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Defamation Part 3: Public v. Private Figures



One of the things that make defamation cases so difficult is that most of the time, the person filing suit is a public figure. Defamation suits have been crippling to the publishing industry. Newspapers, book publishers and so forth faced extinction at the hands of these suits. Recently a publisher filed for bankruptcy due to the legal fees incurred defending three libel suits.

While truth is always a defense in a defamation case, the mere fact that it is false is not enough to prove defamation. Where a publication is made about a public figure, the MeanGirl has what is called a “qualified privilege” regarding false statements that are published. In order for a public figure to be successful in a defamation case against a MeanGirl, the public figure must overcome that “privilege” by showing that the statement or statements were made with malice

Public Figure Identified.

There are two types of public figure: First, there are the individuals who through fame and notoriety are public figures for all purposes; and second, there are individuals who inject themselves or are drawn into a particular public controversy and thereby become public figures for a limited range of issues. Most authors would be considered public figures.

There are two primary cases which courts rely upon in making a determination of who is a public figure. The first is Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Supreme Court decision of Curtis involves two cases and answers the same question: Who is a public figure?

The Coach: A magazine published by Curtis Publishing Co (MeanGirl) accused the athletic director of the University of Georgia (Unhappy Person) of conspiring to “fix” a football game between the University of Alabama and the University of Georgia. Id. at 135. The article was based on an affidavit which related the conversation which was overheard between the Unhappy Person and the Alabama coach. Id. at 136.

The Unhappy Person argued that not only was the affidavit false but that the person who swore out the affidavit (sometimes known as the affiant) was a known criminal. Unhappy Person believed that the magazine “departed greatly from the standards of good investigation and reporting and that this was especially reprehensible, amounting to reckless and wanton conduct, in light of the devastating nature of the article’s assertions.” Id. at 138.

The Protestor: A massive riot erupted on the campus of the University of Missouri when federal officials come to enforce a court decree ordering the enrollment of a Negro, James Meredith, as a student in the University. Id. at 140. A reporter for the Associated Press wrote in a dispatch that a private citizen, present on the campus, took command of the violent crowd, encourage them to use violence and personally led a charge against the federal marshals. Id. Walker had engaged in political activity prior to this, had his own following known as the “Friends of Walker” and was “deemed a man some political prominence.” Id.

The Unhappy People urged the Supreme Court to protect the value of reputations and argued:

Newspapers, magazines, and broadcasting companies are businesses conducted for profit and often make very large ones. Like other enterprises that inflict damage in the course of performing a service highly useful to the public * * * they must pay the freight; and injured persons should not be relegated (to remedies which) make collection of their claims difficult or impossible unless strong policy considerations demand.’

In deciding the correct balance between free speech and personal rights to reputation, the court looked upon the social necessity of guaranteeing individuals their personal right to make their thoughts public for that right is the “maintenance of our political system and an open society.”Id. at 149. The Court determined that “the issue of who is a public figure turns on who has access to the means of counterargument to be able ‘to expose through discussion the falsehood and fallacies’ of the defamatory statements.” Id. at 156. Butts was a public figure by his status as an athletic director for a University and Walker by thrusting himself into “the ‘vortex’ of an importat public controversy.”

For example, in the Hibdon v. Grabowksi, 195 S.W.3d 48 (Tenn. Ct. Appl 2005), the Unhappy Person was held to be a public figure when boasted about his personal watercraft modifications in an internet newsgroup and on a nationally-circulated magazine for personal watercraft trade to counteract the negative statements about him. The Church of Scientology was considered to be a public figure by a New York court in Church of Scientology Intern. v. Behar, 238 F.3d 168 (NY Ct. App. 2001).

Public Figure Not Found

In the 1974 case of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court extended the protection against defamation to any media defendant regardless of the status of the Unhappy Persons. While this decision was actually a drawing back of a previous Supreme Court decision of Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 31-32 (1971), it is read to have expanded the protections of media defendants. This case is important to bloggers because more and more courts are viewing bloggers in need of the same protections as that of media defendants.

In Gertz, a Chicago policeman shot and killed a youth. Gertz was hired by the youth’s family to represent them in a civil case against the city. Robert Welch, Inc. owned a publication known as “American Opinion” which published the views of the “John Birch Society”. The magazine began to write about the trial of the Chicago policeman and that it was part of a wider conspiracy to discredit law enforcement agencies and that this would lead to a national police force that would result in a Communist like state. The civil trial, the publication asserted, was part of the “Communist campaign against the police. Id. at 325- 26. The article called attorney Gertz a “Leninist”, a “Communist Fronter”, and suggested a criminal record. Id. at 327. None of these statements were true.

The fighting issue became when does a private person become embroiled in a public matter such that he or she (Unhappy Person) is required to prove actual malice on the part of the MeanGirl publisher. The first thing the Supreme Court considered was that private individuals lack the same platform for rebuttal. For example, a blog owner has a greater platform than a commenter who has no corresponding blog or website. Second, private individuals do not invite the scrutiny of public officials or public figures. By running for public office, an individual must accept criticism of his actions. By writing a book and selling it, the author invites attention and comment.

Attorney Gertz was deemed by the court to be a private citizen. Although he was an active member of his community and within his profession and had even published books and articles on legal subjects, he had “achieved no general fame or notoriety in the community.” Id. at 351. He did not speak with the press about the civil lawsuit and took no part in the criminal prosecution of the police officer. Id. at 352. For this controversy, Attorney Gertz was not a public figure.

Ultimately the Gertz court found that a public figure can be defined in two ways:

  • an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.
  • an individual voluntarily injects himself or is drawn into a particular public controversy in order to influence resolution of issues, and thereby becomes a public figure for those limited range of issues.

The Supreme Court also took up a case of a socialite’s divorce. In Time, Inc. v. Firestone, 424 U.S. 448 (1976), the court refused to identify a socialite divorcee a public figure because she “did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” Id. at 453. In Wayment v. Clear Channel Broadcasting, Inc., 116 P.3d 271 (Utah 2005), a reporter who might have considered herself a local celebrity was not a public figure as it related to her reasons for leaving her employment with the television station because there was no public controversy over her departure. A software company was found to NOT be a public figure because it did not have a persuasive presence in the community and there was no evidence of its products were a matter of public concern.Worldnet Software Co. v. Gannett Satellite Info. Network, Inc., 702 N.E.2d 1149 (Ohio Ct. Appl 1997).

Stephen King is a person of such pervasive fame or notoriety that he would likely be a public figure for all purposes and in all contexts. Certainly Britney Spears and Paris Hilton would be considered public figures as well. I would argue that Nora Roberts, winner of the 2007 Book of the Year Quill Winner and author of some 200 books would aso be a public figure for all purposes and in all contexts.

Other authors who are less well known might be a public figure for a limited range of issues such as those regarding publishing, but perhaps not for those regarding issues in their persona lives, depending upon the information and the controversy. Bloggers such as myself and Karen Scott might be public figures for a limited range of issues as well; however not for all purposes or in all contexts. Individuals who are commenters and do not maintain a blog presence have an even lower public profile and might well be considered a private citizen although the courts have not yet addressed the varying degrees of Interent participation in measuring public profiles.

Some may argue that by participating in debate at all, we might all become Walker, interjecting ourselves into matters of public controversy and thus raising the defamation bar to a nearly insurmountable level. However, the Gertz case is still good law and there should be Gertz protection for those who merely comment and are participating in public discourse for that, too, is part of the protection of Freedom of Speech.

Parts to this series:

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She self publishes NA and contemporaries (and publishes with Berkley and Montlake) and spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com


  1. Nora Roberts
    Nov 06, 2007 @ 06:57:54

    Fascinating stuff.

  2. Sarah McCarty
    Nov 06, 2007 @ 07:43:08

    Yeah. What Nora said. *G*

    I’m loving this series of posts. Thanks so much for doing them.

  3. Angela James
    Nov 06, 2007 @ 07:49:01

    This has all been very interesting to me because a local political blogger (local to me) is being sued for defamation by both the city’s mayor and chief of police. He does run a very divisive blog and it’s obvious that he holds both parties in great disdain, but popular opinion runs to…rightfully so. And how are they going to prove that his blog harmed their careers? (wouldn’t that be what they have to do?)

    Now, if I said that it’s rightfully so (that he holds them in disdain) because they’re both morons and not too great at their jobs, would that be considered defamation as well? Is it important to make it clear you’re offering an opinion by saying something like…because it seems to me that they’re both morons… In other words, does how you phrase/present it, fact versus opinion, matter? I’m sure you covered this before in the comments of previous posts, but it was hard to follow with all the offtopic comments, so I’m jumping in early this time to get this clear in my head.

  4. Shiloh Walker
    Nov 06, 2007 @ 08:00:10

    By writing a book and selling it, the author invites attention and comment.

    You know… this simple statement could be a blog topic all on its own.

    Following these topics have been interesting… to put it mildly. Is anybody else wondering just where this one will go?

  5. Sarah McCarty
    Nov 06, 2007 @ 09:02:20


    If the impish cuteness of the kitten is anything to go by, the thread will wander far!

  6. kardis
    Nov 06, 2007 @ 09:02:37

    I really like this series of topics, Jane. I was actually reading a book the other day that mentioned slander about something that was written, I said out loud! that’s libel, moron! My partner was most disturbed. And now that I know that in that instance the author cannot sue me for slander because I was a private figure at the time (also only one person heard me).

  7. kardis
    Nov 06, 2007 @ 09:03:58

    Oh yes, I did intend to comment on the cuteness of the kitten. I think I took an extra stupid pill this morning if these comments of mine are anything to go on. Oops!

  8. Jennifer McKenzie
    Nov 06, 2007 @ 09:17:03

    So, let me see if I have this right (it’s morning forgive me) but “defamation” only occurs if the “unhappy person” is considered (in legal terms) to be famous.
    I can get on my blog and call another group of people (who perhaps run a yahoo group or book forum) nasty names. And because they’re not defined as public figures, there’s no legal recourse, is that right?
    I was rereading some of the acrimonious things between some people and Karen Scott last night. It was appalling that so much ugliness was flying around and so PUBLIC.
    I’m curious to know if I understand this correctly.

  9. TeddyPig
    Nov 06, 2007 @ 09:33:37

    I’m in the front row, the front row, with popcorn…

  10. Darlene Marshall
    Nov 06, 2007 @ 09:35:25

    Dang, girl, if I’d read your outstanding synopsis before I took my Law of Mass Communications final, I would have gotten an A![g]

    Well done. You made the issues clear and understandable and I look forward to more.

  11. Nora Roberts
    Nov 06, 2007 @ 09:37:13

    I thought this meant if the unhappy was a public figure, it added the weight of that unhappy public figure having to also prove malice in order to get the defamation.

    It’s a lot of interesting stuff, but complex. So I could have that wrong.

    In any case, I’m about to head out to Connecticut to be a public figure tonight. I’ll be interested to read the comments, questions and answers on this.

  12. Jane
    Nov 06, 2007 @ 09:41:14

    Jennifer – Actually, everyone has the right to bring a case of defamation. The more public the figure you are, the harder time you have of prevailing because the court is engaging in a balance. Defamation is a limit on free speech.

    If you view free speech as a big circle, defamation decreases the size of the circle. The court doesn’t want that and would rather have individuals rebut each other’s statements (actually increase the circle) than limit people’s speech (which decreases the circle).

    So if you are a public figure because of your fame or because you choose to insert yourself into a public controversy, the court says that you have a platform to rebut the nasty things said about you so in order for a public figure to decrease the size of the circle, the public figure must show malice, a really difficult thing.

    The court says that private citizens don’t have that platform or haven’t chosen to expose themselves to that kind of scrutiny and/or comment, so the private citizen has to make less of an effort to decrease or narrow the size of the circle.

    Essentially, it is easier to prove defamation if you are private citizen and harder to prove if you are a public person.

  13. Keishon
    Nov 06, 2007 @ 10:06:21

    Very interesting stuff. I read straight through. Is Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) good law too in not rewarding damages to public figures for emotional distress? I just recently saw the movie. Very good movie, btw.

  14. Jane
    Nov 06, 2007 @ 10:14:10

    Yes the Hustler case is a great, great case. Say all you want about Larry Flint, but he’s been a huge defender of free speech (of course, that is in his own best interest). In any event, the Falwell case is something we’ll discuss in regards to malice because for a public figure to obtain emotional distress damages, you have to prove that the defamation was with malice. Falwell couldn’t prove that it was malice. It was satire and it was mean spirited but it was not “obscene” and that was the turning point for the court.

    I can think of some recent pictures I saw drawn of a popular blogger that appear to be bordering on obscene but the Falwell piece which parodied him was not.

  15. Gennita Low
    Nov 06, 2007 @ 10:44:00

    If a person (Mean Girl) of note (let’s say, an author) says/draws something obscene of person of less note (say, a blogger with many readers), could that be a case of defamation, or would that be covered under free speech? It would seem to me (pardon me if I’m wrong, since it’s still before noon here and brain not working before noon!), a reversed Hustler/Falwell situation, right?

    What I’m trying to understand is, whether you have an example of a less known person/entity bringing up a defamation case against a very well-known (or more well-known) person/entity and successfully prove malice.

  16. Jane
    Nov 06, 2007 @ 10:54:06

    Gennita – let me address your points backward.

    The elements of proof in a defamation case depend on two things: defamation per se/per quod & the status of the Unhappy Person. If the Unhappy Person is a private citizen, not interjecting themselves into a public debate, just going about their business like Gertz was just going about the business of being a lawyer, then he has a lower hurdle to narrow the circle of free speech (to prove his case of defamation).

    If a MeanGirl draws something obscene about an Unhappy Person and that Unhappy Person would sue for defamation, what standard is applied depends on the status of the Unhappy Person.

  17. Angela James
    Nov 06, 2007 @ 11:08:53

    *feeling sad and neglected by MeanGrrl Jane because she didn’t answer my question* Hmph.

    I guess I’ll just turn to my MD BFF Nora for consoling. And look at the cute kitty pictures again. These lolcat things you’re using are killing me.

  18. Jackie L.
    Nov 06, 2007 @ 11:19:50

    Hey, 17 comments and no one has hijacked the thread.

  19. Jane
    Nov 06, 2007 @ 11:23:21

    Angela – sorry. :( Let’s see. The local blogger is being sued for calling the public official a “moron” and accusing them of “not doing their job”? Sounds like opinion to me. Calling someone stupid or even incompetent sounds like hyperbole. And how you phrase it matters some but the courts look to the “gist” (word that the supreme court actually uses) of the statement. If the “gist” of the statement imputes something that is true or is an opinion, the Unhappy Person isn’t likely to have success.

    A public official, like the mayor, has to prove not only are the statements “facts” v. “opinions” but also that the facts are “untrue” and that the statements were made with “malice.”

  20. Jaci Burton
    Nov 06, 2007 @ 11:26:41

    I’m just here for the kitty pics


  21. ilona andrews
    Nov 06, 2007 @ 11:32:43

    So if I am understanding this right:

    The defamer (why do I keep wanting to insert l in there to make it into deflamer?) defames famous Person to a certain target audience.

    The more famous you are, the bigger is your potential to reach the people in that target audience. So in essence, the court expects you to debuff the arguments yourself.

    If you were an ordinary person, without means to reach target audience, the court would be more inclined to confirm defamation took place.

    1) Doesn’t this mean, in essense, that people in the public eye are penalized?

    2) What about a person who inadvertently becomes drawn into the public eye. For example, the suspect in the Atlanta Olympics bombing, Richard Jewell, had brought a number of cases suing various media outlets for libel. I think he might have been successful at least in part. In this case, the Unhappy Person did not choose to be drawn into public eye. Do you think that fact would affect his chances of proving defamation?

    3) Limited audience. What if we took a hypothetical case, let’s say Unhappy Person and Defamer. Defamer publically accused Unhappy Person of naughty things in front of their Church congegation. Unhappy Person brings a defamation suit. But we have a limited audience. If Unhappy Person was an uber famous person or a not-at-all famous person, the audience is still the same: the congregation at the church. They both have an equal potential to reach it. Does this affect matters at all?

    Not sure if I made any sense…

  22. Jane
    Nov 06, 2007 @ 11:47:21

    Yes, people in the public eye are penalized. The court in Curtis, I think, talked about an “assumption of the risk” theory meaning that becoming a public figure you assume the risk of being talked about negatively. On the one hand you get adoring nutjobs and on the other you get mean nutjobs and you have to, as a public figure, accept them both.

    Being inadvertently drawn in wouldn’t make you a public figure since the court looks for some type of affirmative action, “thrusting” yourself into the public controversy. Making an attempt to affect the resolution of the controversy. There was one decision (and I can’t remember the name of it) that said a defendant Mean Girl can’t create a defense by making someone into a public person when they aren’t.

    I don’t think that the size of the audience matters in determining whether the Unhappy person is Walker or Gertz.

    In your hypothetical fact pattern, the question would turn on whether a dispute in a church would be a matter of public controversy. If the Unhappy Person is the bishop, then it doesn’t matter the size of the audience. The bishop is required to prove the elements with actual malice.

    If the Unhappy Person is a member of the congregation, then the question would turn to whether the dispute was a public controversy and what the Unhappy Person did to become involved in the public controversy.

  23. Angela James
    Nov 06, 2007 @ 11:47:21

    Well, I think my question got a little mixed up. Does it matter if I somehow phrase it to show it’s my opinion. As in, it seems to me the mayor is an idiot versus the mayor is an idiot?

    In the case of the blogger, he’s made a variety of accusations against the mayor and the chief of police, including alleging that they’re providing favors for local slum landlords and developers, that the mayor and the local fire department have discriminated against minorities (whether by gender or ethnicity) in hiring firefights and a variety of other allegations including that they’re just plain bad at their respective jobs. But at the same time, he’s also attempted to provide “proof” of his allegations. In his daily blogging, he’s pretty hardcore in insisting that they’re failing to do their jobs properly. But how does the mayor and/or chief of police (their suits are seperate, though filed at the same time) go about proving that it’s 1) untrue and 2)more than just his opinion and 3) aren’t people allowed to say publically that they think a public figure, such as a politician, isn’t doing his/her job satisfactorily? Isn’t that one of the basics of freedom of speech and checks and balances for elected officials?

    I know I’m veering off topic a little, taking it into politics versus publishing, but it interests me to know where the line is.

  24. Jane
    Nov 06, 2007 @ 11:54:21

    You can’t insulate your defamatory statements by saying “it’s alleged” or “it’s just my opinion” if the “gist” of your statement is defamatory.

    As for the blogger, if he’s accused the public officials of corruption, then the public officials have to prove that those accusations are a) false and b) made with reckless disregard for the truth. It sounds like some of the statements the blogger has made are opinion and some might be factual insinuations. Each statement has to be taken separately.

    Criticizing an public official for doing a “poor job” or a “bad job” or not “living up to his promises” have generally been held to be opinion and therefore protected. Accusing a public official of wrongdoing such as corruption, violations of the Civil Rights acts, etc. can be defamatory.

    It’s a pretty interesting case. It’s too bad it’s a state case so that I can’t go online and see the filings.

  25. Angela James
    Nov 06, 2007 @ 12:03:08

    I think he might have posted the original filing on his blog. I’ll look and see and send you the link if I find it. Thanks for that explanation, that made it really clear for me!

  26. Shiloh Walker
    Nov 06, 2007 @ 12:06:06

    Hey, 17 comments and no one has hijacked the thread.

    Jackie… careful… you’ll jinx it. ;)

    A public official, like the mayor, has to prove not only are the statements “facts” v. “opinions” but also that the facts are “untrue” and that the statements were made with “malice.”

    So technically, since this is all opinion… IE: Shiloh thinks person X is a fool, or Shiloh says person X is a fool, there’s not much that can be done, right? Because this is my opinion.

    But if I went out and lied, saying that person X was a psychotic dangerous fool with a criminal record, this is different. Because these are things that can be proven in a court of law, or disproven. Right?

    Am I getting it or am I lost?

  27. Jane
    Nov 06, 2007 @ 12:13:31

    Is this a hypothetical Shiloh? Hypothetically speaking (and without knowledge of other circumstances), calling someone a “fool” doesn’t seem to be provable one way or another so it sounds like an opinion.

    Lying about someone’s criminal record, i.e., calling a person a thief or maybe even a criminal, would likely be defamatory. Calling someone a liar, when they are not, could also be defamatory per se.

  28. lisabea
    Nov 06, 2007 @ 12:17:21

    That’s how I understand it as well.

    Off topic and not about the kitty. Connecticut, Nora?

  29. Shiloh Walker
    Nov 06, 2007 @ 12:21:37

    Is this a hypothetical Shiloh?

    Absolutely a hypothetical Shiloh. ;) It’s less confusing for me than person a, person b, meangrrl b and meangrrl t…

    Calling someone a liar, when they are not, could also be defamatory per se.

    Speaking just in general, couldn’t something like that be hard to prove?

  30. Shiloh Walker
    Nov 06, 2007 @ 12:23:34

    BTW, about the kitty, I’m going to say I think this one is the cutest of all of them. And the taglines just so totally make the pics. ;)

  31. Jane
    Nov 06, 2007 @ 12:25:04

    Re: the lying thing. I don’t know. The first defamation case I tried was an employer calling an employee thief and a liar. We elicited what he was accusing him of (stealing something and then lying by saying he didn’t). We were able to prove that the employee did not lie nor did he steal (in part because he didn’t steal anything so he wasn’t lying when he said he didn’t steal).

    More recently, someone called me a liar for saying I did not moderate comments and I did. At the time I made the statement that we did not moderate comments, that was true. During the thread about race, I did start moderating comments.

    I am pretty sure that a court would find that I was not and am not a liar and that to call me one is defamatory per se.

  32. Shiloh Walker
    Nov 06, 2007 @ 12:31:51

    It just seems to me that a lot of issues regarding lies would boil down to

    (s)he said/(s)he said… or maybe I’m oversimplifying.

  33. Roslyn
    Nov 06, 2007 @ 12:50:09

    For anyone interested here’s the Falwell parody ad. I have the original, and it’s still one of the funniest parodies I’ve ever read. I can’t believe he was stupid enough to sue. It’s almost as bad as O’Reilly suing Franken. These guys take themselves far too seriously.

    Link here.

  34. Karen Scott
    Nov 06, 2007 @ 12:53:11

    Great post Jane. Nothing to add, just want to keep up with the convo.

  35. Donna
    Nov 06, 2007 @ 13:19:46

    Ok, once I get moved I will have to get a kitty and name it “trubble”. This one is just too cute!

  36. Jennifer McKenzie
    Nov 06, 2007 @ 13:28:23

    A follow up to Shiloh’s comment. Being called a “fool” is not provable and therefore is an opinion. What about racist? I’m assuming there is a legal criteria for the term “racist” or “racist statements”.
    But say that a mean girl calls me a “racist”. Do I then have to prove that I’m NOT a racist? Or does she have to cite instances where I was racist. And do I have a case for defamation if it hurts my reputation etc.
    Am I missing the point again?
    I don’t do very well with legalese.

  37. Jessica Inclan
    Nov 06, 2007 @ 13:44:30

    I also teach at a college, and there is a web site called ON this site, students can log in and critique professors, saying basically anything they’d like. Some very harsh stuff gets up on that board. Being called a fool would be light–rascist is a term sometimes bandied about.

    Now, are college professors public figures? Is a review of them on a public forum, using malicious terms slander or libel (I’m forgetting which is which). In any case, it’s up there for the world to see.

    There is a place for professors to “write back” and would that be the place to prove the words are not true?

    I realize that as a writer putting work out into the universe, one opens up herself to criticism. But being called a hack and having my breasts critiqued seems to go beyond what might be expected. In any case, my reaction is to not react. Certainly trying to sue someone seems to put energy into something I want to simply fade away.

    I don’t know. We can be mean to each other and unfair and rude and cruel in so many public ways these days. A scarlet A is nothing!


  38. Heather Holland
    Nov 06, 2007 @ 13:49:55

    Another great post in an awesome series of posts, Jane. I look forward to the next one. And yes, it’s a cute kitty.

  39. Robin
    Nov 06, 2007 @ 14:48:34

    If you view free speech as a big circle, defamation decreases the size of the circle. The court doesn't want that and would rather have individuals rebut each other's statements (actually increase the circle) than limit people's speech (which decreases the circle).

    I just wanted to pull this out and highlight it because I think it’s such a good illustration of the free speech – defamation continuum.

    Being called a “fool” is not provable and therefore is an opinion. What about racist? I'm assuming there is a legal criteria for the term “racist” or “racist statements”.

    If you go back and read the post from last week, Jane addresses this question, citing judicial opinion that it’s generally not defamatory to accuse someone of racism, in part because of the multiple definitions that abound for the term.

    Now, are college professors public figures? Is a review of them on a public forum, using malicious terms slander or libel (I'm forgetting which is which). In any case, it's up there for the world to see.

    I know that students can sue universities under certain circumstances, but I’m not sure if there are limitations against faculty suing students, even in a private action like defamation (especially in a learning-related environment where the learning environment could be so easily compromised by a professor suing a student). That’s an interesting question. In any case, are the thing being said related to the classroom environment, or is it stuff about their personal lives? It seems to me that would make a difference, as well.

  40. Jane
    Nov 06, 2007 @ 14:55:16

    Mocking someone’s appearance isn’t defamatory. Look at the recent comments about the women in Maxim’s Not Sexy list.

    Troubled soul singer Amy Winehouse was voted No. 2 because of her “hemorrhaging translucent skin, rat’s nest mane and lashes that look more like surgically attached bats”.

    Madonna was identified with a “mug that looks Euro-sealed to her skull, and you’ve got Willem Dafoe with hot flashes.”

    These are definitely opinions. I think the only time that “opinions” could become defamatory is when they become “obscene” as discussed in the Falwell v. Hustler case.

  41. Holly
    Nov 06, 2007 @ 16:38:09

    Where does a blogger fit in as “ordinary person/famous person” is defined?

    Say my personal blog, for example. I have a small amount of readership (perhaps 300 people per day) as opposed to my book blog where I have a larger amount of readership (say 1000 people per day…just pulling numbers out of nowhere, just FYI), does it matter? Am I still considered a “public” figure?

  42. Jennifer McKenzie
    Nov 06, 2007 @ 17:12:42

    Thanks Robin. I did miss that. I figured it was a bit fuzzy. This stuff amazes me. *off to read the post I missed*

  43. Jennifer McKenzie
    Nov 06, 2007 @ 17:38:01

    OMG! I just read last week’s post. How did I miss all that? Whew! In all that, my question was answered. I think I kind of get it.
    Thanks so much Jane for answering all these questions. I think it’s all VERY interesting.
    And thanks for continuing to do it despite trolls, sockpuppets and other interferences.

  44. Nora Roberts
    Nov 07, 2007 @ 09:25:38

    Yes, Connecticut, where I did an event last night at Foxwoods casino. Interesting venue, and I added a zero onto the ten I stuck in a poker slot. Good deal.

    The discussion on the ins and outs of defamation’s been really interesting, and educational.

  45. Robin
    Nov 07, 2007 @ 15:35:05

    Yes, Connecticut, where I did an event last night at Foxwoods casino.

    There’s an incredible Native American museum near Foxwood (in fact, I think they’re both part of the Pequot-managed business cooperative there). Definitely worth a visit, IMO.

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