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Fluke Appearance Before Congress Draws Harsh Criticism, But Is It Libel?

Proving defamation is awfully hard when you're a public figure. If Sandra Fluke wants to pursue her critics, here is what she will have to do.

We all know the story about the genie in the bottle who grants his master three wishes.  The genie fulfills the literal words of each wish, but in a way that actually hurts the master. This is the origin of the modern warning, “Be careful what you wish for.”

The controversy surrounding Sandra Fluke demonstrates the danger of wishing to be a public figure.

When Ms. Fluke agreed to testify before Congress regarding access to contraception, she also agreed to become a public figure.

She clearly opened herself up to harsh criticism from people who disagree with her position, but did she also give up her right to be protected against libel and slander?

The answer, in some respects, is yes.

Private citizens have broad legal protection against unfair criticism. If a person or organization harms your reputation by making a false statement about you, you can sue for defamation. 

If the false statement is verbal, it is called slander; if the false statement is written, it is called libel.

It may surprise you to learn that you do not have to show that a statement is false to prove defamation. 

If you can show that a statement damaged your reputation, the burden is on the defendant to prove that the statement was true as part of his defense.

What you do have to prove is this: First, you have to show that a statement was made about you personally, not just about a group to which you may belong. Second, you have to prove that the statement involves a provable fact, and not just an opinion.

Finally, as a private citizen you have to show that the defamatory statement was made negligently, that is, that the defendant failed to use reasonable care to check his facts. In general, the more outrageous a statement is, the more investigation a defendant would have to do.

The problem for Sandra Fluke is that she is not a private citizen, not any more.  American society expects public figures to accept much harsher criticism and even abuse as part of the price for being given power and influence.

Therefore, the law requires a public figure to show a much higher level of fault to prove defamation.

If Ms. Fluke were to sue Rush Limbaugh, for example,  it would not be enough for her to prove that he was merely negligent. She would have to prove that Mr. Limbaugh made a defamatory statement of fact against her with actual malice, knowing that the statement was false, or with reckless disregard for the truth. 

To borrow a phrase from Sen. Al Franken, Ms. Fluke would have to show that Rush Limbaugh is a big fat liar.

Ms. Fluke may not always be a public figure. If she does not continue to participate in the public debate on reproductive rights, she could eventually move out of the public spotlight and regain her status as a private citizen.  If she does, she will also regain the broader protection against defamation that most of us enjoy.

At some point, Sandra Fluke may start to wish for a little less attention and a little more privacy, but I have the feeling it may be a long time before she can get that genie back into the bottle.

Have a question or a suggestion? Contact Dennis at dspirgen@SpirgenLawFirm.com.

Patch posts are general discussions and should not be used as advice on any specific legal matter. If you need legal advice on a particular situation, please consult an attorney.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

tom m March 12, 2012 at 01:57 AM
Jack H Radio's 17th comment just to remind everyone that he still hates rush (he hates him he hates him he hates him)
Jack Kelly March 12, 2012 at 02:02 AM
Tom, The educated adults are talking here. I'm still waiting for you to share your resume to see what you actually do for a living -- that is IF you even have a career like the majority of us commenting here actually do. If you want to troll, find a chatroom. Me having a disliking for Rush has nothing to do with this. I actually used to listen to Rush regularly as he used to be entertaining, and I even laughed at some of the things he said. Up until a few years ago when I got sick and tired of hearing the same 2 or 3 subjects every day, ad naseum. Now, he just comes off ignorant, juvenile and--many times--hateful. His core audience wants to be told what they WANT TO HEAR, even if it's not true (same as other talkers). When it comes to discourse at the level it is today, he is mainly responsible for that (and there are PLENTY of former listeners of his who have the same sentiments). It's okay that you don't understand how this works, that's fine. There's nothing wrong with admitting that. But don't come along here and start arguing with those of us who DO KNOW and try to tell us differently with your OPINION (which is not based in facts). There are many who are trying to get him yanked off the air and I think that's ridiculous. He's going to have to take responsibility for his actions off-the-air even if he won't do it on the air (again, goes back to appealing to his core). And this will be a costly screw-up--he should know better than that.
tom m March 12, 2012 at 02:12 AM
Jack your last comment was very nice very polite and very mature with no verbal insults I am very proud of you for finally acting like a adult (I knew yoou could do it) and now that I know you can actually behave I will not be replying to anymore of your posts
Jason Balfour March 12, 2012 at 01:04 PM
Rush Limbaugh is a big fat liar and a "booger Hooker" That's being nice I think he should be deported and charged with treason just for how he acts let alone all the stupid stuff that comes out of his mouth.
James Thomas March 12, 2012 at 02:53 PM
Just when I thought * had cornered the market on unreasonable discourse. Jason Balfour, either bring something intelligent to the forum or keep your sophmoric opinions to yourself.

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