Limited Purpose Public Figures Must Prove Malice

Since the Supreme Court decided the seminal Curtis Publishing case back in 1967, public figures have played an important role in U.S. defamation jurisprudence. That case held that it should be more difficult for public figures to sue for libel and slander than ordinary private citizens, because if public figures have voluntarily thrust themselves “into the vortex” of a public debate, they should assume that they may become the subject of public discussion and should be willing to accept the risk that on occasion, less-careful fact-checkers may say certain things about them that aren’t true. Therefore, although private citizens will only need to demonstrate negligence to recover damages caused by defamation, public figures need to prove the defendant either knew he or she was spreading false information, or acted with reckless disregard for whether the information was true or false. This heightened level of wrongful intent is known as malice.

Some erroneously equate public figures with celebrities. In reality, the level of fame a plaintiff needs to achieve before being categorized as a “public figure” by a Virginia court is much lower than that of household-name celebrities. Moreover, courts recognize “limited purpose” public figures and subject them to the same obstacles regular all-purpose public figures face when the alleged defamation is based on the subject matter of their public participation and involvement.

The Supreme Court has defined “limited-purpose public figure” as a person who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” (See Gertz v. Robert Welch, Inc., 418 U.S. 323, 361 (1974)). The thinking is that people who fall into this category have assumed the risk of defamation to a certain extent, and because of their position or notoriety, they generally have greater access to the media than private individuals, so it’s easier for them to rebut falsehoods.

Suppose you’re considering filing a defamation action. You know you’re not a celebrity. But you participate in social media, engage in some public debate, and have a fairly visible position in your company. How can you be sure the court won’t classify you as a limited-purpose public figure? Well, you can’t. But the Fourth Circuit (which covers Virginia) has a test. A defendant getting sued for defamation would need to prove the following to establish the plaintiff is a limited-purpose public figure:

  1. the plaintiff had access to channels of effective communication;
  2. the plaintiff voluntarily assumed a role of special prominence in the public controversy;
  3. the plaintiff sought to influence the resolution or outcome of the controversy;
  4. the controversy existed prior to the publication of the defamatory statement; and
  5. the plaintiff retained public-figure status at the time of the alleged defamation.

(See Fitzgerald v. Penthouse Int’l, Ltd., 691 F.2d 666, 668 (4th Cir. 1982)).

A pending Virginia case provides a good illustration of how this test is applied. The case of Eramo v. Rolling Stone arises out of a now-debunked story of a gang rape at a fraternity at the University of Virginia. Nicole Eramo, a University of Virginia associate dean of students, sued Rolling Stone for defamation, claiming that the article falsely portrayed her as callous and indifferent to allegations of sexual assault. Before the case could proceed to trial, the court had to make a threshold determination as to whether Eramo should be treated as a private individual, public figure, limited-purpose public figure, or public official, because that classification would UVAdetermine her burden of proof at trial.

First of all, I should point out that in this particular case, the court could have avoided the whole limited-purpose public figure analysis by declaring Dean Eramo to be a public official, as public officials are subject to the same burden of having to prove malice in defamation actions. Public officials are government employees who have (or appear to the public to have) substantial responsibility for or control over the conduct of governmental affairs. The University of Virginia is a public school, and Dean Eramo was head of the university’s Sexual Misconduct Board, a fairly high-level position. But the court chose instead to analyze whether Eramo qualified as a limited-purpose public figure, and because it concluded that she did satisfy the test, the court found it unnecessary to consider whether she would also qualify as a public official.

The first challenge in applying the Fourth Circuit’s test is to determine exactly what the “public controversy” is. The boundaries of the controversy must be established before the test can be applied. An important thing to understand is that the “controversy” does not refer to the controversy caused by questionable statements in the article itself. In casual conversation, we might say that a public controversy exists about a Rolling Stone article that independent investigators found to be based on a lie, and that Dean Eramo was featured to some degree in the controversial article. That’s not the controversy with which the test is concerned.

For purposes of applying the limited-purpose public figure test, “public controversy” can be loosely defined as the subject matter of the publication at issue. In other words, courts will examine the entire article, determine its general subject matter, and then determine whether the plaintiff has a position of prominence in that particular subject matter (as well as apply the other elements of the test).

In Eramo’s case, the court held that a fair reading of the article suggested that the relevant controversy was “UVA’s response to allegations of sexual assault.” Having determined the scope of the controversy, the court proceeded to apply the five-part test:

  1. Yes, Eramo had access to channels of effective communication. She appeared on WUVA for an interview on UVA’s sexual misconduct policy, she provided quotations for articles appearing in UVA’s student newspaper, and she gave interviews to local affiliates of national news networks.
  2. Yes, Eramo voluntarily assumed a role of special prominence in the public controversy, by taking full advantage of her access to local media.
  3. Yes, Eramo sought to influence the resolution or outcome of the controversy, judging from the volume of her media appearances, and in some instances their depth–the court noted that in 2013, Eramo authored an opinion piece regarding UVA’s process for handling sexual assault complaints.
  4. Yes, the controversy (UVA’s response to allegations of sexual assault) existed prior to the publication of the article claimed to be defamatory. UVA was under investigation by the Office of Civil Rights prior to publication of the article, and Eramo made numerous local media appearances to discuss the subject shortly before the article was published.
  5. Yes, Eramo retained public-figure status at the time of the alleged defamation, as she remained in her position for several months after the article was published.

So despite having enjoyed a fairly quiet and private existence prior to the Rolling Stone article, Dean Eramo found herself declared a limited-purpose public figure. Consequently, to win her defamation case against Rolling Stone, she is going to have to prove not merely that the magazine conducted a shoddy investigation prior to going to press, but that it published the article with actual malice.

One final note about the recent ruling in the Eramo case: in another setback for Eramo, the court held (surprisingly, in my opinion) that the statements at issue do not qualify as the “per se” variety of defamation, meaning that Eramo will not benefit from a presumption of damages but will have to prove the quantum of her damages to be entitled to any recovery.

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