Comment by James P. Naughton
In the ten years following its landmark decision in New York Times Co. v. Sullivan, the Supreme Court has wrestled with the problems of defining the extent to which the law of libel should be subject to constitutional limits and the level of protection that should be afforded to media defendants. New York Times replaced the common law strict liability rule with the "actual malice" standard where the libel plaintiff is a public official. Protection for defendants under New York Times is triggered by the plaintiff's status, yet the underlying assumption in the case was that the public ought to be free to discuss "public issues" such as the operation of government, without fear of punishment. Under the New York Times standard, both the status of the person and the nature of the event are significant.
In Curtis Publishing Co. v. Butts and Associated Press v. Walker, the Court extended the malice standard to cases involving "public figures"—persons who have attracted public opinion. Like New York Times, Butts and Walker recognized that the controversies giving rise to the alleged libels were matters of substantial public interest, yet the latter cases ostensibly focused on plaintiff's status. In 1971, however, a plurality of the Court in Rosenbloom v. Metromedia, Inc. shifted its emphasis away from the plaintiff and focused squarely on the nature of the controversy. Rosenbloom extended the New York Times rule to any publication involving a matter of public interest, even where the plaintiff was a private individual.
By 1974, the Court had again shifted its emphasis. In Gertz v. Robert Welch, Inc. the Court rejected the Rosenbloom "public interest" test and returned to a system based on plaintiff's status. While acknowledging that public figures must prove actual malice to recover libel damages, the Gertz majority held that private plaintiffs needed to show only negligence. By ruling out strict liability, the Court "constitutionalized" virtually all libel actions involving media defendants, yet the distinction between public and private plaintiffs meant that the level of protection afforded media defendants often would be lower than it had been under Rosenbloom. Cases decided after Gertz indicate that the public figure test has become firmly entrenched, and that the earlier emphasis on events is now of secondary concern to the Court.
Both the public figure doctrine and the Gertz negligence standard have been sharply criticized, partly because the test itself is vaguely defined and allegedly based on questionable assumptions, but also because application of the rule can lead to illogical results. The bulk of the criticism, however, has been directed at the Court's introduction of a negligence standard in "private plaintiff" cases. Some commentators believe that Gertz betrayed the Burger Court's hostility toward the news media and represented an attempt to limit the power of the press by inducing journalistic self-censorship. Inasmuch as the recently decided public figure cases, Hutchinson v. Proxmire and Wolston v. Reader's Digest Association, Inc., rest squarely on the logic of Gertz, criticism of the rule is likely to continue.
It is not clear, however, that emphasizing plaintiff's status is illogical, or that a negligence standard unduly restricts freedom of the press. Arguably, emphasis on the person rather than on the event yields an appropriate level of media protection, especially where plaintiff has actively encouraged media attention. In some cases, moreover, use of the public interest test could lead to ad hoc determinations of what matters should be worthy of legitimate public concern. Thus, the use of "public interest" as a guideline could also induce self-censorship.
In light of the Court's continued reliance on Gertz and the public figure doctrine, it seems appropriate to reexamine the case, the doctrine, and the criticisms. Accordingly, the first part of this comment offers a review of New York Times, the public figure-public interest cases, and the recent Proxmire and Reader's Digest cases. The second part sets forth the principal criticisms of Gertz and the public figure doctrine and evaluates the validity of the Court's current position. Finally, a few brief observations are offered regarding the present effect of the public figure test and its possible future direction.
About the Author
James P. Naughton.
Citation
54 Tul. L. Rev. 1053 (1980)