Spring 2022 Symposium

I. Introduction

Elon Musk does not only want to travel to space or eradicate gas powered vehicles, but he also wants to own one of the largest online communication platforms: Twitter[1].  Musk has since struck a deal, setting him up to take the global communication platform private at nearly $44 billion[2]. On the deal, Musk said “Twitter is the digital town square where matters vital to the future of humanity are debated[3].” However, where the terms town square and alike has become commonplace for the understanding of public forums or places where ideas are exchanged as  developed by the court in Hague[4], other “courts have found the internet to be a private forum[5].”  But as Musk sees it, actors who thrust themselves into debate on the platform are thrusting themselves into the town square and into the public eye[6].

Musk has envisioned Twitter to become a free speech haven­,[7] something potentially along the lines of the comparison made by Judge Ronnie Abrams “Internet is akin to the Wild West, as many have suggested, Twitter is, perhaps, the shooting gallery, where verbal gunslingers engage in prolonged hyperbolic crossfire.[8]”  Abrams made the remark in the opening of his opinion dismissing a case brought by plaintiff Charles Ganske, a reporter for the Associated Press, alleging defamation over a series of tweets, in part of which he was called xenophobic.[9] The dismissal was granted because those tweets were considered “nonactionable statements of opinion[10]” but the discussion becomes trickier when statements of fact are waged online.

The court in Gertz established that there is “no such thing as a false idea,[11]” leading courts to only act under the guise of defamation, libel, or slander, for statements of fact.  However, the standard for proving such changes with respect to the parties involved, where “actual malice” is required to prevail in a claim against a public official, a standard that was established by the court in New York Times Co. v Sullivan[12], and extended to any public figure in Butts[13].  But when the Gertz court established wrote their opinion on a landmark defamation case they established the idea of a limited-purpose public figure, persons who “thrust themselves to the forefront of particular public controversies to influence the resolution of the issues involved” and “they invite attention and comment.[14]”  Gertz  also imagined another type of public figure ­­­­–– the involuntary public figure –– as one who becomes “a public figure through no purposeful action of his own” but noted that this case is “exceedingly rare.[15]”While the courts have long declined to extend any public figure status to individuals who have only been forced into the spotlight[16], with the rise of social media and the greater access to publicly and freely thrust oneself into the spotlight, there could be a new chance for wider adoption of the limited-purpose public figure in disputes over social media speech.

This note will begin by discussing the traditional framework developed to analyze defamation claims and will discuss the established precedents for raising those claims and the long-standing recognition of public figures.  Latter parts will discuss a more nuanced vision of the examining public figures in the age of social media, incorporating ideas of more limited and involuntary public figures, given the greater access to media afforded to persons in the modern day.  Finally, with consideration of the public figure and its modern-day applications, this paper will concluded about the framework for regulating defamatory speech in an age with both willing and involuntary public figures with the potential to establish new analysis to deflation claims, moving away from negligence and closer, but not completely, towards the standards outlined in Sullivan[17], given the change in the modes of popular communication. 

II. Frameworks in Defamation Suits

The Restatement (Second) Torts establishes liability a defamation claim as “(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; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.[18]”  Posts on Twitter or another social platform can meet the criteria established above but prevailing in a claim on grounds of defamation depends on who the maligned individual is in the public sphere.  The Restatement (Second) Torts is only a guide on which state law is built on but, while a general statement of defamation may follow from this, the Supreme Court has also curbed some state defamation laws through their opinions.

The Supreme Court’s first major ruling on defamation that still bears on today’s policy appeared in New York Times Co. v Sullivan[19]. Sullivan was a landmark case declaring an Alabama law to be “constitutionally deficient[20]” for its inability to protect free speech.  More importantly this case established the “actual malice[21]” standard.  This standard has allowed for the publication of potentially false information about public officials in the action of their official duties, only offering relief for claim that can be “defensible only upon a showing of actual malice.[22]”

After the Court ruled on Sullivan, they extended the first amendment protections provided to information publishers against public officials to any public figure. In Curtis Pub. Co. v. Butts, the court reviewed two libel cases –– one of a private individual of political influence and the other a prominent football coach –– both pursued by “appellant publishers” who had received unfavorable judgements in lower courts[23].  The greatest outcome of the case, despite ruling in favor of the appellee in one matter and in favor of the appellant in the other, was the fact that the court extended the “actual malice” standard to individuals who are not necessarily “public officials” as defined in Sullivan[24]  but are merely “’public figures’ whose views and actions with respect to public issues and events are often of as much concern as the attitudes and behavior of ‘public officials’ with respect to the same issues and events.[25]”

The difference between the treatment of public figures and private individuals often has to do with the level of care required of a publisher.  This question was raised in Rosenbloom v. Metromedia, a case where a publisher was challenged on what duty of care a private individual was owed in publishing information about that individual.  The court posed the question as whether the publisher was liable if it is proved “failure of respondent to exercise reasonable care[26]” or if a higher standard is required, meaning one must “prove that the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether they were false or not.[27]”  The latter would be the standard often constituted as “actual malice” as defined in Sullivan[28].

The court in Metromedia ultimately ruled that the standard set forth in Sullivan applied here to a private individual.  They affirmed the Court of Appels which first set forth that the "the fact that plaintiff was not a public figure cannot be accorded decisive significance.[29]"  In writing for the plurality, Justice Blackmun stated “the vital needs of freedom of the press and freedom of speech persuade us that allowing private citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care would not provide adequate ‘breathing space’ for these great freedoms. Reasonable care is an ‘elusive standard.’[30]”

However, the outcome of Metromedia did not last long, effectively being overturned in Gertz v. Robert Welch[31]. The petitioner, council for a Chicago law enforcement officer, claimed defamation against a local publisher for statements made about the officer during him being involved in legal proceedings[32].  The district court found in favor of the respondent, applying the standard in Sullivan[33], despite the fact the individual was not a public official defined in Sullivan[34] nor a public figure as defined in Butts.[35] This decision was affirmed by the appellate court but reversed by the Supreme Court.  In the opinion it stated that “the extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable.[36]”

The inherent opposite of a person who is public facing –– as in the public official or public figure defined above –– would be a private individual –– like those dealt with in Rosenbloom and Gertz.  In Time, Inc. v. Firestone the court established a necessary distinction between a private and public individual –– voluntariness.  Firestone, a case where the publisher misreported facts about the appellee’s divorce, was petitioned to the Supreme Court on grounds that the publisher was not liable for damages because the discussed individual was a public figure.[37]   The court disagreed.[38]  In the majority opinion, Justice Rehnquist wrote the appellee “did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.[39]”  The plurality in Firestone established a level of voluntariness to achieving the public figure status.

III. Imagining New Standards for Defamation in the Age of Social Media 

It would be hard for the court in Sullivan or Gertz to imagine the scope of defamation laws reaching beyond traditional forms of media and technology at the time –– given these cases were largely related to print and broadcast (radio) formats –– and the expected foreshadowing would be impossible[40].  Twitter and social media alike have nearly eclipsed expression through traditional media formats[41] and both persons private and public have found platforms on social media[42].

The idea of a “public figure” is already broadly defined by the legal system “including, but not limited to: (1) celebrities (i.e., people from the entertainment sector);13 (2) those holding or formerly holding public office, including politicians and other elected officials; (3) criminals; (4) inventors, researchers, and academics; (5) war heroes; (6) figures from the news; and (7) unwilling or unexpected public figures (e.g., someone who was at the scene of a crime or in a demonstration), amongst others.[43]”  Number seven[44] in the above list has been an elusive one for the courts[45] but could arguably be more common in the sphere of social media, giving the potential for unintentional virality.  The courts owe a duty to protect these individuals.

The unwilling or involuntary public figure has been classified with the same duty of care –– “actual malice[46]” –– as voluntary public figures.  However, these cases have often dealt with publishers being some of the defining news corporations of their heyday[47] but now the publisher had changed and has, in many cases, become the individual[48].

With the exchange of information relying more and more on individual to induvial through social media it ought to be responsible to reexamine the precedents around defamation protections for individuals.  Metromedia created a precedent of applying the standard in Sullivan to all matters of public concern[49] –– whether the individual was a public figure or not. This was overturned by Gertz[50] but could potentially make for a more responsible precedent in the modern day, given the rise and fall of many public figures being newly created. See, Metromedia based the standard on the event –– the topic of discussion –– not the individual[51] and seems more right today given that individuals have greater ability to rise to popularity given a specific situation to topic of public discussion rather than their innate traits.

Reapplying the standard set forth in Metromedia[52] combined with the aspect of voluntariness set forth in Firestone[53] could potentially make for a more modern-friendly level of liability in defamation suits. Voluntarily contributing to open discussion on social media is often an inherently public facing act but it does not mean that one should shed all the protections offered to them nor should an otherwise private individual be subject to the extremely high standard set forth in Sullivan[54].  Rather somewhere in between the “reasonable duty of care[55]” and “actual malice[56]” ought to suffice for the digital age.

IV. Concluding Thought

The mediums and methods of communication and dissemination of information have changed in the sixty years since Sullivan[57] and its right that the standards of assessing defamation claims change alongside major developments in society.  Social media has increasingly lowered the levels of privacy assumed by citizens who choose to engage openly on a specific platform therefore the analysis of an open social media discussion should more closely reflect the opinion in Metromedia[58] while adopting an understanding of the voluntariness required as specified in Firestone[59]. Court should still hold those that publish false information responsible but must balance an open exchange of information that is in line with the digital developments of the modern age. This new class of individuals –– for this purpose, say, semi-private individuals –– are not afforded all the rights and access to media held by the originally defined “public figures[60]” but they do possess greater access then generations past, have exhibited greater and father reaching interpersonal interaction and therefore an appropriate standard that is between “reasonable duty of care[61]” and “actual malice[62]” is a proper way to address this class and generation of social media users.

References

[1] See, e.g., Mike Isaac and Lauren Hirsch, With Deal for Twitter, Musk Lands a Prize and Pledges Fewer Limits, N.Y. Times (Apr. 25, 2020) https://www.nytimes.com/2022/04/25/technology/musk-twitter-sale.html?smid=url-share

[2] Id.

[3] Twitter Inc., Elon Musk to Acquire Twitter, Cision PR Newswire (Apr. 26, 2022, 10:00 AM), https://www.prnewswire.com/news-releases/elon-musk-to-acquire-twitter-301532245.html

[4] HAGUE v. Comm. FOR Indus. Org., 307 U.S. 496, 515 (1939)

[5] ARTICLE: Trending Now: The Role of Defamation Law in Remedying Harm from Social Media Backlash, 44 Pepp. L. Rev. 429, 471

[6] See Elon Musk (@ElonMusk), Twitter (Apr. 24, 2021 12:43 PM), https://twitter.com/elonmusk/status/1518677066325053441?s=20&t=9Plo9w7nnOAWeBnBb0CuHQ;

Contra D.C. v. R.R., 182 Cal. App. 4th 1190, 1229, 106 Cal. Rptr. 3d 399, 428 (2010)

[7] See Isaac, supra note 1.

[8] Ganske v. Mensch, 480 F. Supp. 3d 542, 545 (S.D.N.Y. 2020)

[9] Id. at 551

[10] Id. at 545

[11] Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).

[12] New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

[13] See generally Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967)

[14] Gertz v. Robert Welch, 418 U.S. 323, 345 (1974); See also ARTICLE: FACEBOOK V. SULLIVAN: PUBLIC FIGURES AND NEWSWORTHINESS IN ONLINE SPEECH, 93 S. Cal. L. Rev. 37, 47

[15] Id. at 345

[16] See generally Time, Inc. v. Firestone, 424 U.S. 448 (1976)

[17] See generally Sullivan, supra note 12.

[18] Restat 2d of Torts, § 558; See also Matthew J. Mitten et al., Sports Law: Governance and Regulation 320 (3d ed. 2021)

[19] Sullivan, supra note 12.

[20] Sullivan, supra note 12 at 256.

[21] Sullivan, supra note 12 at 256.

[22] Sullivan, supra note 12 at 256.

[23] Butts, supra note 13 at 133.

[24] Sullivan, supra note 12 at 256.

[25] Butts, supra note 23 at 162.

[26] Rosenbloom v. Metromedia, 403 U.S. 29, 40-41 (1971)

[27] Id.

[28] Id. at 30; See also Sullivan, supra note 12 at 256.

[29] Metromedia, supra note 26 at 30; See also Rosenbloom v. Metromedia, Inc., 415 F.2d 892, 896 (3d Cir. 1969).

[30] Metromedia, supra note 26 at 50.

[31] See Gertz, supra note 11 at 346.

[32] Id. at 325.

[33] Id.

[34] see Sullivan, supra note 12 at 256.

[35] see Butts, supra note 23 at 162.

[36] Id. at 346.

[37] Firestone, supra note 15 at 49.

[38] Id.

[39] Id.

[40] See COMMENT: ALWAYS EAT THE FINE PRINT: WHY 3D PRINTED FOOD WILL FINALLY WARRANT INTELLECTUAL PROPERTY PROTECTION FOR RECIPES, 19 Wake Forest J. Bus. & Intell. Prop. L. 72, 85

[41] See, e.g., Monica Anderson and Andrea Caumont, How social media is reshaping news, Pew Research Center (Sep. 24, 2014) https://www.pewresearch.org/fact-tank/2014/09/24/how-social-media-is-reshaping-news/

[42] Social Media Fact Sheet, Pew Research Center (Apr. 7, 2021) https://www.pewresearch.org/internet/fact-sheet/social-media/

[43] ARTICLE: Public Interest vs. Private Lives - Affording Public Figures Privacy in the Digital Era: The Three Principle Filtering Model, 19 U. Pa. J. Const. L. 975, 980-981

[44] See Id. at 980

[45] See Gertz, supra note 13 at 47.

[46] Sullivan, supra note 12 at 256.

[47] Firestone, supra note 15.

[48] See, e.g., Kalev Leetaru, Is social media empowering or silencing our voices?, Forbes (Oct. 8, 2018) https://www.forbes.com/sites/kalevleetaru/2018/10/08/is-social-media-empowering-or-silencing-our-voices/?sh=5423aab61010

[49] See Metromedia, supra note 26 at 30; See also Sullivan, supra note 12 at 256.

[50] See Gertz, supra note 11 at 346.

[51] See Metromedia, supra note 26 at 30

[52] Id.

[53] Firestone, supra note 15 at 49.

[54] see Sullivan, supra note 12 at 256.

[55] Metromedia, supra note 26 at 40-41.

[56] Sullivan, supra note 12 at 256.

[57] see generally Sullivan, supra note 12.

[58] See Metromedia, supra note 26 at 30

[59] Firestone, supra note 15 at 49.

[60] Sullivan, supra note 12 at 256.

[61] Metromedia, supra note 26 at 40-41.

[62] Sullivan, supra note 12 at 256.