Defamation: Does Public or Private Figure Really Make a Difference?

Photo No 1 - credit below

So all this discussion about public figures and private figures -- does it really mean anything?

The answer is a resounding YES!   For many cases, the decision as to whether the plaintiff is a public figure or a private figure is case determinative.

In most instances, cases involving public figures are resolved in favor of the defendants without trial.  The issue is decided most often decided on a motion for summary judgment in which the court rules that even if one takes all the evidence in the light most favorable to the plaintiff, the plaintiff still cannot meet the legal test for liability first set out in New York Times v. Sullivan.

On the other hand, if the standard is that which is applied to private persons, the case is much more likely to go to the jury.  And as any trial lawyer will tell you, when a case goes to the jury the result simply cannot be predicted with any degree of certainty.  As some wag once put it, you put your fate in the hands of "six people who aren't smart enough to get off jury duty."

Photo credit no. 2

I don't agree with the snarky remark about jurors - but that's a topic for another day.

But there is no questions that juries, despite John Grisham's Runaway Jury, are not predictable.  They are given jury instructions, which they often try to follow.  But sometimes not.

When a court denies a summary judgment in a defamation case, which is often the case in private figure defamation cases, the parties must face the uncertainty of a verdict and the certainty of the enormous costs in going to trial.  Given the modern emphasis by courts on mediation, these factors often lead to settlements.  Indeed an estimated 97% of civil lawsuits that are filed are resolved without trial.

So the determination of public figure vs. private figure does make an enormous difference in defamation cases.

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Proving a Defamation Case: Public Figure vs. Private Figure

So how does the determination of public figure vs. private figure make such a huge
difference in exposure to liability in defamation cases?  Here's a brief synopsis of what lawyers face in each of the two types of cases.

Public figure case:

Plaintiff must prove:

• Defendant made a false statement of fact
• The false statement damaged the Plaintiff's reputation
• That the statement was made with constitutional malice, which means:
•  The defendant KNEW the statement was false when it was made, or
• The defendant has a "subjective awareness" of probable falsity (this means that the plaintiff must prove the defendant's mental awareness, not just that a reasonable person would have had this awareness), or
• The defendant engaged in purposeful avoidance of the truth

• Plaintiff does NOT meet his burden by proving ill will, negligence, or breach of professional or journalistic standards.  These are NOT sufficient.

• Plaintiff must prove each of these elements by an enhanced standard of "clear and convincing evidence", which is an ill-defined standard that is greater than the normal preponderance of evidence standard used in civil cases, but not quite to the beyond a reasonable doubt standard used in criminal cases.  To put this in perspective, this is the same standard often used in civil mental commitment cases.
• Defendant has no burden to prove that his statements were true.

Private figure case:

Plaintiff must prove:

• Defendant made a false statement of fact
• The false statement was:
•  defamatory per se (attacked person in their profession, asserted criminal activity, accused person of having a "loathesome disease," or asserted that a woman was unchaste, or 
• Damaged the plaintiff's reputation in the community

• Defendant's statement was made with "fault" - often meaning that the statement was made without reasonable care.
• Plaintiff must prove these elements only by a preponderance of the evidence, that is, a "more likely than not" standard.  This means that the facts have been proven by the slightest amount of evidence to have been more likely.  Lawyers often explain this in terms of percentages.  If the jury finds the weight of evidence to be 50.000001 to 49.999999, the plaintiff has carried his/her burden.

For lawyers, the difference is dramatic.

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Stars Fall & the Joys of Self Publishing

A diversion for the normal topics on my blog.

In March, my legal thriller Stars Fall sold nearly 50% more ebook copies on Amazon than any month since its release in early 2012, over a year ago.  In fact, the rate on sales for Stars Fall has been incrementally climbing each month since last fall.

Total sales have long since surpassed the number of people I know, so I'm not sure who is buying the book at this point.  Unfortunately, Amazon's statistics don't give demographics other than total sales so I don't know who is buying the book or where they are located.

Don't misunderstand.  My novel is not selling at bestseller numbers.  John Grisham and David Balducci need not worry about my book siphoning sales from their latest thrillers.

But it has been rewarding and fun.

So if you haven't been able to hook that agent, or you have an old novel in your closet, think about the modern means of self publishing.  I don't know if it's for everyone.  But as for me, it was the right choice.

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)

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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.



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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.

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!"