Post-Sullivan Developments

Here is another excerpt from David Hudson's article:

Extending Times v. Sullivan to public figures
The high court extended the rule for public official defamation plaintiffs in 1967 in the consolidated cases of Curtis Publishing Co. v. Butts and The Associated Press v. Walker. The cases featured plaintiffs Wally Butts, former athletic director of the University of Georgia, and Edwin Walker, a former general who had been in command of the federal troops during the school desegregation event at Little Rock, Ark., in the 1950s.

Because the Georgia State Athletic Association, a private corporation, employed Butts, and Walker had retired from the armed forces at the time of their lawsuits, they were not considered public officials. The question before the Supreme Court was whether to extend the rule in Times v. Sullivan for public officials to public figures.

Five members of the Court extended the Times v. Sullivan rule in cases involving "public figures." Justice John Paul Harlan and three other justices would have applied a different standard and asked whether the defamation defendant had committed "highly unreasonable conduct constituting an extreme departure from the standards investigation and reporting ordinarily adhered to by responsible publishers."

Limited-purpose public figures
The Supreme Court clarified the limits of the "actual malice" standard and the difference between public and private figures in defamation cases in Gertz v. Robert Welch, Inc. (1974). The case involved a well-known Chicago lawyer named Elmer Gertz, who represented the family of a young man killed by police officer Richard Nuccio. Gertz took no part in Nuccio's criminal case, in which the officer was found guilty of second-degree murder.

Robert Welch Inc. published a monthly magazine, American Opinion, which served as an outlet for the views of the conservative John Birch society. The magazine warned of a nationwide conspiracy of communist sympathizers to frame police officers. The magazine contained an article saying that Gertz had helped frame Nuccio. The article said Gertz was a communist.

The article contained several factual misstatements. Gertz did not participate in any way to frame Nuccio. Rather, he was not involved in the criminal case. He also was not a communist.

Gertz sued for defamation. The court had to determine what standard to apply for private persons and so-called limited purpose public figures. Then, the Court had to determine whether Elmer Gertz was a private person or some sort of public figure.

The news-media defendant argued that the Times v. Sullivan standard should apply to any defamation plaintiff as long as the published statements related to a matter of public importance. Justice Brennan had taken this position in his plurality opinion in the 1971 case Rosenbloom v. Metromedia.

The high court disagreed, finding a distinction between public figures and private persons. The Court noted two differences: (1) Public officials and public figures have greater access to the media in order to counter defamatory statements; and (2) public officials and public figures to a certain extent seek out public acclaim and assume the risk of greater public scrutiny.

For these reasons, the Gertz Court set up a different standard for private persons:

“We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”

This standard means that a private person does not have to show that a defendant acted with actual malice in order to prevail in a defamation suit. The private plaintiff usually must show simply that the defendant was negligent, or at fault. However, the Supreme Court also ruled that private defamation plaintiffs could not recover punitive damages unless they showed evidence of actual malice.

In its opinion, the high court also determined that certain persons could be classified as limited-purpose public figures with respect to a certain controversy. The Court noted that full-fledged public figures achieve "pervasive fame or notoriety." However, the court noted that sometimes an individual "injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." These limited-purpose public figures also have to meet the actual-malice standard.

The high court then addressed the status of Gertz. The high court determined that he was a private person, not a limited-purpose public figure. "He took no part in the criminal prosecution of Officer Nuccio," the court wrote. "Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so."

Status of the plaintiff
These cases show that perhaps the most important legal issue in a defamation case is determining the status of the plaintiff. If the plaintiff is a public official, public figure or limited-purpose public figure, the plaintiff must establish that the defendant acted with actual malice with clear and convincing evidence.

If the plaintiff is merely a private person, the plaintiff must usually only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice.

Here are a few more notes of mine:

Public Person\Public Concern

Actual Malice

Private Person\Public Concern

Some fault (negligence) plus actual malice for presumed or punitive damages.

Private Person\Private Concern

Probably common law rules apply (certainly no need to prove actual malice for any reason). Dun and Bradstreet did not discuss whether the Gertz negligence standard still applies in this situation. But see p. 80 – this speech “warrants no special protection.”

Public Person\Private Concern

?

Suppose the Lincoln Journal runs a story that discloses that Dr. Grutz and Dr. Butcher, two local dentists, have tested positive for HIV (AIDS).

Grutz sues and alleges that the statement is false and defamatory. Assume the paper had two reliable sources and had called Dr. Grutz’s office 3 times (and he had failed to return their calls).

Would the Constitution allow Grutz to recover compensatory damages on a strict liability theory?

Is Dr. Grutz a public figure (see Gertz at p. 78 “public figure for a limited range of issues”)?

If Grutz is a private person under Gertz, can state defamation law provide strict liability for false and defamatory statements? (Gertz says “no” p. 76 - But query is Gertz still good law if the speech involves matters of private concern? See Dunn & Bradstreet and Milkovich).

Now, suppose Dr. Butcher sues and admits the truth of the statement. Should he be allowed to recover under a privacy theory (i.e. that the newspaper had publicly disclosed intimate details of his private life).

When the First Amendment collides with a reasonable expectation of privacy you get a hard case. Should the press be permitted to publish the HIV status of Grutz and Butcher?

Does the public have a right to know?