(re)defining Public Officials and Public Figures: a Washington State Primer*

• Jurisdiction: United States,Federal
• Citation: Vol. 23 No. 03
• Publication year: 2000

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 4SPRING 2000

COMMENTS

(Re)defining Public Officials and Public Figures: A Washington State Primer

Kate M. Adams (fn*)

I. Introduction

In New York Times Co. v. Sullivan,(fn1) the Supreme Court established a constitutionally based conditional privilege for protecting free speech in the context of defamation actions. The privilege creates a presumption of good faith, insulating the speaker from liability unless the plaintiff shows by clear and convincing evidence that the publication was made with "actual malice."(fn2) The Court has chosen a "status approach"(fn3) limitation to the privilege, applying it only when the plaintiff has the status of "public official" or "public figure."(fn4)

Lower court applications of the New York Times conditional privilege are inconsistent from state to state and often inconsistent with the Supreme Court's mandate, because, in part, New York Times and its progeny have not provided clear guidance in defining these public plaintiffs. As a result, courts generally resort to a reexamination of the principles underlying the decision in New York Times.

Unfortunately, lower courts do not evince consistent application of the principles either. Courts repeat the now familiar statements of New York Times in a myriad of combinations to lend support to whatever decision they reach-whether increasing constitutional protections of speech or preserving the state's power and laws of redress for reputational injury. As New York Times and its progeny have discussed the underlying principles at great length, language from the cases can be used selectively to support the courts' varying positions. However, it is only out of context that the language can be so misused.

Although the Supreme Court has struggled in addressing the issues at stake, appearing to vacillate at times, it has continually corrected and refined its position. As a whole, however, a theme can be derived from New York Times and its progeny: an application of the privilege only for certain types of speech. A more precise explication of this theme should allow lower courts to apply the status approach more accurately and consistently. This Comment reflects an attempt to distill the Supreme Court's thematic intent from over thirty years of defamation case law. The Comment then evaluates current definitions of public officials and public figures to determine whether they are consistent with the theme. Washington courts have already addressed these definitions, but this Comment posits that Washington law on public officials and public figures is inconsistent with the Supreme Court's intent and suggests alternative defining tests for public officials and public figures.

II. Perspective on Principles Underlying New York Times

The New York Times conditional privilege is usually said to be a compromise between state defamation law(fn5) and constitutional rights.(fn6) This statement reflects the two interests at stake in defamation cases: the state's interest in protecting reputation by providing redress for injury through legal means,(fn7) and the constitutional constraints of the First Amendment.(fn8) However, these interests are not treated equally by all courts, and the operative compromise between the two interests is affected by the relative values of each interest as seen through the eyes of the reviewing court.

For example, seen from a historical perspective, the previously unchallenged value of state defamation law was merely qualified by the New York Times Court's recognition of the competing values underlying free speech. Thus, the New York Times privilege can be viewed as a cost extracted from personal reputation;(fn9) and reputation should be given considerable protection.(fn10)

Seen from another perspective, however, First Amendment rights are paramount. Under this perspective,(fn11) state defamation laws are burdens to free speech that must be strictly limited.(fn12) Thus, New York Times and its progeny delineate, in relief, the circumstances under which defamation laws may be tolerated.

The operative compromise between these competing interests is therefore affected by an interpreting court's starting perspective. If a court desires to follow the guidance of New York Times and its progeny, however, it must adopt the compromise as laid out by the Supreme Court.(fn13) The Court has worked out its compromise based on a recognition of the value of reputation and a particular understanding of the First Amendment.

The Supreme Court has held that the First Amendment protects true speech, and protects false speech inasmuch as it is an unavoidable attendant to public debate.(fn14) Although there is no social value in the content of false speech,(fn15) liability for false speech is not without a social cost. Fear of such liability may prevent some persons from entering the arena of public debate and thereby limit the overall quantity of speech.(fn16) Expressing concern over this potential for self-censorship, the Supreme Court has provided constitutional protections for false speech.(fn17) The protections create "breathing space"(fn18) for important speech and promote unfettered public debate.(fn19) The protection of false speech is not considered too costly for competing interests, because false speech is redressable within the field of public debate: we can redress false speech with more speech.(fn20)

However, this evaluation is no longer wholly appropriate when false speech injures reputation, as is the nature of defamation. An individual's reputation interest is recognized as uniquely valuable in our society.(fn21) The interest requires special protection, because additional speech is often insufficient to redress injury to reputation:(fn22) enter state defamation laws.

However, as even defamatory speech is valuable for providing breathing space, defamatory speech also receives a measure of constitutional protection under the New York Times conditional privilege.(fn23) The appropriate formulation of the privilege, as a compromise between state defamation laws and First Amendment concerns, will depend on a specific evaluation: under what conditions is the social value of defamatory speech, as a provider of breathing space, greater than the social value of reputation? Or, more precisely, when is protection against self-censorship more important than protection of repu-tational interest? Since New York Times, the Supreme Court has expressed concern with self-censorship primarily in regard to certain types of speech.

Speech type(fn24) may be viewed along a continuum: on one end, core political speech; at the other end, speech on private matters.(fn25) Between these ends is all remaining speech. Where exactly on this continuum the public/private distinction lies probably requires permanent theoretical exploration.(fn26) Precise categorization of specific speech is equally difficult. The following evaluation, therefore, merely serves to provide rough divisions within the speech continuum.

Near the core political speech end of the continuum is a type of speech this Comment will refer to as "public issue" speech. Generally, public issue speech concerns social and political issues that a self-governed people must include in their discussions, such as civil rights, crime, or poverty.(fn27)

Further down the continuum from political speech and public issue speech is what this Comment will refer to as "public interest" speech or "speech on issues of public interest."(fn28) Public interest speech covers a broad range of nonprivate speech, whether viewed as the equivalent to "public and general interest" from Warren and Brandeis' famous article on privacy(fn29) or whether a more modern conception.(fn30)

The exact First Amendment protection available for speech at any given point along the continuum varies. However, for protection through the New York Times conditional privilege, the Supreme Court has clearly been aiming at a certain range of speech. The Court has consistently(fn31) expressed that it was only for political speech and speech on public issues that self-censorship was a concern.(fn32) Only in this context does the need to promote true speech supersede legitimate state interests in protecting reputation, requiring constitutional protection of falsehoods through use of the actual malice standard. Without this context, courts cannot properly apply the New York Times conditional privilege to public plaintiffs.

Of course, it is just as impossible (and judicially inadvisable) for courts to attempt to determine where the public issue/public interest transformation occurs as it is for courts to determine the line between private speech and public speech generally.(fn33) The Supreme Court, however, has not required states to do so. Rather, the Court has chosen the status approach as a method of serving its views of the competing values at stake.(fn34)

By employing the status approach, the Court does not limit its protection of speech regarding public persons to core political speech or even to public issue speech. Yet, not all speech of public interest is covered under this approach. Rather, the shape of constitutional protection follows the contours of status.(fn35) Courts should still consider the type of speech of concern to the Supreme Court when they define public plaintiffs. This...