Wednesday, March 27, 2013

Public Figures vs Private Figures

In a series of posts I've discussed public figures.  Below is a listing of examples of who might be classified as public officials, public figures, limited purpose public figures and private figures.  

This is only for general purposes.  Courts may differ on how they will treat some of these people.

Public official:
  • President
  • Senator
  • Congressman
  • Secretary of State
  • Mayor
  • Governor
  • Judge
  • School superintendent
  • City Council Member
  • State Legislator  
Public figure (generally takes voluntary conduct to project one's self into public domain):
  • Political candidate
  • Movie or television star
  • National news anchor or commentator
  • Head of NRA
  • Superstar athlete (Tiger Woods, LeBron James)
  • Miss Universe
Limited Purpose Public Figure (generally requires voluntarily injecting one's self into a public issue).
  • Business leader
  • Average professional athlete.
  • College basketball coach
  • Community activist
  • School principal
  • Best selling author (although courts may find some are public figures).
  • Public protester
Private figures (generally, does not voluntarily inject one's self into public issue)
  • Your neighbor with a barking dog
  • Criminal defendant (may vary by state - some may find defendant is a limited purpose public figure)
  • Party to a lawsuit 
  • Victim of a crime
  • School teacher
  • Local business owner (but may become a limited purpose public figure for some actions related to his services to the public)
photo credit: <a href="">Pensiero</a> via <a href="">photopin</a> <a href="">cc</a>

Wednesday, March 20, 2013

Libraries, Museums, Ebay, Used Book Stores Saved by U.S. Supreme Court

In a technical but important issue of copyright law, the United States Supreme Court in a 6-3 decision held that re-selling text books on Ebay was not a violation of the publisher's copyright.

The much anticipated decision in Kirtsaeng v. John Wiley & Sons upheld the "first purchase" doctrine.  Immediately it drew praised from libraries, museums retailers, and marketers such as Ebay, all of which filed briefs in support of Kirtsaeng.  The decision was blasted by publishers and the software industry which view it as a substantial subtraction for the bundle of their intellectual property rights.

Kirtsaeng, a math student from Thailand, bought textbooks in Asia where there were sold for much less, then re-sold them for $900,000 through Ebay in the United States, making a tidy $100,000 profit.  The books were identical to texts used at U.S. schools except for a notation that they could not be exported.

John Wiley & Sons sued, claiming Kirtsaeng violated the copyright by selling the cheaper books in the United States.  The District Court held that the first sale doctrine did not apply to overseas purchases, and a jury awarded the publisher $600,000 in damages.  the 2d Federal Circuit Court of Appeals, in a split decision, affirmed.

The first sale doctrine holds, in short, that once an item is purchased, the original publisher / manufacturer loses his copyright protection.  Whoever purchases the item can resell it without violating the copyright.  It's why you can sell a used book, or a CD, or even a car.

In reaching the decision, the Court stated: "Reliance on the “first sale" doctrine is also deeply embedded in the practices of booksellers, libraries, museums and retailers who have long relied on its protection." 

To view the Court's opinion, CLICK HERE.

*photo credit: <a href="">zacklur</a> via <a href="">photopin</a> <a href="">cc</a>

Thursday, March 14, 2013

Defamation: Who is a Public Figure?

An easily recognized public figure
I've used several posts to talk about the complicated law regarding defamation and public figures.  It is an important determination because in most states, it determines whether the strignet test set out in New York Times v. Sullivan applies. But just who is a public figure?

Unfortunately it is not an easy question to answer.  There is no clear definition.  Moreover, court decisions vary as to who is considered a public figure.

We can identify a couple of principles.  The general rule divides subject into public officials, general purpose public figures, limited purpose public figures and private persons.  But there is no black and white dividing line.  Borrowing from a recent popular book title, the demarcation is closer to "fifty shades of gray."  

Public officials generally means just that - holders of public office.  Congressmen, judges, sheriffs.  Pretty clear, right?  How about the local library board, or even the local head librarian? 

 Public figures generally includes those persons who voluntarily immerse themselves in public affairs.  Candidates for public office, heads of public affairs organizations (such as the N.R.A., NAACP), movie stars and other entertainers are generally found to fall within this classification.  This means that they are public figures for basically anything that is written about them.

But how far down the totem pole does that go?  How about the local police officer?  A coach?  A community organizer? Members of a regional band?  A writer?

To deal with this issue - at least to a point - the courts have created the category of Limited Purpose Public Figure.  This is a person who becomes involved in specific public issues.  Statements made about a limited purpose public figure related to the specific issue in which that person is involved will have the full protections of the New York Times v. Sullivan standard. But statements outside that area will not.

Example:  Sam, a local activist for the elderly, seeks funding from the city counsel for a shelter.

Case 1:  An article reports that Sam obtained funds for a shelter for the elderly in another state, and that he pocketed the money and the shelter was never built. The story clearly relates to the issue in which Sam is a limited purpose public figure. The writer has the protection of the New York Times standard.  The statement is false, but there is no liability unless the writer acted with constitutional malice - that is, knowledge of falsity or subjective awareness of probable falsity.

Case 2:  An article reports that Sam has been cheating on his wife and that he has three mistresses on the side.  The statement is false.  But this time there is liability.  Because Sam is a limited purpose public figure, stories about his personal life do not fall within the constitutional protection of the New York Times standard.  For purposes of these statements, he is a private person and need only prove "fault" - that is negligence - on the part of the writer, and to do so only by a preponderance of the evidence.  This is a MUCH easier standard and burden of proof.

This may seem esoteric "lawyer-speak", but the fight over whether the plaintiff is a public figure or private person is often the key battleground in defamation cases.

Monday, March 11, 2013

25 Years Later: Hustler Magazine v Falwell - The Preacher, the Pornographer & the First Amendment

It seemed like the script for a movie - and indeed after all the smoke had cleared, it was a movie -- the academy award nominated film People vs. Larry Flynt.

The most notorious pornographer in the nation squared off against the sanctimonious self-appointed leader of the Christian coalition, the founder of Liberty University and the 700 Club television show.  Larry Flynt going to war with Jerry Falwell in front of the United States Supreme Court.

This is the twenty-fifth anniversary of the decision, and its legacy stands today as an important statement of the nature of freedom of speech and the protections of the First Amendment.  The decision seems even more important after last week's decision by the Supreme Court of Canada upholding punishment of speech that may expose the subject to "detestation and vilification."

The case involved a Campari ad parody in which the Falwell is portrayed has having his first sexual experience with his mother in an outhouse (after kicking out the goat), and portrayed as a drunken hypocrite who has to "get sloshed" before taking the pulpit.  
Falwell sued for invasion of privacy, defamation and intentional infliction of emotional distress.  The court dismissed the privacy claim.  At trial, the jury concluded that no one could interpret the ad as factual statements and found for Hustler on the defamation claim.

However the jury did find that Hustler intentionally inflicted emotional distress on Falwell and awarded a judgment of $200,000.  The 4th Circuit Court of Appeals affirmed.

In an 8-0 opinion authored by Chief Justice Rhenquist, the Supreme Court reversed.  The court held that the First Amendment provides breathing room for robust discussion.  No matter how the claim is structured, the First Amendment requires that liability must be premised only on false statements of fact made with constitutional malice.  Since the jury determined in the defamation claim that the statements made in the parody could not be taken as facts, there was no liability.

"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole."

The entire point of the U.S. Supreme Court's decision in Hustler Magazine v. Falwell, 485 U.S. 46 (1988) is that writers and commentators do have the right to hold public figures up to "detestation and vilification" -- to dress them up in a cloak of absurdity to expose human foibles and layers of hypocrisy -- to in effect shout from the rooftop "The Emperor has no clothes!"

Thursday, March 7, 2013

Oh, Canada! WTF? Writers Face Substantial Fines for Exposing People to "Vilification"

Political correctness is now the law of the land in Canada.

In a decision that has left me flabbergasted, the Supreme Court of Canada has imposed a legal "political correctness" test on speech and writing.  Cross the line and writers will face substantial fines.

In  Saskatchewan Human Rights Commission v. William Whatcott, the Canadian Supreme Court upheld fines issues against fervant anti-homosexual pastor Bill Whatcott for his flyer "Sodomites In Our Schools."

The Canadian Court apparently tried to strike a middle ground.  It struck from the Saskatchewan ordinance the provision that made it impermissible to make a statement that "ridicules, belittles or otherwise affronts the dignity“ of a person on prohibited grounds of discrimination.  But the Court said that a statement could be punished if "a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”

The Court held that a prohibition of any statement “that exposes or tends to expose to hatred” any person or class of persons on the basis of a prohibited ground is a "reasonable limit and demonstrably justified in a free and democratic society."

Truth is not a defense.  The statement can be true, but if it subjects the person to "detestation and vilification," it can be punished as improper speech.

For most American, the idea that pure speech can be punished simply because someone doesn't like it is an anathema to the very concept of freedom.   I would have thought Canadians shared this fundamental understanding of freedom.  But apparently not.

It is ironic that the Canadian decision comes on the 25th Anniversary of the U.S. Supreme Court's decision in Hustler Magazine v. Falwell, the case that established that writers cannot be liable for  inflicting emotional distress on the subject of their articles, even when intentionally done.

The Hustler v. Falwell case is the subject of my next post.

Tuesday, March 5, 2013

Oh, Canada! WTF? Canadian Supreme Court Strikes Down Free Speech - Really!

In what most writers would view as a stunning decision, the Canadian Supreme Court in a 6-0 decision held that speech that "exposes or tends to expose" a person, class or group of persons to hatred canned be banned and punished.


And what is even more inexplicable, the Canadian press and many commentators seem to be perfectly fine with the decision.

In short, the decision holds that in Canada, if your words could reasonably be found to expose a person to "detestation and vilification" on grounds protected from discrimination, you can face substantial fines and punishment.

In the case of  Saskatchewan Human Rights Commission v. William Whatcott, the Canadian Supreme Court upheld fines issues against a fervant anti-homosexual pastor.  Bill Whatcott  is known for his missives about the evil of homosexuality and abortion, and his campaign to criminalize homosexual acts in Canada.

Whatcott travelled around Canada speaking and distributing flyers containing incendiary language directed at gays and lesbians.  The flyers at issue were  "Sodomites in Our Schools" and "Keep Homosexuality out of Saskatoon's Public Schools!" 

The flyers refer to homosexuals as sodomites. Whatcott writes that our children are in danger of everlasting damnation if gays are not stopped from making homosexual activity acceptable in our society. 

Whatcott was fined $17,000 by the Saskatchewan Human Rights Commission on the basis that his flyers exposed homosexuals to hatred.  He was not charged with any act --  for assault, for trespass, or even for disturbing the peace.

He was charged and fined for what he wrote.

More on this decision in my next post.

photo credit: <a href="">Ian Muttoo</a> via <a href="">photopin</a> <a href="">cc</a>

photo credit: <a href="">K. Sawyer Photography</a> via <a href="">photopin</a> <a href="">cc</a>

Friday, March 1, 2013

Defamation, Public Figures and the First Amendment: Part III

For purposes of defamation, constitutional malice means knowledge of falsity or reckless disregard for whether the statement was true or false.  But what does reckless disregard mean?

First, let's discuss what it does NOT mean.

Reckless disregard does not mean that a reasonable person would have been aware of the defamatory implications of the statement or that a reasonable person would not have made the statement.

Reckless disregard is NOT negligence or a failure to follow journalistic or other professional  standards.  In fact, journalistic standards are not generally admissible evidence as to the issue of reckless disregard.

Reckless disregard is not ill will.  You can make your statement with ill will.  You can intend to damage the reputation of the person about whom you are making the statement.  Again, evidence of ill will generally is not even admissible as evidence.

Reckless disregard means a statement made with a "subjective awareness of probable falsity." Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).   Effectively, this means that the person making the statement actually knew that it was probably false, but went ahead and made the statement anyway.

The Supreme Court expanded on this standard in the case of Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989).  In that case, a political candidate got wind that a newspaper (which supported his opponent) was going to run an article about statements he supposedly made at a private gathering. But Connaughton said he had a tape recording of the meeting and that it would prove he did not make the statements.  The newspaper refused to listen to the tape and published the defamatory article.

The Supreme Court in a 9-0 decision sided with Connaughton, finding that the newspapers failure to check obvious sources who could contradict the allegations, and its refusal to listen to the tape, constituted "purposeful avoidance of the truth."  Such purposeful avoidance was sufficient to constitute the requisite reckless disregard, and therefore satisfy the constitutional malice test.

This  is a very high burden to carry.  It is particularly so because the Supreme Court has held that this must be proven by "clear and convincing evidence," a standard much higher than the preponderance of the evidence standard used in most civil cases, but not as high as the beyond a reasonable doubt standard used in criminal cases.

But who are public figures?  That's the next topic.