§5.3 Constitutional and Statutory Limitations

• Library: Torts (OSBar) (2012 Ed.)

§5.3 CONSTITUTIONAL AND STATUTORY LIMITATIONS

§5.3-1 Defamation of Public Officials and Public Figures: First Amendment Limitations

§5.3-1(a) Generally

Americans have long prized the freedom of speech that promotes an unfettered exchange of idea. See New York Times Co. v. Sullivan, 376 US 254, 269-270, 84 S Ct 710, 11 L Ed2d 686 (1964) (discussed in §5.3-1(b)(1)). They have also cherished the freedom from being maligned falsely, to protect their good names. Yet these two important values often clash. Finding the appropriate compromise between them has been a difficult task for the courts. That task is nowhere more evident than in the law limiting the rights of public officials and figures to sue for defamation. Sections 5.3-1 to 5.3-1(d) discuss the limitations on the right of public officials and public figures to sue others for defamatory speech about matters of public concern. See generally Chris Williams, The Communications Decency Act and New York Times v. Sullivan: Providing Public Figure Defamation a Home on the Internet, 43 J Marshall L Rev 491(2010); Yang-Ming Tham, Honest to Blog: Balancing the Interests of Public Figures and Anonymous Bloggers in Defamation Lawsuits, 17 Vill Sports & Ent LJ 229 (2010); Rodney A. Smolla, Dun & Bradstreet, Hepps, and Liberty Lobby: A New Analytic Primer on the Future Course of Defamation, 75 Geo LJ 1519 (1987); Alfred Hill, Defamation and Privacy Under the First Amendment, 76 Colum L Rev 1205, 1251-1253 (1976).

COMMENT: In his dissent in Gertz v. Robert Welch, 418 US 323, 390-391 & n 28, 94 S Ct 2997, 41 L Ed2d 789 (1974), Justice White observed: "The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses. . . . As the broad base of newspaper ownership narrows, the variation of facts and opinions received by the public from antagonistic sources is increasingly limited."
While it may have been true at the time of Justice White's dissent that whoever controls the media controls the debate, such is not the case today with the proliferation of blogs, Facebook, Twitter, and the like. The question today is whether anyone controls the "media" of the Internet.

§5.3-1(b) Constitutional Standards

§5.3-1(b)(1) Defamation of "Public Officials"

(1) The Standard (New York Times Rule)

As a rule, when a person falsely defames a public official as a "public official," the official has no claim for defamation. An exception exists if the public official proves, by clear and convincing evidence, that the defendant either knew that the defamation was false or acted in "reckless disregard" of its truth or falsity. New York Times Co. v. Sullivan, 376 US 254, 279-280, 84 S Ct 710, 11 L Ed2d 686 (1964) (characterized as one of most important First Amendment cases in history).

Note: The New York Times rule applies to "public officials" and "public figures" (public figures are discussed in §§5.3-1(b)(2)) whether or not the defendant is in the media. See, e.g., Garrison v. La., 379 US 64, 76-77, 85 S Ct 209, 13 L Ed2d 125 (1964) (district attorney criticized judges); Wheeler v. Green, 286 Or 99, 116, 593 P2d 777 (1979) (successful horse trainer was not public figure).

In New York Times Co., the newspaper published a full-page ad in 1960 to spur support for the civil rights movement. The ad described a "wave of terror" in Montgomery, Alabama, directed against, among others, Dr. Martin Luther King Jr. The ad falsely stated that the police had ringed the Alabama State College campus with tear gas and shotguns, padlocked the student cafeteria to starve the students into submission, bombed the home of Dr. King, assaulted Dr. King, arrested him seven times for speeding and loitering, and charged him with perjury. The plaintiff, a city commissioner of Montgomery who supervised the police, sued the New York Times and four persons who endorsed the ad, alleging that criticism of the local police was directed at him, thereby diminishing his reputation. Although the New York Times failed to verify the statements in the ad, the staff of the New York Times knew that many persons who endorsed the ad were reputable, and so no reason arose to question their credibility. The Supreme Court of Alabama upheld a trial judgment for the plaintiff, and the United States Supreme Court reversed that holding. The Court held that the First Amendment prohibits a public official from recovering damages for a defamatory falsehood about the official's official conduct unless the official proves by clear and convincing evidence that the statement was made with knowledge that it was false or with reckless disregard of its truth or falsity. New York Times Co., 376 US at 279-280. The newspaper's failure to investigate was not sufficient alone to meet this constitutional standard. New York Times Co., 376 US at 287-288. The evidence was also insufficient to show that the statements referred to the plaintiff personally. "[A]n otherwise impersonal attack on governmental operations" cannot support an action for defamation by the responsible governmental official. New York Times Co., 376 US at 292.

In Victoria v. Le Blanc, 168 Or App 586, 7 P3d 668 (2000), the court parsed both the meaning of public official and the falsity requirement. The plaintiff had been employed as the city administrator for the city of Hubbard and was terminated. During a subsequent political recall effort (not involving the plaintiff), the defendant wrote two letters to a local newspaper that were critical of the plaintiff and a city council member. The trial court entered summary judgment for the defendant but the court of appeals reversed. The court held that the plaintiff was a public official even though she was no longer employed in an official position when the letters were published. The letters criticized actions that were "continuations of actions that she began while a city employee" and described her by her public position, not by name. Victoria, 168 Or App at 591. The court then held that "a jury could find that defendant's letters . . . accused plaintiff of misconduct in her job and that that misconduct might include stealing city funds," Victoria, 168 Or App at 591, thus satisfying the requirement for falsity or reckless disregard of falsity. Last, the court held that "a jury could find that defendant either did not believe those accusations or that he made no attempt to determine whether they were true," Victoria, 168 Or App at 591-592, and an issue of fact existed whether the defendant published his letters with malice, Victoria, 168 Or App at 590-592.

COMMENT: The New York Times rule is based primarily on the First Amendment's freedom of speech, not on the freedom of the press. No distinction exists under this rule between media and nonmedia defendants, although as a practical matter the defendant would almost always be the media. The purpose of the rule is to allow "uninhibited, robust and wide-open" debate on public issues. New York Times Co., 376 US at 270. The New York Times rule places a much more onerous burden on a plaintiff who sues a media defendant over matters of public concern than the rule of Gertz v. Robert Welch, Inc., 418 US 323, 345-346, 94 S Ct 2997, 41 L Ed2d 789 (1974) (discussed in §5.3-1(b)(2)), places on a private figure suing a media defendant over matters of public concern.

(2) Public Official Defined

Not every public employee is a public official. But no precise criteria determine which public employees are public officials. The United States Supreme Court has opined that "[i]t is clear . . . that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 US 75, 85, 86 S Ct 669, 15 L Ed2d 597 (1966); Victoria, 168 Or App at 591 (plaintiff was deemed public official when "defendant criticized plaintiff for actions that occurred after her dismissal but that were continuations of actions that she began while a city employee"). But the official's position must invite the public to scrutinize the official apart from the kind of public scrutiny stirred from the particular charges in controversy. Rosenblatt, 383 US at 86 n 13; Restatement (Second) of Torts §580A, comment b (1977). This issue is a question of law. Rosenblatt, 383 US at 87-88; Victoria, 168 Or App at 590.

A police officer is a public official. Koch v. Laborico, 66 Or App 78, 85, 674 P2d 602 (1983); McNabb v. Oregonian Pub. Co., 69 Or App 136, 139, 685 P2d 458 (1984). The public wants to know how police officers behave on the job. Cf. Jones v. Palmer Communications, Inc., 440 NW2d 884, 895 (Iowa 1989) (firefighter was not public official because he did not have substantial responsibility over conduct of governmental affairs). See Annot, Who Is "Public Official" for Purposes of Defamation Action, 44 ALR5th 193 (1966 & Supp 2011).

(3) Limits on Scope of Defamation

The New York Times rule does not apply to every defamatory statement about a public official. The constitutional protection extends only to defamatory statements about the public official's role as a public official, that is, about his or her conduct or fitness as a public official. New York Times Co., 376 US at 283; see Rosenblatt, 383 US at 92 (Stewart, J., concurring).

§5.3-1(b)(2) Defamation of Public Figures

(1) The Standard

As a rule, when a person falsely defames a public figure as a public figure, that public figure has no claim for defamation. An exception exists if the public figure can prove by clear and convincing evidence that the defendant either knew that the defamatory statement was false or acted in "reckless disregard" of its truth or falsity.

In Curtis Pub. Co. v. Butts, 388 US 130, 133-134, 87 S Ct 1975, 18 L Ed2d 1094 (1967), the Supreme Court considered two libel actions. In the first companion case, Butts, a...