Glorida Allred Seeking Ways To Prosecute Limbaugh

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54. You have some things right and others wrong.

First, slander and libel per se are subcategories of libel and slander. You are right that where libel and/or slander per se is alleged, it is not necessary to prove that the plaintiff incurred actual damages. However, one still must prove all the other elements of slander/libel, including that the alleged defamatory statement was false and would be understood by a "reasonable" listener/reader to be a statement of act that is defamatory. (Thus, for example, if someone writes that a lobbyist who accepts money for trying to influence legislation is a "whore", its not going to be defamatory because no reasonable person would hear that as a statement alleging, as a matter of fact, that the lobbyist provides sex in exchange for money or other consideration). Second, the actual malice standard absolutely does apply if the person claiming to have been defamed is a "public figure." One can be a public figure for all purposes or for limited purposes. Under the applicable SCOTUS precedent, a very strong argument can be made that,for the limited purpose of the subject of contraception policy and the related subject of her testifying before a Congressional panel), Ms. Fluke is a public figure. Finally, in some jurisdictions the plaintiff bears the burden of proving that the statement was false (not merely that the defendant did not know if it was true or false); in other jurisdictions the burden is on the defendant to prove, as an affirmative defense, that the statement was true. Either way, a plaintiff alleging to have been the victim of a statement that is per se defamatory still opens up himself/herself to questioning regarding the truthfulness or falsity of the alleged defamation. In the case where the libelous statement is calling the plaintiff a "slut" and a "prostitute" this could mean delving into the plaintiff's sex life and history and asking for the names of sex partners so that they can be questioned as to whether the plaintiff ever received financial or other consideration in return for sex. The plaintiff's lawyers will try to cut off such questioning as harassment, but a court is likely to allow the defense some leeway since without such questioning, the defendant can claim on appeal that they were denied the opportunity to mount a defense.

It is because of the above that defamation actions are generally regarded as hard cases. Many settle because the risks for both sides are significant. With respect to limpy, despite the risk of financial harm if he loses a case brought by Ms. Fluke (including the risk of punitive damages that could be very substantial), he is unlikely to settle, in my opinion. First, he undoubtedly has insurance. Second, if he settles, he will feel like he has opened the door to more lawsuits from people he attacks on the air. If he fights, those people may be less likely to sue. And if he fights and wins, the payoff for him is huge in that he can run around claiming HE was the victim in all of this. Ms.Fluke already has bested limpy in the court of public opinion -- most people believe she has been unfairly and maliciously attacked by Limpy. If she pursues a court case and loses, the public's perception of what happened may be altered in a way that minimizes what she has been through.

I am a lawyer, with 35 years experience. If folks want further substantiation of any of the legal points made above, one option is to google "defamation" (or "libel and slander&quot and "model jury instructions." Many states now post online their model jury instructions, which typically set out the elements needed to be proven, the burden of proof, and annotations to relevant cases.

Finally, I would hope to hell that Ms. Fluke doesn't seek to pursue a criminal action against Limpy under that idiotic Florida criminal defamation statute. Given the circumstances, the last thing needed is for a strong, independent, modern woman like Ms Fluke to look for relief to a 19th century statute that draws a gender based distinction based on the outdated notion that women, moreso than men, are fragile beings that need the state's criminal justice system to protect them from offending words.