We all know that the First Amendment protects freedom of speech. However, the First Amendment does not protect all forms of speech. One unprotected form of speech is defamation. Defamation generally consists of a false statement, made about a person to third parties, which damages that person’s reputation.
Although some forms of unprotected speech (like violent threats, or fraud) incur criminal liability, defamation is not a crime. Rather, it is a form of unprotected speech to which civil liability attaches, which means that you can be sued for it.
Public Figures Must Show Actual Malice
Historically, defamation was a state common law matter. However, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court constitutionalized defamation law, by establishing higher standards that plaintiffs must meet in order to state a claim for defamation.
After Sullivan, defamation plaintiff who is a “public figure” must show that the defamation was intentional, or reckless. Defamation law classifies this level of intent as “actual malice.” Proving actual malice can be difficult, as it requires proof of the defendant’s state of mind. Private citizens, on the other hand, can usually stake a defamation claim on negligent defamation alone.
The problem with this doctrine is that it’s unconstitutional. Defamation law was a common law cause of action at the time the Constitution was ratified. If the framers had wanted to include the Sullivan limitations in the Constitution, they would have done so.
Specifically, the Sullivan 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.
Ten years later, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court extended the actual malice standard to include not just public officials, but “public figures.” The Gertz court divided “public figures” into two categories: general public figures, and “limited” public figures. It defined these terms 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.
The definition of a general public figure is fairly clear. It basically refers to household name celebrities. However, the Supreme Court’s definition of a limited public figure leaves unsettled questions. Courts apply this doctrine on a case-by-case basis.
For example, the Gertz court found that an attorney, simply by virtue of practicing law, is not a limited public figure. However, the court also made fairly specific determinations about the extent of that attorney’s involvement in a major news story. Sixteen years later, in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Supreme Court found that a high school wrestling coach was not a limited public figure. That finding may seem obvious, but the Milkovich case went on for fifteen years before making its way to the Supreme Court.
How Do Courts Determine Just Who Is a Public Figure?
To make matters more confusing, different jurisdictions have also developed different tests to determine just who is a limited public figure.
For example, in Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), the D.C. Circuit Court of Appeals set out a three-part framework for analyzing whether someone is a limited public figure. Under the Waldbaum 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.
The Waldbaum test is fairly sensible. However, five years later, the D.C. Circuit had occasion to apply the test to an air traffic controller who they determined was an involuntary public figure, because he gave statements to the media about an airplane crash which took place while he was on duty. Dameron v. Washington Mag., Inc., 779 F.2d 736 (D.C. Cir. 1985). Not every jurisdiction recognizes the “involuntary public figure” doctrine.
In Washington state, the courts are a bit more protective of a defamation plaintiff’s private-figure status. Under Washington defamation law, not just anyone who is in the news is considered a limited public figure. “A person is not considered a public figure solely because he or she has sought relief through the courts or is involved in a controversy which is newsworthy. To be considered a public figure, courts usually require the plaintiff to voluntarily seek to influence the resolution of public issues.” See Camer v. Seattle Post-Intelligencer, 45 Wash. App. 29 (1986).
The Second Circuit applies a slightly less elegant test than the D.C. Circuit’s Waldbaum test. For example, just three years ago, a federal judge 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 Southern District of New York sits within the federal Second Circuit, and so the Prince court applied the Second Circuit Court of Appeals’ test for public figure status, which 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)
In New Mexico, our state court of appeals has 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, 109 N.M. 338 (1989).
A court in the U.S. District of New Mexico (a district court within the federal 10th Circuit) later applied this analysis to determine that a physician was a limited public figure when he published an editorial regarding the takeover of hospital emergency departments by a healthcare MSO. Schwartz v. Am. Med. Ass’n, 23 F. Supp. 2d 1271 (D.N.M. 1998).
Social Media Is Changing Public Figure Analysis
In the era of social media, this 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? If I have only 300 followers on Twitter, but a post I published goes viral, have I suddenly become a limited purpose public figure? These questions are susceptible to a range of answers from courts in different jurisdictions.
Clearly, as technology evolves, the law of defamation will struggle to keep up. Within our lifetimes, public figure doctrine may evolve significantly.
Late Night Law® is a dedicated defamation, privacy and social media law firm. If you are the target of doxxing, defamation or cyberstalking in New Mexico, in Washington, or in Texas, contact us at (505) 225-2623 to schedule a free consultation with a defamation attorney today.
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.
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