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content-based analysis of speech; third, the distinction between limited purpose and general purpose public figures is no longer applicable due to technological advancement and the heightened access to self-help channels that even limited purpose public figures now possess.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., (last visited Mar. 9, 2016), with Newspaper Ass’n of Am., Daily Newspaper Readership Trend – Total Adults (1998-2007), (last visited Mar. 9, 2016), and Newspaper Readership & Audience by Age and Gender, Newspaper Ass’n of Am., (last visited Mar. 9, 2016).

35. Annual Newspaper Ad Revenue, Newspaper Ass’n of Am.,
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),

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

38. See, e.g., NewsPaper Death Watch, (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
press=2102 (last visited Mar. 9, 2016).

40. Jefferson Graham, Huffington’s Vision Prospers on Blog, USA Today (Sept. 25, 2007),

41. Michael Rothberg, Online Publishing Risks Create Need for Libel Insurance, Online Journalism Rev. (Feb. 20, 2004), (“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.