Public Plaintiffs and Private Facts: Should the "public Figure" Doctrine Be Transplanted Into Privacy Law?

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 1204. Public Plaintiffs and Private Facts: Should the "Public Figure" Doctrine Be Transplanted into Privacy Law?

1204

Susan M. Gilles*

Public Plaintiffs and Private Facts: Should the "Public Figure" Doctrine Be Transplanted into Privacy Law?

TABLE OF CONTENTS

I. Introduction ..................................................... 1205
II. The Evolution of the Public Figure Doctrine in
Constitutional Libel Law ........................................ 1206
III. The Conflicting Tale of the Public Figure Doctrine in
Privacy Cases Prior to Bartnicki .................. 1208
A. The Absence of the Public Figure Doctrine from the
Court's Constitutional Analysis of Privacy Torts ............ 1208
B. The Other Story--Public/Private Status as a
Component of the Common Law of Privacy ...................... 1212
C. The Third Strand--The Public Figure Doctrine and
Governmental Invasion of a Citizen's Right to
Informational Privacy ....................................... 1215
IV. The Conflict Continues--Bartnicki v. Vopper ......... 1217
A. The Facts--Cell Phones, Wiretaps, and Exploding
Porches ...................................................... 1217
B. Justice Stevens's Opinion for the Court ...................... 1219
C. Justice Breyer's Concurrence ................................. 1221
D. The Dissent .................................................. 1223
E. In Summary ................................................... 1225
V. The Future of the Public Figure Doctrine in Tort
Actions for Invasion of Privacy .................................. 1225
A. A Content-Only Test Holds On? ................................. 1225
B. What Should a Public Figure Test Look Like in Tort
Actions for Invasion of Privacy? .............................. 1229
1. Examining Justice Breyer's Approach ........................ 1230
a. Another Look at the Public Figure Analysis
of Justice Breyer ....................................... 1230

1205

b. Justice Breyer's Public Figure Doctrine Is
Not the Public Figure Doctrine of
Constitutional Libel Law ................................ 1232
2. Outlining a "Libel-Like" Public Figure Doctrine
for Privacy Cases .......................................... 1233
C. Why Libel's Definitional Approach Is Better than
Justice Breyer's Proposal ..................................... 1235
VI. Conclusion ...................................................... 1239

I. INTRODUCTION

When libel law conflicts with the First Amendment, the United States Supreme Court has held that the measure of protection received by the press depends primarily on whether the plaintiff is a public or private person.(fn1) This Article questions whether this "public figure doctrine"(fn2) is, or should become, part of the constitutional test applied to tort actions for invasion of privacy.(fn3) This inquiry is made more urgent by the willingness of at least two members of the current Supreme Court, in Bartnicki v. Vopper,(fn4) to incorporate the public figure doctrine into constitutional privacy law.

Part II of this Article briefly describes the rise of the public figure doctrine in constitutional libel law. Part III examines the limited use of the public figure doctrine in privacy law prior to the Court's decision in Bartnicki . The Court repeatedly seemed to reject a plaintiff's public/private status as part of the constitutional analysis in privacy cases. However, Part III notes that the common law of privacy has always embraced the public/private figure distinction and that the Court has used the doctrine in a related area--the individual's right of informational privacy against the government.(fn5)

It was against this background that the Court decided Bartnicki. (fn6) Part IV sets out the conflicting views of the Justices in the 2001 deci

1206

sion and explores Justice Breyer's view that a plaintiff's status (as a public or private person) is a core component of the test for constitutional protection in privacy cases. This Article argues that Justice Breyer's approach is a multifactored, ad hoc, balancing analysis that is dramatically different, and in many ways, inferior, to its libel law cousin.

Part V questions the future of the public figure doctrine after Bart nicki, and predicts that a person's status will become part of constitutional privacy law. However, this Article suggests that, if the Court is going to transplant a public figure doctrine into constitutional privacy law, it should adopt a doctrine based on definitional balancing, akin to that currently in libel law, and reject Justice Breyer's ad hoc approach.

II. THE EVOLUTION OF THE PUBLIC FIGURE DOCTRINE IN CONSTITUTIONAL LIBEL LAW

When a unanimous Supreme Court revolutionized common-law libel in New York Times Co. v. Sullivan,(fn7) it adopted a test for constitutional protection that turned on both the status of the plaintiff (as a "public official") and the content of the offending speech (criticism of "official conduct").(fn8) In the decade that followed, the Court splintered. In 1971, a majority of Justices held that the level of constitutional protection should turn on the content of the speech alone, and advocated a "matter of public concern" test.(fn9) Yet in 1974, the Court in Gertz v. Robert Welch, Inc. (fn10) reversed itself and declared that the status of the plaintiff (as a private or public person), not the content of the speech, should dictate the level of protection.(fn11)

Since Gertz, the Court has consistently predicated its constitutional analysis in libel cases on the status of the plaintiff. While questions as to the content of speech have crept back in at various points of the analysis,(fn12) it remains true that in libel law, the public figure doctrine is the dominant canon. Indeed, the Court has created a detailed jurisprudence defining public persons, a term I use to include both public officials (who acquire their public status due to their "responsi

1207

bility for or control over the conduct of government affairs"),(fn13) and public figures (who acquire public status by taking on a role of "especial prominence" or by thrusting themselves into an ongoing debate).(fn14)

The public figure doctrine posits that, while the State has a strong interest in providing a tort remedy to private persons who are libeled, the State has a much weaker interest in providing a remedy to public officials and public figures.(fn15) First, the Court has posited that public plaintiffs have less need for a legal remedy because they can often engage in self-help, using their access to the media to rebut alleged libels.(fn16) Since such public persons can help themselves, the State has a lesser interest in providing a tort remedy.(fn17) In contrast, the State has a far greater interest in providing a remedy for private figures, since, lacking access to the media, they must rely on tort law as the only avenue to rebut false statements.(fn18)

The Court has also theorized that public persons are less deserving of recovery because they assume the risk of injury to their reputations when they enter the public sphere.(fn19) Public plaintiffs "must accept certain necessary consequences" of involvement in public affairs, including the risk of false and defamatory criticism.(fn20) By voluntarily taking on public employment or prominent roles in society, public persons are presumed to have relinquished part of their interest in protecting their good names, and are, therefore, less "deserving of recovery" than private plaintiffs.(fn21) Private persons, who have never voluntarily exposed themselves to the risk of false publicity, have a far greater claim to recovery. The Court has characterized this "assump

1208

tion of the risk" rationale as the more important basis for its public/ private person distinction.(fn22)

Because of public plaintiffs' lesser interest in recovery, the Court has ruled that the First Amendment requires these plaintiffs not only to prove injury to reputation and falsity, but also to produce clear and convincing evidence that the press published the false report, knowing it was false or with reckless disregard of its truth or falsity.(fn23) This rigorous fault standard, known as "actual malice,"(fn24) prevents the overwhelming number of public plaintiffs from recovering.(fn25) Indeed, one author has labeled actual malice an "insurmountable barrier" to recovery.(fn26) In contrast, those deemed "private" plaintiffs, even when involved in a matter of public concern, usually have to prove only negligence.(fn27)

Thus, in libel law, the public figure doctrine is of immense significance--it is a central strand in the Court's libel jurisprudence, and, as a practical matter, it determines who wins and who loses most libel suits.

III. THE CONFLICTING TALE OF THE PUBLIC FIGURE DOCTRINE IN PRIVACY CASES PRIOR TO BARTNICKI

A. The Absence of the Public Figure Doctrine from the Court's Constitutional Analysis of Privacy Torts

In contrast to libel, when the Court considered the clash between the First Amendment and the privacy torts of false light and disclosure of true private facts,(fn28) the Court did not employ the public/private person distinction to determine the scope of constitutional

1209

protection. The Court's first encounter with a privacy tort was in Time, Inc. v. Hill,(fn29) where the Court faced a statutory version of the false light tort.(fn30) False light is closely related to libel. It creates a cause of action for the publication of false information, but it does not require a showing of harm to reputation. Rather, it simply requires that the plaintiff was placed in a "false light" that would be "highly offensive to a reasonable person."(fn31) Despite these similarities, the Court declared that it would not copy the structure it had established in the libel cases...