Limbaugh to Sue - UPDATE

Rush on yesterday's program.

" I walked out of the studio at the top of the hour. I went into the control room where the trusted and loyal staff is just outraged. I no more than got one foot in the door, and Dawn starts shouting at me, "We are not satisfied, that first caller was wrong, we don't feel better. Sue 'em!" And then Snerdley stood up, started spitting out the same thing in anger. Brian said, "To hell with it, I'm leaving," and went and got a bottle of water. (laughing) I've become the new owner of the National Action Network. (interruption) Own the Monochrome Coalition? No, no, no. Look, folks, I understand. If you think you're enraged by this, trust me I'm right in there with you leading the pack. But there is a strategery here that has to play out, that has to take place. I don't want you to sit around and think that we're not looking into this. We have been for a while. It's gotta be done right, evidence has to be gathered. It's one battle in a long war. "

Which is correct.   There is a process that has to take place.  Meanwhile let's clear misconceptions about the nature of slander lawsuits.  Allah Pundit notes, referring to the retractions from Rick (DUI Killer) Sanchez and the Huffington Puffington Post:
"Proof that Limbaugh’s threat to sue people over this is being taken seriously? Eh, I doubt it. As I said before, it’s really hard for a public figure to prove defamation. He’d basically have to show that his accusers knew the quote was false and published it anyway; both HuffPo and Sanchez would reply that they didn’t know and were merely lazy, sloppy, negligent reporters in relying on published sources for a quote that they hadn’t fact-checked. The retractions, I suspect, are motivated less by fear of being sued than as a lame nod to journalistic ethics. “See, we correct our highly incendiary errors. …Eventually.”
It's not hard to prove defamation when real damages has occurred. Suits have been won on less. In 1981, actress Carol Burnett won a judgment against the Enquirer after it claimed she had been seen drunk in public at a restaurant with Henry Kissinger in attendance.  There are many other examples.

The legal defamation of Slander?
 Typically, the elements of a cause of action for defamation include: :
1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.
In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print. Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish. Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se: Attacks on a person's professional character or standing; Allegations that an unmarried person is unchaste; Allegations that a person is infected with a sexually transmitted disease; Allegations that the person has committed a crime of moral turpitude.

All points of which in this case could be easily proved.  A jury would be forced to ask, "Does a major news organization such as CNN, MSNBC and others have the resources and responsibility to check facts before they cause  harm to the plaintiff?"  A response that they were "merely lazy, sloppy, negligent reporters in relying on published sources for a quote that they hadn’t fact-checked", would be a call for a judgement.  Note,  it's extremely hard to claim these from a professional standpoint under the law.  The law expects professionals to behave as such and negligence of one's duties is not a legal excuse.

Again remember that under a civil suit the standard of probability is 51%, not "beyond a reasonable doubt".

Limbaugh stood to earn millions from the deal and that is most likely what he will go after the networks for.


  1. Objective  

    10/16/2009 11:15:00 PM

    The definition of slander used is not quite accurate when the plaintiff is a public figure. Because of Contitutional limitations, a public figure may only recover in a defamation action if the statement is published knowing that it is false, or with reckless disregard for the truth or falsity of the statement. Negligence is not enough. Recklessness is a higher standard, which makes it difficult for such cases to even get to the jury. Most would be shocked for Limbaugh to not acknowledge that he is a public figure.

    It would seem to be particularly difficult to prove recklessness when the statements given as quotes were entirely consistent with other undenied statements that Limbaugh has made.

  2. MacRanger  

    10/17/2009 09:34:00 AM

    The definition of slander is correct, however I agree that proving maliciousness for a public figure is difficult.

    However as the case with Carol Burnett and others, that burden depends on the jury itself who awards the damages. Again a 51 percent probability is a low standard.

    Again to believe that a major news organization such as CNN or MSNBC would broadcast a damaging statement without verification would most likely be deemed as negligent. It's called the "professional expectation".

    Sure this would be a tough case, but if it went to court I would imagine there would be a public acknowledgement and even some type of settlement.

    And never under estimate the power of the jury.

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