Pervasive public figure status and local or topical fame in light of evolving media audiences

Journalism and Mass Communication Quaterly

Volumn 75, Issue 1, 1998, Pages 112-126

  Bunker, Matthew D ^b   Tobin, Charles D ^a  

^a Gannett Co Inc   (United States)

^b NONE

Author keywords

[No Author keywords available]

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EID: 0039502506     PISSN: 10776990     EISSN: None     Source Type: Journal    
DOI: 10.1177/107769909807500112     Document Type: Article

References (59)

1. 376 U.S. 254 (1964).
2. Curtis Publishing Co. v. Butts, 388 U.S. 130, 134 (1967).
3. 418 U.S. 323 (1974).
4. 418 U.S. at 351-52 (emphasis added). Justice Powell's opinion also acknowledged the "exceedingly rare" possibility of an involuntary public figure. 418 U.S. at 345.
5. 418 U.S. at 352 (emphasis added). Although its decision was not entirely clear, the Court had apparently recognized a local limited-purpose public figure in 1970 in Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6 (1970).
6. 418 U.S. at 344.
7. 418 U.S. at 345.
8. See, for example, Hutchinson v. Proxmire, 443 U.S. 111 (1979); Wolston v. Reader's Digest Association, 443 U.S. 157 (1979).
9. 424 U.S. 448 (1976).
10. 424 U.S. at 453 (emphasis added).
11. A number of commentators and courts have adopted this view, as discussed in the next section. "Gertz and Time can therefore be reconciled by interpreting the two cases as implicitly adopting the rule that the relevant population in determining the defamed party's notoriety is the population in the area where the defamatory statement is primarily distributed." In Re Thompson, 162 Bankr. 748, 766 (E. D. Mich. 1993).
12. Lewis v. Coursolle Broadcasting, 377 N.W.2d 166 (Wis. 1985).
13. 377 N.W.2d at 171-72.
14. 377 N.W.2d at 172.
15. 372 So.2d 1282 (Ala. 1979).
16. 372 So.2d at 1286.
17. In re Thompson, 162 Bankr. 748 (E.D. Mich. 1993). The case was decided in a federal bankruptcy court because the defendant had filed for Chapter 7 bankruptcy relief, and thus all creditors, including tort claimants, were required to proceed against her in bankruptcy court. Similarly, another federal court, in a nonmedia defamation action in Hawaii, in 1993 ruled that an investigation firm, which had been featured in Newsweek, the New York Times, and other national publications, was insufficiently known to Hawaiians to be deemed an all-purpose public figure. Kroll Associates v. City and County of Honolulu, 833 F.Supp. 802 (D. Haw. 1993).
18. Owens v. National Broadcasting Co., 508 So. 2d 949 (La. App. 1987).
19. 508 So.2d at 952. A Kansas Supreme Court case seemed to reach a similar conclusion, although the court did not explicitly consider whether the region of the publication and the boundaries of the plaintiffs fame coincided. In Steere v. Cupp, decided in 1979, Myron Steere, a lawyer who had served as county attorney and had been a business and professional leader in the community, was held to be an all-purpose public figure within Franklin County, Kansas. The Kansas high court thus required that Steere establish actual malice, even though some of the defendants, including the Kansas City Star, had circulation areas that reached beyond that county. Steere v. Cupp, 602 P.2d 1267 (Kan. 1979).
20. George E. Stevens, "Local and Topical Pervasive Public Figures After Gertz," Journalism Quarterly 66 (summer 1989): 463-65. A brief discussion of the topic also is found in Michael A. Bamberger, "Public Figures and the Law of Libel: A Concept in Search of a Definition," Business Lawyer 33 (January 1978): 709-725. Bamberger argued that "a leading figure in a sport having a small but devoted group of followers, or a writer or professor well-known within his [sic] field of academic interest, would be a public figure to that limited group but not nationally."
21. George E. Stevens, "Local and Topical Pervasive Public Figures After Gertz," Journalism Quarterly 66 (summer 1989): 463-65. A brief discussion of the topic also is found in Michael A. Bamberger, "Public Figures and the Law of Libel: A Concept in Search of a Definition," Business Lawyer 33 (January 1978): 709-725. Bamberger argued that "a leading figure in a sport having a small but devoted group of followers, or a writer or professor well-known within his [sic] field of academic interest, would be a public figure to that limited group but not nationally."
22. Rodney A. Smolla, Law of Defamation (NY: Clark, Boardman & Callaghan, 1996), 2-55.
23. Smolla, Law of Defamation, 2-56.
24. David A. Elder, Defamation: A Lawyer's Guide (NY: Clark, Boardman & Callaghan, 1993), 44-45 (citations omitted).
25. Richard Harwood, "An America of Niches," The Washington Post, 10 September 1994, sec. A, p. 23.
26. Lawrence Lessig, "Symposium: Emerging Media Technology and the First Amendment, The Path of Cyberlaw," Yale Law Journal 104 (May 1995): 1743-1755, 1744.
27. Ralph L. Lowenstein and John C. Merrill, Macromedia: Mission, Message, and Morality (NY: Longman, 1990), 37.
28. Clint C. Wilson II and Felix Guttierrez, Race, Multiculturalism, and the Media: From Mass to Class Communication (Thousand Oaks: Sage Publications, 1995) 260-61.
29. Richard W. Budd and Brent D. Rubin, Beyond Media: New Approaches to Mass Communication (New Brunswick: Transaction Books, 1988), 78.
30. Leah A Lievrouw, "Our Own Devices: Constructing Reality in the Information Society" (paper presented at the annual meeting of the International Communication Association, Albuquerque, NM, 1995), 14.
31. Benjamin Barber, "The Second American Revolution," in Impact of Mass Media, ed. Ray Eldon Hiebert and Carol Reuss (NY: Longman, 1985), 498-507, 502. See also Mark Jurkowitz, "It's 2007. Do You Know Where Your News Is?" The Boston Globe, 9 March 1997, Magazine, p. 15.
32. Benjamin Barber, "The Second American Revolution," in Impact of Mass Media, ed. Ray Eldon Hiebert and Carol Reuss (NY: Longman, 1985), 498-507, 502. See also Mark Jurkowitz, "It's 2007. Do You Know Where Your News Is?" The Boston Globe, 9 March 1997, Magazine, p. 15.
33. Monroe E. Price, "Free Expression and Digital Dreams: The Open and Closed Terrain of Speech," Critical Inquiry 22 (autumn 1995): 64-80, 80-81.
34. Joshua Gamson, Claims to Fame: Celebrity in Contemporary America (Berkeley: University of California Press, 1994).
35. Gamson, Claims to Fame, 18.
36. Wilson and Gutierrez note that "the bottom line was that mass communication media sought and built an audience based on common interests, rather than differences. And out of this was forged the society that most Americans live in today." Wilson and Gutierrez, Race, Multiculturalism and the Media, 260. On technology, see generally, Steven G. Jones, ed., CyberSociety: Computer-Mediated Communication and Community (London: Sage Publications, 1995).
37. Wilson and Gutierrez note that "the bottom line was that mass communication media sought and built an audience based on common interests, rather than differences. And out of this was forged the society that most Americans live in today." Wilson and Gutierrez, Race, Multiculturalism and the Media, 260. On technology, see generally, Steven G. Jones, ed., CyberSociety: Computer-Mediated Communication and Community (London: Sage Publications, 1995).
38. The authors attempted to cite in this section all reported cases that either considered the application of topical pervasive public figure status or could have done so, given the facts. The universe of such cases is understandably small given the fact that most libel suits in the last few decades seem to have been filed against mainstream media entities. In such cases, topical public figure status would not be appropriate because it is only when the defamatory statements are circulated within some narrow cultural niche that topical public figure status becomes an option. When plaintiffs sue mainstream national media, as in most of the reported cases, nationwide household name status is the relevant criterion. In any event, the authors sought only to suggest that certain legal developments both make sense doctrinally and are not without precedent, not necessarily to provide an exhaustive survey of the case law. Research techniques for identifying appropriate cases included the use of LEXIS key-word searches, Sheppard's Citations, numerous digests and annotations, specialized treatises, and journal articles.
39. 643 F. Supp. 1558 (S.D.N.Y. 1986).
40. 643 F. Supp. at 1564 (emphasis added).
41. 643 F. Supp. at 1565.
42. 414 A.2d 806 (R.I. 1980).
43. 414 A.2d at 813.
44. 24 Media L. Rep. 1542 (7th Cir. 1996).
45. 24 Media. L. Rep. at 1543 (citations omitted) (emphasis added).
46. See also, Reliance Insurance Co. v. Barron's, 442 F.Supp. 1341 (S.D. N.Y. 1977) (holding that insurance company, while not a household name, was well known among readership of business magazine within which alleged libel took place, and thus was a public figure).
47. Avins v. White, 627 F.2d 637 (3d Cir. 1980).
48. 627 F.2d at 647. The appeals court went on to hold that the dean was a limited-purpose public figure only because the accreditation issue had become so heated as to become a "public controversy" into which the dean had injected himself. The suggestion here, incidentally, is not that the court necessarily should have declared the dean a topical pervasive public figure in legal academia - that determination is a delicate and thoroughly contextual issue in each case. The point is that the court did not even appear to consider the issue of the dean's notoriety within the relevant community.
49. Wheeler v. Green, 593 P.2d 777 (Ore. 1979). See also, Snead v. Redland Aggregates Ltd., 998 F.2d 1325 (5th Cir. 1993) (court held that corporations not known to general public were not pervasive public figures, although libelous press release was apparently published only in industry publications. "Although some individuals may be considered public figures in a small geographical community, we decline to extend such reasoning to an industry. After all, every individual or corporation is well known among some small group of people. As we read [Butts], a public figure must be known to the public at large, not merely to a select group of individuals similarly situated to the individual or corporation in question." 998 F.2d at 1130, n.7.); Long v. Cooper, 848 F.2d 1202 (11th Cir. 1988) (court held that well-known electronics retailer was a private figure as to alleged defamation that appeared in an electronics trade journal. Court considered only the issue limited-purpose public figure status because defendant did not raise the claim that the retailer was a pervasive public figure.)
50. 47. 593 P.2d at 787.
51. Fodor v. Berglas, 24 Media L. Rep. 1209 (S.D. N.Y. 1995). See also, Walko v. Kean College, 561 A.2d 680 (N. J. Super. 1988) (court held that college administrator was limited-purpose public figure in libel suit against student newspaper; court clearly based holding primarily on plaintiff's status within the relevant community.); Nelson v. University of Minnesota, 22 Media L. Rep. 1089 (Minn. Dist. 1993) (landlord who was well known in rental housing community was limited-purpose public figure - no specific public controversy identified).
52. 24 Media L. Rep. at 1212 (citations omitted).
53. 418 U.S. at 351-52 (emphasis added).
54. See Bamberger, "Public Figures," 720 ("It would seem, however that publishers addressing their material to [a subcultural] group of devotees should have the same protection of the First Amendment as the general press would have in dealing with someone of general prominence.").
55. Denver Area Educ. Telecom. Consort., Inc. v. F.C.C., 116 S.Ct. 2374, 2401-2401 (1996) (Souter, J., concurring).
56. See, for example, Bill Ervolino, "Categorically Chaotic," The Record, 2 Feb. 1997, p. Y1.
57. Mike Godwin, "The First Amendment in Cyberspace," Temple Political & Civil Rights Law Review 4 (fall 1994): 1-14, 7.
58. Indeed, as another commentator points out, "a plaintiff defamed on a particular [computer] bulletin board which is unavailable to her would not have access to the media, and would thus be more likely to remain a private figure." Thomas D. Brooks, "Catching Jellyfish on the Internet: The PublicFigure Doctrine and Defamation on Computer Bulletin Boards," Rutgers Computer & Technology Law Journal 21 (1995): 461-90, 482.
59. Professor Stevens advocated such an approach as well: "But it does appear that a libel plaintiff whose notoriety is coextensive with the scope of the publicity could be bound by the actual malice rule." Stevens, "Local and Topical," 465.