You can read this in your AP style book also:
Publication: Defamation
LEGAL PRINCIPLES OF PUBLICATIONWhen a news report is published, the nature of its content poses three principal legal risks to a journalist: that the report contains incorrect information that harms someone's reputation, contains correct information that invades someone's privacy, or contains material that is subject to someone else's copyright. This section provides an overview of the law of libel, privacy and copyright infringement, by examining what a plaintiff is required to prove against news organizations to succeed on such claims and the defenses that are available.
Defamation
In 1967, shortly after New York Times v. Sullivan was handed down, Associate Justice John Harlan remarked that "the law of libel has changed substantially since the early days of the Republic." Unfortunately, the news stories that still generate the most claims of injury to reputation - the basis of libel - are still the run-of-the-mill.
Perhaps 95 of 100 libel suits result from the routine publication of charges of crime, immorality, incompetence or inefficiency. A Harvard Nieman report makes the point: "The gee-whiz, slam-bang stories usually aren't the ones that generate libel, but the innocent-appearing, potentially treacherous minor yarns from police courts and traffic cases, from routine meetings and from business reports."
Most lawsuits based on relatively minor stories result from factual error or inexact language - for example, getting the plea wrong or inaccurately making it appear that all defendants in a case face identical charges. Libel even lurks in such innocent-appearing stories as birth notices and wedding announcements. Turner Catledge, former managing editor of The New York Times, noted in his autobiography, "My Life and the Times," that people sometimes would "call in the engagement of two people who hate each other, as a practical joke." The fact that some New York newspapers have had to defend suits for such announcements illustrates the care and concern required in every editorial department.
In publishing, no matter what level of constitutional protection, there is just no substitute for accuracy.
What is libel?
Libel is one side of the coin called "defamation," slander being the flip side. At its most basic, defamation means injury to reputation. Libel is generally distinguished from slander, in that a libel is written, or otherwise printed, whereas a slander is spoken. While defamation published in a newspaper universally is regarded as libel, it is perhaps not so self-evident that, in many states, defamation broadcast by television or radio also is considered libel, rather than slander: Because broadcast defamation is often recorded on tape and carried to a wide audience, it is viewed as more dangerous to reputation than a fleeting, unrecorded conversation, and so is classed with printed defamation. In any case, the term defamation generally includes both libel and slander. Words, pictures, cartoons, photo captions and headlines can all give rise to a claim for defamation.
The various states define libel somewhat differently, but largely to the same effect. In Illinois, for example, libel is defined by the courts as "the publication of anything injurious to the good name or reputation of another, or which tends to bring him into disrepute." In New York, a libelous statement is one that tends to expose a person to hatred, contempt or aversion or to induce an evil or unsavory opinion of the person in the minds of a substantial number of people in the community.
In Texas, libel is defined by statute as anything that "tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury."
Liability for republication: the 'conduit' fallacy
A common misconception is that one who directly quotes a statement containing libelous allegations is immune from suit so long as the quoted statement was actually made, accurately transcribed and clearly attributed to the original speaker. This is not so. In fact, the common law principle is just the opposite - a republisher of a libel is generally considered just as responsible for the libel as the original speaker. That you were simply an accurate conduit for the statement of another is no defense to a libel claim.
In many circumstances, therefore, a newspaper can be called to task for republishing a libelous statement made by someone quoted in a story. This rule can lead to harsh results and therefore exceptions exist. For example, reporting the fact that a plaintiff has filed a libel suit against a defendant could, in certain circumstances, lead to a claim against a newspaper for repeating the libel alleged in the complaint. In most states, a "fair report privilege" shields the publisher of an accurate and impartial report of the contents of legal papers filed in court to avoid this result.
Many states also recognize that newspapers under the pressure of daily deadlines often rely on the research of other reputable news organizations in republishing news items originally appearing elsewhere. In such cases, reliance on a reputable newspaper or news agency often is recognized as a defense to a libel claim. Of course, this so-called "wire service defense" may not be available if the republisher had or should have had substantial reason to question the accuracy or good faith of the original story.
The fair report privilege and the wire service defense are exceptions to the basic rule. When the press reports that X has leveled accusations against Y, the press may be held to account not only for the truth of the fact that the accusations were made, but also for the steps taken to verify the truth of the accusations. Therefore, when accusations are made against a person, it generally is prudent to investigate their truth as well as to obtain balancing comment with some relation to the original charges. Irrelevant countercharges can lead to problems with the person who made the first accusation.
In short, always bear in mind that a newspaper can be held responsible in defamation for republishing the libelous statement made by another, even when the quote is correct.
The five things a successful libel plaintiff must prove
Although the terminology may differ from state to state, a libel plaintiff suing a reporter or a news organization will have to prove five things in order to prevail on a claim for defamation:
1. A defamatory statement was made.
2. The defamatory statement is a matter of fact, not opinion.
3. The defamatory statement is false.
4. The defamatory statement is about ("of and concerning") the plaintiff.
5. The defamatory statement was published with the requisite degree of "fault."
By developing an understanding of the legal elements of a claim for libel, reporters and editors can fashion guideposts that will assist them in practicing their craft in a way that avoids wrongfully injuring the reputation of the subjects of their stories - and thereby to reducing the legal risk to the publications for which they write.
1. A defamatory statement was made
It may seem self-evident that a libel claim cannot exist unless a defamatory statement was made, but subjects of news stories (and their lawyers) often bring claims for libel without being able to demonstrate that what was written about them is capable of conveying a defamatory meaning. Put differently, not every negative news report is defamatory.
Generally, statements accusing someone of being a criminal, an adulterer, insane or infected with a loathsome disease are considered automatically "capable of defamatory meaning," as are statements that injure someone's professional reputation (such as that they are corrupt or incompetent). However, to determine whether any particular statement is susceptible of defamatory meaning, reference must be made, first, to the definition of libel adopted in the relevant state, and second, to the full context in which the challenged statement appeared when it was published.
For example, a New York court found that a statement identifying an attorney as a "flashy entertainment lawyer" was not, without more, defamatory, although a statement that a lawyer was an "ambulance chaser" with an interest only in "slam dunk" cases would be. The reasoning is that the first statement would not necessarily damage a lawyer's reputation, while the latter would. Likewise, in New York, allegations of drunkenness, use of "political clout" to gain governmental benefit, membership in the "Mafia," communist affiliation or that someone has cancer may or may not be defamatory, depending on the circumstances of the case.
In Illinois, courts make determinations about defamatory meaning on a case-by-case basis, though in Illinois, most statements will not be considered defamatory unless they charge a person with commission of a crime, adultery/fornication, or incompetence or lack of integrity in their business or profession. Under this approach, the statement that plaintiff left his children home at night and lost his job because of drinking was held to be defamatory as an accusation of child neglect and inability to discharge the duties of his job due to alcoholism. Similarly, reporting that an alderman had disclosed confidential information was held to be defamatory as indicating that the official lacked the integrity to properly discharge the duties of his office.
In Texas, a statement may be false, abusive and unpleasant without being defamatory. For example, a Texas court held that describing someone as resembling a "hard boiled egg," referring to baldness and pudginess, was not defamatory. Likewise, describing a political candidate as a "radical," "backed and financed by big-shot labor bosses" was not considered defamatory in Texas. On the other hand, an insinuation that a person is connected with gambling and prostitution was found to be defamatory. The assertion that a person who had made an allegation against another of child molestation had fabricated and since recanted the allegation was defamatory when no recantation had, in fact, been made.
While each potentially defamatory statement must be assessed in its own context, particular caution is in order where the statement involves allegations of crime or similar wrongdoing, incompetence or unprofessionalism, or infidelity.
2. The defamatory statement is a matter of fact, not opinion
To be actionable as libel, a defamatory statement must be provably false (or carry a provably false implication). Stated differently, only factual statements that are capable of being proven true or false can form the basis of a libel claim. "Opinions" that don't include or imply provably false facts cannot be the basis of a libel claim. Similarly, epithets, satire, parody and hyperbole that are incapable of being proven true or false are protected forms of expression.
The Supreme Court, in Gertz v. Robert Welch Inc. (1974), recognized a constitutional dimension to the prohibition of libel claims based on opinion, stating that "there is no such thing as a false idea." In a later case, Milkovich v. Lorain Journal Co. (1990), the Supreme Court denied that there is a distinct constitutional "opinion privilege," but held that any claim for libel must be based on a statement of fact that is provably false, thus shielding purely subjective opinions from liability. Under this approach, a statement is not protected "opinion" merely because it contains qualifying language such as "I think" or "I believe," if what follows contains an assertion of fact that can be proven true or false (e.g., "I believe he murdered his wife.").
Some examples of actual cases can provide a better sense of the distinction between an actionable false fact and a protected opinion:
In Virginia, "pure expressions of opinion" cannot be the basis of a claim for defamation. Under this standard, the statement "I wouldn't trust him as far as I could throw him" and the caption "Director of Butt-Licking" were held to be nonactionable opinion. The Virginia Supreme Court has found words charging that an architect lacked experience and charged excessive fees, or accusing a charitable foundation with failing to spend a "reasonable portion" of its income on program services, also to be protected opinions rather than to be verifiable facts.
In New York, the test for distinguishing a fact from an opinion asks whether: (1) the statement has a precise core of meaning on which a consensus of understanding exists; (2) the statement is verifiable; (3) the textual context of the statement would cause an average reader to infer a factual meaning; and (4) the broader social context signals usage as either fact or opinion. The first two factors focus on the meaning of the words used, the latter two factors consider whether the content, tone and apparent purpose of the statement should signal to the reader that the statement reflects the author's opinion.
Under these principles, calling a doctor a "rotten apple," for example, is incapable of being proved true or false and is therefore protected as an expression of opinion. Similarly, a statement that someone lacked "talent, ambition, initiative" is a nonactionable expression of opinion, since there is no provable, common understanding of what quantum of talent or ambition constitutes a "lack." In one New York case, a letter to the editor published in a scientific journal submitted by the International Primate Protection League and which warned that a multinational corporation's plans for establishing facilities to conduct hepatitis research using chimpanzees could spread hepatitis to the rest of the chimpanzee population was, given its overall context, protected as opinion.
Even when a fact is implicit in an opinion, the common law often protects the statement from liability. In many states, a statement of opinion based on true facts that are themselves accurately set forth is not actionable. Where the facts underlying the opinion are reported inaccurately, however, and would adversely affect the conclusion drawn by the average reader concerning the opinion expressed, the publication may give rise to a claim for libel. For example, the statement, "I believe he murdered his wife because he was found with a bottle of the same kind of poison that killed her," likely would not be actionable even if the plaintiff could prove he did not murder is wife if it is true that he was found with a bottle of the same kind of poison that killer her. The true facts on which the (erroneous) opinion was based were disclosed to the readers. If there was no bottle of poison, however, the suggestion that he was a murderer would certainly be actionable. If an opinion suggests or appears to rely on an undisclosed fact, however, a libel claim may still be brought upon the unstated, implied facts if they are both false and defamatory.
The statement that a sports commentator was a "liar" without reference to specific facts, under this approach, was considered to be protected opinion. Taken in the total context of an article, the statement that plaintiff was a "neo-Nazi" was protected as opinion. Likewise, a statement calling a plaintiff a "commie," suggesting that he does not understand the subject he teaches and that he is "not traveling with a full set of luggage," was also protected as opinion. Statements accusing doctors of being "cancer con-artists," of practicing "medical quackery," and of promoting "snake oil remedies," were also protected. A newspaper column and editorial characterizing a nudist pageant as "pornography" and as "immoral" were also protected.
A court in California held that three questions should be considered to distinguish opinion from fact: (1) does the statement use figurative or hyperbolic language that would negate the impression that the statement is serious? (2) does the general tenor of the statement negate the impression that the statement is serious? (3) can the statement be proved true or false?
Under this test, a commentator's statement that a product "didn't work" was not an opinion because, despite the humorous tenor of the comment, it did not use figurative or hyperbolic language, it could reasonably be understood as asserting an objective fact and the fact could be proven true or false. Likewise, a statement made in a newspaper interview that plaintiff was an "extortionist" was not protected as opinion.
The common thread to these variations is that opinions offered in a context presenting the facts on which they are based will generally not be actionable. On the other hand, opinions that imply the existence of undisclosed, defamatory facts (i.e., if you knew what I know) are more likely to be actionable. In addition, a statement that is capable of being proven true or false, regardless of whether it is expressed as an opinion, an exaggeration or hyperbole, may be actionable.
3. The defamatory statement is false
In almost all libel cases involving news organizations, the plaintiff has the burden of proving that the defamatory statement is false. (The states are divided on whether a purely private individual has to prove falsity when the defamatory statement does not involve a matter of public concern.) Nonetheless, as a practical matter, a libel defendant's best defense is often to prove that the statement is true. While this may sound like six-of-one-half-dozen-of-the-other, there is considerable significance to placing on the plaintiff the legal burden of proving falsity: Where a jury feels it cannot decide whether a statement is true or false because the evidence is mixed, it is required to rule against the plaintiff - ties go to the defendant.
In almost all states, the question is not whether the challenged statement is literally and absolutely true, in every jot and title, but whether the statement as published is "substantially true." That is, a court will consider whether the gist or sting of the defamatory statement is accurate, or whether the published statement would produce a different effect in the mind of a reader than would the absolutely true version.
For example, most courts will dismiss a libel claim brought by a person charged with second degree burglary, if a newspaper mistakenly reported that he had been charged with first-degree burglary: The gist of the story (that the man is an accused burglar) is true, and most readers would not form a better opinion of the man had they been correctly informed that it was only second degree burglary with which he had been charged. But, where a newspaper mistakenly reports that the accused burglar has been charged with murder (or that a person thus far only accused of murder has been convicted of it), a court might well conclude that the "sting" of the statement is not substantially accurate, and that readers would think less of the person based on the false statement than they would have had the published report been accurate.
4. The defamatory statement is about the plaintiff
Since the law of libel protects the reputation of an individual or a business entity, only the individual or entity whose reputation has been injured is entitled to complain. Thus, a libel plaintiff must prove that the defamatory statement was "of and concerning" the plaintiff. It often is obvious whether a statement is about a particular person (for example, because it gives his or her full name, place of residence and age). But even where no name is used, a libel claim may be brought if some readers would reasonably understand the statement to be about the plaintiff. For example, the statement referring to "the woman who cooks lunch at the diner," when there is only one woman who cooks at that diner, will be considered "of and concerning" the female cook.
In a recent Illinois case, a news report on the commencement of a murder trial referred to the defendant as "suburban car dealer John Doe." While "John Doe" was indeed on trial for murder, he was not a suburban car dealer. His brother, "Joe Doe," was a suburban car dealer, but was not on trial for murder. The court concluded that reasonable readers could have understood the report to be about Joe (despite the fact that Joe's name was never mentioned, while John's was correctly used), and that Joe therefore would have the opportunity to show the statement was understood to be "of and concerning" him.
A few words about "group libel." Where a statement impugns a group of persons, but no individual is specifically identified, no member of the group may sue for libel if the group is large. For example, the statement, in a large city, that "all cab drivers cheat their customers out of money," does not allow any cab driver to sue for libel as a result, no matter how many fares the plaintiff cab driver may have lost because of the published statement. But, beware of publishing the same statement in a newspaper in a town with only a handful of cab drivers, where a court might well conclude the readers would reasonably think the statement was specifically referring to each of the town's four cab drivers, despite the absence of their names in the statement. Some courts have questioned whether the First Amendment permits claims for group libel under any circumstances, because the Supreme Court has said that the requirement that the statement be "of and concerning" the plaintiff is constitutionally required.
Finally, a word about the dead: It is mostly correct that you cannot defame the dead. Again, because libel protects personal reputation, and one has no practical need for a good personal reputation in this world after one has departed it, most states do not permit a person's survivors to bring a claim for statements made after the person's death.
5. The defamatory statement was published with the requisite degree of fault
For almost 200 years, libel in this country was a tort of strict liability. It did not matter whether the defendant was at fault or had acted in some improper way. The mere fact that a libel was printed was sufficient to establish liability
New York Times v. Sullivan changed everything. In that case the Supreme Court first recognized the constitutional requirement that a public official must demonstrate not only that an error was made, but also a high degree of fault by the publisher in order to prevail on a libel claim. This additional burden was required under the First Amendment, the court said, in order to provide the "breathing room" for the exercise of free speech that is essential to public discussion by citizens on matters concerning their self-government.
The court considered the Sullivan case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."
The ruling in Sullivan with respect to libel claims by public officials was extended three years later to libel claims by public figures, in The Associated Press v. Walker. The court reversed a $500,000 libel judgment won by former Maj. Gen. Edwin A. Walker in a Texas state court against the AP, after it had reported that Walker "assumed command" of rioters at the University of Mississippi and "led a charge of students against federal marshals" when James H. Meredith was admitted to the university in September 1962. Walker alleged those statements to be false.
In ruling for the AP, the Supreme Court found: "Under any reasoning, Gen. Walker was a public man in whose public conduct society and the press had a legitimate and substantial interest." It therefore held that Walker, too, was required to prove fault by the publisher even though he was not a public official.
The rulings in Sullivan and Walker cases were landmark decisions for freedom of the press and speech. They established safeguards not previously defined, but they did not provide news organizations with absolute immunity against libel suits by officials who are criticized. Rather, they stand for the principle that, to encourage public debate on matters of public concern, when a newspaper publishes information about a public official and publishes it without actual malice, it should be spared a damage suit even if some of the information turns out to be wrong.
The Walker decision made an additional important distinction concerning the context in which an article is prepared. In a companion case consolidated before the Supreme Court, Wallace Butts, former athletic director of the University of Georgia, had obtained a libel verdict against Curtis Publishing Co. His suit was based on an article in the Saturday Evening Post accusing Butts of giving his football team's strategy secrets to an opposing coach prior to a game between the two schools.
The Supreme Court found that Butts was a public figure, but said there was a substantial difference between the two cases. Unlike the AP report on the actions of Walker, "the Butts story was in no sense 'hot news' and the editors of the magazine recognized the need for a thorough investigation of the serious charges. Elementary precautions were, nevertheless, ignored."
Chief Justice Earl Warren, in a concurring opinion, referred to "slipshod and sketchy investigatory techniques employed to check the veracity of the source" in the Butts case. He said the evidence disclosed "reckless disregard for the truth."
The differing outcomes against The Associated Press and the Saturday Evening Post should be noted carefully. Although both involved public figures who were required to establish "actual malice," the evidence required to make this showing differed in the context of a "hot news" report from investigative reporting.
By 1974, in Gertz v. Robert Welch, Inc., the Supreme Court had extended the requirement that a libel plaintiff show some fault on the part of the defendant to include all defamation claims against news organizations, although not all types of plaintiffs must show the highest degree of fault. The level of "fault" that a plaintiff must prove will vary depending on who the plaintiff is.
* Fault required for public officials and public figures
If the plaintiff is a public official or public figure, the plaintiff must establish by clear and convincing evidence that the publication was made with "actual malice," an unfortunate choice of phrase by the Supreme Court for a concept that might better have been called "constitutional fault," since the standard has little to do with whether a reporter harbored spite or ill will against the plaintiff.
The court has explained that "actual malice" means publication with knowledge that a statement is false, or in reckless disregard for whether it is true or false. The concept of "knowing falsity" is easy to understand. "Reckless disregard" has required further elaboration by the courts, which have described it as publication of a statement "with a high degree of awareness of its probable falsity." Put differently, a reporter may act with reckless disregard for truth if he or she publishes despite holding serious doubts about the truth of the published statement.
The test for actual malice thus looks to the subjective state of mind of the reporter/publisher at the time of publication. It inquires into whether the reporter or publisher believed the statement was false or whether they proceeded to publish despite recognizing that there was a good chance that the statement was false. Because most reporters and publishers are not in the business of publishing news reports unless they have good grounds to believe them to be true, generally speaking, it is difficult for a plaintiff to show that a newspaper published a story with actual malice.
As one Illinois court phrased it, actual malice is shown only when a reporter's investigation "has revealed either insufficient information to support the allegations in good faith or information which creates substantial doubt as to the truth of published allegations."
Thus, as interpreted by most states, "actual malice" cannot be proven simply by showing that a reporter made mistakes (either by getting facts wrong or by failing to talk to one or more key sources), or that the reporter disliked the plaintiff, or that the newspaper frequently published items critical of the plaintiff. Rather, the test focuses on whether the reporter in fact disbelieved, or strongly doubted the truth of, the published statement. In some cases, plaintiffs may establish actual malice if they can show that a reporter willfully turned a blind eye to the truth and, if acting in good faith, would have known that the statement was false.
* Fault required for private individuals
Under the First Amendment, even private individuals must show some degree of fault before they can recover for a libel by a news organization in a report on a matter of public concern. States are free to set the standard of care that must be met in reporting on private individuals, so long as they require at least a showing of negligence.
Most states have decided to adopt the minimum standard and require a private libel plaintiff to show only that a reporter was negligent. That means the plaintiff must show that the reporter's conduct was less careful than one would expect of a reasonable journalist in similar circumstances. In Texas and California, for example, the question in a private figure libel case is whether the defendant should have known, through the exercise of reasonable care, that a statement was false.
The courts have looked at a number of factors to evaluate whether "negligence" exists. The considerations include:
-Did the reporter follow the standards of investigation and reporting ordinarily adhered to by responsible publishers? In many libel cases plaintiffs will use "expert" witnesses to testify about what the "acceptable journalistic practices."
-Did the reporter follow his or her own normal procedures? Any time that you do something differently from what you usually do in reporting a story - particularly if the change involves exercising less care, rather than more care - you'd better have a good explanation for why that was done.
-Did the reporter have any reason to doubt the accuracy of a source, or any advance warning that the story might not be right? Was it possible to find out the truth? This - like many of the factors the courts consider - is a matter of common sense. If you have received information that just doesn't ring true to you, and it is something that is easily checked, check it out before you run with the story!
-How much did the reporter do to check out the facts? Did the reporter take steps to confirm the information received, or simply run with the story without checking it out?
-Who are your sources of information? Are they reliable, and objective - or known "flakes" or people with a clear ax to grind? Are they anonymous sources? How many independent sources do you have (and how do they know the information they are giving you)?
Some courts set different fault levels for private figures depending on whether the publication at issue involved a matter of "public concern" or of "private concern." New York, for example, has held that if the plaintiff is a private individual involved in a matter of legitimate public concern, the plaintiff must establish by a preponderance of the evidence that the publication was made in a "grossly irresponsible" manner without due regard for the standards of information gathering and dissemination ordinarily followed by responsible parties involving similar matters. In cases involving matters of private concern, New York, too, applies a negligence standard, although New York courts typically defer to the press in determining what constitutes a matter of "public concern" (and thus the vast majority of New York private figure cases apply the "gross irresponsibility" standard).
Finally, a handful of states apply the actual malice standard to all libel cases, regardless of the plaintiff's status. These states include Alaska, Colorado, Indiana and New Jersey.
* Who is who?
Being able to determine whether the subject of a news story is a public official or figure or a private figure bears directly on the amount of legal risk posed by the story.
While it is clear that not every government employee will be considered a public official for purposes of what they must prove in a libel case, the Supreme Court has yet to lay down definitive standards. Thus, the definition varies somewhat from state to state.
In New York, public officials are those who are elected or appointed to office and who appear to have substantial responsibility for control over public and governmental affairs. Judges, police officers, state troopers and corrections officers have all been held to be public officials under this standard. Similarly, in California, a public official is one who has, or appears to the public to have, substantial responsibility for or control over the conduct of governmental affairs. In California, people found to be public officers have included a police officer, an assistant public defender and an assistant district attorney.
Texas, in contrast, looks to the following criteria are relevant to determine whether a libel plaintiff is a public official: (1) the public interest in the public position held by the plaintiff; (2) the authority possessed by the plaintiff to act on behalf of a government entity; (3) the amount of governmental funds controlled by the plaintiff; (4) the number of employees the official supervises; (5) the amount of contact between the plaintiff and the public, and (6) the extent to which the plaintiff acts in a representative capacity for the governmental entity or has any direct dealings with the government.
Under this standard, (1) a county sheriff; (2) a Child Protective Services specialist with authority to investigate charges of child abuse, remove children from their homes and place them in foster care; (3) an undercover narcotics agent employed by the state's law enforcement agency; (4) a ranking officer in charge of a narcotics squad of four men; (5) an individual who was a high school athletic director, head football coach and teacher; (6) an assistant regional administrator of a branch office of the Securities and Exchange Commission, and (7) a part-time city attorney have all been found to be public officials.
But under the same Texas test, the following people were found not to be public officials: (1) a high schoolteacher; (2) a prominent member of two private organizations affiliated with a state university; (3) a former special counsel for a court of inquiry into county fund management; (4) a court reporter, and (5) an appointed justice of the peace (where the article appeared in a city where plaintiff was not justice of the peace and did not refer to plaintiff's official capacity).
While, at least at higher ranks, it is relatively easy to identify public officials, both reporters and the courts have confronted substantial difficulty in the area of public figures, particularly in separating those who are merely socially or professionally prominent from those who, because of their influence over public matters, are properly considered public figures for libel purposes.
For example, the 1976 case of Time v. Firestone stemmed from Time magazine's account of the divorce of Russell and Mary Alice Firestone. The magazine said she had been divorced on grounds of "extreme cruelty and adultery." The court made no finding of adultery. She sued. The former Mrs. Firestone was a prominent social figure in Palm Beach, Fla., and held press conferences in the course of the divorce proceedings. Yet, the Supreme Court said she was not a public figure because "she did not assume any role of special prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence resolution of the issues involved in it."
Similarly, Sen. William Proxmire of Wisconsin was sued for $8 million by Ronald Hutchinson, a research scientist who had received several public grants, including one for $50,000. Proxmire gave Hutchinson a "Golden Fleece" award, saying Hutchinson "has made a fortune from his monkeys and in the process made a monkey of the American taxpayer." Hutchinson sued. The Supreme Court held in 1979 that, despite the receipt of substantial public funds, Hutchinson was not a public figure because he held no particular sway over the resolution of matters of public concern.
Note also the case of Ilya Wolston, who pleaded guilty in 1957 to criminal contempt for failing to appear before a grand jury investigating espionage. A book published in 1974 referred to these events. Wolston alleged that he had been libeled. In ruling on Wolston v. Reader's Digest, the Supreme Court said that he was not a public figure. The court said people convicted of crimes do not automatically become public figures. Wolston, the court said, was thrust into the public spotlight unwillingly, long after the events of public concern had ended. (But, the Supreme Court also has said, in a different context, that allegations of criminal activity by public officials, no matter how far in the past the conduct may have occurred, is always relevant to their fitness for public office.)
At bottom, although the Supreme Court has yet to definitively resolve the issue, the point appears to be that public figures are those who seek the limelight, who inject themselves into public debate, and who seek to influence public opinion. A person who has widespread influence over public opinion on many matters may be deemed a "general purpose public figure" and required to prove actual malice no matter the subject of a particular allegedly defamatory statement. Oprah Winfrey is an example of someone who likely would be deemed a general purpose public figure.
A person who seeks to influence public opinion in only one area (such as, for example, by leading a campaign to enact animal rights legislation), however, may be deemed a "limited purpose public figure" and required to prove actual malice only with respect to allegedly defamatory statements about his or her animal rights activities. Limited purpose public figures have included: a prominent attorney; religious groups; a belly dancer; and a "stripper for God," among others.
Texas courts generally ask three questions in order to determine whether someone is a limited purpose public figure: (1) is the controversy truly a public controversy? (i.e., (a) are people talking about the controversy and (b) are people other than those immediately involved in the controversy likely to feel the impact of its resolution?); (2) does the plaintiff have more than a trivial or tangential role in the controversy?; (3) is the alleged defamation relevant to the plaintiff's participation in the controversy? Under this standard, an abortion protester on a public street in the vicinity of an abortion clinic was considered a limited purpose public figure, as was a zoologist who appeared on television shows and gave interviews on his controversial work.
On the other hand, a public schoolteacher whose participation in public controversy did not exceed that which she was required to do by school district regulations (except that she responded to media inquiries), was not a public figure in California. Similarly, a corporation which conducted a closeout sale for a landmark department store was not a public figure simply because it was doing business with a party to a controversy.
A note on corporations: In many states, the same standards that determine whether an individual is a public figure apply to corporations. Some states, however, conclude that corporations are always public figures, while others apply a narrower standard. For example, a British corporation that did not deal in consumer goods and had not received significant past publicity was a private figure for the purposes of a Texas libel claim.
In addition, a few lower courts have embraced the concept of an "involuntary public figure," in which an otherwise private person becomes a public figure by virtue of his or her having become drawn into a significant public controversy.
While this area of the law is freighted with subtleties to which lawyers and judges devote considerable energy, the practical bottom line is that, while public officials and public figures always bear a high burden of proof in making out a libel claim, where a news story concerns a private individual, whether involved in a matter of public concern or not, his or her burden is likely to be lower, perhaps much lower, if the story is wrong. Accordingly, there are more legal risks to publishing reports about private individuals (especially where the matter is not of legitimate public concern).
