Because private individuals generally choose to stay out of the public sphere, they are naturally afforded greater privacy under defamation law. While public figures must prove that a publisher of a defamatory statement acted with actual malice, private individuals must only demonstrate that the publisher acted negligently in publishing the statement.
The Supreme Court established the negligence standard for defamatory statements regarding private individuals in the 1968 case of Gertz v. Welch.
After Chicago police officer Robert Nuccio shot and killed a youth named Nelson, the boy’s family hired attorney Elmer Gertz to represent them in civil litigation. Robert Welch was a publisher of American Opinion magazine, a magazine that had been reporting on a supposed Communist scheme to disempower law enforcement and recreate a national police force. In connection with this investigation, Welch published an article entitled “FRAME-UP: Richard Nuccio and the War on Police.” Welch alleged in the article that Gertz was directly involved in the Communist scheme, and labeled him a “Leninist” with a criminal record and a history of involvement with Marxist and Socialist associations. Though Welch did not try to defend the accuracy of these blatantly false statements, he did argue that the public figure standard set forth in New York Times v. Sullivan ought to apply. After all, Gertz had achieved some notoriety based on the Nuccio case and was recognizable to many people.
The Supreme Court, however, held that Gertz was not a public figure, meaning the “actual malice” standard would not apply to Welch’s statements in the American Opinion article. But why? Why would the Court classify Gertz as a private individual? He was a lawyer in a high-profile case, after all.
The Court considered this and determined that Gertz was not entirely a private individual, but also not entirely a public figure; Gertz fell somewhere in the middle of the two categories. He had been thrust into the public sphere, but only in relation to that specific trial. After the case was over, he would return to his prior status as a private individual. As a result, the Court created a new classification of plaintiff: the limited-purpose public figure.
A limited-purpose public figure is an otherwise private individual who is treated as a public figure, but only in the specific context in which they gained their fame. In this case, Gertz would be treated as a private individual under defamation law unless the published statements were regarding his role as the prosecuting attorney in the Nuccio case. Because Welch went beyond reporting on Gertz’s role in the case when he accused him of Communist affiliation, Gertz was granted private individual privacy rights.
As a private individual, Gertz only had to demonstrate that Welch’s inaccurate reporting met the standard for negligence. Where actual malice requires the publisher’s knowledge of the statement’s falsity or a display of reckless disregard for the statement’s truth, negligence only requires proof that a responsible party failed to fulfill a duty that a reasonable person would be expected to perform. The Supreme Court ruled that, by failing to adhere to journalism standards and ethics, Welch had acted negligently and was guilty of defaming Gertz.
In our next post we will look into where the line is drawn between the truth of a statement and the just plain ridiculous.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.