New York Law Journal
January 25, 1979
Page 1, Column 1
News Media and the Law
By James C. Goodale
Public or Private Figures
With the Supreme Court turning noticeably cooler towards the press in recent
years, a grant of certiorari by the court in press cases is hardly greeted with great
enthusiasm by news media. Thus, correctly or not, a not so slight shiver went up the
spines of most press organizations a few weeks ago when the Supreme Court granted
certiorari in two rather undistinguished libel cases, Wolston v. Reader’s Digest Ass’n,1
and Hutchinson v. Proxmire,2 both involving questions of who is a “public figure” in socalled constitutional libel cases.
Important Question
The question is an important one for the press because the more broadly the courts
define public figures the more protection the press has. The press fear, of course, is that
the court has granted certiorari in these cases to consider narrowing the definition and
thus the protection the press has in these areas.
Present law gives the press extraordinary protection in libel cases involving public
officials and public figures. In New York Times Co. v. Sullivan3, the Supreme Court held
that the police commissioner of Montgomery, Ala., could not recover for a libelous
statement unless it could be proved that it was intentionally false or made with “reckless
disregard of whether it was false or not.”4 In later cases that standard became refined to
require proof that the reporter or editor entertained serious doubts as to the truth”5 of the
1
578 F. 2d 427 (DC 7th Cir. 1978), cert. granted, 47 USLW 3463, No. 78-5414 (U.S.
Jan. 8, 1979).
2
599 F. 2d 1027 (7th Cir. 1978), cert. granted, 47 USLW, No. 78-680 (U.S. Jan. 8,
1979).
3
376 U.S. 254 (1964).
4
Id. at 280.
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particular statements in question, and was extended to cover public figures as well as
public officials.
In Rosenbloom v. Metromedia, Inc.,6 the plurality of the Supreme Court extended
the Sullivan doctrine to cover any person involved in a public controversy whether or not
such a person was technically a public official or a public figure. In 1974, however, the
court reversed Rosenbloom and held in Gertz v. Robert Welch, Inc.,7 that press liability
for private individuals was to be governed by state law, so long as the state did not
impose liability without fault.
Thus, the distinction between a private and public person can be a crucial one.
The press enjoys virtual immunity for publication under the Sullivan test if the plaintiff is
a public official or figure; it may be held liable for ordinary negligence, if a particular
state has adopted that test under Gertz.8
The Firestone Case
In Time, Inc. v. Firestone, 9(1974) the court held that a member of a socially
prominent family was not a public figure and therefore Time magazine could not have the
benefits of the Sullivan test in reporting about a divorce case in which there was
testimony that the “extramarital escapades of the plaintiff were bizarre and of an amatory
nature which would have made Dr. Freud’s hair curl.”10 Relying on Gertz, the Firestone
5
St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
6
403 U.S. 29 (1971).
7
418 U.S. 323 (1974).
8
States have differed in their response to Gertz. New York, for example has adopted
a test which requires proof “that the publisher acted in a grossly irresponsible
manner” before liability may be imposed. Chapadeau v. Utica Observer-Dispatch,
Inc., 38 NY 2d 196, 197, 379 NYS 2d 61, 341 NE 2d 569, 571 (1975). Colorado has
adopted the rule of Rosenbloom but with the St. Amant definition of “reckless
disregard” (see fn: 5 supra and accompanying text). Walker v. Colorado Springs
Sun, Inc., 188 Colo. 86, 538 P. 2d 450, cert. denied, 423 U.S. 1025 permits recovery
for negligence publication in cases involving private figures. See McCrory, Libel,
Communications Law 44-45 (PLI 1978).
9
424 U.S. 448 (1976).
10
Id. at 450 (quoting from the final judgment of divorce).
2
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Court pointed out that a public figure must be either “pervasive,” i.e., one who has
assumed a role “of especial prominence in the affairs of society,” or a “vortex” public
figure — one who has “thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues involved.”11
Mrs. Firestone, the court held, had no role of especial prominence in the affairs of
society — unless merely in Palm Beach where she lived. The court reached this
conclusion even though Mrs. Firestone had held press conferences and been on charity
committees allegedly to advance her social position. Mrs. Firestone was not a “vortex”
figure because she had not thrust herself into a public controversy in order to resolve that
controversy. She was, therefore, unlike General Walker, the former Army commander,
who in 1962 publicly proclaimed his opposition to the desegregation on of the University
of Mississippi and then went to the college campus where students and Federal marshals
were engaged in a confrontation which later turned into a riot. Walker was held to be a
vortex public figure in the leading case of Curtis Publishing Co. v. Butts,12 decided by the
Supreme Court in 1967.
Relatives of ‘Curtis’
The Proxmire and Reader’s Digest cases, to be heard by the Supreme Court this
spring, are both “vortex” ones and would seem to be first cousins of Curtis Publishing. In
the first case, Senator Proxmire gave his well-known “Golden Fleece” award to NASA
“for spending $500,000 to fund research . . . studying why ‘rats, monkeys and humans
bite and clench their jaws’.”13 In his newsletter to his constituents, and in a similar
statement made on television and radio,14 “the Senator concluded that “$500,000 of your
tax money [was spent] to reach the astounding conclusion that people and monkeys
clench their jaws when angry or forced to stop smoking or confronted with loud noise.”15
He went on to point out that Dr. Roland Hutchinson had applied for and received the
$500,000 for this grant. Hutchinson issued a press release in response to the Proxmire
award – a release carried in many papers – and then sued Proxmire for libel.
11
Id. at 453 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
12
388 U.S. 130 (1967).
13
579 F. 2d at 1030 (quoting from Sen. Proxmire’s April 18 1975 speech to the
Senate).
14
Id. at 1030 n. 3.
15
Id. at 1037.
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The Seventh Circuit held that Dr. Hutchinson was a public figure since he had
voluntarily applied for the grant, received substantial funds from this application, had
published numerous articles about his work, and many stories regarding his research had
appeared in local papers. That court pointed out “the nature and extent of an individual’s
participation in the particular matter may make him a public figure for that issue.”16 It
also held the speech-and-debate clause immunized all of Proxmire’s statements from libel
except those which were broadcast.
The Russian Spy
In the Reader’s Digest17 case, the Digest reported that Ilya Wolston had been a
Russian spy during the 1950’s. Wolston had been subpoenaed before a Federal grand
jury in 1958 investigating the activities of Soviet intelligence in the United States. He
refused to appear to answer the grand jury subpoena and was held in contempt. His
action attracted considerable notoriety at the time and was well-reported in the press.
The question in Reader’s Digest is two-fold — (1) whether Wolston was a public
figure, and (2) whether he remained one twenty years later. The Seventh Circuit held that
Wolston had voluntarily injected himself into the public arena by failing to honor the
grand jury subpoena. Having thus consented to become a public figure, he could not at a
later time revoke it. A “mere lapse of time,” the court said, will not reduce a public
figure to a private one. “Wolston’s Involvement . . . continues to be a legitimate topic of
debate today . . .”18 As a consequence of this conclusion, a motion for summary
judgment was decided in Reader’s Digest’s favor.
It does not seem totally unfair — with due respect to the court and the litigants in
Reader’s Digest and Proxmire — to note that the two cases are not monumental pieces of
constitutional litigation. This being so, it is fair to ask why this court — with justifiable
complaints about an increased caseload19 — would reach out to hear them. The only
answer would seem to be that the court wishes to consider again whether cases of this
sort are entitled to “full” First Amendment protection, i.e., protection under the Sullivan
case — or whether they are to be relegated to more limited treatment under state law.
16
Id. at 1034.
17
578 F. 2d 427 (D.C. Cir. 1978), cert. granted, 47 USLW 3463, No. 78-5414 (U.S.
Jan. 8, 1979).
18
Id. at 431
19
E.g. Brown Transport Corp. v. Atcon, 47 USLW 3387, No. 77-1581 (U.S. Dec 4,
1978) (White J., dissenting from denial of certiorari).
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Question of Protection
The question then becomes what speech is “fully” protected by the First
Amendment and what is not. The present court seems to be taking a narrower view of
this subject then earlier courts, see e.g. the Firestone case above and Federal
Communications Comm’n v. Pacifica20 the so called dirty-words case of the last term. In
the Pacifica case the court added so-called indecent language (not obscenity) in some
circumstances to its list of unprotected speech.
Yet, presumably even this court would agree, as have earlier courts, that so-called
“political speech” — speech directly or indirectly concerning government — is entitled to
“full” protection under the First Amendment. Usually, the argument in this area is
whether such protection is qualified or absolute or whether the speech is political or not.
In a sense the argument over who is a public figure and who is not is a shorthand version
of this argument.
A story about Mrs. Firestone’s extra-marital behavior could be said not to involve
political speech, merely gossip — and thus arguably not protected, although commentary
about how divorces are granted or not would seem to involve Political speech. A story
about General Walker’s views on race and his actions with respect to such views is
political speech, and so on.
In my view, the argument over what is and what is not political speech is not
totally relevant for First Amendment analysis. Free speech and a free press exists for
many more purposes than merely to provide information as how we are governed. The
arts, as well, are protected by the First Amendment,21 as Southeastern Promotions, Ltd. v.
Conrad,22 Miller v. California23 and Kingsley International Pictures Corp.24 have
demonstrated.
20
98 S. Ct. 3026 (1978).
21
The reason for such protection was succinctly stated in Winters v. New York, 333
U.S. 507, 510 (1948):
“We do not accede to appellee’s suggestion that the constitutional protection for a
free press applies only to the exposition of ideas. The line between the informing
and the entertaining is too elusive for the protection of that basic right. Everyone is
familiar with the instance of propaganda through fiction. What is one man’s
amusement teaches another’s doctrine.”
22
420 U.S. 546 (1975).
23
413 U.S. 15 (1973).
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Affirmance Advocated
Yet, if political speech is an appropriate approach to analysis, then both Proxmire
and Reader’s Digest would seem properly decided by the lower court and should be
affirmed by the Supreme Court. Clearly, information about how our Government grants
money and who gets it — particularly in these days of inflation — should be the subject
of unlimited comment by anyone — especially by a United States Senator. Commentary
of an individual’s relationship to a grand-jury investigation of twenty years ago may not
rise to the identical level of political speech, as commentary by an incumbent Senator, but
it too is reasonably close and it, too, should not be restricted.
In base terms, then, the question before the court in these two cases is whether
publication and dissemination of information of the sort involved in the cases should be
encouraged or discouraged. Affirmance will, of course, encourage - but in view of recent
actions by the court in press and speech cases one can only be concerned about the result
the court may reach in the cases.
James C. Goodale, who writes this column as a regular feature of the Law
Journal, is a member of the New York Bar and executive vice president of the New
York Times Company. He is a lecturer at the Yale Law School and chairman of the
Special Committee on Communications Law of The Association of the Bar of the
City of New York.
24
360 U.S. 684 (1959).
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