Defamation and the First Amendment: public figures, opinion, and privileges

Black-letter propositions

1. 01

   A public official or public figure must prove actual malice, meaning knowledge that a statement was false or reckless disregard of whether it was false (New York Times v. Sullivan); reckless disregard requires that the defendant in fact entertained serious doubts, and failure to investigate alone does not show it.

2. 02

   Gertz recognizes two kinds of public figures: those with pervasive fame or notoriety, who are public figures for all purposes, and those who voluntarily inject themselves or are drawn into a particular public controversy, who are public figures for a limited range of issues.

3. 03

   A person is not a public figure merely because a matter is of public interest or because the defendant's own conduct publicized her: Time v. Firestone held that a socialite in a widely reported divorce was not one, and Hutchinson v. Proxmire held that receiving federal grants and responding to a defendant's attack did not make the plaintiff one.

4. 04

   A private-figure plaintiff must show at least negligence under Gertz, and where the statement concerns a matter of public concern and the defendant is a media defendant, Hepps puts the burden on the plaintiff to prove falsity.

5. 05

   Milkovich rejects a separate constitutional privilege for opinion; the test is whether the statement is provable as false, so that 'In my opinion Mayor Jones is a liar' is actionable, while a statement of opinion based on disclosed facts that implies no false fact, or rhetorical hyperbole, is not.

6. 06

   Under statutes like California's, libel is a fixed-medium publication that exposes a person to hatred, contempt or ridicule, and libel that is defamatory only through extrinsic facts requires special damages; slander is actionable per se if it charges a crime, imputes a loathsome disease, or injures the person's office, profession, trade or business.

7. 07

   Privileges: statements in legislative, judicial and other official proceedings are absolutely privileged, though California withholds the privilege from knowingly false reports to law enforcement, and a communication made without malice to an interested person is conditionally privileged, so knowledge of falsity defeats the privilege.

8. 08

   A public figure cannot recover for intentional infliction of emotional distress from a parody without showing a false statement of fact made with actual malice (Hustler v. Falwell).

Use this attack sequence under time

Common wrong turns

• A person does not become a public figure because the defendant or the press paid attention to her.
• Labeling a statement an opinion does not protect it if it implies a provably false fact.
• Actual malice is about the defendant's state of mind about truth, not ill will or a failure to investigate.

Worked example

A newspaper falsely reports that a scientist who received a federal research grant wasted public money. The scientist has never taken part in any public debate about research funding.

Practice this topic

Who must prove actual malice

New York Times v. Sullivan held that a public official may not recover damages for a defamatory falsehood relating to official conduct unless he proves the statement was made with actual malice, meaning knowledge that it was false or reckless disregard of whether it was false. St. Amant v. Thompson explains that reckless disregard requires sufficient evidence that the defendant in fact entertained serious doubts as to the truth of the publication, and that failure to investigate does not in itself establish bad faith. Harte-Hanks v. Connaughton adds that failure to investigate will not alone support actual malice, but purposeful avoidance of the truth is in a different category.

Gertz v. Robert Welch describes the public-figure designation as resting on either of two alternative bases. An individual may achieve such pervasive fame or notoriety that he is a public figure for all purposes. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and becomes a public figure for a limited range of issues. In Time v. Firestone the Court refused to equate a public controversy with all controversies of interest to the public. In Hutchinson v. Proxmire it held that the plaintiff's grant applications and his response to a senator's attack did not make him a public figure, since those charged with defamation cannot by their own conduct create their own defense by making the claimant a public figure.

Private figures, falsity, and opinion

Gertz held that so long as they do not impose liability without fault, the states may define the standard of liability for a publisher of a defamatory falsehood that injures a private individual, and that the states may not permit presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard. Philadelphia Newspapers v. Hepps held that where a newspaper publishes speech of public concern about a private figure, the plaintiff cannot recover damages without also showing that the statements are false. Dun & Bradstreet v. Greenmoss Builders held that permitting recovery of presumed and punitive damages without actual malice does not violate the First Amendment when the statements do not involve matters of public concern.

Milkovich v. Lorain Journal declined to create an artificial dichotomy between opinion and fact. It read Hepps to mean that a statement on a matter of public concern must be provable as false before liability can arise where a media defendant is involved. The Court contrasted 'In my opinion Mayor Jones is a liar,' which implies a false fact, with a statement that Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin, which would not be actionable. In Hustler v. Falwell, the Court held that public figures and officials may not recover for intentional infliction of emotional distress from the publication of a caricature without showing a false statement of fact made with actual malice.

Statutory categories and privileges

California Civil Code section 45 defines libel as a false and unprivileged publication by writing, printing, picture or other fixed representation that exposes a person to hatred, contempt, ridicule or obloquy, or tends to injure him in his occupation. Section 45a says a libel that is defamatory without explanatory matter such as innuendo or extrinsic fact is a libel on its face, and defamatory language that is not libelous on its face is not actionable unless the plaintiff proves special damage. Section 46 defines slander as a false, unprivileged oral publication that charges a crime, imputes a contagious disease, tends to injure the person in his office, profession, trade or business, imputes impotence or a want of chastity, or causes actual damage.

Section 47 lists privileged publications, including those made in any legislative or judicial proceeding, except that it does not make privileged a knowingly false report to law enforcement that another has committed a crime. Subdivision (c) protects a communication, without malice, to a person interested in it by one who is also interested or who was asked for the information. Section 48a limits a plaintiff who sues over a libel in a daily or weekly news publication to special damages unless a correction was demanded within 20 days and not published within three weeks.

Frequently asked questions