In an article published in the Journal of Telecommunications and High Technology Law, Above the Law founder David Lat and Criminal Justice and Criminology professor Zachary Shemtob discuss what it means, under American defamation law, to be a public figure in today’s digital age.

The authors provide a concise overview of the key U.S. Supreme Court decisions pertaining to public figure status (see pp. 405 – 407 of the article).

Lat and Shemtob’s main focus, however, is examining Rosenbloom v. Metromedia Inc., 403 U.S. 29 (1971), specifically Justice Brennan’s plurality opinion where he “rejected the distinction between public and private figures in the defamation context, expressing the view that the New York Times standard [New York Times Co. v. Sullivan, 376 U.S. 254, 282 (1964), which held that public officials can’t recover damages for defamation without proof that the statement in question was made with “actual malice”] should apply to all reports of events of ‘public or general concern.’ ”

The authors note that Justice Brennan’s opinion didn’t serve as a definitive position on whether New York Times applies to private individual’s defamation suits, but argue that it holds far greater relevance today than Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which is the governing law in this area.

When Gertz was decided in 1974, false charges could only be countered through access to a printing press, radio station, or television network—modes of communication that ordinary citizens generally could not tap into. In 2011, however, methods of communication have expanded and changed dramatically. Thanks to the phenomenon of blogging and the rise of social networks like Twitter and Facebook, ordinary citizens have historically unprecedented access to effective communication channels. One can refute false charges not just through newspapers, radio, or television, but through a proliferation of online outlets as well. Aggrieved subjects of media coverage no longer need a newspaper to print retractions of letters to the editor; instead, these subjects can go out and tell their own side of the story on a blog or social networking site.

In further support of their position, they point out that the digital age has significantly eroded the ‘public figure’ versus ‘private figure’ distinction, since we now live in a world with a long tail of minor celebrities and an influx of niche celebrities.

They also accurately point out that technology has led to an erosion of privacy:

In this day and age—of blogs, where our private misadventures can be written about at length; of streaming video and YouTube, where said misadventures can be seen and heard by total strangers; of Facebook, where “friends” can post pictures of us, against our will (maybe we can “de-tag,” but we can’t remove); of full-body scanners at the airport— …. we are more “public” and more interconnected than ever.

They counter the criticism of adopting the Rosenbloom rule of applying the “actual malice” standard to private individuals as long as the subject matter is of public or general concern with the following:

•  The few U.S. states that have adopted Rosenbloom haven’t proven that the rule is unworkable or resulted in excessive defamatory speech
• Where Rosenbloom results in a more favorable environment for publishers and speakers, it’s a reflection of the law’s already existing accommodation of  technological advances (e.g. Section 230 of the Communications Decency Act of 1996, which replaced the tort law doctrine of republication liability)
• Adoption of the Rosenbloom rule is not the most extreme pro-media/pro free-speech position one could take

 

Although controversial, Lat and Shemtob’ article is recommended reading for those interested in free speech and defamation law.