Litigation is risky for Sandra Fluke

Rep. Steny Hoyer (D-MD) is one versatile individual. He proved his mastery of psychoanalysis when he diagnosed TEA Partiers as products of dysfunctional families. He's now issuing free legal advice to Sandra Fluke, urging her to sue Rush Limbaugh for "slander, libel, and whatever else might be involved."

A dangerous precedent is established when politicians openly promote lawsuits between citizens. Such misuse of governmental influence belies a key concept of American liberty, wherein government is compelled to consider everyone equally before the law. Hoyer's attitude drives an unnecessary wedge between the populace. While he's legally entitled to support Fluke, he's not ethically entitled to encourage civil litigation. He has compromised his office's integrity, violated the public's trust, and possibly led Sandra Fluke astray.

Hoyer's disregard for his responsibilities as a Congressman doesn't mean a defamation suit against Limbaugh has no merit. A libel attorney can highlight two reasons why Sandra is on solid legal ground. For starters, she's a private citizen victimized publicly by a powerful figure. Also, Limbaugh's disparaging remarks about her sex life established false statements of fact. But there are also flaws in this reasoning that could make litigation a risky path for Ms. Fluke.

Is Sandra indeed a private citizen? When an activist publicly presents their opinions as expert testimony before Congress in an attempt to influence a particular legislative outcome, that person has entered the public forum Rush Limbaugh. But her public activism renders her a public figure of sorts. Therefore, hiding from criticism behind libel law is in question.

What about the insults? Establishing Sandra as a public figure doesn’t open the season for character assassination.

That's true enough. However, a libel suit could be Sandra Fluke's undoing. Instigating legal action entails arguing the case before a judge and jury. Settling out of court for a cool million from the well-heeled Limbaugh would be a smart move. But taking the case to civil court, where sworn testimony is presented, opens a can of worms that's best left closed. Sandra Fluke's background becomes fair game in court, including her sex life. Don't think the Limbaugh defense team wouldn't try to prove Sandra the biggest tramp since Mata Hari.

Limbaugh can afford the highest flying legal eagles money can buy. They'll peek in every closet and look under every rock. Fluke's classmates, friends, and lovers -- from high school until now -- will be interviewed. The most damaging associates will be subpoenaed as witnesses for the defense. If Sandra Fluke is the least bit promiscuous we'll learn every intimate detail, right down to her favorite acts and preferred positions.

Public opinion favors Sandra today. But the goodwill goes out the window if court testimony proves her everything Limbaugh said she was. Her lawsuit will be lost, the potential windfall of an out-of-court settlement gone, and her public reputation legitimately besmirched.

That's the risk Sandra Fluke runs if she follows Steny Hoyer's advice. If she sues Limbaugh for libel and loses she'll appear even worse than Rush portrayed her. Maybe she should then sue Hoyer for bad legal counsel, and for attempting to build his political capitol at her expense.