Reexamining the “Germaneness” Test for Limited Purpose Public Figures

by David Clements*

What stan­dard should be applied to lim­it­ed pur­pose pub­lic fig­ures – indi­vid­u­als that are pub­lic fig­ures only due to their involve­ment in a par­tic­u­lar pub­lic con­tro­ver­sy – who bring defama­tion claims, when the alleged defam­a­to­ry remarks are unre­lat­ed to the plaintiff’s pur­pose for being a pub­lic fig­ure? David Clements (’17) exam­ines this ques­tion, pre­sent­ed at the Spring 2016 Mar­den Moot Court Com­pe­ti­tion, held at New York Uni­ver­si­ty School of Law. The “ger­mane­ness test” employed by sev­er­al Cir­cuit Courts of Appeal deter­mines the extent of First Amend­ment pro­tec­tions a defen­dant in a defama­tion suit receives: a chal­lenged state­ment ger­mane to the con­tro­ver­sy for which a defama­tion claimant is a pub­lic fig­ure receive more pro­tec­tion than a state­ment unre­lat­ed to that con­tro­ver­sy. This Con­tri­bu­tion urges the Supreme Court to revis­it this ger­mane­ness test, as applied to lim­it­ed pur­pose pub­lic fig­ures, for three rea­sons: first, allow­ing lim­it­ed pur­pose pub­lic fig­ures to recov­er dam­ages for neg­li­gent defama­tion would cause a chill­ing effect on the press; sec­ond, engag­ing in a inten­sive inves­ti­ga­tion into whether cer­tain com­ments are “ger­mane” to a par­tic­u­lar plaintiff’s pur­pose as a pub­lic con­sti­tutes a pre­sump­tive­ly uncon­sti­tu­tion­al con­tent-based analy­sis of speech; third, the dis­tinc­tion between lim­it­ed pur­pose and gen­er­al pur­pose pub­lic fig­ures is no longer applic­a­ble due to tech­no­log­i­cal advance­ment and the height­ened access to self-help chan­nels that even lim­it­ed pur­pose pub­lic fig­ures now possess.

---

First Amend­ment pro­tec­tions of free­dom of speech and of the press often clash with com­mon law defama­tion claims. In New York Times Co. v. Sul­li­van,² the Supreme Court attempt­ed to strike a bal­ance between two coun­ter­vail­ing inter­ests: the com­mon law’s pro­tec­tion of a defamed person’s rep­u­ta­tion result­ing from false report­ing on the one hand, and First Amend­ment pro­tec­tions of the press and free­dom of speech on the oth­er. The Supreme Court under­stood that it could not impose lia­bil­i­ty for every false state­ment pub­lished against a pub­lic offi­cial, as inac­cu­ra­cies are inevitable in a free-flow­ing pub­lic debate.³ Because impos­ing lia­bil­i­ty for neg­li­gent mis­state­ments would damp­en the poten­cy of pub­lic debate and the free­dom of press, the Supreme Court held that a pub­lic offi­cial could only recov­er “dam­ages for a defam­a­to­ry false­hood relat­ing to his offi­cial con­duct [if] he proves that the state­ment was made with ‘actu­al malice’—that is, with knowl­edge that it was false or with reck­less dis­re­gard of whether it was false or not.”⁴

The Supreme Court extend­ed the actu­al mal­ice require­ment to pub­lic figures—those who “[com­mand] suf­fi­cient con­tin­u­ing pub­lic inter­est and [have] suf­fi­cient access to the means of coun­ter­ar­gu­ment to be able ‘to expose through dis­cus­sion the false­hood and fal­lac­i­es’ of the defam­a­to­ry state­ments.”⁵ In con­trast, pri­vate fig­ures need not estab­lish actu­al mal­ice and may rely on state law requir­ing either neg­li­gence or actu­al fault.⁶

In 1974, the Supreme Court offered two jus­ti­fi­ca­tions for why the dis­tinc­tion between pri­vate and pub­lic fig­ures jus­ti­fies dif­fer­ent stan­dards for estab­lish­ing defen­dant lia­bil­i­ty.⁷ First, it is far eas­i­er for pub­lic fig­ures and pub­lic offi­cials to defend them­selves and obtain self-help.⁸ Through their supe­ri­or influ­ence, they are bet­ter able to “[use] avail­able oppor­tu­ni­ties to con­tra­dict the lie or cor­rect the error and there­by to min­i­mize its adverse impact on rep­u­ta­tion.”⁹ Sec­ond, pub­lic offi­cials and pub­lic fig­ures have cho­sen to be in the spot­light and, to some extent, assume the risk of pub­lic scruti­ny, even through untrue state­ments.¹⁰ Con­trar­i­ly, a pri­vate indi­vid­ual who has not accept­ed the spot­light has “relin­quished no part of his inter­est in the pro­tec­tion of his own good name.”¹¹ Because pri­vate indi­vid­u­als do not have access to the same self-help chan­nels as pub­lic fig­ures and offi­cials, and have not assumed the same risk, courts do not impose the height­ened stan­dard of proof on their defama­tion claims.

Rec­og­niz­ing that there are dif­fer­ent lev­els of “pub­lic fig­ures,” the Gertz court des­ig­nat­ed two cat­e­gories of pub­lic fig­ures, which have come to be known as “gen­er­al pur­pose” and “lim­it­ed pur­pose.”¹² Gen­er­al pur­pose pub­lic fig­ures are those who are in “posi­tions of such per­sua­sive pow­er and influ­ence that they are deemed pub­lic fig­ure for all pur­pos­es.”¹³ Because of their mas­sive influ­ence, gen­er­al pur­pose pub­lic fig­ures are bound by the height­ened New York Times stan­dard and must show actu­al mal­ice to prove any claim of defama­tion, regard­less of whether the false state­ments were relat­ed to the rea­sons for their fame.  Alter­na­tive­ly, lim­it­ed pur­pose pub­lic fig­ures are indi­vid­u­als who “have thrust them­selves to the fore­front of par­tic­u­lar pub­lic con­tro­ver­sies.”¹⁴ Courts have con­sis­tent­ly held that lim­it­ed pur­pose pub­lic fig­ures must show actu­al mal­ice to recov­er dam­ages when the sub­ject of the defam­a­to­ry state­ments is con­nect­ed to the pur­pose for which the plain­tiff is a pub­lic fig­ure.¹⁵

How­ev­er, the Supreme Court has yet to offer guid­ance on the stan­dard of lia­bil­i­ty that applies to mis­state­ments that are made unre­lat­ed to the plaintiff’s pur­pose for being a pub­lic figure.

*****

A num­ber of cir­cuits have held that “[m]isstatements whol­ly unre­lat­ed to the con­tro­ver­sy . . . do not receive the New York Times pro­tec­tion.”¹⁶ There­fore, while lim­it­ed pur­pose pub­lic fig­ures must show actu­al mal­ice to recov­er dam­ages for mis­state­ments relat­ing to the pur­pose for which they are pub­lic fig­ures, these courts have deferred to state law for the stan­dard for defam­a­to­ry state­ments made that are unre­lat­ed to lim­it­ed pur­pose pub­lic fig­ures’ claims.¹⁷

This Con­tri­bu­tion argues that it is time to reex­am­ine the mer­its of the stan­dard – known as the “ger­mane­ness” test – applied to lim­it­ed pur­pose pub­lic fig­ures for three rea­sons. First, due to the con­tem­po­rary dis­ag­gre­gat­ed media land­scape and an incon­sis­tent – inso­far as it does not pro­vide a reli­able basis upon which the media can pre­dict whether a plain­tiff would be con­sid­ered a lim­it­ed pur­pose pub­lic fig­ure or pri­vate indi­vid­ual in lit­i­ga­tion – line of cas­es, allow­ing lim­it­ed pur­pose pub­lic fig­ures to recov­er dam­ages for neg­li­gent defama­tion would cause a chill­ing effect on the press. Sec­ond, engag­ing in a inten­sive inves­ti­ga­tion into whether cer­tain com­ments are “ger­mane” to a par­tic­u­lar plaintiff’s pur­pose of pub­lic fig­ure is akin to a con­tent-based analy­sis of speech, which the Supreme Court has found to be pre­sump­tive­ly uncon­sti­tu­tion­al.¹⁸ Third, Gertz’s dis­tinc­tion between lim­it­ed pur­pose and gen­er­al pur­pose pub­lic fig­ures is no longer applic­a­ble due to tech­no­log­i­cal advance­ment and the height­ened access to self-help chan­nels that even lim­it­ed pur­pose pub­lic fig­ures now possess.

First, and with respect to the poten­tial “chill­ing effect” on First Amend­ment expres­sion, a plaintiff’s sta­tus as a pub­lic or pri­vate fig­ure can be dis­pos­i­tive fac­tor in defama­tion lit­i­ga­tion because it deter­mines the plaintiff’s bur­den of proof. Con­se­quent­ly, because pub­lic fig­ures must show actu­al mal­ice in defama­tion cas­es, media out­lets must only take pre­cau­tions to ensure that they are not act­ing with knowl­edge or reck­less dis­re­gard for the truth regard­ing pub­lic fig­ures.¹⁹ Con­verse­ly, because media out­lets may be found liable for mere neg­li­gence when report­ing on a pri­vate indi­vid­ual, they must take far greater pre­cau­tions to ensure the truth­ful­ness of every state­ment they pub­lish about that indi­vid­ual.²⁰

Accord­ing to the Wald­baum doc­trine, after deter­min­ing whether (a) a plain­tiff is a pub­lic fig­ure and (b) what kind of pub­lic fig­ure plain­tiff is, courts must per­form a con­tent-based analy­sis to deter­mine whether (c) the com­plained-of state­ment is “ger­mane” to what makes a plain­tiff a pub­lic fig­ure.²¹ The prob­lem for poten­tial defen­dants is that it is not clear what makes one a pub­lic fig­ure, or a gen­er­al pur­pose pub­lic fig­ure, or a lim­it­ed pur­pose pub­lic fig­ure, and what, if any­thing, dif­fer­en­ti­ates these three cat­e­gories. All that stands between the media and mas­sive jury-gen­er­at­ed defama­tion judg­ments is this ambigu­ous test, applied incon­sis­tent­ly across the country.

In his arti­cle “Pri­vate or Pub­lic? Elim­i­nat­ed the Gertz Defama­tion Test,” Jeff Koss­eff notes that courts have used sub­jec­tive judg­ments about the sig­nif­i­cance of a person’s posi­tion to deter­mine whether a plain­tiff is a pub­lic fig­ure.²² This process nec­es­sar­i­ly leads to unpre­dictabil­i­ty, as it is often based on the indi­vid­ual judge’s deter­mi­na­tion of what is newsworthy—a fac­tor which could also dif­fer based on the opin­ion of a news­pa­per edi­tor. For exam­ple, in Moss v. Stockard, the coach of the Uni­ver­si­ty of the Dis­trict of Columbia’s women’s bas­ket­ball team sued the uni­ver­si­ty and its ath­let­ic direc­tor for slan­der.²³ The court held that she was not a pub­lic fig­ure because, by “achiev­ing some suc­cess as a bas­ket­ball coach, she did not expose her­self to a greater risk of being false­ly accused.”²⁴ Although she was well known in some cir­cles, the court held that she did not qual­i­fy as a lim­it­ed pur­pose pub­lic fig­ure.²⁵ Alter­na­tive­ly, in Bar­ry v. Time, Inc., the court held that the men’s bas­ket­ball coach at the Uni­ver­si­ty of San Fran­cis­co was a pub­lic fig­ure because his “deci­sion to accept the posi­tion [as head coach] inevitably thrust [him] into the fore­front” of a pub­lic con­tro­ver­sy.²⁶

Although courts often take the plaintiff’s role in the com­mu­ni­ty into account when deter­min­ing whether she is a pub­lic fig­ure, there is no clear stan­dard for what lev­el of impact a plain­tiff must have to be labeled as such. For exam­ple, in Girod v. El Dia, Inc.,²⁷ the U.S. Dis­trict Court for Puer­to Rico held that plain­tiff Girod, the pres­i­dent of a bank­ing com­pa­ny was a pub­lic fig­ure because “[t]he finan­cial health of the trust com­pa­ny was the pub­lic issue, since the fate of the [com­pa­ny] as a com­mer­cial bank­ing insti­tu­tion on a small island com­mu­ni­ty, involved and affect­ed the prop­er­ty of many per­sons.” How­ev­er, in Bank of Ore­gon v. Inde­pen­dent News, the Ore­gon Court of Appeals held that the plain­tiff, despite being the pres­i­dent of a local bank, was not a pub­lic fig­ure because the bank “is a par­a­digm mid­dle ech­e­lon, suc­cess­ful busi­ness … and is not a pub­lic fig­ure by rea­son of engag­ing in that busi­ness.”²⁸

Courts have also had a hard time cre­at­ing a uni­form test for what is con­sid­ered “vol­un­tary” for the pur­pos­es of Gertz’s “assump­tion of the risk” the­o­ry. In Pega­sus v. Reno News­pa­pers, Inc., the Neva­da Supreme Court used the Gertz test and found that the plain­tiff restau­rant was a lim­it­ed pur­pose pub­lic fig­ure because it “vol­un­tar­i­ly entered the pub­lic spec­trum by pro­vid­ing pub­lic accom­mo­da­tion and seek­ing pub­lic patrons.”²⁹ How­ev­er, in Lee v. City of Rochester, the court found that the for­mer own­er of a bar and dance club was not a pub­lic fig­ure because “[t]here is absolute­ly no evi­dence that plain­tiff vol­un­tar­i­ly involved him­self . . . in such a way as to grab the lime­light or achieve spe­cial promi­nence in any debate.”³⁰ The report­ed facts showed that the plain­tiff in Lee made many more efforts than the Pega­sus plain­tiff to pro­mote his busi­ness; nev­er­the­less, only the lat­ter was found to have “vol­un­tar­i­ly inject[ed] him­self … into a … pub­lic con­tro­ver­sy.”³¹

*****

In addi­tion to the murky dis­tinc­tion between “pub­lic” and “pri­vate” fig­ures, the “ger­mane­ness” require­ment adds to this uncer­tain­ty. Even if there were pre­dictabil­i­ty in the deter­mi­na­tion of a person’s sta­tus, the courts have nev­er artic­u­lat­ed what would be “ger­mane” to the con­tro­ver­sy or the plaintiff’s pur­pose for being a pub­lic fig­ure.³² What does “whol­ly unre­lat­ed” mean? What is “ade­quate­ly linked”? What if the rea­son that peo­ple rec­og­nize the lim­it­ed pur­pose pub­lic figure’s name is “whol­ly unre­lat­ed” to the mis­state­ment but nev­er­the­less the only rea­son it was worth report­ing? Courts have not giv­en any guid­ance on these points, which will lead to a chill­ing of report­ing, free speech, and pub­lic debate.

Because courts have cre­at­ed an inco­her­ent and often incon­sis­tent line of cas­es, media out­lets do not have the abil­i­ty to pre­dict whether the sub­ject of their reports would be con­sid­ered a pri­vate or lim­it­ed pur­pose pub­lic fig­ure in pos­si­ble defama­tion claims. This would nec­es­sar­i­ly lead risk-averse media out­lets to assume that many sub­jects would be con­sid­ered pri­vate indi­vid­u­als, there­fore increas­ing the risk of a “chill­ing effect” on their First Amend­ment rights. They are more like­ly to unnec­es­sar­i­ly ver­i­fy the truth­ful­ness of every detail in their reports, there­by lim­it­ing their abil­i­ty to con­tribute to the vig­or­ous pub­lic debate as was pro­tect­ed in Sul­li­van.³³

Gertz was decid­ed in 1974, when major news­pa­pers and broad­cast­ers were the pri­ma­ry source of news. How­ev­er, nowa­days, these tra­di­tion­al out­lets are los­ing their mar­ket share to civic jour­nal­ism and Inter­net blogs, which often have infe­ri­or resources to com­mit to fact-check­ing. abil­i­ty and resources to check facts. A report by the News­pa­per Asso­ci­a­tion of Amer­i­ca shows that while 72.3% of adults read the dai­ly news­pa­per in 1974, that num­ber decreased to 48.4% in 2007 and fur­ther decreased to 41.6% in 2013.³⁴ It is true that major news­pa­per com­pa­nies and oth­er media out­lets have vast­ly expand­ed their online pres­ence to com­bat the decreas­ing read­er­ship of their phys­i­cal papers.³⁵ How­ev­er, because an online pres­ence is sig­nif­i­cant­ly less cost­ly than tra­di­tion­al news­pa­per print­ing and tele­vi­sion broad­cast­ing, these com­pa­nies do not have the same monop­oly in the online space as they do in print.³⁶ There­fore, the Inter­net has allowed for non­prof­it and civic journalism—e.g., Huff­in­g­ton Post and ProP­ub­li­ca—to emerge as pri­ma­ry sources of news for many.³⁷ As online view­er­ship of these less tra­di­tion­al out­lets increas­es, the mar­ket share belong­ing to the more tra­di­tion­al out­lets decreas­es.³⁸ In fact, the Huff­in­g­ton Post’s web­site had more view­ers on its web­site than ABC News had in Jan­u­ary 2008.³⁹

Although they are suc­cess­ful­ly com­pet­ing with tra­di­tion­al media con­glom­er­ates in terms of read­er­ship, small­er online media com­pa­nies are less able to entire­ly ensure the valid­i­ty and truth­ful­ness of every work they pub­lish.⁴⁰ Libel insur­ance is more expen­sive and more dif­fi­cult to pur­chase for blog­gers and small­er online news orga­ni­za­tions than it is for the large con­glom­er­ates that dom­i­nat­ed the media in the 1970s.⁴¹ There­fore, because the courts have failed to cre­ate a clear doc­trine for clas­si­fy­ing gen­er­al pur­pose pub­lic fig­ures, lim­it­ed pur­pose pub­lic fig­ures, and pri­vate indi­vid­u­als, risk averse media com­pa­nies are like­ly to assume the worst by treat­ing the sub­ject of an arti­cle as a pri­vate indi­vid­ual.⁴² Because guard­ing against neg­li­gent defama­tion is far hard­er than guard­ing against “actu­al mal­ice,” this will nec­es­sar­i­ly lead to a refusal to run cer­tain sto­ries, there­by chill­ing the exer­cise of First Amend­ment rights.⁴³

Addi­tion­al­ly, recent Supreme Court hold­ings have thrown the Wald­baum “ger­mane­ness” test into doubt because requir­ing a fact-inten­sive inquiry into the “ger­mane­ness” of a defam­a­to­ry state­ment is inher­ent­ly a con­tent-based analy­sis.⁴⁴ While the public/private analy­sis is inher­ent­ly content-neutral—its analy­sis is com­plete­ly inde­pen­dent of the actu­al speech in question—the “ger­mane­ness” analy­sis requires a court to sub­merge itself up to its neck in messy con­tent-based analy­sis. Because con­tent that is ger­mane to the lim­it­ed pur­pose pub­lic figure’s pur­pose for being famous is treat­ed dif­fer­ent­ly than con­tent that is not ger­mane, this is a pro­hib­it­ed con­tent-based analysis.

On its face, the ger­mane­ness test pro­tects cer­tain kinds of defam­a­to­ry false­hoods (name­ly, those relat­ed to the details of a pub­lic fig­ure that the pub­lic fig­ure has cho­sen to make pub­lic) and expos­es oth­ers (those details that the pub­lic fig­ure would most like to hide). As the Court explained, “the First Amend­ment impos­es … a ‘con­tent dis­crim­i­na­tion’ lim­i­ta­tion upon a State’s pro­hi­bi­tion of pro­scrib­able speech.”⁴⁵ And, as the Court affirmed just last term, a “law that is con­tent based on its face is sub­ject to strict scruti­ny,” no mat­ter the state’s motive or the under­ly­ing pol­i­cy goals of the law.⁴⁶ A rule that is good enough for Con­gress is sure­ly good enough for the courts.

How are the courts to assess whether this accu­sa­tion is “ger­mane” to a plaintiff’s pub­lic fig­ure sta­tus? Why are courts deter­min­ing what kinds of speech are “ger­mane” to the pub­lic debate and which are unre­lat­ed to the mar­ket­place of ideas? Courts “have long rec­og­nized that it is dif­fi­cult to dis­tin­guish pol­i­tics from enter­tain­ment, and dan­ger­ous to try.”⁴⁷ It is time to reign in the chaos of the courts and affirm that in this coun­try, we are not in the busi­ness of con­tent-based reg­u­la­tion any­where, in any branch of government.

*****

Final­ly, in today’s media land­scape, the dif­fer­ence between gen­er­al pur­pose and lim­it­ed pur­pose pub­lic fig­ures sim­ply no longer exists when crit­i­cal­ly exam­ined in light of the fun­da­men­tal rea­son­ing estab­lished by Gertz.

The 1974 Gertz Court rea­soned that pub­lic fig­ures must prove actu­al mal­ice in defama­tion claims because they are bet­ter able to use “avail­able oppor­tu­ni­ties to con­tra­dict the lie and there­by to min­i­mize its adverse impact on rep­u­ta­tion.”⁴⁸ This the­o­ry was not some flight of dic­ta or post-hoc jus­ti­fi­ca­tion; rather, it was the cen­tral rea­son for expand­ing the “actu­al mal­ice” require­ment from pub­lic offi­cials to pub­lic fig­ures in Cur­tis Publ’g Co. v. Butts.⁴⁹ While this rea­son­ing was cer­tain­ly applic­a­ble when Gertz and Wald­baum were decid­ed, the era where one need­ed a print­ing press or a pow­er­ful radio trans­mit­ter to reach the pub­lic is well and tru­ly over. The mod­ern dis­ag­gre­gat­ed media land­scape and the emer­gence of the Inter­net have enabled even the most pri­vate indi­vid­u­als to pub­lish and broad­cast their mes­sages to the public.

How­ev­er, just because anybody’s posts can poten­tial­ly reach an incred­i­bly wide audi­ence, we ought not dis­re­gard the dis­tinc­tion between pub­lic and pri­vate indi­vid­u­als entire­ly. Some people—due to their fame—still have a rel­a­tive­ly supe­ri­or influ­ence and abil­i­ty to be heard than oth­ers.⁵⁰

Mod­ern tech­nol­o­gy has, how­ev­er, exposed the obso­les­cence of the “lim­it­ed pur­pose” and “gen­er­al pur­pose” dis­tinc­tion. By virtue of their sta­tus as “pub­lic fig­ures,” even those who are pub­lic only for the most lim­it­ed pur­pose have still “thrust them­selves to the fore­front of par­tic­u­lar pub­lic con­tro­ver­sies.”⁵¹ These indi­vid­u­als have a pow­er­ful plat­form to express their views on top­ics well beyond their rea­sons for being pub­lic figures.

Ulti­mate­ly, the Gertz “self-help” ratio­nale for a height­ened stan­dard ought to apply to all defama­tion claims brought by any pub­lic fig­ure, regard­less of whether they are lim­it­ed pur­pose or gen­er­al pur­pose, and regard­less of the defam­a­to­ry remark’s “ger­mane­ness” to the plaintiff’s rea­son for being famous. This should remain the case even if there were, by some mir­a­cle, a clear and eas­i­ly applic­a­ble con­tent-neu­tral test through which we could deter­mine what “ger­mane­ness” means in this context.

In con­clu­sion, twen­ty-first cen­tu­ry tech­nolo­gies have led courts and aca­d­e­mics to reex­am­ine the mer­its of var­i­ous tra­di­tion­al legal doc­trines. Defama­tion claims brought by lim­it­ed pur­pose pub­lic fig­ures are no excep­tion. The “ger­mane­ness” test, as artic­u­lat­ed by the D.C. Cir­cuit in Wald­baum and uti­lized in sev­er­al oth­er cir­cuits, adds an addi­tion­al lay­er of uncer­tain­ty to an already-hazy defama­tion doc­trine, is out of date with the con­tem­po­rary dis­ag­gre­gat­ed media, is inher­ent­ly con­text-based, and does not com­port with the orig­i­nal rea­son­ing of Gertz for requir­ing pub­lic fig­ures and offi­cials to prove the height­ened actu­al mal­ice stan­dard as artic­u­lat­ed in New York Times v. Sul­li­van. As a result, it is high time for the legal com­mu­ni­ty to do away with the unnec­es­sary lim­it­ed purpose/general pur­pose pub­lic fig­ure dichoto­my and require all pub­lic fig­ures to show actu­al mal­ice in every defama­tion suit.

---

* This Con­tri­bu­tion reflects my expe­ri­ence writ­ing the prob­lem for the Spring 2016 Mar­den Moot Court Com­pe­ti­tion, spon­sored by the New York Uni­ver­si­ty School of Law Moot Court Board, and held in April, 2016. The prob­lem posed two ques­tions: first, whether the domes­tic rela­tions excep­tion to fed­er­al juris­dic­tion applies to “aris­ing under” juris­dic­tion, and sec­ond, what stan­dard should be applied to lim­it­ed pur­pose pub­lic fig­ures who bring defama­tion claims when the alleged defam­a­to­ry remarks are unre­lat­ed to the plaintiff’s pur­pose for being a pub­lic fig­ure. This arti­cle dis­cuss­es the lat­ter ques­tion. I would like to express my sin­cer­est grat­i­tude to my fel­low Mar­den Writer Kaitlin Paul­son, our Asso­ciate Exec­u­tive Edi­tor Tiana Voeglin, Case­book Exec­u­tive Edi­tor Michael Tra­cht, Mar­den Exec­u­tive Edi­tor Julia Gump­per, Edi­tor-in-Chief Alec Web­ley, and the entire Moot Court Board for their sup­port, ideas, crit­i­cism, and feedback.

2. 376 U.S. 254 (1964).

3. Id. at 271.

4. Id. at 279–80.

5. Cur­tis Pub’g Co. v. Butts, 388 U.S. 130, 154–55 (1967).

6. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).

7. Id. at 344.

8. Id.

9. Id.

10. Id.

11. Id. at 345.

12. Id.

13. Id.

14. Id. (empha­sis added).

15. See, e.g., Ander­son v. Lib­er­ty Lob­by, Inc., 477 U.S. 242, 257 (1986); Hat­fill v. The New York Times Co., 532 F.3d 312, 318 (4th Cir. 2008); Clyburn v. News World Commc’ns, Inc., 903 F.2d 29, 33 (D.C. Cir. 1990); Tavoular­eas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987).

16. Wald­baum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1298 (D.C. Cir. 1980); see also Clyburn, 903 F.2d at 31 (“[Ger­mane­ness goes to] whether the defam­a­to­ry state­ment is ade­quate­ly linked to the issues for which he is pub­lic fig­ure.”) (empha­sis in orig­i­nal); Sil­vester v. Am. Broad. Cos., 839 F.2d 1491, 1497 (11th Cir. 1988) (apply­ing the Wald­baum test but hold­ing that plain­tiff failed to estab­lish actu­al malice).

17. See Wald­baum, 627 F.2d at 1287.

18. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

19. See Sul­li­van, 376 U.S. at 280.

20. See Jeff Koss­eff, Pri­vate or Pub­lic? Elim­i­nat­ing the Gertz Defama­tion Test, 2011 U. Ill. J.L. Tech. & Pol’y 249, 262 (2011).

21. See Wald­baum, 627 F.2d at 1298.

22. Id.

23. 580 A.2d 1011, 1033 (D.C. App. 1990).

24. Id.

25. Id. at 1032.

26. 584 F. Supp. 1110, 1118 (N.D. Cal. 1984).

27. 668 F. Supp. 82, 85 (D.P.R. 1987).

28. 670 P.2d 616, 621 (Or. Ct. App. 1983) (inter­nal quo­ta­tions omitted).

29. 57 P.3d 82, 92 (Nev. 2002).

30. 663 N.Y.S.2d 738, 744 (Sup. Ct. 1997) (inter­nal quo­ta­tions omitted).

31. Gertz, 418 U.S. at 351.

32. See Clyburn, 903 F.2d at 31 (“[Ger­mane­ness goes to] whether the defam­a­to­ry state­ment is ade­quate­ly linked to the issues for which he is pub­lic fig­ure.”) (empha­sis in orig­i­nal); Wald­baum, 627 F.2d at 1298 (“Mis­state­ments whol­ly unre­lat­ed to the con­tro­ver­sy . . . do not receive the New York Times protection.”).

33. 376 U.S. at 270; Cf. Vir­ginia v. Hicks, 539 U.S. 113, 119 (2003) (“Many per­sons, rather than under­take the con­sid­er­able bur­den (and some­times risk) of vin­di­cat­ing their rights through case-by-case lit­i­ga­tion, will choose sim­ply to abstain from pro­tect­ed speech … harm­ing not only them­selves but soci­ety as a whole, which is deprived of an unin­hib­it­ed mar­ket­place of ideas.”); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469 (2007) (First Amend­ment stan­dards “must give the ben­e­fit of any doubt to pro­tect­ing rather than sti­fling speech.”).

34. Com­pare Dai­ly News­pa­per Read­er­ship Trend – Total Adults (1964–1997), News­pa­per Ass’n of Am.,  http://www.naa.org/~/media/NAACorp/Public%20Files/TrendsAndNumbers/Readership/Daily_National_Top50_64-97.ashx (last vis­it­ed Mar. 9, 2016), with News­pa­per Ass’n of Am., Dai­ly News­pa­per Read­er­ship Trend — Total Adults (1998–2007), http://www.naa.org/~/media/NAACorp/Public%20Files/TrendsAndNumbers/Readership/Daily_National_Top50_1998-2007.ashx (last vis­it­ed Mar. 9, 2016), and News­pa­per Read­er­ship & Audi­ence by Age and Gen­der, News­pa­per Ass’n of Am., http://www.naa.org/Trends-and-Numbers/Readership/Age-and-Gender.aspx (last vis­it­ed Mar. 9, 2016).

35. Annu­al News­pa­per Ad Rev­enue, News­pa­per Ass’n of Am., http://www.naa.org/~/
media/NAACorp/Public%20Files/TrendsAndNumbers/Newspaper-Revenue/Annual-Newspaper-Ad-Revenue.xls (last updat­ed Apr. 2013) (last vis­it­ed Mar. 10, 2016) (cit­ing total of print and online news­pa­per revenues).

36. Noam Cohen, Blog­ger, Sans Paja­mas, Rakes Muck and a Prize, N.Y. Times (Feb. 25, 2008), http://www.nytimes.com/2008/02/25/business/media/25marshall.html?_r=0.

37. See Koss­eff, supra note 20, at 265.

38. See, e.g., News­Pa­per Death Watch, http://newspaperdeathwatch.com (last vis­it­ed Mar. 9, 2016) (track­ing the decline of news­pa­per staff and readership).

39. Press Release, Com­score, Blog­gers are Heavy Con­sumers of Con­tent at News and Enter­tain­ment Web Sites (Mar. 10, 2008), avail­able at http://www.comscore.com/press/release.asp?
press=2102 (last vis­it­ed Mar. 9, 2016).

40. Jef­fer­son Gra­ham, Huff­in­g­ton’s Vision Pros­pers on Blog, USA Today (Sept. 25, 2007), http://www.usatoday.com/money/industries/technology/2007–09-25-huffington_N.htm.

41. Michael Roth­berg, Online Pub­lish­ing Risks Cre­ate Need for Libel Insur­ance, Online Jour­nal­ism Rev. (Feb. 20, 2004), http://www.ojr.org/ojr/law/1077150111.php (“Many online pub­lish­ers … often lack the resources enjoyed by tra­di­tion­al media to pro­tect against the pub­li­ca­tion of defam­a­to­ry or oth­er­wise action­able content.”).

42. See Koss­eff, supra note 20, at 262 (“Because of the lack of clar­i­ty, a risk-averse news orga­ni­za­tion would be wise to assume that unless the sub­ject of cov­er­age is a mem­ber of Con­gress or holds anoth­er very promi­nent role in soci­ety, he is a pri­vate fig­ure. That requires ver­i­fy­ing the truth of every detail in the reporting.”).

43. Id. at 279 (“The Gertz stan­dard has been applied so incon­sis­tent­ly … that it offers lit­tle pre­dictabil­i­ty for news orga­ni­za­tions, poten­tial­ly chill­ing the free­dom of speech and press guar­an­teed in the First Amendment.”).

44. See  Reed v. Town of Gilbert, 135 S.Ct. 2218, 2228 (2015); Brown v. Enter­tain­ment Mer­chants Ass’n, 131 S.Ct. 2729, 2733 (2011).

45. R.A.V., 505 U.S. at 387 (1992).

46. Reed, 135 S.Ct. at 2228 (2015).

47. Brown, 131 S.Ct. at 2733 (2011)

48. 418 U.S. at 344.

49. 388 U.S. 130, 154–55 (1967) (“[Pub­lic fig­ures have] suf­fi­cient access to the means of coun­ter­ar­gu­ments to be able to expose through dis­cus­sion the false­hood and fal­lac­i­es of the defam­a­to­ry state­ments.”) (inter­nal quo­ta­tions omitted).

50. Cf. McCutcheon v. Fed. Elec­tion Comm’n, 134 S.Ct. 1434, 1449, (2014) (“Oth­er effec­tive meth­ods of sup­port­ing pre­ferred can­di­dates or caus­es with­out con­tribut­ing mon­ey are reserved for a select few, such as enter­tain­ers capa­ble of rais­ing hun­dreds of thou­sands of dol­lars in a sin­gle evening.”).

51. Gertz, 418 U.S. at 345.