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:
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: