Libel and Slander
The Public Figure Doctrine: An Unworkable Concept?
The "public figure" doctrine announced by the Supreme Court in Curtis Publishing v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), held that prominent public persons had to prove actual malice (knowledge of falsity or reckless disregard of whether a statement is true or false) on the part of the news media in order to prevail in a LIBEL lawsuit. Prior to Butts only public officials had to prove actual malice. In the years since this decision, the public figure doctrine has proved a troublesome area of the law, primarily because it is difficult to apply with any consistency. Some, generally from the news media, have called for making it easier to classify a person as a public figure. Others believe that a strict line must be maintained between public and private figures, so as to prevent the damaging of personal reputations by the media. Both sides agree that greater clarity is needed in defining what constitutes a public figure.
Those who favor a less restrictive definition of public figure argue that FREEDOM OF THE PRESS requires such a definition. It is in the public interest to encourage the reporting of news without fear that the subject of a story will sue the news organization for libel. Without adequate safeguards news editors may resort to self-censorship to avoid the possibility of a lawsuit. In a democratic society, self-censorship would prove to be a damaging restriction on the public's right to information.
For these advocates the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), signified a step away from the protections of the FIRST AMENDMENT. The Court held that a person who "voluntarily injects himself or is drawn into a particular public controversy" becomes a public figure "for a limited range of issues." The Court also held that there are persons who "occupy positions of such persuasive power and influence that they are deemed public figures for all purposes." This category would include, for example, a national labor or CIVIL RIGHTS leader.
Critics of Gertz argue that these two categories make little sense and are of no help to a court in determining whether a person is a public figure. For example, should a Hollywood entertainer or a professional athlete be cast as a public person in a libel suit? Do these persons have "persuasive power and influence"? As for persons who become involved in public events, courts have been unable to articulate a consistent standard for measuring whether a person "thrust" himself or herself into the status of a public figure. Studies have revealed contradictory ways of applying the Gertz standard.
Some commentators have advocated abandoning Gertz and replacing it with a "subject matter" test. Under this test if an article or story involves public policy or the functioning of government, it should be protected by the public figure doctrine. Therefore, if a story discusses a relatively unknown person's DIVORCE proceeding or supposed Communist political leanings, this would be a matter of public policy (divorce law or political parties) that invokes the actual-malice standard in a libel suit.
The use of subject matter analysis would give public figures more protection than they currently have under Gertz. A story about the private life of an entertainer or professional athlete would generally not involve a public issue under even the broadest definition. Under the subject matter test, the celebrity would not be forced to prove actual malice.
Defenders of the Gertz decision admit that the public figure concept has been difficult to apply, but argue that the subject matter test is not a good alternative. They note that although freedom of the press is an important value, the need to protect the reputation of private citizens is also an important societal value. Citizens are encouraged to participate in public affairs, yet a liberal reading of the public figure doctrine could discourage participation if there is no redress for injury to reputation. In addition, private citizens who are deemed public figures could never match the news media's power and pervasiveness in telling one side of the story.
Even with the difficulties inherent in Gertz, defenders note that it narrowed the public figure category in ways that protect the public. Simply appearing in the newspapers in connection with some newsworthy story or stories does not make one a public figure. Forced involvement in a public trial does not by itself make one a public figure. Most important, those charged with libel cannot create their own defense by converting a private citizen into a public figure solely by virtue of their news coverage.
Defenders of Gertz are leery of the subject matter test. They contend this test is too one-sided in favor of the news media. Almost any topic in human affairs can be generalized into a public policy issue or one that involves the government. It would be unfair to allow a publication to falsely brand a relatively unknown person a Communist and then assert the person is a public figure because radical political parties are a matter of public concern. The victim of this charge would have a difficult time proving actual malice to win a libel suit.
Those who favor a restrictive definition of the public figure doctrine also note that a libel action serves as a private means of controlling irresponsible journalism. Gertz, even with its difficulties in application, has allowed private persons a better chance of success in libel suits, which in turn sends a strong message to the media to be more careful in their reporting. As to the concerns about self-censorship, defenders of Gertz point out that journalists make choices every day about what is published. Falsely tarnishing the reputation of a person should be the object of self-censorship in professional news-gathering organizations.
Jones, Nora. 2003. "Defamation Lawsuit Sparks a 'Public Figure' Debate." Rochester (N.Y.) Daily Record (May 30).
Lore, Michelle. 2002. "High Court Mulls Limited Public Figure Doctrine." Minnesota Lawyer (November 18).
Mitchell, James C. 2002. "The Accidental Purist: Reclaiming the Gertz All Purpose Public Figure Doctrine in the Age of 'Celebrity Journalism'." Loyola of Los Angeles Entertainment Law Review 22 (spring): 559–81.
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