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.