We all know that the First Amendment protects freedom of speech. Yet we also know that certain forms of speech—such as false advertising—are unprotected. One form of unprotected speech is defamation. While certain types of unprotected speech (like violent threats) may incur criminal liability, defamation is a form of unprotected speech to which civil liability attaches, meaning you can be sued for it. Defamation generally consists of a false statement, made about a person to third parties, which damages that person’s reputation.
A plaintiff whom the courts consider to be a “public figure” must meet a higher standard to show that defamation has occurred: they must show that the defamation was intentional, or reckless. This is called “actual malice.” (Private citizens, on the other hand, can usually stake a claim for defamation on negligent defamation alone.) Showing actual malice can be difficult, as it pertains to the defendant’s state of mind.
Historically, defamation was a common law matter controlled by state courts. However, in New York Times Co. v. Sullivan, the Supreme Court constitutionalized defamation law, by establishing higher standards that plaintiffs must meet in order to state a claim for defamation. Specifically, the New York Times court held that,
[a] State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. 376 U.S. 254 (1964).
Ten years later, in Gertz v. Robert Welch, Inc., the Supreme Court extended this “actual malice” standard to include “public figures,” which the Court divided into two categories (“general” public figures, and “limited” public figures) and defined as follows:
an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. 418 U.S. 323 (1974).
These definitions leave much to argue over, and courts have applied them differently under different circumstances. While it is easier to identify general public figures like celebrities and billionaires, determining who is a limited public figure can be more difficult.
For example, the Gertz court essentially found that an attorney, simply by virtue of practicing law, without more, is not a limited public figure—however, the court had to make fairly specific determinations about the extent of the subject attorney’s involvement in a major news story. Sixteen years later, in Milkovich v. Lorain Journal Co., the Supreme Court found that a high school wrestling coach was not a public figure. 497 U.S. 1 (1990). While that finding may seem obvious, the Milkovich litigation went on for fifteen years before the Supreme Court entered its decision.
Different courts apply different tests to determine who is a limit public figure.
For example, in Waldbaum v. Fairchild Publications, Inc., the D.C. Circuit set out a three-part framework for analyzing whether someone has become a limited-purpose public figure. Under that test, the court must determine that there is a public controversy; ascertain that the plaintiff played a sufficiently central role in that controversy; and find that the alleged defamation was germane to the plaintiff’s involvement in the controversy. 627 F.2d 1287, 1294 (D.C. Cir. 1980). Five years later, the D.C. Circuit had occasion to apply the Waldbaum test to determine that an air traffic controller was an “involuntary” public figure for the limited purpose of public discussions of an airplane crash which took place while he was on duty. Dameron v. Washington Mag., Inc., 779 F.2d 736, 741 (D.C. Cir. 1985). This classification is not recognized in every state or federal circuit.
Just three years ago, a court in the Southern District of New York found that Blackwater founder Erik Prince is a “limited-purpose public figure regarding use of private military contractors in foreign conflicts.” Prince v. Intercept, 634 F. Supp. 3d 114 (S.D.N.Y. 2022). The test applied in that case was first set forth by the Second Circuit, and requires a defendant to show that the plaintiff,
(1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media. Lerman v. Flynt Distrib. Co. Inc., 745 F.2d 123 (2d. Cir. 1984).
Relative to other federal circuits, case law on who is a limited public figure is fairly sparse here in the 10th Circuit, where New Mexico is located. Here in New Mexico, our state’s higher courts have held that,
Whether the nature and extent of a person’s participation in a controversy subjects him to the status of a public figure is gauged by ascertaining the extent to which participation in the controversy is voluntary, the extent to which the individual has access to the channels of effective communication, and the prominence of his role in the controversy. In determining whether appellant is a limited public figure for defamation purposes, examination focuses on whether the defamatory material concerns a public controversy or topic of legitimate public concern, together with the nature and extent of appellant’s participation in the controversy. Furgason v. Clausen, 1989-NMCA-084, 109 N.M. 338.
A court within the federal District of New Mexico has applied this analysis to determine that a physician was a limited public figure when he published an editorial regarding the take-over of hospital Emergency Departments by multi-hospital contract management companies. Schwartz v. Am. Med. Ass’n, 23 F. Supp. 2d 1271 (D.N.M. 1998). But in the era of social media, that type of finding raises questions about what kinds of public commentary will qualify someone as a limited public figure for defamation law purposes. If we are all on the internet all the time, is any public commentary that we publish liable to make us into public figures?
Is a high school student with 6000 followers on Instagram a limited public figure regarding matters at her school? If such a person is defamed badly enough, it seems unfair to hold her to a higher standard simply because she uses the internet the way it is designed to be used.
Is an influencer who has 15,000 followers on Twitter a public figure? What if he has 50,000 followers, but comments on topics he has no special expertise in? What if his account is anonymous, but he gets doxxed? Did he really inject himself into public matters if he intended to remain anonymous?
What if a person has only 5,000 followers on TikTok, but a particular video that she made about a political issue goes viral? Does the “nature and extent” of her “participation in the controversy” make her a public figure, simply by virtue of having used social media the way it is designed, exactly like millions of other people do on a daily basis?
These are difficult questions that are susceptible to a range of answers from different courts. Clearly, as technology evolves, the law of defamation will struggle to keep up. Within our lifetimes, the Gertz limited public figure doctrine may yet change.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.