Two Standards for Libel Law: Still a Good Idea

With fragmentation of the media and new methods of contributing to the marketplace of ideas appearing constantly, a question was posed to me in my law class: “Given the access to a global audience provided by the internet, is there still a reason to have two fault standards in libel cases, based on whether the plaintiff is a private person or a public official/figure?”

It’s really an intriguing question. The Internet provides a virtually limitless, open forum for anyone to say anything they wish. However, this “openness” and availability of space for anyone to post their beliefs or, in this case, rebuttals to libelous statements does not, by any stretch, equivocate the public figure to the common man.

While, certainly, the media has grown to the point where a public figure can no longer simply write a letter to the editor in the Plain Dealer and to clear everything up, the access public figures have to the public’s ear and eye dwarfs what the average person has available to him or her. Therefore, there should be disparity between what a public figure needs to prove in court versus what an average citizen needs to prove to win a libel case.

With the media hungrier than ever for stories thanks to fragmentation and competition, a public official/figure wrapped up in a libel suit still would not have trouble “getting the word out” to a reasonable number of people to clear their name or at least present their side of the issue. For many public officials/figures, social media posts alone are often enough to garner media attention and turn a quick story.

For example, Justin Bieber is the most followed person on Twitter to date with 34,386,926 followers (twitter.com/justinbeiber, 13/02/13). Adding that number to his Facebook page “Likes,” Bieber has instant access to more than 85 million people, and all for no cost. The July, 2012, United States population estimation from the U.S. Census Bureau was nearly 314 million people. With that estimation, Justin Bieber with a simple tweet and Facebook post could have his message in front of the equivalent of 27 percent of the U.S. population, which absolutely trumps my Twitter and Facebook total of 1,355 people.

To illustrate Bieber’s influence with social media alone, major news outlets including USAToday, Yahoo! News and E! Online covered a picture Beiber tweeted of himself exposing his backside to a camera. The story even trickled down to local stations like WBIR-TV in Knoxville, Tennessee. Was it newsworthy? Sure. Was it valuable or necessary? Of course, not.

The point I am illustrating is, public officials/figures have far greater access and ability to get whatever message they desire, be it worthwhile or scandalous, to the masses. That example was through social media alone. Imagine how many people have access to a message as soon as a news organization picks up a story (e.g. Bill Clinton post-Lewinsky, Michael Jackson post-child sex scandal accusations, Lance Armstrong pre- and post-doping admission).

Ordinary citizens do not have that ability. Therefore, adding the need for ordinary citizens to prove actual malice to win a libel suit would be disastrous. For people who would be willing to risk libeling someone in the first place, the threat of lawsuits is likely one of the only deterrents. Taking away the common man’s ability to defend himself in court against a libelous statement would simply not work; it would be far too difficult and expensive for an ordinary citizen to prove actual malice and, therefore, people would probably just “take their lumps,” so to speak and many would suffer damaged reputations.

Conversely, removing the requirement of proving actual malice for public figures could result in an incredible amount of lawsuits clogging the courts with celebrities, politicians and the like crying that each and every bit of criticism is libel. By allowing public figures the luxury of not having to prove actual malice, we would run across some First Amendment issues, as people would be far less comfortable and willing to contribute to the marketplace of ideas and opinions if said people lived in fear of being sued by Lady GaGa or even Kent State University President Lester Lefton for libel.

I used to host a television comedy/satire show on the Kent State main campus entitled The Agenda. The bulk of the show’s content included satirize and delivery of blunt, honest opinion regarding local and national public figures, public policy and current events. Without the comfort of public figures having to prove actual malice, satire and comedy, in general, would also be in jeopardy. We would not have felt nearly as free to write as we saw fit if we were in fear of public figures filing suits. A reevaluation of public figures needing to prove actual malice would inevitably lead to a reevaluation of the line between libel and satire. Giving public officials/figures more clout than they already have would not end well for entertainers.

The critical and watchdog aspect of the media would take a hit if public officials/figures did not have to prove actual malice, as well. Think of the critical pieces published online in the blogosphere, letters to the editor, comments, tweets and other contributions to the wealth of opinion technology made available to the citizenry that could effectively be silenced if public figures were put on the same level as everyone else in regards to libel.

Public figures, be they the mayor of a city, a B-list celebrity or the President of the United States (who happens to have more than 27 million followers on Twitter), have greater access to the general public than ordinary citizens, regardless of the average person’s alleged access to the global audience via the Internet. Based on the influence, resources and notoriety of public officials/figures, they should have to prove actual malice in a court of law. They are known by more people and, therefore, are open to more criticism and negative opinion.

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