"Public figures" and libel law

An important dimension of the increasing freedom of the U.S. press in the 20th century is the "public figure doctrine," developed by the Supreme Court in several interesting cases in the 1960s, 1970s, and 1980s. The principle underlying the doctrine is that an average person -- that is, someone who is not famous or whose name is not a household word -- has more protection from criticism by the media than does a public figure. A public figure, on the other hand, must endure the embarrassing and critical comments of the media, even if they are false, unless he or she can prove that the publisher of the expression acted with malice. For this purpose, "malice" is defined as issuing a publication that the writer, editor, or broadcaster knows to be false at the time of the publication. Malice can also be inferred if that writer, editor, or broadcaster acts with careless disregard of the truth or falsity of the assertions made. Most of the cases under the "public figure doctrine" turn on whether the individual who is claiming libel or defamation is, in fact, determined by the courts to be a public figure. Once someone is deemed a public figure, it is exceedingly difficult to prove that he or she has been libeled.

 

Perhaps the case that best epitomizes the "public figure doctrine" concerned an advertisement, paid for in the early 1960s by a group wishing to aid the cause of civil rights leader Martin Luther King, Jr. The ad referred to the fact that King had been harassed by local law enforcement officials throughout the South, including Montgomery, Alabama. The Commissioner of Public Safety in Montgomery, L.B. Sullivan, sued the New York Times for defamation, arguing that the ad contained some hyperbolic statements and factual errors that might cause people to think critically of him. The Court ruled that the Times had made honest, not malicious, mistakes in the ad and that Sullivan, as a public figure, could not recover damages from the Times. Over 20 years later, the Supreme Court was again asked to consider the possibility of libel against a public figure. Jerry Falwell, a well-known conservative minister, was the object of a "parody advertisement" in a sexually explicit magazine. The "facts" about Falwell in the ad were outlandishly false. 

Consequently, Falwell argued that his reputation had suffered great harm. The Court, however, found in favor of the magazine, maintaining that the freedom of the press permitted substantial latitude for cartoonists and those producing caricatures of public figures.

 

A hierarchy of protection

In issuing their many rulings on the freedom of speech and press, American courts over the years have generally accorded greater protection to political messages than other types of expression. This is not surprising, because American democracy was, in no small part, a child of the political criticism of the practices of the British rule over North America in the late 18th century. It is no accident that most of the cases discussed so far have concerned political expression. But if political expression is preferred, what forms of expression are lower in the hierarchy?

 

One form of expression considered lower by the courts is commercial speech. The Supreme Court has consistently ruled that advertising is protected by the First Amendment only if it is truthful. Thus, the hyperbole and minor factual errors that may be tolerated in political speech are not permitted judicial protection if they appear in the context of a TV commercial, such as one produced to sell mouthwash or sports utility vehicles. This is partly because commercial claims are easier to verify than political assertions. In addition, American courts have generally found that the strong motivation to make a profit by marketing goods and services outweighs any "chilling effect" that might result from government regulation.

 

Another form of expression that is even lower on the scale of judicial protection is obscenity. In 1957, in Roth v. U.S., the Supreme Court deemed obscenity and pornography to be "utterly without redeeming social importance," and thus unprotected expression. The problem with obscenity has largely been a matter of definition. One person's obscenity may be another person's idea of an artistic masterpiece. For some people, James Joyce's novel Ulysses is repulsively obscene; but a recent poll of literary intellectuals rated it the greatest work of literature written in English in the 20th century. Justice Potter Stewart spoke for most Americans in a mid-1960s case when he acknowledged that he might not be able to define obscenity, but, he added, "I know it when I see it."

 

Unfortunately, Justice Stewart's glib one-liner does not offer an effective legal standard to evaluate works of art. The Supreme Court has struggled mightily to arrive at such a standard. In 1973, the Court refined a three-part test for obscenity, and ruled certain forms of expression outside the bounds of constitutional protection if: 1) the average person, applying local community standards, would find the work taken as a whole to appeal to the prurient interest; 2) the work depicts or describes sexual conduct in a "patently offensive" way; and 3) the work lacks serious literary, artistic, political, or scientific value. Given this rather ambiguous standard, it is not surprising that the Court's rulings on obscenity in the media have not had a clear direction in the last 30 years. In many ways the Court's indecision reflects that of American society in general, torn between forces favoring complete free expression on the one hand and those of social conservatism on the other.

 

News gathering and the First Amendment

The process of news gathering that precedes the publication or broadcast of the news has also come in for occasional review by American courts. Reporters, the Supreme Court ruled in 1972, can be required to reveal confidential sources to grand juries. However, in 1991, the Court determined that the freedom of the press does not prohibit a state from bringing charges against reporters who breach a promise of confidentiality to their sources. American courts have generally held that judicial proceedings should be open to the public and press unless there is a compelling interest, such as a defendant's right to a fair trial, that cannot be ensured except by closing the courtroom. Perhaps it is the historical memory of the private trials of the 16th and 17th century British "star chamber" that makes American judges so hesitant to sanction closed trials. The Court has even upheld the right of state judges, if they see fit, to permit television cameras to record proceedings in their courts. There are occasions, however, when the rights of the media to report on the conduct of a trial have been deemed less weighty than the rights of a defendant. For example, in the interest of privacy, the identities of juveniles accused of crimes are generally shielded from scrutiny by the media.

 

Over the years, the United States, like other democracies, has seen its legal principles challenged by technological change. American courts have generally afforded greater protection for print media such as newspapers than broadcast media such as television. Thus, for example, the Supreme Court ruled in the late 1960s that individuals do not have an absolute constitutional right to communicate through broadcasting because the "electromagnetic spectrum" cannot accommodate all communicators. This rationale served as the basis for judicial rulings denying "equal time" for candidates for office to respond to statements made on television by other candidates. However, in light of the recent expansion of cable television and the ubiquitous Internet, courts appear to be moving towards placing broadcast media on the same legal footing as print media.

 

The Pentagon Papers

Probably the most important American case involving the media in the last half century is the so-called Pentagon Papers case. This dispute between the U.S. government and the New York Times, the nation's most renowned newspaper, offers a glimpse of many of the weighty First Amendment issues discussed previously, and it involves perhaps the most controversial political topic of the recent past, the American conduct of the Vietnam War.

 

The dispute had its origins in 1967 when Robert McNamara, the Secretary of Defense, created a task force to compile a history of the U.S. policy toward Vietnam in the period 1945-67. The task force was composed of personnel within the Department of Defense as well as individuals from other government agencies and some independent contractors. No interviews were conducted; all of the research was compiled from documents. The resulting report was massive, over 7,000 pages in length, and was completed in 1969. It became known as the Pentagon Papers. Only 15 copies were printed because the document was intended only for internal use by the Defense Department and other government agencies.

 

One of the contractors who had a minor role in creating the lengthy study was Daniel Ellsberg, a staffer for the Rand Corporation, a "think tank" devoted to the study of national defense issues. Ellsberg had his doubts about American policy in Vietnam, in part stimulated by what he had read in the Pentagon Papers. After failing to convince members of Congress to make the study public, Ellsberg secretly made another copy of the report and released it to journalists at the New York Times and the Washington Post. The Pentagon Papers contained little secret information, but some sections called into question the wisdom of American policies adopted towards Vietnam, both before and after the United States became involved in military hostilities in Southeast Asia.

 

In June 1971, the Times published two installments of the Pentagon Papers before the administration of President Richard Nixon requested a court injunction forbidding additional publication. A New York federal judge granted the restraining order, pending a full hearing on the case. This was the first time in American history that a U.S. court had stopped a newspaper, in advance, from publishing a particular article. It was a classic example of prior restraint. The case quickly made its way to the U.S. Supreme Court. After denying a request by the Justice Department for a closed hearing, the Court let the case be argued in public on June 26, 1971. The Court issued its decision a bare four days later. A six-member majority agreed to a short per curiam opinion (no author named) that essentially said that any appeal for a prior restraint carries a heavy constitutional burden and, in this instance, the Nixon administration had not met that burden. Because each of the six members of the majority coalition wrote separate opinions, it is difficult to identify what lawyers and jurists sometimes refer to as "the bright line" that illuminates the heart of a judicial ruling. About the only thing that can be said for certain is that the majority was not convinced that disclosing the information in the Pentagon Papers would have resulted in "direct, immediate, and irreparable damage" to national security. Most constitutional experts saw the Court ruling in the Pentagon Papers case as a Pyrrhic victory for freedom of the press, at best. The High Court did not find sufficient justification to halt publication, but it did accept the government position that a restraining order could be issued in anticipation of the offer of proof of harm accruing from publication. As a denouement to the case, the Pentagon Papers were eventually published by the Times, the Post and other newspapers throughout the country. No national security problems resulted.