Access to media all a-Twitter: revisiting Gertz and the access to media test in the age of social networking.

• Author: O'Connor, Ann E.
• Position: Rough Consensus and Running Code: Integrating Engineering Principles into the Internet Policy Debates

1. INTRODUCTION II. THE PUBLIC-PRIVATE DISTINCTION IN DEFAMATION LAW A. New York Times Co. v. Sullivan B. Gertz and the Origins of the Access to Media Test III. THE ACCESS TO MEDIA TEST IN ACTION A. The Role of the Test in Categorizing Plaintiffs B. Departure from the Access to Media Test C. The Test as Imagined by the Gertz and Hutchinson Courts IV. DEVELOPMENTS IN MEDIA, SHIFTS IN THE MAINSTREAM CURRENT A. New Definitions, New Media B. "New" Media and the Impact on Defamation Law V. ACCESS, ACCESS EVERYWHERE A. Constant Contact Between Private Individuals B. Gertz in the Age of Social Networking VI. CONCLUSION "[T]he individual's right to the protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty." (1)

1. INTRODUCTION

   Since the introduction of the actual malice requirement for public figures in defamation cases, (2) the test employed by courts to distinguish those public figures from private individuals has frequently included an inquiry as to the level of access to media the plaintiff enjoys. This determination has been one part of a multifactor test used to establish whether the plaintiff is in fact a public figure who then must prove actual malice in order to be successful with a defamation claim. Once the plaintiff is found to be a public figure by way of this test, the burden on the plaintiff is significantly higher--making the likelihood of success much lower. Because of the resulting difficulty for the public figure plaintiff, it is important that the test in place appropriately measures the plaintiff's role within the controversy and in the public eye.

   The definition of what comprises the media has changed in recent years--blogs are no longer at the periphery of the media world, but have found a place within mainstream media as a source and as a tool. The line has further blurred with more widely accessible and user-friendly services that allow users to share with an Internet audience at large; with the advent of such social networking tools as Facebook, YouTube, and Twitter, it has grown easier for anyone and everyone to access the media in one way or another. With the current media landscape such as it is--political candidates announcing their plans to run for office via Twitter and Facebook, (3) widely followed print columnists employing blogs in their daily research, corporate America using YouTube videos to reach a wider advertising audience (4)--it is time to reconsider what exactly "access to media" means. Without such a reconsideration, the access to media factor in the public figure test in defamation law is outdated; furthermore, without appropriate reconsideration in the context of technological advances, this test may lead to inaccurate conclusions as to who is a public figure, based on judicial confusion as to what access means.

   This Note will present the history of the public-private distinction, beginning in Part II with the Supreme Court's decision in New York Times Co. v. Sullivan, where the Court announced the test applicable for public officials in defamation law--requiring a heightened burden to prove a defamation case when a public official alleges defamation. This case began a series of decisions by the Court in which the test was further refined, and the class of people who were required to meet the "actual malice" standard of proof was both clarified and expanded--by the time the Court decided Gertz v. Robert Welch, Inc., those who must prove actual malice included public figures. With Gertz, the Court attempted to set forth explicitly the appropriate test for determining whether or not a person alleging defamation is in fact a public figure and must therefore prove actual malice. Because of the added--and not insignificant--burden placed on plaintiffs who are found to be public figures, the Court established a test by which public figures may be proven as such. This required showing that first, she has either achieved pervasive fame or notoriety because of his position in society, (5) or that because of her role in the controversy at issue in the story, she is a public figure for purposes of coverage pertaining to that controversy. For the latter aspect of the test, the Court required either a showing that she had voluntarily thrust herself into the issue and taken on a position at its forefront, or that she had been involuntarily drawn into that issue. (6)

   As one aspect of this determination, the Court instructed that an inquiry as to whether or not the plaintiff had access to the media to adequately redress the claims made against her should be employed. (7) For this prong of the test, the Court concluded that an individual of prominence would have ways to access the media and therefore to address the public. It left the test at that, without delving into the adequacy required of that response, nor the mode or medium of access that would satisfy the requirement.

   This Note will then go on in Part III to give an overview of how that access test has been applied by lower courts, and the results lower courts have come up with when grappling with what exactly access to media means. There is not a clear consensus across all jurisdictions as to the importance of this prong of the test, nor as to what exactly is required to find that access to media is present in a particular context. Indeed, it does not even seem clear what constitutes "media" for the purpose of showing media access by the plaintiff.. This struggle has continued, and in recent years, has run up against the technological developments and trends in the area of online media and user-generated content. Part IV of this Note will provide an overview of the changing nature of the media landscape, noting the striking increase in the number and variety of ways that individuals can access larger audiences through the Internet--and the very fact that such networking has become ubiquitous (indeed, almost expected) in today's society. The effect of such universal access and networking should not go unnoticed by courts when they are considering an individual who is claiming defamation, but such access does not necessarily equate to the level of access imagined by Gertz when the Court established that the ability to redress defamation claims is a factor to be considered.

   This Note will then argue in Part V that the access to media test is no longer applicable as it currently stands in this age of widespread access to media, and as such may no longer appropriately serve as a safeguard for private plaintiffs as it was initially envisioned by the Gertz Court. In order to do what the Court initially intended of it, the access to media test must take into account what the definition of "media" actually means today, and it then must be adequately tailored to reflect the trend of social networking and many-to-many online communication. (8) It is not enough to accept the ability to access some form of media--instead, the test must be appropriately limited in order to find only those who have the ability to access a similarly situated audience through a similar means of communication as having adequate means of redress through the media.

2. THE PUBLIC-PRIVATE DISTINCTION IN DEFAMATION LAW

   Prior to 1964, defamation law was exclusively governed by state law, (9) but that changed with New York Times Co. v. Sullivan. (10) The case came before the Supreme Court in a time of political change, and with it came a sea of change for the legal world, as well; the Court's decision was "one of the most famous and important cases in all of constitutional jurisprudence." (11) With this decision, the Court gave a constitutional backbone to the law of defamation--recognizing the First Amendment importance of core political speech and the need to provide publishers with "breathing space" for such speech to occur. (12) In subsequent cases, the Court broadened the scope of the rules set forth in New York Times to occupy the area of defamation law by issuing a series of constitutional decisions, (13) each decision building upon the last.

   1. New York Times Co. v. Sullivan

      The case with the most significant impact on defamation law began in the arena of the civil rights movement. It stemmed from a full-page editorial advertisement that ran in the New York Times (14) that included statements about police and official action against civil rights demonstrators that had taken place in Montgomery, Alabama. (15)

      The ad contained some apparently false statements regarding the events that had occurred in Montgomery. (16) A claim was brought by the Commissioner of Public Affairs in Montgomery, L.B. Sullivan, who alleged that the advertisement concerned him because of his role in supervising the Montgomery Police Department. (17) Sullivan claimed that the charges asserted by the advertisement were leveled at him simply because of the nature of his duties (18) and that he had therefore been libeled by the advertisement. (19) The trial court agreed, finding the advertisement libel per se, (20) a ruling that was upheld by the Supreme Court of Alabama. (21)

      In a unanimous decision to reverse the ruling, the U.S. Supreme Court held that the rule of law applied by the Alabama courts was "constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.'' (22) In addition, continued the Court, a public official must prove that the publication acted with "actual malice," that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." (23)

      This holding by the Court marked the first time that the First Amendment played a role in defamation law; the Court upheld these protections as necessary to give freedom of...