Media Law Notes

MLRC READINGS
https://www.natlawreview.com/article/what-does-new-supreme-court-portend-media-lawyers
Series of observations on how kavanaugh court might affect media law:

1. Kind of an unknown – no media law decisions since 2005.
o And given that the current makeup of the court includes only three justices who were
even on the court when they decided bartnicki (last real “media law” case according to
the article) in 2001.
o And, those three justices were all on different sides of Bartnicki – O’Connor joined the
majority, Breyer concurred narrowly, and Thomas dissented.
2. To reiterate, 2001 was the last time the court addressed a “media law” case on its merits. In
contrast, from 1964 (Times v. Sullivan) to 1991 (masson, cohen), they heard one or more per term.
o What does this suggest about the current state of media law? Are these settled questions?
3. Departures of scalia and kennedy seem to have cut the high and low end for the court’s disposition
of media law cases. Kennedy was in favor of broad first amendment rights, while scalia was
somewhat more skeptical of press freedoms.
4. YMMV when trying to decide which way the Court is going to go wrt media law:
o “Predictions about the impact of "new" Justices are of dubious value…it remains the case
that neither party affiliation nor prior opinions tells us very much about how a Justice is
likely to vote in a media law case, even given the current occupant of the White House.
Thus, although the fact that both Justices Gorsuch (e.g., Bustos v. A&E Television) and
Kavanaugh (e.g., Abbas v. Foreign Policy Group) have authored very useful opinions for
their respective Courts of Appeals in media law cases is of some comfort (not to mention
that then-Judge Kavanaugh voiced apparently enthusiastic support for a common law-
based reporter’s privilege in the never decided appeal of journalist Toni Locy's contempt
citation in the Hatfill v. DOJ case), they may well have done so because they felt
constrained by then-existing Supreme Court precedent, constraints by which they are of
course no longer bound. Tea-leaf reading of that sort would also have to take into account
such further evidence that party or general ideological affiliation is of limited predictive
value as the fact that, before either of them became judges, both Chief Justice
Roberts and Justice Kagan expressed varies degrees of skepticism about Sullivan
itself.”
5. Justices themselves change their disposition on media law issues over time.
 Examples
6. Discusses litigation strategy for media attorneys
o Risk/benefit analysis might control attorney’s decision on whether to let a case go to
the court; track record of media law cases might suggest that there’s nothing to lose
from supreme court review if they’re going to grant it.
o Letting the court “find its voice” on the other hand might be a smarter play when
there’s a new sheriff in town.
 “On the other hand, there is also a reasonable argument that, unless the above-
referenced risk/benefit analysis tips decisively in favor of seeking Supreme
Court review (because, for example, the client will otherwise be on the wrong
end of a bet-the-company or otherwise catastrophic judgment) (see gawker), the
better course is to forego for now the opportunity when it presents itself and give
this "new" Court a chance to find its voice and publicly unveil it.
 “That was the course that two media litigants independently took shortly after
Justice Sandra Day O'Connor replaced Justice Potter Stewart in 1981 and the
Court granted review in two cases in which those defendants had prevailed in
the Sixth Circuit—Street v. NBC and Wilson v. Scripps Howard Broadcasting.”
 Street - who qualifies as a limited-purpose public figure
o See Gertz, Hutchinson v. Proxmire, Time Inc. v. Firestone,
Wolston v. Reader's Digest
 Wilson - whether a private figure plaintiff bears the burden of proving
falsity in a defamation case.
 Despite their respective victories in the U.S. Court of Appeals for the Sixth
Circuit, given the uncertainty surrounding how Justice O'Connor might vote,
both media defendants opted to settle the cases rather than let the Supreme Court
decide them.
 The takeaway is that it might be a better strategy to wait and see before
rolling the dice. Five terms between O’Conner replacing Stewart and the
Wilson decision – she initially was against the defendants but changed her mind.
The interim Street ruling might have affected that, so in hindsight maybe
waiting makes sense.
Public v. Private Figures
Who is Public?
Rosenblatt: Plaintiff hired by three elected officials to supervise a public rec facility owned by the county.
Newspaper reports on mismanagement and Plaintiff sues. Court: Baer appeared to be a public official under
Times rationale.
“Criticism of govt is at the very center of the constitutionally protected area of free discussion…where a
person in government has such apparent importance that the public has an independent interest in the
qualifications and performance of the person who holds it, beyond the general public interest in the
qualifications and performance of all government employees, both elements we identified in [Times] are
present” and actual malice standard applies.
Candidates for public office
Times standard applies (actual malice required) where a candidate sues for defamation. Rationale is that
the public interest in full and frank discussion of a person’s fitness and qualifications for office require a
heightened standard for liability.
See Monitor Patriot Co. v. Roy (1971) (Newspaper accuses Senate candidate of prior criminal activity in
column printed three days before election. Court finds that Times standard applies. Improbably extends
Times standard to “anything which might touch on officials fitness for office.” Court notes “Clash of
reputations is the staple of election campaigns and damage to reputation is…the essence of libel” but that
when you put yourself out there you make yourself fair game for criticism). See also Ocala Star banner Co.
v. Damron (1971) (newspaper reports two weeks before election that candidate had been charged with
perjury; gets it very wrong. Court applies Times standard.)
Public Employees
Cops because they possess “significant powers granted by government.” See Britton v. Koep (Minn. 1991)
(police officers are public officials for defamation purposes). But see Madesen v. United Television, Inc.
(Utah 1990) (refusing to decide whether cops are “ipso facto” public officials wrt defamation)
Other public employees are treated as public figures depending on nature of powers and duties. See Jones
v. Palmer Communications (Iowa 1989) (“…it strains credibility to say that…a low ranking firefighter had
substantial responsibility over the conduct of government affairs.”)
WHO IS A PUBLIC FIGURE?
Scotus:
Gertz
Note the general purpose public figure distinction (see waldbaum)

Firestone (divorcee from wealthty industrial family not a public figure because she did not assume any role
of especial prominence in the affairs of society, other than palm beach society, and she did not thrust
herself to the forefront of any particular public controversy in order to influence the resolution of the isues
involved in it.”)
Interesting subtext there is that being of renown in a small society is different than other, larger/more
prominent societies (would this have been different if she were from a huge city?). The public’s “great
interest” in her divorce did not make her a public figure. Not sure I really agree with this (parallels to hulk
Hogan?)
Wolston
Hutchinson
General Purpose Public Figures
“…a well known celebrity, his name a household word. The public recognizes him and follows his words
and deeds, either because it regards his ideas, conduct or judgment as worthy of attention or because he
actively pursues that consideration.” Waldbaum v. Fairchild Publications, Inc. (D.C.Circ. 1980)
Kato kaelin, church of Scientology – neither challenged the public figure characterization.
Limited Purpose Public Figures
WFAA-TV, Inc. v. Lemore (Texas 1988)
Involuntary Public Figures
Very rare.
Meeropol v. Nizer (rosenberg’s kids), Carson v. Allied News (johnny carson’s wife) Street v. NBC (main
prosecution witness in Scottsboro lynching case)
Is this consistent with gertz/wolston?
Dameron v. Washington Magazine, Inc. (air traffic controller involved in air accident sues for defamation
when a later piece on a different crash mentioned him in a sidebar, calling the cause “controller failure.”
Court sumjudg for magazine, holds him to be involuntary limited purpose public figure – fair game for the
purpose of discussing the crashes generally and the crash in particular.
Organied crime connections can make you involuntary public figure. See Marcone. Having a job that
brings you around public officials too (Clyburn). But see Wells v. Liddy (limiting categorization to “central
figure in significant public controversy and assumes the risk of publicity; apparently g. Gordon liddy
doesn’t meet this standard which is fuckign ridiculous) Alharbi v. Beck (boston bombing bystander
suspected and cleared of involvement; IPF distinction of limited duration and goes away when you cease to
be a suspect).

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MLRC READINGS

Series of observations on how kavanaugh court might affect media law:

Public v. Private Figures

Candidates for public office

WHO IS A PUBLIC FIGURE?

Note the general purpose public figure distinction (see waldbaum)

General Purpose Public Figures

Limited Purpose Public Figures

WFAA-TV, Inc. v. Lemore (Texas 1988)

Involuntary Public Figures

Is this consistent with gertz/wolston?

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