People across the country have united in an effort to express our outrage over Rush Limbaugh’s attack on Sandra Fluke, the 3rd year law student from Georgetown University.

David Frum, a conservative voice in the country, has explained why Limbaugh’s comments were unforgivable. He said:

“Even by the rough standards of cable/talk radio/digital talk, Limbaugh’s verbal abuse of Sandra Fluke set a new kind of low. I can’t recall anything as brutal, ugly and deliberate ever being said by such a prominent person and so emphatically repeated. This was not a case of a bad “word choice.” It was a brutally sexualized accusation, against a specific person, prolonged over three days.”

Now that many advertisers have pulled their ads, there is another form of redress Ms. Fluke might consider.  Given the fact that she is a law student, she presumably knows about legal remedies that may be available to her. Although it would be pure speculation on my part, I would guess that she has already been contacted by several attorneys, willing to take her case on a contingency fee basis. I am not a practicing attorney any longer, and never practiced in Washington D.C. However even law students understand that there are civil remedies for the type of attack lodged by Rush Limbaugh. Here are some important general claims that may be considered:

A. Defamation

Georgetown is in Washington DC, so for purposes of this article, I’ll focus on DC law, but similar statutes would apply in most jurisdictions.

In Washington D.C. a Plaintiff has a claim for Defamation if they can prove these four elements:

 

1. the defendant (Rush Limbaugh) made a false and defamatory statement concerning the plaintiff (Sandra Fluke);

2. the defendant published the statement without privilege to a third party;

3. the defendant’s fault in publishing the statement amounted to at least negligence; and

4. either the statement was actionable as a matter of law irrespective of special harm or its publication caused the plaintiff special harm. http://www.citmedialaw.org/legal-guide/district-columbia-defamation-law

There is also a claim for Defamation Per Se, which means that as a matter of law (the judge could rule without a jury trial on the issue of liability) the statement was defamatory.

B. Defamation Per Se

In the District of Columbia, a statement that falsely accuses someone of committing a crime constitutes defamation per se. If a statement is defamation per se, the court will assume harm to the plaintiff’s reputation, without further need to prove that harm.

Prostitution is illegal in Washington D.C.,  and thus saying that a woman is a prostitute would constitute an accusation that Ms. Fluke has committed the crime of prostitution.

 

C. Intentional Infliction of Emotional Distress

There is a tort of Intentional Infliction of Emotional Distress. Four elements must be shown for this tort to be proven. They are:

1. The Defendant (Mr. Limbaugh) must have acted intentionally or recklessly;

2. The defendant’s conduct must be extreme and outrageous;

3. The conduct must be the cause;

4. Severe emotional distress results.

Given the comments of Mr. Frumm, it appears these elements might be satisfied.

 

Damages

Actual Damages are real damages designed to compensate a plaintiff for actual financial loss or injuries that have actually occurred. This is in contrast to “nominal” damages (a small amount paid where there is no real loss) or “punitive” damages (intended to punish the party who must pay damages). When damages, which have been suffered by someone as a result of another’s wrongdoing, can be precisely measured, they are called actual damages. Examples of actual damages are: 1)Loss of income because of an injury 2) medical expenses, are 3) costs of repairing damaged property.

The most dangerous type of damages are punitive damages. Punitive damages, also known as exemplary damages, may be awarded by the trier of fact (a jury or a judge, if a jury trial was waived) in addition to actual damages. Punitive damages are a way of punishing the defendant in a civil lawsuit and are based on the theory that the interests of society and the individual harmed can be met by imposing additional damages on the defendant. Punitive damages have been characterized as “quasi-criminal” because they stand halfway between the criminal and Civil Law. Though they are awarded to a plaintiff in a private civil lawsuit, they are noncompensatory and in the nature of a criminal fine.http://legal-dictionary.thefreedictionary.com/punitive+damages. There are three things about punitive damages that are important: 1) They are not usually covered by insurance, 2) they are usually a lot of money, and 3) if the judge finds that punitive damages may be appropriate, he/she may allow evidence of financial matters to be presented, that would normally not be allowed in the trial. The reasoning behind this is that if the jury finds that it would be appropriate to punish a defendant, assessing a financial penalty is difficult without knowing the financial status of the person or company to be punished. If you are a street person with only $2.00 in your pocket, a finding of $2.00 in punitive damages might be devastating. However if you are Rush Limbaugh, and have a contract with Clear Channel for $400,000,000.00 it would take a lot more of a financial penalty to get his attention.

Liability of Clear Channel

Because Rush Limbaugh was broadcasting with Clear Channel, Clear Channel may have significant exposure as a result of the conduct of Limbaugh. Especially because Limbaugh has a history of making outrageous statements on his shows, and attacking various groups, Clear Channel has been put on notice of this type of behavior and has chosen to opt for rating, instead of fair reporting. Rachel Maddow reported on this history of Limbaugh saying things to generate ratings, which translates into money. If this could be proved in court, a jury could decide that Clear Channel should be punished for trading ratings for civility, for undeserved personal attacks by Mr. Limbaugh that were “…brutal, ugly and deliberate…and prolonged over three days.” While Rush Limbaugh and Clear Channel may be unfettered by the cancellation of advertisers on the Rush Limbaugh Show the public outcry and the fact that so many have cancelled their ads would be evidence of the extreme reaction of the people across the country. If Clear Channel allows Mr. Limbaugh to continue broadcasting after this event, the fact that Clear Channel provided a platform from which he could continue this type of rabid attack, would likely be used against Clear Channel in a civil lawsuit where punitive damages could be appropriate. As a publically traded corporation Clear Channel has an obligation to report potential liabilities to its investors and shareholders.  This is a potential liability that I would not want to have to report or estimate.

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