Why Public Figures Should Receive Heightened Defamation Law Protection
At common law, defamation actions were meant to compensate individuals for any harm to reputation they suffered as a result of any defamatory communications made by speakers to third parties. This standard was generally protective of plaintiffs’ reputational interests rather than defendants’ free speech interests. Once a plaintiff made out his prima facie case, it was up to the defendant to raise certain defenses or privileges, such as truth or the litigation privilege.
The Constitutionalization of Defamation Law
In 1964, however, the previously entirely common law field of defamation was transformed with the decision of New York Times v. Sullivan, in which the Supreme Court constitutionalized defamation law. The Court held that in cases where the plaintiff is a public figure and a statement of fact is made by a traditional media defendant, the defendant will only be liable if the plaintiff can show that the statement was made with “actual malice.” Actual malice, as defined by the Court, is “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” This actual malice standard is much more demanding than the common law strict liability standard, which did not probe at all into the speaker’s mindset.
While the Times actual malice standard is limited to plaintiffs who are public officials, such as elected politicians, and public figures, such as celebrities, the standard for private individual plaintiffs is lower; as set forth in Gertz, private individuals who are claiming defamation may need to only show negligence, depending on the state they are suing in. In both Gertz and Sullivan, the Court grappled with the tension between an individual’s reputational interest and a speaker’s First and Fourteenth Amendment protections. Ultimately, the Court ended up giving greater weight to the free speech and press interests, but it is clear from the Gertz decision that one factor considered in weighing the two interests is a sort of “assumption of the risk” consideration; that is, the Court believes that when public officials and figures “assume the risk” of being in the public eye by doing things such as running for office or starring in a film, they negate the duty owed to them. Another rationale provided in Gertz for why private individuals should receive greater protection is that they do not enjoy the same access to channels of communication that public persons do to help rebut false defamatory comments.
Flipping the Liability Standards for Public Persons and Private Persons
Although the rationales provided by the Court in Gertz are understandable, I would argue that the discrepancy between the heightened actual malice standard for public persons and the lower negligence standard for private persons is unfair and that, in fact, the two standards should be reversed; that is, private persons should have to show actual malice while public persons need only show negligence. There are two primary reasons for this. First, for a lot of entertainers, reputation is one of the main reasons they receive the amount of employment they do, so they stand more to lose than a private individual. Second, the very thing that makes celebrities public figures – i.e. being a household name – is what exacerbates the impact of defamatory statements.
My views assume that harm to reputation is a property interest. That is, one’s reputation is an asset that one creates for oneself. Taking a celebrity, for example, and comparing him to an ordinary citizen will help flesh out the difference in value of their property interests. Ordinarily, when someone applies for a job, he is given it on the basis of his merits: strong skills, extensive work experience, etc. I would venture to say that whether John Doe has been accused of having an extramarital affair should not figure prominently in a prospective employer’s consideration of whether he will be a good accountant, for example. By contrast, the reputation of an entertainer is critical to securing his job; it oftentimes can be what lands him the starring role in an Oscar-nominated film or a gig as a “brand ambassador.” The most famous actors are even offered movie roles without having to audition; that is the power their names carry. Conversely, a celebrity’s name can be the reason she loses out on a job. When a cooking show host is accused of using racist language, for example, her network drops her and her career becomes practically dead. All of this is to say that a celebrity’s reputation is her economic capital; one that she works hard to build, even enlisting the aid of paid agents and publicists to help craft the way she wants the public to perceive her. Thus, when this reputation that has been cultivated over time is tarnished, it should be easier for public individuals to recover for defamatory statements made about them, not more difficult.
Additionally, because these individuals are in the public eye and are well-known by many, the media should take greater care before publishing anything without absolute certainty as to its truth. This is because, unlike a private individual, these public figures are known by millions and are therefore subject to greater backlash. The effect of reading about how a no-name private citizen was accused of sexual misconduct is ordinarily much more contained and localized than the effect of accusing a film producer of the same. Ultimately, it is unfair to punish celebrities for having careers place them in the limelight whether they like it or not. People often say there is a price to pay for fame; I say that price should not amount to the loss of one’s livelihood.