The Evolution of Business Celebrity in American Law and Society

American Business Law Journal

Volumn 48, Issue 2, 2011, Pages 177-225

  Abril, Patricia Sánchez ^a  

^a UNIVERSITY OF MIAMI   (United States)

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[No Author keywords available]

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EID: 79956274273     PISSN: 00027766     EISSN: 17441714     Source Type: Journal    
DOI: 10.1111/j.1744-1714.2011.01114.x     Document Type: Article

References (206)

1. Leo braudythe frenzy of renown; fame and its history 5911986
2. John F. BurnsA British Trial About Privacy in Which Not a Shred Remains, N.Y. Times, july 9, 2008, at a1; ashling o'connor & ed gorman, max mosley faces calls to quit as formula one chief after "nazi" orgy, times online, Mar. 312008
3. Mosley v.News Group Newspapers Ltd., EWHC (QB) 1777, [1] (Eng.). 2008
4. Id. England's High Court ruled in Mosley's favor on the breach of privacy claim, awarding him £60,000 in compensatory damages and £1M in costs. Related libel suits are still pending as of this publication in both the United Kingdom and France. Oliver Luft, Max Mosley Launches Libel Action Against News of the World, the guardian, Apr. 3, 2009
5. Mosley's Fight to Clear His Famous Name, bbc news, July 9, (quoting Bernie Ecclestone). See generally graeme turner, understanding celebrity (2004)2008
6. Mathew L.A. Hayward et al., Believing One's Own Press: The Causes and Consequences of CEO Celebrity, 25 Strategic Mgmt. J. 637 2004
7. Kevin Koh, Value or Glamour? An Empirical Investigation of the Effect of Celebrity CEOs on Financial Reporting Practices and Firm Performance, 50 acct. & fin. (forthcoming 2011); Ulrike Malmendier & Geoffrey Tate, Superstar CEOs, 124 Q. J. Econ. 1593 2009
8. Violina P. Rindovaet al., Celebrity Firms: The Social Construction of Market Popularity, 31 Acad. Mgmt. Rev. 150-712006
9. James B. Wade et al.The Burden of Celebrity: The Impact of CEO Certification Contests on CEO Pay and Performance, 49 Acad. Mgmt. J. 643-602006
10. charles j. fombrun, reputation: realizing value from the corporate image 1996
11. Chao C. Chen & James R. Meindl, The Construction of Leadership Images in the Popular Press: The Case of Donald Burr and People Express, 36 Admin. Sci. Q. 525; Hayward et al., supra note 10; 1991
12. James R. Meindl et al., The Romance of Leadership, 30 Admin. Sci. Q. 78 1985
13. Hayward et al., supra note 10, at 638.
14. Corporate defamation has received considerable attention in legal scholarship. In contrast, this article addresses defamation case law in relation to individual businesspeople as plaintiffs. SeePatricia Nassif Fetzer, The Corporate Defamation Plaintiff as First Amendment "Public Figure": Nailing the Jellyfish, 68
15. Iowa L. Rev. 35 1982
16. John Hilbert, Comment, A Criticism of the Gertz Public Figure/Private Figure Test in the Context of the Corporate Defamation Plaintiff, 18 san diego l. rev. 721 1981
17. Arlen W. LangvardtA Principled Approach to Compensatory Damages in Corporate Defamation Cases, 27 Am. Bus. L.J. 491 (1990); Fred T. Magaziner, Note, Corporate Defamation and Product Disparagement: Narrowing the Analogy to Personal Defamation, 75 colum. l. rev. 963 (1975); nessa e. moll, note, in search of the corporate private figure: defamation of the corporation, 6 hofstra l. rev. 339 (1978); barbara a. petrus, note, defamation and the first amendment in the corporate context, 46 alb. l. rev. 603 1982
18. George E. StevensPrivate Enterprise and Public Reputation: Defamation and the Corporate Plaintiff, 12 Am. Bus. L.J.
19. (1975) Note, Libel and the Corporate Plaintiff, 69 colum. l. rev. 1496 1969
20. Ellis cashmore, celebrity/culture 257 2006
21. Gertz v. Robert Welch, Inc., 418 U.S. 323 1974
22. Associated Press v. Walker, 388 U.S. 130, 164 1967
23. Eric guthey et al., demystifying business celebrity 25 (2009) (citing p. david marshall, celebrity and power: fame in contemporary culture 1997
24. rakesh khurana, searching for a corporate savior: the irrational quest for charismatic ceos 68 2002
25. christopher rojek, celebrity 12 2001
26. guthey et al., supra note 19, at 11.
27. Joshua Gamson, The Assembly Line of Greatness: Celebrity in Twentieth-Century America, instardom and celebrity: a reader 141-55 (Sean Redmond & Su Holmes eds., 2007
28. Malmendier & Tate, supra note 10 (finding that companies with superstar CEOs who win prestigious leadership awards underperform).
29. Darren C. Treadway et al., A Meso-Level Conceptualization of CEO Celebrity Effectiveness, 20
30. The Leadership Q. 554-70 (finding that political skill is essential to leveraging momentary executive celebrity into long-term organizational value).2009
31. According to the restatement (second) of torts$558 [t]o create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher [with respect to the act of publication]; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.1977
32. Rosanova v. Playboy Enters. Inc., 411 F. Supp. 440, 443 (S.D. Ga. 1976
33. martin l. newell, the law of defamation, libel and slander in civil and criminal cases: as administered in the courts of the united states of america 74 (citing Harman v. Delany, (1730) 93 Eng. Rep. 925 (K.B.) 927).1890
34. Matthew Josephson, the robber barons vii 1934
35. See generally id.; the robber barons revisited: problems in american civilization (Peter d'A. Jones ed., 1968
36. fred inglis, a short history of celebrity 108-09 (2010) (citing alexis gregory, families of fortune: life in the gilded age 7 1993
37. Ida Tarbell, John D. Rockefeller: A Character Study: Part Two, 25 McClure's Mag. 386, 397 1905
38. Harold K. Bush, Jr., "A Moralist in Disguise": Mark Twain and American Religion, ina historical guide to mark twain 55, 60 (Shelley Fisher Fishkin ed., 2002
39. Due to the nature of their celebrity and wealth, magnates often sought spouses who were equally as famous in their own right. For example, William H. Vanderbilt's great-granddaughter married the Duke of Marlborough. inglis, supra note 34, at 111.
40. The divorces of people of great wealth have also historically attracted public attention. Evidence of such public enthrallment dates back to 1893, when Alva Smith Vanderbilt sued her husband, William Kissum Vanderbilt (grandson of Commodore Cornelius Vanderbilt) for divorce, claiming adultery. See, e.g., eric homberger, mrs. astor's new york: money and social power in a gilded age 14-15 (2002); william k. vanderbilt about to remarry, n.y. times, Apr. 21, 1903
41. The descendants of Commodore Cornelius Vanderbilt contested his will in 1877, in what would become one of the most sensational trials of the nineteenth century. C.J. Vanderbilt's Will: The Probate Contested by His Sister, Mrs. Berger, N.Y. Times, May 30, 1882; The Heirs Dissatisfied: Commodore Vanderbilt's Will, n.y. times, Feb. 28, 1877
42. Gamson, supra note 25, at 22.
43. roland marchand, creating the corporate soul: the rise of public relations and corporate imagery in american big business7-101998
44. George T. Washington, The Corporation Executive's Living Wage, 54 Harv. L. Rev. 733, 734 1941
45. Michael Maccoby, Narcissistic Leaders: The Incredible Pros, the Inevitable Cons, harv. bus. rev., Jan., at 73, 74.2004
46. cashmore, supra note 15.
47. U.S. 254 1964
48. Id. at 283. Actual malice is defined as either knowledge of or reckless indifference to the falsity of the statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 328 1974
49. U.S. 130 1967
50. U.S. 28 1967
51. Id. at 154. The former general, Walker, had "made a number of strong statements" against physical federal intervention in school desegregation "which had received wide publicity."Id. at 140. He also "had his own following, the 'Friends of Walker,' and could fairly be deemed a man of some political prominence."Id.
52. khurana, supra note 20, at 54-55
53. Id. at 53-54 (citing george p. baker & george d. smith, the new financial capitalists: kohlberg kravis roberts and the creation of corporate value 1998
54. David W. Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 tex. l. rev. 199, 206 1976
55. Sellers v. Time Inc., 299 F. Supp. 582 (E.D. Pa. 1969), aff'd on other grounds, 423 F.2d 887 (3d Cir.), cert. denied, 400 U.S. 830 1970
56. Gertz v. Robert Welch, Inc., 418 U.S. 323 () [hereinafter Gertz III].1974
57. Gertz v. Robert Welch, Inc., 471 F.2d 801, 802-04 (7th Cir.) [hereinafter Gertz II].1972
58. Gertz v. Robert Welch, Inc., 322 F. Supp. 997 (N.D. Ill. 1970
59. Gertz II, 471 F.2d at 805.
60. Gertz III, 418 U.S. at 344-46
61. Id.(quoting Curtis Publ'g Co. v. Butts, 388 U.S. 130, 164 (Warren, C.J., concurring)).
62. Brief for Respondent at 8, Gertz v. Robert Welch, Inc., 418 U.S. 323 (No. 72-617), 1973 WL 172732.1974
63. Eric Page, Elmer Gertz, A Top Lawyer, Is Dead at 93; Won for Leopold, Ruby and Henry Miller, n.y. times, Apr. 29, 2000
64. Gertz III, 418 U.S. at 351-52
65. U.S. 448, 450-521976
66. Id. at 484-85 (Marshall, J., dissenting) (internal quotations and citation omitted).
67. Id. at 485 (Marshall, J., dissenting) (contending that the facts were "sufficient to warrant the conclusion that Mary Alice Firestone was a 'public figure' for purposes of reports on the judicial proceedings she initiated").
68. Dixson v. Newsweek, Inc., 562 F.2d 626 (10th Cir.) (deeming former airline vice president a private figure)1997
69. Grobe v. Three Village Herald, 420 N.Y.S.2d 3 (App. Div. 1979), aff'd mem., 49 N.Y.2d 932 (1980) (same, owner of shopping center)1979
70. Forrest v. Lynch, 347 So. 2d 1255 (La. Ct. App. 1977), cert. denied sub nom., Times-Picayune Publ'g Co. v. Forrest, 435 U.S. 971 (1978) (same, consulting engineer on public project)1997
71. Martin v. Griffin Television, Inc., 549 P.2d 85 (Okla. 1976) (same, owner of pet store); Taskett v. KING Broad. Co., 546 P.2d 81 (Wash. 1976) (same, advertising agency head).1976
72. Lawlor v. Gallagher Presidents' Report, Inc., 394 F. Supp. 721, 731 (S.D.N.Y. 1975
73. Wilson v. Scripps-Howard Broad. Co., 642 F.2d 371 (6th Cir. 1981), cert. granted, 454 U.S. 962 (1981), cert. dismissed, 454 U.S. 1130 (1981) (holding a cattleman to be a private figure despite earlier efforts to promote his business)1981
74. Mead Corp. v. Hicks, 448 So. 2d 308, 311 (Ala. 1983) (deeming a businessman involved in garbage collection, waste disposal for nuclear power plant, landfill, grocery, farming, and cattle operations a private figure)1983
75. Zetes v. Richman, 447 N.Y.S.2d 778 (App. Div. 1982) (concluding that a seller of Olympic souvenirs was a private figure)1982
76. Rancho La Costa, Inc. v. Superior Court,165 Cal. Rptr. 347, 356 (Ct. App. 1980), cert. denied, 450 U.S. 902 (1981) ("merely because a corporation sells services to the public ... and merely because it employs and has access to the media to advertise its services ... does not mean that such ability gives the corporation the status of one with greater power of persuasion on public issues, controversial or not, or all-pervasive influence").1980
77. khurana, supra note 20, at 54-55
78. Maccoby, supra note 47, at 74.
79. Jo Littler, Celebrity CEOs and the Cultural Economy of Tabloid Intimacy, instardom and celebrity: a reader 235 (sean redmond & su holmes eds., 2007) (quoting constance l. hays, pop: truth and power at the coca-cola company 146-47 2005
80. CNN (Cable News Network) began broadcasting on June 1, 1980 and pioneered around-the-clock news. See Neil Hickey, Enter CNN, colum. journalism rev., nov.-dec. 2001, at 88; wolfgang saxon, ed turner, 66; helped build 24-hour news, n.y. times, Apr. 2, 2002
81. CNBC, formerly called Consumer News and Business Channel, was launched in April 1989. The network provides real-time financial market coverage and analysis. See Bill Carter, The Media Business: Television; NBC Walks into a Cable Minefield, n.y. times, apr. 10, 1989; nbc universal cable networks, (last visited Jan. 20, 2011
82. Financial News Network broadcasted from the 1980s until 1991. Victor F. Zonana, GE Unit Wins FNN With a Bid of $145 Million, l.a. times, May 10, 1991
83. Chief Executive Magazine was founded in 1977 as the "only magazine written strictly for CEOs and their peers."chiefexecutive.net, (last visited Jan. 20, 2011
84. Since 1988, the editorial staff of Business Week (circulation: 970,000) has conferred two CEO awards: Best Manager and Best Entrepreneur. Malmendier & Tate, supra note 10, at 1635
85. Industry Week (circulation: 250,000) began awarding high-performing CEOs based on a CEO survey in various industries in 1986. Id. at 1636
86. From 1977 to 1997, when the magazine ceased publication, Financial World (circulation: 430,000) published an annual "CEOs of the Year" list, chosen by the editorial staff. Id. at 1635
87. anthony j. mayo & nitin nohria, in their time: the greatest business leaders of the twentieth century 2005
88. khurana, supra note 20, at 72.
89. I Gotta Tell Ya: America Loves Listening to Lee, time mag., Apr. 1, 1985
90. See Lee Iacocca, imdb, (last visited Jan. 20, 2011
91. khurana, supra note 20, at 72.
92. See TheNostalgiaSpot, 1984 Lee Iacocca Chrysler Commercial, youtube (Nov. 22, 2008
93. F.2d 1287 (D.C. Cir. 1980
94. Grass v. News Group Publ'ns, Inc., 570 F. Supp. 178, 183 (S.D.N.Y. 1983
95. Wiegel v. Capital Times Co., 426 N.W.2d 43 (Wis. App. 1988) (wealthy farmer held to be a limited-purpose public figure in a controversy resulting from pesticide and fertilizer pollution of a public lake); Rizzuto v. Nexxus Prods. Co., 641 F. Supp. 473 (S.D.N.Y. 1986), aff'd, 810 F.2d 1161 (2d Cir. 1986) (CEO and founder of a hair products firm was a public figure in the hairdressing industry).1986
96. F.2d 762 (D.C. Cir. 1987
97. Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1300 (D.C. Cir. 1980
98. Littler, supra note 97, at 233.
99. guthey et al., supra note 19, at 12.
100. Maccoby, supra note 47, at 75.
101. khurana, supra note 20, at 70-71
102. suzanne bates, speak like a ceo: secrets for commanding attention and getting results (2005); allan cox, your inner ceo: unleash the executive within (2007); jeffrey j. fox, how to become a ceo: the rules for rising to the top of any organization (1998); c. ray johnson, ceo logic: how to think and act like a chief executive 1998
103. robert slater, get better or get beaten: 31 leadership secrets from ge's jack welch (1994); robert slater, invest first, investigate later: and 23 other trading secrets of george soros, the legendary investor (1996); robert slater, ovitz: the inside story of hollywood's most controversial power broker 1996
104. robert slater, no such thing as over-exposure 2005
105. khurana, supra note 20, at 159.
106. gideon haigh, fat cats: the strange cult of the ceo 1 (2004) (describing Enron CEO Jeffrey Skilling as "as much evangelist as entrepreneur")2004
107. hamish pringle, celebrity sells 72 2004
108. Littler, supra note 97, at 233.
109. pringle, supra note 142.
110. khurana, supra note 20, at 70.
111. haigh, supra note 140, at 98.
112. Launched in 1995, Bloomberg Television airs business news twenty-four hours a day. See Bloomberg Solutions: Television, bloomberg, (last visited jan. 20, 2011); bloomberg l.p., funding, (last visited Jan. 20, 2011
113. Created by Rupert Murdoch, Fox Cable News debuted in 1996 as a competitor to CNN and four years later was available to about one in five Americans. See Richard Morin, The Fox News Effect, Wash. post, May 4, 2006, at A02.2006
114. CNNfn was a CNN network dedicated to covering financial markets and business news. It operated from 1995 to 2004. See Bill Carter, CNN Officials to Propose a Business News Cable Service, n.y. times, June 9, 1995
115. Launched on July 15, 1996, MSNBC, a twenty-four-hour cable channel, is a partnership between NBC and Microsoft. See NBC Universal Cable Networks, (last visited Jan. 20, 2011
116. haigh, supra note 140, at 97.
117. Patricia Sánchez Abril & Ann M. Olazábal, The Celebrity CEO: Corporate Disclosure at the Intersection of Privacy and Securities Laws, 46 Hous. L. Rev. 1545 2010
118. cashmore, supra note 15, at 7.
119. Id. (defining the verb "celebrify" as "to exalt; praise widely; make famous; invest common or inferior person or thing with great importance").
120. Id. at 7. Paris Hilton, heiress to the Hilton dynasty, has been cited as an example of this phenomenon. She is famous for making media appearances and commercializing her image. Id.
121. khurana, supra note 20, at xi.
122. Jeffrey A. Sonnenfeld, Does It Matter Who Is the Boss?, in Navigating change: how ceos, top teams, and boards steer transformation (Donald C. Hambrick et al. eds., 1998
123. See Nanette Byrnes, Another Blow to the Celebrity CEO: This Time It's Buffett, Bloomberg businessweek (Mar. 13, 2009), (commenting that, due to the economy and spate of recent downgrades, Berkshire Hathaway's Warren Buffett "is the last celebrity CEO standing")2009
124. Jon Fortt, Steve Jobs, Tech's Last Celebrity CEO, (Dec. 19, 2008
125. Josh Levs, Big Three Auto CEOs Flew Private Jets to Ask for Taxpayer Money, (Nov. 19, 2008
126. Peter Whoriskey, AIG Spa Trip Fuels Fury on Hill, wash. post, Oct. 8, 2008
127. James B. Wade et al., Star CEOs: Benefit or Burden?, 37 Org. Dynamics203-102008
128. See also Hayward et al., supra note 10; Annette L. Ranft et al., The Costs and Benefits of CEO Reputation, 35 Org. Dynamics 279-902006
129. Wade et al., supra note 164. See also Hayward et al., supra note 10; Ranft et al., supra note 164.
130. David Carr & Claudia H. Deutsch, The Martha Stewart Verdict: The Company; A Harsh Blow to a Company Based on Image, n.y. times, Mar. 6, 2004
131. Philippe Naughton, Californian Billionaire Henry T. Nicholas III Faces Drugs, Sex, and Fraud Charges, timesonline (June 6, 2008
132. Tim Arango, Big Risk in a Brand of One Man, n.y. times, Dec. 14, 2009, at B1 (citing Martha Stewart Living Omnimedia as an example of a company that "has not returned to the financial heights it once enjoyed" prior to its figurehead's conviction).2009
133. Schumpeter, The Cult of the Faceless Boss, The economist (Nov. 12, 2009
134. About Undercover Boss, CBS, (last visited Jan. 20, 2011
135. Carr v. Forbes, Inc., 259 F.3d 273 (4th Cir.) (CEO of company managing a public infrastructure project was a limited-purpose public figure)2001
136. OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005) (Russian businessmen who was a leading participant in the transformation of the Russian economy were deemed limited-purpose public figures for purposes of the public controversy involving corruption in post-Soviet Russia)2005
137. OAO Alfa Total, Ltd. v. Miami Valley Broad. Corp., No. 21062, 2006 WL 267151 (Ohio Ct. App.) (adult entertainment entrepreneurs who invited media scrutiny by giving a newspaper reporter a tour of their sex club were limited-purpose public figures)2006
138. Kassouf v.Cleveland Magazine City Magazines, Inc., 755 N.E.2d 976 (Ohio Ct. App.) (Cleveland parking lot owner found to be a limited-purpose public figure because the local press had written 100 articles about him)2001
139. Prozeralik v. Capital Cities Commc'n, Inc., 635 N.Y.S.2d 913 (App. Div.) (local restaurateur deemed a public figure). Cf. Computer Aid Inc. v. Hewlett-Packard Co., 56 F. Supp. 2d 526 (E.D. Pa. 1999) (finding that the CEO of a small, private company acquired by Hewlett-Packard [HP] was not a general or limited-purpose public figure because HP's purchase of the company was not a public controversy and the acquisition was neither highly publicized nor eventful).1995
140. Carr, 259 F.3d at 273.
141. DiBella v. Hopkins, 403 F.3d 102 (2d Cir.), cert. denied, 546 U.S. 939 2005
142. khurana supra note 20, at 23; Hayward et al., supra note 10.
143. Roger brown, social psychology: the second edition 1986
144. Hayward et al., supra note 10.
145. khurana supra note 20, at 23.
146. Gertz III, 418 U.S. at 345.
147. See generally C. FC. Fred alford, whistleblowers: broken lives and organizational power 2001
148. Frank PellegriniPerson of the Week: "Enron Whistleblower" Sherron Watkins, (Jan. 18, 2002
149. Rizzuto v. Nexxus Prods. Co., 641 F. Supp. 473 (S.D.N.Y.), aff'd, 810 F.2d 1161 (2d Cir. 1986
150. See supra notes 2-9 and accompanying text.
151. Steve Jobs Taking Medical Leave from Apple, NPR, Jan. 17, 2011
152. Steve Jobs Takes Second Medical Absence in Two Years, NPR, Jan. 18, ("Steve Jobs is the face of the company and so it's no surprise that people are scratching their heads and saying, 'Tim Cook who?'").2011
153. See infra notes 21-25 and accompanying text.
154. Lisa Respers, Fans Keep Wozniak "Dancing with the Stars," (Mar. 24, 2009
155. Id.; Gary Strauss, "Dancing" Puts a Little Spring in Mark Cuban's Step, USA Today, Oct. 8, 2007
156. The Apprentice, (last visited Jan. 20, 2011
157. A.B. (Tony) Hayward, (last visited Jan. 20, 2011
158. Schumpeter, supra note 169.
159. Jim Zarroli, Before Gulf Spill, BP CEP Tony Hayward Won Praise, npr (June 17, 2010
160. Michael Corkery, BP's Hayward: "I Became a Villain for Doing the Right Thing," Wall st. J., July 30, 2010
161. When corporate and executive defamation plaintiffs sue, some courts have curiously held that the two share the same public-private figure status. Long v. Cooper, 848 F.2d 1202, 1204 n.3 (11th Cir.) (concluding that, because the company was not a limited-purpose public figure, its owner was not).1988
162. See Petition for a Writ of Certiorari at 28-29, Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1987) (No. 83-1604) (en banc), cert. denied, 108 S. Ct. 200 1987
163. Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1292 (D.C. Cir. 1980
164. Turner, supra note 9, at 8.
165. Gertz III, 418 U.S. at 351.
166. Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069, 1077 (3d Cir. 1988
167. Gertz III, 418 U.S. at 344-45 (internal quotation marks and citation omitted).
168. Kisser v. Coal. for Religious Freedom, No. 92 C 4508, 1994 U.S. Dist. LEXIS 18818, at *5 (N.D. Ill. Dec. 23, 1994) (quoting Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1298, (D.C. Cir. 1980), cert. denied, 449 U.S. 898 1980
169. The D.C. Circuit three-pronged Waldbaum test is the following: (1) Is there a public controversy with "foreseeable and substantial ramifications for nonparticipants" (2) Has the plaintiff played a sufficiently central role in the controversy? and (3) Is the alleged defamatory statement germane to the plaintiff's participation in the controversy? Waldbaum, 627 F.2d at 1298. The Second Circuit test provides that a defamation defendant must show that the plaintiff has: (1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media. Contemporary Mission, Inc. v. N.Y. Times Co., 842 F.2d 612, 617 (2d Cir. 1988). The Sixth Circuit has proffered a two-pronged analysis: (1) "a public controversy must exist" and (2) "the nature and extent of the individual's participation in the particular controversy must be ascertained." Clark v. Am. Broad. Cos., Inc., 684 F.2d 1208, 1218 (6th Cir. 1982), cert. denied, 460 U.S. 1040 () (internal quotation marks and citation omitted). With respect to the second part, the Sixth Circuit imposed three determining factors: "first, the extent to which participation in the controversy is voluntary; second, the extent to which there is access to channels of effective communication in order to counteract false statements; and third, the prominence of the role played in the public controversy."Id. 1983
170. Time, Inc. v. Firestone, 424 U.S. 448454-55 1976
171. Robin d. barnesoutrageous invasions: celebrities' private lives, media, and the law 136 2010
172. Gertz III defined public figures as those who have "voluntarily exposed themselves to increased risk of injury" by "assum[ing] an 'influential role in ordering society.'"Gertz III, 418 U.S. at 345 (quoting Curtis Publ'g Co. v. Butts, 388 U.S. 130, 164 (Warren, C.J., concurring in result)) (emphasis added).
173. Controversy, The free dictionary, (last visited Jan. 20, 2011
174. Waldbaum, 627 F.2d at 1296 (citation and footnote omitted).
175. In Time, Inc., the Supreme Court distinguished between "public controversy" and "all controversies of interest to the public," noting that the two could not be equated. 424 U.S. at 454-55
176. See OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005
177. Astra USA, Inc. v. Bildman, 914 N.E.2d 36, 58 (Mass. 2009
178. Technically, sexual harassment is not a public controversy and might best be characterized as a public issue. While a particular occurrence of sexual impropriety might be publicly disputed (i.e., the Lewinsky scandal), one would be hard pressed to find open advocates of sexual harassment in the workplace.
179. See supra notes 2-9 and accompanying text.
180. Although English law, not American law, was applied in Mosley, the arguments regarding public interest and controversies are substantially the same.
181. Mosley v. News Group Newspapers Ltd., [] EWHC (QB) 1777, [25] (Eng.). Ultimately, the English court found this argument, while compelling, was too tenuous: it held that the business figure's unusual sexual practices were not legitimately in the public's interest.2008
182. See supra notes 141-47 and accompanying text.
183. Robertson, supra note 63, at 222-23
184. Lawlor v. Gallagher Presidents' Report, Inc., 394 F. Supp. 721, 731 (S.D.N.Y. 1975
185. Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1299 (D.C. Cir. 1980
186. Tavoulareas v. Piro, 817 F.2d 762, 773 (D.C. Cir. 1987
187. Tom C.W. LinUndressing the CEO: Disclosing Private, Material Matters of Public Company Executives, 11 U. Pa. J. Bus. L. 383, 423-24 ("The privacy rights of public company executives are more akin to those of celebrities and public officials in that they arguably have a lower expectation of privacy and cannot be expected to be 'let alone.'").
188. Tavoulareas, 817 F.2d at 773 (quoting Waldbaum, 627 F.2d at 1300).
189. DiBella v. Hopkins, 403 F.3d 102 (2d Cir.), cert. denied, 546 U.S. 9392005
190. Nelson v. WEB Water Dev. Ass'n, Inc., 507 N.W.2d 691, 697 (S.D.) (finding that an employee of a large, nonprofit corporation of great importance to many South Dakotan members of the corporation was a limited-purpose public figure).1993
191. Hutchinson v. Proxmire, 443 U.S. 111, 136 1979
192. Matthew Fraser & Soumitra Dutta, Yes, CEOs Should Facebook and Twitter, (Mar. 11, 2009
193. One example of a CEO who participates actively online is John Mackey, co-founder of Whole Foods Market. Mr. Mackey was criticized in 2007 for championing his company's stock on online financial bulletin boards under a thinly veiled pseudonym. Andrew Martin, Whole Foods Executive Used Alias, n.y. times, july 12, 2007, he currently has a blog on his company's web site, which discusses political, economic, and industry-specific topics. the ceo's blog, whole foods market, (last visited Jan. 20, 2011
194. Hibdon v. Grabowski, 195 S.W.3d 48 (Tenn. Ct. App. 2005) (holding the owner of a business that customized personal watercraft to be a limited-purpose public figure where he sought publicity via postings on an Internet news group read by jet ski enthusiasts).
195. Bay View Packing Co. v. Taff, 543 N.W.2d 522 (Wis. Ct. App. 1995
196. N.E.2d 36 (Mass. 2009
197. Astra had sued Bildman on multiple claims, including fraud. The libel suit was part of Bildman's counterclaim.
198. Steaks Unlimited, Inc. v. Deaner, 623 F.2d. 264, 274 (3d Cir. 1980
199. Gettner v. Fitzgerald, 677 S.E.2d 149 (Ga. Ct. App.) (finding an advertising executive who was terminated due to poor performance was not a public or limited-purpose public figure where his termination could not have substantial ramifications for anyone but the executive and his immediate family).2009
200. cashmore, supra note 15, at 7.
201. Of course, there are rare instances of fame achieved without active publicity seeking. These are usually where individuals are unwittingly caught up in an important public event or controversy. For these instances, public controversy should be characterized by its effects on society rather than by public interest or curiosity. Foreseeable and substantial ramifications of business matters might include such events that affect stock prices or shareholder value or have societal effects, such as environmental or legislative impacts.
202. Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476, 484 (Minn. 1985
203. Pages v.Feingold, 928 F. Supp. 148, 154 (D.P.R. 1996
204. Gettner v. Fitzgerald, 677 S.E.2d 149 (Ga. Ct. App. 2009
205. N.W.2d 476 (Minn. 1985
206. Waldbaum v. Fairchild Publ'ns Inc., 627 F.2d 1287, 1294-95 (D.C. Cir. 1980