Chapter 13 - § 13.4 • ACTUAL MALICE, PUBLIC VERSUS PRIVATE FIGURES, AND MATTERS OF PUBLIC CONCERN

• Jurisdiction: Colorado

§ 13.4 • ACTUAL MALICE, PUBLIC VERSUS PRIVATE FIGURES, AND MATTERS OF PUBLIC CONCERN

§ 13.4.1—The Requirement Of Malice

In the landmark case of New York Times Co. v. Sullivan, the U.S. Supreme Court embarked on a journey of interpretation of the interplay between the First Amendment of the U.S. Constitution and the common law of defamation that forever has changed the landscape of this area of the law. 376 U.S. 254 (1964). It was in Sullivan that the Court first enunciated the "actual malice" standard for recovery of damages in defamation cases where the plaintiff is a public official.

In Sullivan, an Alabama city commissioner and police chief sued the New York Times for libel arising out of allegations of mistreatment of black civil rights leaders by the police. The plaintiff won a $500,000 judgment in state court, which was affirmed by the Alabama Supreme Court. The U.S. Supreme Court reversed the judgment. The Court defined a constitutional privilege designed to free criticism of public officials from the restraints of the common law of defamation, holding:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Sullivan, 376 U.S. at 279-80; see also Rosenblatt, 383 U.S. at 85 ("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").

Three years after the Court's seminal decision in Sullivan, it extended the same protections to criticisms of "public figures." Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967). Private citizens can become "public figures" as a result of their general public reputation, irrespective of whether they were governmental officials. These protections were extended to public figures to protect defamatory criticism of nonpublic persons who are "nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Id. at 164 (Warren, C.J., concurring). Individuals may be "universal public figures" like the Rev. Jerry Falwell, see, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1988), or "limited public figures" like activist Andrea Dworkin, see, e.g., Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188 (9th Cir. 1989). However, where an individual unwillingly is drawn into the public eye, he or she is not considered a public figure. See, e.g., Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157 (1979).

In 1971, a tenuous plurality of the U.S. Supreme Court adopted a standard that extended the New York Times rule to "all discussion and communication involving matters of public or general concern." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44 (1971). However, three years later in Gertz v. Robert Welch, Inc., a majority of the Supreme Court declined to adopt the Rosenbloom plurality standard, holding that "so long as they do not impose liability without fault, the States may define for themselves the appropriate...