for preventive care for women's health. On the other hand, instead of addressing those issues he chose instead to launch a personal attack on Ms. Fluke, and Mr. Limbaugh has a long history of vilifying individuals with whom he disagrees.
That is the weak point of Limbaugh's defense. He never discusses policy. He has no demonstrable expertise in science, economics, or public health. On his program he does not interview leading figures in American life or rationally discuss the ramifications of suggested laws and public policies. Instead, he engages in the politics of personal destruction, of which his outrageous treatment of Ms. Fluke is but one example. He seeks not to engage people with whom he disagrees but simply to intimidate them. In this case he thought he could make Ms. Fluke and other women cower with his bullying and his lies. He thought that he could silence the opposition by shaming them with assertions of sexual immorality. In this he is nearly identical to Larry Flynt and the Westboro Baptist Church. But because his statements contained more plausible and specific factual assertions about Ms. Fluke and because Ms. Fluke might be a private figure it is not altogether clear that he would be able to claim the same legal protections that applied to Flynt and the Westboro group.
There will be no lawsuit. The President of the United States responded to Mr. Limbaugh's demagoguery by calling Ms. Fluke and telling her that her parents should be proud of her. I imagine that is sufficient compensation for the ordeal that Mr. Limbaugh put her through.
I am also confident that this issue will arise again. Mr. Limbaugh will continue to engage in his detestable brand of "humor." It is all he knows.
In a future post I will conduct a broader analysis of Mr. Limbaugh's political philosophy.
UPDATED March 6, 2012 to correct Ms. Fluke's first name.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. He is the author of "The Five Types of Legal Arguments" and "ObamaCare: Is It Necessary, What Will It Accomplish, Is It Constitutional."