From Minc Law:
The difficulty of proving your defamation case, and if you even have a valid claim at all, may depend on if the court considers you a public figure or a private figure.
In the context of defamation, a public figure is generally defined as an individual who has assumed a role of prominence in society or voluntarily or involuntarily thrust themselves into the public spotlight, like a government official, a celebrity, or even a person at the heart of a controversy. Public figures have a higher burden of proof when bringing a defamation claim; they must show that the defendant acted with actual malice or reckless disregard for the truth when publishing a false statement.
A private figure, on the other hand, is generally defined as anyone who does not qualify as a public figure and is not in the public spotlight. Private figures must only prove that the defendant acted with ordinary negligence when publishing a false statement.
. . . .
Who Are Public Figures in the Defamation Arena?
The distinction between public figures and private individuals matters in defamation law because it changes the burden of proof in bringing a lawsuit.
To succeed in a defamation lawsuit, the plaintiff must show that the statement was untrue and harmful to their reputation. On top of these factors, a public figure must also demonstrate that the defamer made the statement with malice (or malicious intent to harm them).
Definition of Public Figures in Defamation Law
In legal terms, a public figure is an individual who is at the forefront of public issues or performs a prominent role in society. Those with a certain amount of fame or renown can also be considered public figures. For example, the following people would be considered public figures in a defamation law case:
- Government officials and politicians,
- Prominent business leaders,
- Celebrities, and
- Famous sports figures and athletes.
. . . .
Most U.S. states take the idea of public figures one step further by expanding the public figure classifications into three types: public officials, all-purpose public figures, and limited-purpose public figures.
Public Officials
Public officials are not just elected officials or politicians. They include any individual whose role has a major influence over government and societal events, as well as those who work for elected representatives.
However, not every government official would be considered a public figure in a defamation case. The difference is generally in how prominent and influential the individual is in their role. For example, while an elected prosecutor may be considered a public official, an administrative assistant in the prosecutor’s office may not be.
What is the Difference Between All-Purpose Public Figures & Limited-Purpose Public Figures?
Aside from public officials, other public figures are split into two categories: all-purpose and limited-purpose. An all-purpose public figure has achieved “pervasive fame or notoriety,” like a traditional celebrity.
On the other hand, a limited-purpose public figure is injected into “a particular public controversy and thereby becomes a public figure for a limited range of issues.
A limited-purpose public figure can be voluntarily or involuntarily drawn into the public eye. Examples of voluntary limited-purpose public figures include minor athletes or actors, social activists, or those who enter into the public debate about a controversial topic. An involuntary limited-purpose public figure did not choose to become involved in a controversy or important event.
In the significant court case of Dameron vs. Washington Magazine, the plaintiff Merle Dameron was the sole air traffic controller on duty the day of a plane crash near Dulles airport in 1974. While he was never found at fault for the crash, local magazine The Washingtonian issued claims that he was partly to blame for the passengers’ deaths.
The court found that while Dameron did not “inject” himself into the public debate, he did become involved in this public affair without his consent. He was, therefore, considered a limited-purpose public figure.
This case established a three-part framework for determining whether an individual is a limited-purpose public figure:
- There is a public controversy,
- The plaintiff played a central role in the controversy, and
- The defamation was pertinent to the plaintiff’s involvement in the controversy.
What Are Some Examples of Public Figures?
The following list gives real-world examples of public officials, all-purpose public figures, and limited-purpose public figures:
- President Joe Biden (public official);
- First Lady Dr. Jill Biden (all-purpose public figure);
- Chris Evans, a well-known actor (all-purpose public figure);
- Jeff Bezos, billionaire and CEO of Amazon (all-purpose public figure);
- LeBron James, NBA all-star (all-purpose public figure);
- Minor-league baseball player with limited name recognition (limited-purpose public figure);
- A previously unknown activist who generates news at a Black Lives Matter protest (limited-purpose public figure).
Why Are Public Figures Considered to Have Significant Ability to Counteract Defamation?
It is not necessarily true that public figures are considered to have a significant ability to counteract defamation—at least in the legal sense. The legal standard is tougher for public figures to counteract defamation because our society values free speech, uninhibited debate, and public information about those of pervasive influence.
For example, if John Smith publishes a blog post falsely claiming his neighbor was convicted of armed robbery 10 years ago, the neighbor will likely win a defamation case against him. But if John makes the same claims about his senator, it would be much more difficult for the senator to win a case. John simply needs to show that he had a “good faith belief” in the negative claim (meaning he acted with negligence, not actual malice).
Courts usually hold that public figures do not need as much reputational protection because they have placed themselves in the spotlight and must expect some level of negative attention. Public figures tend to have a greater ability to use the media or an online platform to counteract a narrative about them.
Because public figures usually have a larger social media following and better access to the media than private citizens, they have other means of making the truth known without involving the courts. For example, a celebrity who is the subject of false rumors can give an interview with a magazine, discuss the truth on a talk show or podcast, or post their side of the story on social media.
What Are the Requirements For Proving Defamation of a Public Figure?
In all defamation cases for both public and private persons, the plaintiff must prove that a statement was:
- A false statement of fact (i.e., not an opinion) about the plaintiff,
- Communicated to a third party,
- Made with at least a negligent level of intent, and
- Harmful to the plaintiff’s reputation.
For public figures, there is an additional requirement to bring a defamation claim. They must prove that the defamer acted with actual malice. In other words, the defamer knew that the statement was false—or they acted with reckless disregard for whether the statement was true or false.
This requirement can be broken down even further for public officials, all-purpose public figures, and limited-purpose public figures.
Public Officials’ Burden of Proof
Public officials must demonstrate that the defamer acted with actual malice for both public and private matters. Regardless of if the defamatory statement referred to the official’s private life or public record, they must have acted with actual malice or reckless disregard.
All-Purpose Public Figures’ Burden of Proof
Similarly, the actual malice standard for all-purpose public figures applies to nearly all facets of their lives.
Limited-Purpose Public Figures’ Burden of Proof
For limited-purpose public figures, however, the standard of actual malice only applies to the area(s) that make the individual a public figure.
For example, a minor-league athlete falsely accused of doping would need to prove actual malice—but not if the defamatory statement pertains to his private life instead.
. . . .
What is a Private Figure in the Context of Defamation?
Public figures are those in the public spotlight, whether due to their occupation, celebrity, or participation in a controversy or public conversation. But the existence of public figures necessitates private figures. In this section, we define a private figure and how they should prove their case in a defamation lawsuit.
Definition of a Private Figure in Terms of Defamation Law
A private figure is not in the public eye. Unlike public figures, they have not been drawn into a public controversy—whether voluntarily or involuntarily—and they are not a public official or a celebrity.
What Are Some Examples Of Private Figures?
Listed below are a few general examples of individuals that would be considered private figures in a defamation case:
- A high school principal.
- A private guardian accused of sleeping with a client’s father.
- A local news reporter who left their job at a local television station.
- A company that does not advertise extensively.
How Must Private Individuals Prove Defamation?
Since private figures have not entered the public spotlight through their career or role in a public controversy, the law aims to protect their privacy. Private individuals, therefore, have a less strict burden of proof in a defamation matter.
A private figure plaintiff must only prove that the defendant acted with ordinary negligence—not actual malice or reckless disregard. “Ordinary negligence” means the defendant did not act with the caution an ordinary person would take in a similar situation.
However, some states still require private figures to show actual malice if they expect to recover punitive damages in a defamation claim.
How Should a Claim Show Fault on the Part of the Defamer?
Though the specific standard can vary from state to state, the plaintiff must prove the core elements of defamation to succeed in a claim:
- An unprivileged, false statement of fact was made about the plaintiff,
- It was communicated to a third party,
- It was made with at least a negligent level of intent, and
- It damaged the plaintiff’s reputation.
What is Negligence in Terms of Defamation Law?
A defendant may be found negligent if a reasonable person would take the time to research the truth of the statement before publishing it. If they did not act with the reasonable prudence an ordinary person would take in a similar situation, they acted with at least a negligent level of intent.
Link to the rest at Minc Law
PG notes that there are lots of links to additional materials, definitions, cases, etc., in the OP that PG, as is his usual practice, omitted.
With respect to the adjacent post regarding former President Trump filing a defamation suit against Simon & Schuster and a former prosecutor who is the author of the book Trump claims is defamatory, PG notes that Mr. Trump is on the highest perch of public figurehood.
That said, PG has no knowledge of the suit other than the OP and is in no position to comment on the merits of the suit.
He does hope the author of the offending book was intelligent to change the standard New York publishing contract to provide that the publisher would pay all of the author’s legal fees and court costs if Trump sued the author (with or without suing the publisher).
In the standard New York publishing boilerplate, in the event of a defamation suit against the publisher (the author is almost always named as a defendant as well) the author will not only be responsible for her/his own legal fees, but is also obligated to pay the publisher’s legal fees and damages assessed against the publisher as well.
PG expects that in the Trump suit, Simon & Schuster will employ excellent and expensive litigation counsel. PG is not as familiar with New York City litigation costs as he used to be, but he would be very surprised if S&S’s legal fees for handling this matter would total less than seven figures. High seven figures is a possibility that crossed PG’s mind.
As far as insurance to cover legal expenses of a publisher, PG is doubtful that any sane insurance company would agree to cover this sort of risk. But he could be wrong.
I cannot speak for whether S&S (in such dire straits that it “must” be sold) maintains such coverage today. It is, however, far from unusual, and I can say that S&S has at some time in the last two decades maintained such coverage due to having received certain disclosures required under Fed. R. Civ. Proc. 26(f) in the course of representing a client. That’s vague due to a later confidential settlement that binds me.
These policies are called “errors and omissions” or “media perils” policies. There are (in effect) only two vendors, once one follows the money upward. And those insurers are the ones who demand the exact, non-negotiable form of the author’s warranty concerning defamation in commercial publishing contracts… and continue to use the same language as was used in 1978. Despite substantial changes in law since then. See, e.g.,, Ehrenfeld v. Mahfouz, 518 F.3d 102 (2d Cir. 2007), result abrogated by The SPEECH Act, Pub. L. No. 111-223, 124 Stat. 2381 (2010) (codified at 28 U.S.C. § 4101 et seq.). (Sadly — and perhaps a hint about how banal his life is — not only did this shark not have to look up any of those citations, but he has given several CLE presentations on publishing contracts discussing precisely this issue.)
I thus respectfully disagree with m’learned friend… and suggest that S&S has already paid for the expensive counsel in the form of insurance premiums that greatly exceed even a high-seven-figure hourly-rate attorneys’ fee.
Thanks for the additional information, C.
To my knowledge, pursuant to the author’s warranty to the publisher concerning defamation you mentioned, more than one author has been required to forgo royalty payments for a very long time in order to compensate the publisher for attorneys fees even if the suit was dismissed or thrown out of court.
Finding and retaining counsel competent to effectively use The SPEECH Act as a defense almost inevitably leads to counsel located in New York City or another major American metropolis where the legal fees are quite high which can mean even winning the case still results in the author foregoing royalties for a long time to compensate a publisher’s insurance carriers for their out-of-pocket expenses for successfully defending a suit.
Thanks for your comment. You make some very good points as always.
And that’s absolutely correct because these policies have astoundingly high deductibles, usually $500k or more per policy year… combined with non-cumulative single-incident deductibles ordinarily between (as of 2015, the last time such an issue was brought to me on a consult with documentation) $75k and $100k. That is, the publisher pays that first $75-$100k per incident, and total for its policy year of $500k+… and recoups that by withholding royalties otherwise due. Even if, through the insurer’s right to direct a defense, it’s the insurer’s choice of counsel.