Nebraska Law Review

Volume 93 | Issue 3 Article 5

2015 Calumnious News Reporting: Defamatory Law Is More Than Sticks and Stones for Civic-Duty Participants Victoria C. Duke Indiana Tech Law School

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Recommended Citation Victoria C. Duke, Calumnious News Reporting: Defamatory Law Is More Than Sticks and Stones for Civic-Duty Participants, 93 Neb. L. Rev. 690 (2014) Available at: https://digitalcommons.unl.edu/nlr/vol93/iss3/5

This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. 35748-neb_93-3 Sheet No. 76 Side B 04/02/2015 08:48:02 R R R R R R R R R R R R R ..... 696 e Douglas Pond ...... 727 . EVIEW ...... 705 R AW ...... 725 690 ...... 721 L ...... 706 ...... 710 ...... 707 ...... 723 EBRASKA TABLE OF CONTENTS ...... 691 ...... 722 Hearings ...... 704 1. Routine Congressional Committee Meetings/ 2. The Jury System 3. Inconsequential Political Engagement . 1. Public Officials 2. Public Figures 3. Private Persons Constraints of the Entity with Which They Are Constraints of the Entity with Which Involved Plaintiffs Are Classified A. Limited by the Civic-Duty Participants Are A.Which Defamed The Rubric of Categories in B. of Classifications The Modification of the Rubric . . . 713 Criterion of Constitutional Protection for Defamatory Criterion of Constitutional Speech Civic-Duty Participants I am thankful for valuable feedback on this project from participants who were I am thankful for valuable feedback on this Workshop at Indiana Tech School of involved in the In-house Faculty Scholarship Associate Dean, Andr´Law that included: Dean, Peter Alexander; Cummings; Associate Dean, Phebe E. Poydras; Professors Judith K. Fitzgerald, Cummings; Associate Dean, Phebe E. Poydras; Guadalupe T. Luna, Steven Richardson. Special thanks to Professor Adam for the reconstruction of this arti- Lamparello for his valuable time and support cle. L. Mekel, Esq., and Professor Tracie I also thank my colleagues Michele Porter for their helpful comments and valuable input. I am always grateful for the faithful support of my son Blake, who is always patient with me as I devote my time to scholarship. Copyright held by the N I. Introduction II. Crossroads Participants Caught in the Civic-Duty * Professor of Law, Indiana Tech School of Law. Inaugural and founding Associate IV. Redress for The Appropriate Evaluation of Defamatory III. That Created the An Overview of the Precedent © Victoria C. Duke* Victoria Reporting: News Calumnious Than Is More Law Defamatory Stones for Sticks and Participants Civic-Duty \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 1 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 76 Side B 04/02/2015 08:48:02 B 04/02/2015 76 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 77 Side A 04/02/2015 08:48:02 R R R R R R R R R .... 744 .... 729 ...... 730 ...... 744 ...... 739 ...... 747 This incident occurred af- 2 § 580B (1977). http://perma.unl.edu/6G28-PNXW. ORTS T ...... 733 ...... 746 OF J., Sept. 5, 2012, http://www.nationaljournal.com/ L ) ’ archived at Sandra Fluke’s Speech: Full Text from the Democratic Sandra Fluke’s Speech: Full Text from the AT I. INTRODUCTION note 4. Other category designations, outside of the pri- Other category designations, outside , N ECOND 3 (S infra ...... 748 1. Meetings/Hearings Congressional Routine 2. Jury Service 3. Engagement Political Inconsequential . 1. Meetings/Hearings Congressional Routine 2. Jury Service 3. Political Engagement Inconsequential . ESTATEMENT 1 R sources cited C.Individuals are Private Participants Civic-Duty B. Not Public Figures Participants Are Civic-Duty conventions-speeches/sandra-fluke-s-speech-full-text-from-the-democratic-nation al-convention-20120905, National Convention See See “In that America, your new president could be a man who stands by when a new president could be a man who stands “In that America, your silence a private citizen with hateful slurs.public figure tries to Who won’t in his own or to any of the extreme, bigoted voices stand up to the slurs, party.” V. Conclusion From a legal perspective, Fluke was broaching her status as a wit- From a legal perspective, Fluke was Sandra Fluke, a Georgetown law student, spoke these words dur- Georgetown law student, spoke these Sandra Fluke, a 2. 3. 1. National Journal Staff, ter she gave testimony at a House Democratic Steering and Policy ter she gave testimony at a House health and contraception.Committee on the issue of women’s Instead defamation, she used the DNC fo- of immediately filing a lawsuit for committed by a media source as a rum to publicly right the wrong result of her civic duty. that of a private individual or pri- ness at a congressional meeting as vate figure—words defamation law. commonly used in tort This generally, a person considered to identification is important because, under defamation law, is afforded be in a private individual category, against the person or entity that the opportunity to seek legal redress publicly defames her. vate individual category, usually have different burdens to overcome vate individual category, usually before a remedy can be considered. Thus, clarifying one’s status in a defamation action is paramount. So in this political speech, it was the notion that a private per- imperative to all that Fluke safeguarded participates in civic activities, such son engaging in a minor task who ing a speech at the 2012 Democratic National Convention (DNC) six 2012 Democratic National Convention ing a speech at the made defamatory news talk show host publicly months after a radio statements about her. to Re- In her speech, she was making reference Romney, who did not denounce publican presidential candidate Mitt who branded her a “slut” the radio talk show host, Rush Limbaugh, and a “prostitute” on the public airwaves. 2015] NEWS REPORTING CALUMNIOUS 691 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 2 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 77 Side A 04/02/2015 08:48:02 A 04/02/2015 77 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 77 Side B 04/02/2015 08:48:02 The contro- , CNN (March 8, 4 http://perma.unl . J., Mar. 6, 2012, T http://perma.unl.edu/ S ALL . J., Mar. 6, 2012, http:// T , W archived at S Rush Limbaugh vs. Sandra (Mar. 2, 2012, 6:57 PM), http:/ (Feb. 29, 2012, 9:26 PM), http:/ ALL EWS OST , Times, March 3, 2012, http:// N.Y. archived at P , W The President said that he The President 5 ABC N http://perma.unl.edu/4L68-UUMD; Jack ’ , http://perma.unl.edu/H3L-9X64; Todd Leo- UFFINGTON Sandra Fluke: Rush Limbaugh ‘Slut’ Comment http://perma.unl.edu/59R6-TU8U; Brian Stelter, H ’ , March 9, 2012, http://theweek.com/article/index/ , Exclusive: Woman Silenced at Birth Control Hearing Exclusive: Woman Silenced at Birth Control archived at EEK archived at W , MSNBC (Feb. 16, 2012, 4:08 PM), http://ed.msnbc.com/ HE archived at , T http://perma.unl.edu/LSG8-9BDH. http://perma.unl.edu/RC6N-CWP5; Rush Limbaugh: Sandra Fluke, Woman Denied Right to Speak at Rush Limbaugh: Sandra Fluke, Woman http://perma.unl.edu/RC6N-CWP5. His comments actually conceded the need for civic actually conceded the need for His comments 6 Obama: No Place for Limbaugh’s Remarks archived at Limbaugh Revels in the Crossfire After Fluke Comments Limbaugh Revels in the Crossfire After Fluke Mary Bruce & Jake Tapper, 2012, 1122 GMT), http://www.cnn.com/2012/03/05/us/rush-limbaugh-controversy/ index.html?iref=allsearch, .edu/3RRH-4QN8. http://live.wsj.com/video/obama-no-place-for-limbaugh-remarks/1A66A2B9-746C- 4D2F-B794-96694E66560F.html#!1A66A2B9-746C-4D2F-B794-96694E66560F, R7BT-AV9G; Steve Frank, live.wsj.com/video/obama-no-place-for-limbaugh-remarks/1A66A2B9-746C- 4D2F-B794-96694E66560F.html#!1A66A2B9-746C-4D2F-B794-96694E66560F, /abcnews.go.com/blogs/politics/2012/03/sandra-fluke-rush-limbaugh-slut-com ment-outside-the-bounds-of-civil-discourse, /www.huffingtonpost.com/2012/02/29/rush-limbaugh-sandra-fluke-slut_n_13116 40.html?ref=media, query.nytimes.com/gst/fullpage.html?res=9404E5D81639F930A35750C0A9649D 8B63, Mirkinson, pold, 225214/rush-limbaugh-vs-sandra-fluke-a-timeline, _news/2012/02/16/10427828-exclusive-woman-silenced-at-birth-control-hearing- on-ed-show-tonight?lite, course. Fluke: A Timeline on ‘Ed Show’ Tonight ‘Outside the Bounds of Civil Discourse Contraception Hearing, a ‘Slut archived at Obama: No Place for Limbaugh’s Remarks archived at Obama Backs Student in Birth Control Furor See The public defamatory comments about Fluke became a national about Fluke defamatory comments The public 6. 5. comments “don’t have a place” in public dis- President Obama said Limbaugh’s 4. versy even garnered attention from the President of the United attention from the President versy even garnered she cared about her right to engage in issues States, who defended way without being mind in a civil and thoughtful and to speak her horrible names. attacked or called wanted to send a message that being part of a democracy involves ar- message that being part of a democracy wanted to send a you are a pri- and debate, particularly when gument, disagreements, vate citizen. responsibility and the importance of media restraint under the guide- the importance of media restraint responsibility and law.lines of defamation support, the In addition to the President’s his remarks arose backlash against Limbaugh for true extent of the 692private their not lose should meeting, at a congressional as testifying figure status. prominent. defamation law constraints of that made the controversy gained comments and calumnious the target of uncongenial Becoming NEBRASKA personnel news media public and other from the general her support LAW REVIEW media reporting. vile attack crossed the line of who believed the in many leading newspapers. Headlines were rampant [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 3 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 77 Side B 04/02/2015 08:48:02 B 04/02/2015 77 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 78 Side A 04/02/2015 08:48:02 R 9 7 § 652E OURNAL- J it is akin ORTS 8 Such lan- hostile, or T ELLOW 10 11 OF (March 21, 2013, , Y ) OST P ECOND 7 (2001). AMPBELL (S C http://perma.unl.edu/N7YH- EGACIES UFFINGTON OSEPH L However, for the purposes of However, for the , H 12 . L.J. 481, 491 (1991) (describing vulgar ESTATEMENT T archived at S see also Rush Limbaugh’s Sandra Fluke Con- HIO EFINING THE , D , 52 O YTHS Title VII as Censorship: Hostile-Environment Harassment Title VII as Censorship: Hostile-Environment M note 4 (indicating eight companies, including AOL, Quicken note 4 (indicating eight companies, including supra ISM UNCTURING THE Leopold, : P (1977). 10:05 AM), http://www.huffingtonpost.com/2013/03/21/rush-limbaugh-sandra- fluke-advertisers_n_2923643.html, DGC8 (reporting Limbaugh’s remarks spurred over 100 advertisers and two ra- DGC8 (reporting Limbaugh’s remarks spurred dio stations to drop his show). excitement, often about compar- journalism: prominent headlines that “screamed pictures, many of them without signifi- atively unimportant news”; a lavish use of supplement and color comics; and a cance; faked interviews and stories; a Sunday the ‘underdog,’ with campaigns against “more or less ostentatious sympathy with abuses suffered by the common people.” J W. expressions commonly used in hostile working environments). expressions commonly used in hostile working troversy Still Hurting Business, Says CEO and the First Amendment See id. Id. Loans, and ProFlowers, announced they were pulling ads from Limbaugh’s show, Loans, and ProFlowers, announced they were the No. 1 radio show in America); See before the public in a false light is subject to liability to the other for invasion of before the public in a false light is subject his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. R Unfortunately, calumnious news reporting is on the rise in this Unfortunately, calumnious news The public comments by Limbaugh regarding Fluke were calumni- regarding comments by Limbaugh The public 9. Kingsley R. Browne, 8. Mott listed some defining characteristics of yellow Media historian Frank Luther 7. 10. 11. 12. One who gives publicity to a matter concerning another that places the other words that are “beyond the pale” of what can be said in polite society. the pale” of what can be said words that are “beyond to the usage of vulgar, uncongenial, or denigrating expressions, which expressions, or denigrating of vulgar, uncongenial, to the usage and in- norm in hostile working environments are sometimes the harassment.stances of racial is used in When calumnious language “indecent” words— generally contains the use of news coverage, it guage can be defamatory, as well as exceedingly crude. as well as exceedingly guage can be defamatory, In addition, person in false light. they may place a prejudicial (i.e., containing racial slurs and epithets). prejudicial (i.e., this article, calumnious news reporting will be used to describe a news reporting will be this article, calumnious commenta- the news by adding defamatory method of sensationalizing to a news about a person who is incidental ries, directly or indirectly, story. reporting on competing television new era of continuous 24-hour news stations.reporting by some news Calumnious or uncongenial news ous at best, hence the coined phrase: calumnious news reporting. phrase: calumnious hence the coined ous at best, Ca- journalism”; is more than “yellow news reporting lumnious Such comments are probably outside the protection of the First are probably outside the protection Such comments addition to being uncivil, insensitive, Amendment, in 2015] means as a sponsorship their cancelled who of his show, sponsors from speech. libelous from his potentially themselves of disassociating NEWS REPORTING CALUMNIOUS 693 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 4 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 78 Side A 04/02/2015 08:48:02 A 04/02/2015 78 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 78 Side B 04/02/2015 08:48:02 , , 16 ., IMES arch- see also , N.Y. T Neverthe- 15 In other cases, , July 6, 2011, http:// 13 http://perma.unl.edu/EJ EPORTER R archived at Gertz v. Robert Welch, Inc Gertz v. Robert Welch, Nancy Grace Defends Calling Casey OLLYWOOD (Jul 6, 2011), http://www.newser.com/story/ , H http://perma.unl.edu/XW7V-S9MX (reporting decision places great emphasis on the status of COM . Gertz See Nancy Grace Discusses Casey Anthony Trial Verdict See Nancy Grace Discusses Casey Anthony http://perma.unl.edu/WH8N-QTX2 (reporting viewers http://perma.unl.edu/WH8N-QTX2 (reporting EWSER archived at N ’ , http://perma.unl.edu/PSZ6-V4YN (reporting George Stepha- http://perma.unl.edu/PSZ6-V4YN (reporting Real Deal on ‘Joe the Plumber’ Reveals New Slant Real Deal on ‘Joe the Plumber’ Reveals New (Oct. 18, 2012, 7:00 PM), http://www.huffingtonpost.com/zach- Should TV Stations Refuse to Air Political Ads That Make False Should TV Stations Refuse to Air Political And in other situations, attacks have been hurled at attacks have been hurled And in other situations, Hey! Stop Talking, You Woman! The Attack on Katherine Fenton Hey! Stop Talking, You Woman! The Attack OST archived at P 14 archived at , 9:56 AM), http://www.npr.org/blogs/itsallpolitics/ NPR (Oct. 3, 2012, http://perma.unl.edu/P7RF-DC3H. Larry Rohter, Scott Finn, UFFINGTON H Oct. 17, 2008, at A21, www.hollywoodreporter.com/live-feed/nancy-grace-discusses-casey-anthony- 208295, N6-FZQ3 (reporting a ‘study’ of Katherine Fenton’s alleged personal Twitter ac- N6-FZQ3 (reporting a ‘study’ of Katherine tweets that have been presented out count, which, from the evidence, shows some her credibility in the public eye). of context, presumably in hopes of damaging who were serving as jurors, when she called twelve civic duty participants, mother of murder, manslaughter, “kooky” after they acquitted a deceased child’s and child abuse charges. 122753/nancy-grace-defends-reaction-to-kooky-casey-anthony-jury.html, on Joe the Plumber, who set himself on a path to becoming America’s newest on Joe the Plumber, who set himself on celebrity-level scrutiny); media celebrity and, as such, suddenly faced plaintiffs as public officials, public figures, involuntary public figures, or private are seeing more political ads than ever before, but television stations only rarely are seeing more political ads than ever before, television stations conduct fact checks, fact check any of the ads and even when ads). that story is overwhelmed by a flood of TV nopoulos’s Good Morning America News interview with Nancy Grace after her nopoulos’s Good Morning America News comment about the jury); Kevin Spak, stafford/katherine-fenton_b_1979877.html, 2012/10/03/162184983/should-tv-stations-refuse-to-air-political-ads-that-make- false-claims, vied at Anthony Jury ‘Kooky on Good Morning America (Video) Claims? See Zack Stafford, See 15. words Headline News television host Nancy Grace used crude and uncongenial 14. 16. 418 U.S. 323 (1974). The 13. less, all of these victims in calumnious news reporting are civic-duty victims in calumnious news reporting less, all of these duty. are responsive to the call of civic participants who However, members of so- sensationalizing news stories defame when methods of our democratic civic responsibilities that benefit ciety who undertake falls within the believe their best defense process, news commentators enunciated in constitutional privilege verbal attacks have been launched against civic-duty participants by been launched against civic-duty verbal attacks have effort to place them occupation or personal life in an discrediting their in a false light. jurors who were summoned to serve on criminal trials. summoned to serve on criminal jurors who were and its progeny. 694 public against is prevalent show hosts talk and news commentators and public figures.officials to even transgressed today, it has But, “civic-duty participants,” referred to as hereinafter private persons, of civic re- in furtherance in minor tasks participate who incidentally sponsibility. hostile political is seen in phenomenon This reporting bites, ads that use sound political attack or in news commentaries NEBRASKA LAW REVIEW that the into believing mislead listeners of context, to taken out position on a given subject. speaker took a contrary [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 5 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 78 Side B 04/02/2015 08:48:02 B 04/02/2015 78 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 79 Side A 04/02/2015 08:48:02 . and OMM . C and its ED Gertz § 5:77 (2d ed. Gertz , 64 F RIVACY P and its progeny with at 346. Id. Gertz UBLICITY AND P and its progeny as relevant case as relevant and its progeny IGHTS OF These ambiguities give the media a These ambiguities R Gertz 17 HE , T Survival of the Standard: Today’s Public Interest Require- Survival of the Standard: Today’s Public ARTHY C C Clear distinction is made that private persons, unlike public offi- Clear distinction is made that private persons, M a sort of code word for the public controversy element a sort of code word Id. and its progeny constructed and altered the category or and its progeny constructed and altered 18 HOMAS Gertz J. T Drew Simshaw, L.J. 401, 407 (2012) (indicating there was a belief that federally mandated obliga- L.J. 401, 407 (2012) (indicating there was tions were too vague and that proper enforcement would require too great of a threat to the First Amendment rights of broadcasters). 2014) (indicating that unless privileged as newsworthy, the public disclosure of embarrassing private facts is not protected by the First Amendment). cials and public figures, are not required to prove actual malice to win their libel cials and public figures, are not required to lawsuits, but prove only some degree of fault. ment in Television Broadcasting and the Return to Regulation ment in Television Broadcasting and the See See individuals. Since This article, however, clarifies the status of civic-duty participants clarifies the status of civic-duty This article, however, Because defending defamatory calumnious news reporting de- news reporting calumnious defamatory defending Because 18. 17. its progeny take some blame for the vagueness in defamation law by in defamation for the vagueness take some blame its progeny officials, of public plaintiffs in categories placing defamed means of private individuals. public figures and involuntary public figures, Ad- obligations mandated on vague federally blame can be placed ditional opinions. and vague judicial progeny. By analyzing the ambiguities of the activities of civic-duty participants, this article asserts that the the activities of civic-duty participants, protection when it reports ca- media does not have First Amendment miniscule activities of civic-duty lumnious news stories that attack of the news article is actually to participants when the original intent concern.censure another cause or public This type of reporting re- suffering collateral damage without sults in the civic-duty participant law continue to mislead the redress as the ambiguities of defamation media. law, and privilege. about status media is misinformed the perceived license to trample upon the dignity of persons who partici- to trample upon the dignity of persons perceived license media’s perception governance and inform the pate in our democratic that allegedly are that purport to address matters of news stories “newsworthy,” that arises in defamation defense.that arises in defamation as the me- Hence, their authority, privi- is embedded somewhere in the constitutional dia would see it, Court and the by the United States Supreme lege recognized law. blur components of defamation precedent cases that the roles of civic- plaintiff category or status with by balancing the law, as defined by duty participants and the precedent status of potentially defamed plaintiffs to define the media’s First status of potentially defamed plaintiffs will be used to help navi- Amendment shield, a structural schematic behind.gate the maze these precedents left But first, Part II of this background of defamatory speech by article will illustrate a contextual whose activities were dis- the media regarding civic-duty participants to an analysis of whether sipating and insufficient to be dispositive 2015] of the ambiguities pends upon NEWS REPORTING CALUMNIOUS 695 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 6 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 79 Side A 04/02/2015 08:48:02 A 04/02/2015 79 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 79 Side B 04/02/2015 08:48:02 19 New York Part V ar- , . L.J. 649, 657 Y , 95 K for All Seasons and the Unfulfilled Promise of and its trail of ambiguity disturbs and its trail of Times Gertz IN THE CROSSROADS : Applying the and the modifications of the rubric, according to its the rubric, according modifications of and the Gertz, II. PARTICIPANTS CAUGHT CIVIC-DUTY In the crossroads lie complications for individuals simply seek- In the crossroads lie complications Times v. Sullivan (2007). qualify for the protections of defamation law: a retired Army General who as- qualify for the protections of defamation conflict, Walker v. Assoc. Press,sumed a public leadership role in a racial 388 seeking zoning variances, Greenbelt U.S. 130 (1967); a real estate developer Coop. Publ’g Assoc v. Bresler, 398 U.S. 6 (1970); a candidate in the Democratic Monitor Patriot v. Roy,Party’s primary election for U.S. Senator, 401 U.S. 265 (1971); a minister at the Universal Life Church, Hensley v. Time, Inc., 336 F. Supp. 50 (N.D. Cal. 1971). 20 In the mist of defamation law, civic-duty participants are caught in In the mist of defamation law, civic-duty 20. Joseph H. King Jr., Deus ex Machina 19. Examples of cases where there is dispositive analysis of whether defendants gues that the progeny of neither status nor public-concern arguments when calumnious news public-concern arguments when neither status nor civic duties. civic-duty participants while performing reporting targets and constitutional ambi- the middle of the call for civic responsibility guities. structure of civic On one side, the design of the democratic state, or local service and civic responsibility is premised on national, features.responsibility as key organizational On the other side, the from the process of carving out ambiguities of defamation law evolved the media after the introduction of a First Amendment protections for test, or some combination of the status-driven test, a content-based two. progeny. of defamation law, Part IV balances In light of the evolution with the reported activities of civic-duty participants some previously associated with law and the restrictions of duties trail of precedent civic responsibility. partici- Part also explains why civic-duty This figures, but private figures.pants are not public Finally ing to act according to civic responsibility who are sometimes blind- ing to act according to civic responsibility news reporting when the original sided as targets of calumnious to censure another cause or public intent of the news article is actually concern. because acting in the This predicament must be addressed contract (e.g., paying taxes, vot- public realm is part of citizens’ social juries, and obeying the laws, etc.), ing, serving in the military and on to take place) in the separate, yet most of life takes place (or ought 696 actions. defamation in afforded protections for the qualifies media by offering schematic of the structural begins the illustration Part III constitu- the criterion of that created of the precedent an overview speech. for defamatory tional protection ru- examines the This Part classified, plaintiffs are which defamed categories into brics of to according NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 7 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 79 Side B 04/02/2015 08:48:02 B 04/02/2015 79 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 80 Side A 04/02/2015 08:48:02 , 75 As a OVERTY 25 P 24 . 391, 395 . 1731, 1754 EV EV . L. R MERICAN This message A 22 HAP HY : W . 1091, 1103 (2010) (citing , 13 C , 90 B.U. L. R EV . L. R ND NDERPRIVILEGED , 43 I Accordingly, when the status of a status when the Accordingly, , U 21 Humanitarian Jurisprudence: The Quest for Civil- Humanitarian Jurisprudence: The Quest for ATION N NE Recognizing and Regulating Home Schooling in California: Recognizing and Regulating Home Schooling Following Transformation’s Thread: Reflections on the Citi- Following Transformation’s Thread: Reflections , O civic-duty participants express a willingness to civic-duty participants . 355, 363 (2000). 23 on, Corrective Justice as a Duty of the Political Community: David ANK 19–20 (2005)). 19–20 U. L.J. 715, 717 (1996) (“Humanitarian jurisprudence considers U. L.J. 715, 717 (1996) (“Humanitarian jurisprudence Law in Civil Society, Good Society, and the Prescriptive State Law in Civil Society, Good Society, and the EV R LL OUIS A S L. R . L U OBERT T ENT R David Copp, Paul A. Alarc´ .-K Fr. Robert J. Araujo, S.J., , 40 S ARK HI FFECTS C (2010) (“[T]he state interest in an educated citizenry is a compelling interest in (2010) (“[T]he state interest in an educated independent and civically ensuring that students become economically responsible.”). (2010) (stating “members of a political community have a duty of civic responsi- bility to contribute to their government’s doing what justice requires”). M the law as an institution which seeks understanding of the views and concerns of the law as an institution which seeks understanding all people. This jurisprudence attempts to realize its goal by arguing that a just have much in common, especially society is founded on the realization that people their mutual claims to the same human rights.”). zen-Lawyer as Transformative Agent Education Balancing Parental and State Interests in ity Lyons on the Moral Legacy of Slavery and Jim Crow See A See See While fulfilling their civic responsibility, civic-duty participants their civic responsibility, civic-duty While fulfilling From the defamation law standpoint, calumnious statements From the defamation law standpoint, 24. 22. Lloyd T. Wilson, Jr., 23. 25. 21. Amitai Etzioni, result of these ingrained beliefs, they likely cannot fathom defamation result of these ingrained beliefs, they as members of a political commu- as the repayment for their service as they attempt to contribute to nity with a duty of civic responsibility democracy invites them to do. their government by doing what has the effect of chilling the democratic process and the social con- chilling the democratic process has the effect of tract. a clear remedy is required in defama- This is not a good thing; as civic-duty that are defamed while serving tion for those plaintiffs by choice or by chance. participants, whether attacks. to being subject to possible defamatory are generally oblivious a high value on as part of a citizenry that places After indoctrination civic responsibility, civic-duty participant is challenged to avoid liability, the law of defa- liability, the law to avoid participant is challenged civic-duty public the line between appropriately draw clearly and mation must status.and private identified regarding the law must be Additionally, speech how to limit media on when and determinations public-interest of a claim the viability may unduly impact to individuals that relating for defamation. sent to without clear guidelines, the message Thus, being a target of stay in the private realm to avoid the citizenry is: calumnious news reporting. social injustice through undertake civic duty without first contemplating incidental conse- duty without first contemplating undertake civic quences.subscribe to the founda- Similarly, they are also likely to thing in common, the acceptance tional belief that humans have one each person within society. and display of mutual respect by about the activities of civic-duty participants are confused with the about the activities of civic-duty 2015]individual. of the realm private NEWS REPORTING CALUMNIOUS 697 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 8 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 80 Side A 04/02/2015 08:48:02 A 04/02/2015 80 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 80 Side B 04/02/2015 08:48:02 R R and its Gertz http://perma.unl.edu/ 28 30 (1992) (indicating he shares E archived at B O T UGHT O HINGS note 4 (repeating words spoken by Rush Limbaugh). T AY supra W HE note 4 (internal quotation marks omitted). Six days after her testimony, Rush Limbaugh, a Six days after her testimony, Rush ,T 26 supra IMBAUGH L Bruce & Tapper, used her comments to label her a slut. used her comments to label her He said: 29 USH 27 R5WW-VQA5. with the audience an item from the news on any one of a variety of cultural and political topics). See Hearing on Women’s Health (Feb. 23, 2012), Hearing on Women’s Health (Feb. 23, 2012), Can you imagine if you were her parents how proud . . . you would be? . . . . Can you imagine if you were her parents much sex she can’t afford her own Your daughter . . . testifies she’s having so Obama to provide them, or the birth control pills and she wants President Pope. What does it say about the college co-ed Sandra Fluke, who goes before a con- What does it say about the college co-ed Sandra that she must be paid to have sex, gressional committee and essentially says what does that make her? It makes her a slut, right? It makes her a prosti- tute.sex. She wants to be paid to have She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex. What does that make us? We’re the pimps. Brandishing a civic-duty participant a slut and a prostitute after participant a slut and a Brandishing a civic-duty 27. R 28. 26. Comm. Press Release, Rep. Nancy Pelosi, House Democratic Steering and Policy 29. Mirkinson, progeny. par- even when civic-duty can occur This legal entrapment rather, are controversy but, of a public are not at the center ticipants stories. to the media merely incidental of civic-duty partici- Evidence on visible and problematic has become in this junction pants trapped one occasion.more than of media In fact, four noteworthy examples status may not fit civic-duty participants, whose speech relating to and whose involve- parameters of defamation law squarely within the public concern, does not fit squarely within ment in a controversy the last four years. have occurred in is one example of congressional committee hearing participating in a canons of public to distinguish between defamation’s the media failing status.concern and plaintiff participant, Sandra Fluke, a civic-duty deliver testimony for accepting an invitation to paid a high price Steering and Policy Committee.before the Democratic Members of to present data on her to an unofficial hearing the committee invited and other religious institutions how excluding Catholic universities under the new healthcare law would from having to cover birth control impact students. national radio talk show personality who speaks on news and political national radio talk show personality topics, By claiming that Sandra Fluke was asking the government to subsi- By claiming that Sandra Fluke was refocused the public controversy dize her sex life, Rush Limbaugh was launching a “war on religion” from the notion that the President to pay for sex.to students wanting the government This was a dis- the public-concern controversy.traction from the original intent of He about Fluke, saying: also made further defamatory remarks 698 in involvement fleeting participants’ and those defense, concern public categories of with the status is confused the activity NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 9 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 80 Side B 04/02/2015 08:48:02 B 04/02/2015 80 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 81 Side A 04/02/2015 08:48:02 R R R 33 (July Nancy trial. DITION E note 15; Spak, note 15 (reporting NSIDE , July 8, 2011, at 61, supra , I , IME supra , , T State v. Anthony news interview with Nancy (July 6, 2011, 9:41 AM), http:// IRE W ’ , She not only disparaged the http://perma.unl.edu/NQR2-LTJZ?type= 32 Good Morning America archived at Dead Tree Alert: Avenging Grace But, more importantly, after the verdict, Grace di- But, more importantly, 30 http://perma.unl.edu/9KY2-9HA3. Casey Anthony Jurors Explain Not Guilty Verdict Casey Anthony Jurors Explain Not Guilty , 31 34 note 15. . 7, 2011), http://www.insideedition.com/headlines/2711-casey-anthony-jurors-ex plain-not-guilty-verdict, Grace after her comment about the jury). image (recording a juror saying, “I think a lot of things she says just fuel the fire and they’re based on nothing. It’s not fit for television.”); John Hudson, supra Grace Under Fire: ‘The Devil Is Dancing archived at Id See, e.g. See Nancy Grace Discusses Casey Anthony Trial Verdict See Nancy Grace Discusses Casey Anthony Verdict Nancy Grace Discusses Casey Anthony Trial George Stephanopoulos’s George, I tell the truth. Am I taking the heat for it? Yeah. Is that gonna and trying to solve unsolved homi- make me stop looking for missing children cides? No. I’m not going to let some kooky jury stop justice. Not for me anyway. When a news commentator calls civic-duty participant jurors participant calls civic-duty commentator a news When 32. James Poniewozik, 33. 34. 30. 31. The trial drew attention from local spectators and national news. from local spectators and The trial drew attention News host Nancy other news coverage, Headline However, unlike Casey Anthony, assassinations at defendant Grace hurled character daughter, with murdering her two-year-old who had been charged Caylee Anthony. accused and attacked the verdict, which was the main public-interest accused and attacked the verdict, and delegitimized the jury. story, but she demonized the defense minished the goodwill of the jury by her uncongenial news reporting, of the jury by her uncongenial minished the goodwill verdict but as a was reacting to the outcome of the not because she trial. tactics during the defense for her news-reporting When asked the trial, her com- host about her coverage of by a news broadcast ments included these statements: Her comment, although it may not be provable as a false assertion, Her comment, although it may not media outlets concerning not even sparked a new controversy among the calumnious reporting tactics the trial or the outcome but, rather, the jury as the focus of ridicule and regarding the jury, which recast animosity. Because her comments on the jurors’ verdict were even more mali- Because her comments on the jurors’ trial itself, her calumnious news re- cious than her remarks about the porting caused public attention. 2015] of me- noteworthy example it is yet another a news show, “kooky” on civic-duty participants. disparaging news reporting dia’s calumnious NEWS REPORTING CALUMNIOUS a defama- term “kooky” is whether the it may be debatable Although the re- it may diminish argument that there is some tory utterance, targeted group. or esteem of the confidence, spect, goodwill, also It is junction within the media that fits squarely used by the a statement and status of the plaintiff.between public concern this instance, In 699 used after the verdict of the these words were \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 10 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 81 Side A 04/02/2015 08:48:02 A 04/02/2015 81 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 81 Side B 04/02/2015 08:48:02 IR HE T A ” , OT , July 5, The Me- http:// , H UN S (July 5, 2011), http:// ALTIMORE archived at , B COM . http://perma.unl.edu/5JXD- (July 5, 2011), http://www (July 5, 2011), . 607, 608 (2006). (“‘[B]logs’ are EV OCKWELL EAST R EW B archived at . L. R , L UQ AILY , D http://perma.unl.edu/7JRR-HJFV (“Whatever you http://perma.unl.edu/7JRR-HJFV (“Whatever , 44 D Ha Ha Ha Nancy Grace Knows More than a “Kooky Jury Nancy Grace Knows More than a “Kooky http://perma.unl.edu/UB24-ZMZD (indicating despite her in- http://perma.unl.edu/UB24-ZMZD archived at http://perma.unl.edu/C38E-E7Z3 (“I look at Grace on this video, http://perma.unl.edu/C38E-E7Z3 (“I look at Defamation, Anti-SLAPP Legislation, and the Blogosphere: New Defamation, Anti-SLAPP Legislation, and Andrew Breitbart, a political news blogger, an- Andrew Breitbart, Breitbart Hits NAACP with Promised Video of Racism 36 http://perma.unl.edu/73CT-RHPV (indicating the Nancy Graces of the http://perma.unl.edu/73CT-RHPV (indicating Yet, unlike most news stories that start with a real pub- that start with most news stories Yet, unlike archived at 35 (July 6, 2011), http://www.salon.com/2011/07/06/nancy_grace_caylee archived at ALON blogs can reasonably claim to have brought down a Senate Majority Leader, en- blogs can reasonably claim to have brought 2011, http://articles.baltimoresun.com/2011-07-05/news/bal-nancy-grace-dancing- with-the-devil-casey-anthony-20110705_1_nancy-grace-casey-anthony-trial- devil, www.lewrockwell.com/blog/lewrw/archives/90829.html, JFN3. .thedailybeast.com/articles/2011/07/05/the-media-s-casey-anthony-shame.html, typically run by small, unincorporated individuals, sometimes as a mere pastime. typically run by small, unincorporated individuals, ‘blogosphere,’ and much as a collection Collectively, these blogs are known as the of unimaginable power, so too can the of water molecules can become a tsunami tremendous significance.collective power of the blogosphere wield Individual have signed book deals and made the writers without large corporate backing based on the readership ‘built from New York Times Best-Seller list, largely scratch’ through their online writings. Their power extends to politics as well— and defeated a sitting Senator and re- ded the career of a network news anchor, cent vice-presidential candidate in a primary campaign.”). or I may think of the case, the fact remains that a ‘kooky jury’ found Anthony not or I may think of the case, the fact remains among other things, the right to not guilty, which means that Anthony now has, like Nancy Grace”); David Zurawik, be excoriated by a two-bit character assassin sistence that she merely laid out the details of the case and drew a conclusion laid out the details of the case and sistence that she merely are uncomfort- would come to, a number of media critics that any sensible person Kurtz, see as her exploitation of the trial); Howard able with what they and I have no problem understanding why so many hate the media so much.”) and I have no problem understanding why world are more interested in vociferous opinions—in her case, siding with prose- cutors in almost every case—than in dispassionately weighing the evidence); Llewellyn H. Rockwell, Jr., _anthony_verdict/, dia’s Casey Anthony Shame dia’s Casey Anthony Solutions for an Old Problem (July 19, 2010, 12:55 PM), http://hotair.com/archives/2010/07/19/breitbart-hits- naacp-with-promised-video-of-racism/, S Devil Dancing Nancy Grace Outdoes Herself with Talk of www.theatlanticwire.com/politics/2011/07/nancy-grace-under-fire-devil-dancing/ 39616/, archived at Nancy Grace is denouncing the perma.unl.edu/UBZ4-ZMZD (“The bloodthirsty but for being unwilling to go on TV.”); jury, not only for their courageous verdict, Mary Elizabeth Williams, Calumnious news reporting also affects civic-duty participants by participants civic-duty affects also news reporting Calumnious 36. Ed Morrissey, 35. Sean P. Trende, lic controversy, through calumnious news-reporting tactics one re- tactics calumnious news-reporting through lic controversy, original a person when the story about a news porter manufactured cause. censure another was actually to the news article intent of In after the Na- primary public controversy occurred this instance, the People (NAACP) for the Advancement of Colored tional Association by equating a condemnation of Tea Party activism threatened to issue it with racism. 700stories. fabricated media to validate encouraging This type of delegi- in a blogosphere participant materialized of a civic-duty timization news story. NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 11 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 81 Side B 04/02/2015 08:48:02 B 04/02/2015 81 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 82 Side A 04/02/2015 08:48:02 R EWS N REITBART OX , B , F http://perma.unl But, prior to 42 Video Shows USDA Of- http://perma.unl.edu/TA archived at Before and during the Before and 39 38 archived at The video on Breitbart’s website 41 , March 17, 2013, http://articles.washingtonpost OST He also wrote that she discriminated ra- He also wrote that she discriminated . P Shirley Sherrod Defamation Case Faces Blogger Free- Shirley Sherrod Defamation Case Faces 40 http://perma.unl.edu/7CG8-TYNP; ASH Video Proof: The NAACP Awards Racism—2010 , W He delivered on his promise by using clips from a by using clips on his promise He delivered note 38. 37 archived at supra (July 19, 2010), http://www.breitbart.com/Big-Government/2010/07/19/ . . . In this piece you will see video evidence of racism coming from a federal see video evidence of racism coming from In this piece you will . . . . USDA of a video from in which Shirley Sherrod, We are in possession . . . . against describes how she racially discriminates In the first video, Sherrod COM .edu/Q8TC-NM6A. 3B-AH4G. .com/2013-03-17/politics/37795462_1_andrew-breitbart-shirley-sherrod-defama tion-case, Video-Proof—The-NAACP-Awards-Racism—-2010, ficial Saying She Didn’t Give ‘Full Force’ of Help to White Farmer ficial Saying She Didn’t Give ‘Full Force’ Speech Challenge . Id Id Id (July 20, 2010), http://www.foxnews.com/politics/2010/07/19/clip-shows-usda-offi cial-admitting-withheld-help-white-farmer, appointee and NAACP award recipient and in another clip from the same award recipient and in another clip from appointee and NAACP exist. for why the Tea Party needs to event a perfect rationalization Freedom Fund Development, speaks at the NAACP Georgia Director of Rural dinner in Georgia. to be an all- In her meandering speech to what appears out in stark appointed executive bureaucrat lays black audience, this federally of race and duties are managed through the prism detail, that her federal class distinctions. a white farmer. she will choose describes how she is torn over how much She to help him.she can for him, she admits that she doesn’t do everything And, because he is white. Eventually, her basic humanity informs that this white man is poor and needs help. But she decides that he should get help from “one of his own kind”. She refers him to a white lawyer. Accusing Sherrod by means of an incomplete video to create a news Accusing Sherrod by means of an 40. 39. Andrew Breitbart, 41. 42. Jalonick, 38. Mary Clare Jalonick, 37. the reveal, Sherrod was ousted from her job—collateralthe reveal, Sherrod was ousted from damage done notoriety to sway the outcome of by Breitbart’s attempt to use his own video, these statements were made by Breitbart: statements were video, these turned out to be incomplete, and when Sherrod’s full speech was re- turned out to be incomplete, and were not racist but, instead, vealed, it became clear that her remarks reconciliation. an attempt at telling a story of racial cially against a white farmer. video of Shirley Sherrod, former U.S. Department of Agriculture Di- of Agriculture former U.S. Department Shirley Sherrod, video of racist re- allegedly making in Georgia, Rural Development rector of as a civic duty. she gave a speech marks as story was not enough. Along with a nearly 1,000-word blog post, he duties “through the prism of race accused Sherrod of carrying out her and class distinctions.” 2015] members of NAACP one video at least publish he would that nounced racism. cheering NEWS REPORTING CALUMNIOUS 701 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 12 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 82 Side A 04/02/2015 08:48:02 A 04/02/2015 82 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 82 Side B 04/02/2015 08:48:02 R R R , , on- Jalonick, http://perma.unl see also The headline named Kathe- 47 (October 17, 2012, 2:18 Hates Cops and Wo- Hates Cops and 48 archived at EACON B REE Washington Free Beacon http://perma.unl.edu/Y84N-4WWF highlighted sexually sugges- highlighted sexually . F 44 ASH and conveyed the message that she and conveyed the , W http://perma.unl.edu/PR6Y-HJLN (reporting 45 archived at Party Girl Debate Questioner Loves Joose, Hates Party Girl Debate Questioner Loves Joose, Washington Free Beacon Washington Free 43 online newspaper attempted to overshadow online newspaper archived at 49 Vilsack: I Will Have to Live with Shirley Sherrod Mistake Vilsack: I Will Have to Live with Shirley The newspaper reported this after Ms. Fenton The newspaper 46 note 14. note 14. (October 18, 2012), http://feministing.com/2012/10/18/well-you-did- (July 21, 2010, 5:58 PM), http://www.cbsnews.com/8301-503544_162- supra supra Well, You Did Dare to Speak in Public, So I Guess You Deserve This Well, You Did Dare to Speak in Public, EWS note 38 (reporting that “[d]ays after the NAACP clashed with Tea Party note 38 (reporting that “[d]ays after the Brian Montopoli, . EMINISTING Party Girl Debate Questioner Loves Joose, Party Girl Debate F CBS N .edu/6KBV-6T2J. PM), http://freebeacon.com/party-girl-debate-questioner-loves-joose-hates-cops- and-women-who-watch-sports/, (reporting that the question she asked was, “In what new ways do you intend to rectify the inequalities in the workplace, specifically regarding females making only 72 percent of what their male counterparts earn?”). the Agriculture Secretary Tom Vilsack forced Shirley Sherrod to resign as a re- the Agriculture Secretary Tom Vilsack forced website); sult of an out-of-context video posted to a conservative dare-to-speak-in-public-so-i-guess-you-deserve-this/, 20011263-503544.html, Cops and Women Who Watch Sports Id See supra has surfaced showing an Agriculture members over allegations of racism, a video audience with a story about how she Department official regaling an NAACP and the video has forced the withheld help to a white farmer facing bankruptcy official to resign”). By imparting facts out of context from Facebook and Twitter ac- out of context from Facebook By imparting facts Calumnious news reporting by imparting facts out of context from facts out of context by imparting news reporting Calumnious 46. Stafford, 48. Joose is a flavored malt beverage. 49. 44. Stafford, 47. Washington Free Beacon Staff, 43. 45. Chloe, line newspaper made the fleeting appearance of Katherine Fenton the line newspaper made the fleeting focal point of a matter of public concern. As a private person, her mis- debate, being called on to fortune was in attending the presidential and receiving an answer that ask a noncontroversial question, rine Fenton a “certifiable party girl,” rine Fenton a “certifiable read: tive messages she had initiated, tive messages she dislikes authority. the presidential debate by seeking to harm the reputation and esteem by seeking to harm the reputation the presidential debate to ask a question at participant for being chosen of a private civic-duty debate.the presidential The simply asked a question to presidential candidates. simply asked a question men Who Watch Sports. men Who Watch counts in order to create a headline, the counts in order to create a headline, Facebook and Twitter is another illustration that positions civic-ser- that positions another illustration and Twitter is Facebook and status public concern between in the crossroads vant participants categories. did. online newspaper what a nonprofit, That is The 702Party members Tea and the NAACP between clash the controversial of racism. over allegations NEBRASKA LAW REVIEW Beacon Washington Free [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 13 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 82 Side B 04/02/2015 08:48:02 B 04/02/2015 82 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 83 Side A 04/02/2015 08:48:02 R There- archived at Because his Gertz. 52 CNN (October 18, ’ , birthing a parody 53 Washington Free Bea- Washington Free the But in reality, the main the in reality, But 54 50 did not act to overrule Gertz Second, there must be an understanding that Second, there must be an understanding (Oct. 17, 2012), http://www.thedailybeast.com/articles/2012/ 55 Romney’s Empty ‘Binders Full of Women note 25, at 1749 (“[I]f the government is required to do some- EAST Mitt Romney’s ‘Binders Full of Women’ Comment Sets Internet Mitt Romney’s ‘Binders Full of Women’ Comment B Tonight on AC360: Voter’s Equal Pay Question Leads to Smear Cam- Tonight on AC360: Voter’s Equal Pay Question http://perma.unl.edu/83P6-MSPA. http://perma.unl.edu/9KCN-SS69. supra AILY , D , CNN (Oct. 23, 2012, 7:05 PM), http://ac360.blogs.cnn.com/2012/10/23/to- He referenced becoming the governor of Massachusetts, say- the governor of Massachusetts, becoming He referenced Copp, (indicating that the comment spawned Twitter handles and almost 300,000 (indicating that the comment spawned Twitter . (internal quotation marks omitted). 51 2012, 5:24 PM), http://www.cnn.com/2012/10/17/opinion/cardona-binders-women, 10/17/mitt-romney-s-binders-full-of-women-comment-sets-internet-ablaze.html, night-on-ac360-voters-equal-pay-question-leads-to-smear-campaign/, people had supported a Facebook page about what a politically tactless statement people had supported a Facebook page about it was). Ablaze paign archived at See thing as a matter of justice or as a matter of rectifying past injustices, then office holders, citizens, and other members of the general community are in a position to do things that would contribute to enabling the government to fulfill its requirement.”). http://perma.unl.edu/RGT8-YU6L. archived at Id Id. attempted to recast the original public controversy through nega- the original public controversy attempted to recast In light of these events, current defamation law fails to adequately current defamation law fails In light of these events, 52. 55. 54. Marlow Stern, 53. 51. Maria Cardona, 50. Randi Kaye, fore, each factor must be weighed according to the contributions of fore, each factor must be weighed comments immediately went viral on the Internet, comments immediately Twitter account and a Facebook fan page, Twitter account and controversy erupted when the Republican nominee stumbled over his nominee stumbled the Republican erupted when controversy the work- inequalities in “rectify the about how he would answer place.” within the ambiguous meaning of plaintiff status classification, public within the ambiguous meaning of the involuntariness of the plaintiff controversies, and situations where is at issue, the progeny of con ing, “I had the chance to pull together a Cabinet, and all the a Cabinet, and to pull together the chance ing, “I had women’s [A] number of men . . . . seemed to be applicants us whole binders full of women.” groups . . . brought tive publicity about Katherine Fenton, the civic-duty participant who Katherine Fenton, the civic-duty tive publicity about the audience to ask a question. was chosen from media outlets are to a remedy, and thus, many provide a clear path plaintiff, or the status category of the defamed willing to misapply activity as one of public concern.they identify the solution in The is to harmo- redress for civic-duty participants evaluating defamation present deficien- of civic responsibility with the nize the constraints cies of defamation law. This suggests that there must first be an are in a position to do lim- understanding that civic-duty participants to enabling the government to ful- ited activities that would contribute fill its requirement. 2015] for conservatives. firestorm a prompted NEWS REPORTING CALUMNIOUS 703 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 14 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 83 Side A 04/02/2015 08:48:02 A 04/02/2015 83 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 83 Side B 04/02/2015 08:48:02 . ITT and its , 49 U. P Gertz It also includes understanding the complex- It also includes understanding Media Defendants, Public Concerns, and Public Plain- Media Defendants, Public Concerns, and 57 FOR DEFAMATORY SPEECH FOR DEFAMATORY and its progeny’s attempt to develop clear guide- and its progeny’s attempt to develop As a result of these alterations, the Supreme Court As a result of these alterations, the 58 Gertz In sum, the balance must include the civic-duty partici- civic-duty the must include balance the In sum, . 91, 92 n.1 (1987) (“The Supreme Court first recognized that defamation 56 EV Arlen W. Langvardt, at 93. THE CRITERION OF CONSTITUTIONAL PROTECTION OF CONSTITUTIONAL THE CRITERION L. R law is subject to constitutional limits and requirements in the landmark case, New York Times Co. v. Sullivan, 376 U.S. 254 (1964).”). tiffs: Toward Fashioning Order from Confusion in Defamation Law See Id ing public issues without regard to the status of the plaintiff. ing public issues without regard to the status The quandary of why calumnious news reporting is tolerable by why calumnious news reporting The quandary of Owing to III. CREATED THAT OF THE PRECEDENT AN OVERVIEW 58. 56. protect- This must be done without consideration of the media’s claim of privilege 57. the media, regarding civic-duty participants, is because of the vague- civic-duty participants, is because the media, regarding for other- related to the constitutional protection ness in the criteria speech.wise defamatory news To further understand why calumnious the evolution of it is first important to recognize reporting is endured, aspect of today’s defamation law.the constitutional includes the This extent of First struggle to determine the U.S. Supreme Court’s Amendment protection. progeny. ity of constitutionalizing the law of defamation in light of the First the law of defamation in ity of constitutionalizing of common-law has shifted the function and goals Amendment that and left some private individuals be- defamation, perplexed the media, lieving they are unprotected. Consequently, these complexities al- law with regard to whether tered several legal analyses of defamation figure grouping or a official–public the plaintiff was within the public the content of speech is of public or private figure group and whether private interest. left uncertainties in defamation law.left uncertainties in defamation While maintaining these con- plaintiff’s role and content of flicting signals concerning the defamed Court failed to provide clear gui- the speech in question, the Supreme maze of confusion.dance and has not abandoned the Thus, the Su- that permit the media to preme Court deposited murky standards stories to the point of defamation, embellish and sensationalize new immune to calumnious news thereby causing society to become reporting. areas outside of the confusion that lines, there are still some traceable like civic-duty participants to provide a narrow opening for plaintiffs seek legal redress for defamation. They can only be seen by filtering the nature of the speech, through the ill-defined plaintiff categories, and vague guidance on public interests. In order to reach these clar- pant’s duty to the democratic structure with deference to structure with to the democratic pant’s duty 704precedent. NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 15 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 83 Side B 04/02/2015 08:48:02 B 04/02/2015 83 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 84 Side A 04/02/2015 08:48:02 R In LARA 64 C (2) all- ANTA 62 New York Times Waldbaum v. Fairchild Publ’n, see also . at 351. Id Id. court did was advance the same goal by court did was advance .”). and (3) limited-purpose public figures. Dun & Bradstreet v. Greenmoss Builders, 31 S 63 Gertz Gertz Court found the diversity of plaintiff statuses less Court found the diversity of plaintiff A Conflict in the Public Interest: Defamation and the Role of the Court set the wheels in motion to constitution- the Court set the 59 , Gertz note 20, at 668 (citing Marcone v. Penthouse Int’l Magazine for Men, note 20, at 668 (citing Marcone v. Penthouse In actual application, however, determining exactly In actual application, however, At one end of the spectrum are “private individuals” and spectrum are “private individuals” At one end of the 65 What the . 997, 1012 (1991). supra 61 60 EV Inc., 627 F.2d 1287, 1292 (D.C. Cir. 1980) (“Unfortunately, the Supreme Court Inc., 627 F.2d 1287, 1292 (D.C. Cir. 1980) of public figures and private per- has not yet fleshed out the skeletal descriptions sons enunciated in or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. ual may achieve such pervasive fame or notoriety that he becomes a public figure ual may achieve such pervasive fame or notoriety for all purposes and in all contexts. Content in the Wake of L. R 754 F.2d 1072, 1082 n.4 (3d Cir. 1985)); siderable difficulty determining the proper scope of the public-figure doctrine. siderable difficulty determining the proper King, Are Classified The crucial matter of determining the status or category of a de- of determining the status or category The crucial matter 64. The limited-purpose public figure is an individual who voluntarily injects himself 61. (4th Cir. 1994). Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551–52 62. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). 63. The Court recognized all-purpose public figures from instances where an individ- 65. James Chadwick, 59. 376 U.S. 254 (1964). 60. con- Without a precise diagram for guidance, courts and commentators have had doing this, the purpose public figures; identifying two main categories to establish a schematic of defamation categories to establish a schematic identifying two main plaintiffs. confounding than determining when a statement involves an issue of confounding than determining when a definitive test for determin- public importance, but it did not provide ing status. alize what they thought would be the proper scope of the public-figure would be the proper scope alize what they thought doctrine. what makes a plaintiff a public figure has not proven to be a simple what makes a plaintiff a public figure considering standards of proof. task, nor did it free the courts from a confusing nexus between the all- The Court ultimately left behind purpose public figure.purpose public figure and the limited This im- at the other end are “public officials” and “public figures.”at the other end On the lat- divides public officials and public ter side of the spectrum, the Court involuntary public figures; figures into three categories: (1) Co., v. Sullivan famed plaintiff in a controversy was the first daunting task of consid- a controversy was the first daunting famed plaintiff in and respond to redress for vulnerable persons ering how to balance rights for the press.First Amendment Starting with 2015] with law of defamation the evolution will trace section this ion areas, of the the progression to illustrate structural schematics expanding like civic-duty participants where plaintiffs reveal the crevice law and NEWS REPORTING CALUMNIOUS redress. may seek A. in Which Defamed Plaintiffs The Rubric of Categories 705 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 16 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 84 Side A 04/02/2015 08:48:02 A 04/02/2015 84 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 84 Side B 04/02/2015 08:48:02 69 Id. New New Although the Com- Before Justice Bren- 67 Not only did the 1964 Not only did the 68 The Court then deter- 66 70 Thus, for defamation law, , ushered a new level of complexity , ushered a new level 72 case, the respondent, an elected Commis- case, the respondent, an elected New York Times case develop a category of a defamed plaintiff, but it of a defamed plaintiff, but case develop a category to the determination of plaintiff status was the catalyst of of plaintiff status was the catalyst to the determination The Court’s definition of actual malice resulted in the ele- The Court’s definition of actual malice New York Times 71 . at 256. . at 256–59. . at 270. . . at 279–80. tory statement was false or the display of reckless disregard for the truth. Id Id Id Id Id In the 1. Public Officials or category of a the matter of status The first case determining 68. 69. 70. 71. 72. of prior knowledge that the allegedly defama- “Actual malice” is the possession 66. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 67. missioner was not mentioned by name, he alleged that one of the missioner was not mentioned by to him. statements could be read as referring nan focused heavily on the importance of permitting debate on public nan focused heavily on the importance proposition that freedom of ex- issues, he acknowledged the general secured by the First Amendment. pression upon public questions is mined that constitutional guarantees prohibited a public official from mined that constitutional guarantees falsehood relating to his official recovering damages for a defamatory statement was made with “actual conduct unless he proved that the malice.” to the constitutionality of defamation law. to the constitutionality sioner of the City of Montgomery, Alabama, alleged that statements in sioner of the City of Montgomery, libeled him. the defendant’s newspaper ad had also reshaped the traditional requirements of defamation law into an traditional requirements of defamation also reshaped the as it bal- and demanding set of constraints enormously multifaceted protection. freedom of speech with individual anced First Amendment libel cases by seek- granted deference to the media in The opinion also First Amendment. fault within the confines of the ing to reconfigure of for this discussion, the contribution But more importantly York Times revolutionizing defamed plaintiffs. ment of falsity superseding fault. defamed plaintiff, defamed plaintiff, In paying deference to the importance of permitting debate on public In paying deference to the importance that there can be no denial of a issues, Justice Brennan stated the principle that debate on public “profound national commitment to and wide-open, and that it may issues should be uninhibited, robust, sometimes unpleasantly sharp at- well include vehement, caustic, and officials.” tacks on government and public New York Times 706 on the to focus of classifications rubric the in modifying resulted passe re- and other offshoots statements of the defamatory subject matter garding language.addi- clarity produced meant to offer Yet, what was tional ambiguity. NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 17 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 84 Side B 04/02/2015 08:48:02 B 04/02/2015 84 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 85 Side A 04/02/2015 08:48:02 R 75 In New 78 Curtis Pub- Court pointed actual malice stan- The Court further Curtis 76 . the court extended the planted the seeds of a constitu- 79 Thus, the Court held that 77 New York Times New York Times New York Times , the Supreme Court should require strict , the Supreme Court should require actual malice requirement, with its First malice requirement, actual the Court decided bifurcated cases on libel the Court decided 74 , note 20, at 652 (“ supra was the wild seed of the constitutional garden, from which garden, constitutional seed of the the wild was New York Times standard evenly applies to cases involving “public men”— standard evenly applies to cases Court considered status and held that the plaintiffs were status and held that the plaintiffs Court considered 73 New York Times New York at 154. at 155. at 165. King, . at 162. Moreover, this case established that in cases tried after the Moreover, this case established tional garden from which ever-growing layers of doctrinal and decision-making tional garden from which ever-growing layers complexity have sprouted.”). Id. Id. Id. Id. Id Id. See Curtis 80 Because the actions and views of public figures with respect to pub- Because the actions and views of public 2. Public Figures The 77. 79. 80. 74. 388 U.S. 130 (1967). 75. 76. 78. 73. whether “public officials” or “public figures”—thewhether “public officials” or “public addition, the Court extended the out that its decision would afford the necessary insulation for the fun- out that its decision would afford Amendment was designed to pro- damental interests that the First tect. stated that both defamed plaintiffs in the cases “commanded a sub- defamed plaintiffs in the cases “commanded stated that both time of the pub- of independent public interest at the stantial amount have been labeled [the Court’s] opinion, would lications; both, in rules.” ‘public figures’ under ordinary tort dard to claims by public figures. as much concern to citizens as the lic issues and events are often of officials,” attitudes and behaviors of “public constitutional privilege to include them.constitutional privilege to include In declaring that the “a ‘public figure’ who is not a public official may also recover damages “a ‘public figure’ who is not a public substance makes substantial danger for a defamatory falsehood whose of highly unreasonable conduct to reputation apparent, on a showing from the standards of investigation constituting an extreme departure to by responsible publishers.” and reporting ordinarily adhered Amendment protections and the narrowed fault standards, now ex- and the narrowed fault Amendment protections officials to public figures.tends from public In the case of actions that were brought against publishers by nonpublic officials. brought against publishers by nonpublic actions that were York Times ever-growing layers of doctrinal and decision-making complexities and decision-making layers of doctrinal ever-growing sprouted. lishing Co. v Butts “public figures” because of the public interest in the circulation of the of the public interest in the “public figures” because them was not publisher’s interest in circulating materials, and the in less than that involved decision in The 2015] Times York NEWS REPORTING CALUMNIOUS 707 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 18 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 85 Side A 04/02/2015 08:48:02 A 04/02/2015 85 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 85 Side B 04/02/2015 08:48:02 87 It New 84 Associ- In spite 88 decision did Curtis rule should apply rule should This second case also 86 the publisher of a maga- the publisher 81 New York Times New York , the issue was whether the plaintiff was entitled , the issue was whether the plaintiff 85 bifurcated opinion, however, was inconsistent. opinion, however, bifurcated In . to The activities of the plaintiffs were too different ). Curtis Publishing Co. v. Butts, Curtis Publishing Curtis at 165–67 (indicating the judge’s instructions in the lower court were cor- (indicating the judge’s instructions in the lower court at 165–67 decision noted the term “public figure” includes those who decision noted the term “public figure” From these facts the court considered the issue of whether the court considered the issue From these facts the at 134. at 136. decision. from standards The first ruling spoke of a departure . at 136–38. . at 135–36. . . . at 146. 82 83 rect in providing the jury “actual malice” instructions in accordance with rect in providing the jury “actual malice” York Times Id. Id. Id Id Id Id Id See id. Curtis Consistencies with the first issue and ruling were not maintained the first issue and ruling were Consistencies with In determining whether the whether In determining 82. 83. 84. 85. 86. 87. 88. 81. was determined that the plaintiff had attained his status as a public that the plaintiff had attained his was determined as head football alone since he previously served figure by his position figure within and was a well-known, respected coach of a university the coaching ranks. of the different activities of the plaintiffs, the first of the different activities of the plaintiffs, not serve as a predictive analysis regarding the ruling in the second not serve as a predictive analysis only in actions brought by public officials or whether it has a longer or whether it has public officials brought by only in actions reach, described the plaintiff as encouraging rioters to use violence and giv- described the plaintiff as encouraging combating the effects of tear gas. ing students technical advice on zine article accused an athletic director at a state university, who was an athletic director at a state university, zine article accused to fix a football private corporation, of conspiring employed by a game. to a public figure status when, at the time of the publication, he was a to a public figure status when, at of a violent crowd and had private person who had taken command federal marshals sent to enforce a personally led a charge against order. court decree and to assist in preserving the first case, the first warrant compliance with a single standard.warrant compliance with a single But more importantly, the ated Press v. Walker the defendant magazine publisher engaged in unreasonable conduct publisher engaged in unreasonable the defendant magazine of investigation extreme departure from standards constituting an publishers. adhered to by responsible and reporting ordinarily of investigation and reporting while the second was consistent with of investigation and reporting while in the second half of the bifurcated case.in the second half In the second case, The Court determined that this plaintiff had achieved public figure The Court determined that this amounting to a thrusting of his per- status “by his purposeful activity public controversy.” sonality into the vortex of an important Curtis New York Times 708 for- the precise regarding it established the standard with compliance preceding falsity. of actual malice mulation NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 19 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 85 Side B 04/02/2015 08:48:02 B 04/02/2015 85 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 86 Side A 04/02/2015 08:48:02 Gertz New Thus, Curtis opened 92 erred on as well as as 89 Curtis Curtis New York Times , it was decided 91 Curtis This overly broad definition This overly . 199, 223 (1976) (explaining the . 365, 372 (2002). 90 EV EV reached inconsistent results by inconsistent results reached . L. R L. R EX OVA Subsequent to Curtis , 95 Defamation and the First Amendment: In Praise of Defamation and the First Amendment: , 27 N identified two major characteristics of public identified two major characteristics When Time Stands Still: An Argument for Restoring Public When Time Stands Still: An Argument for , 388 U.S. at 135). Curtis Curtis 93 differentiated between two opposing forms of activities differentiated between , Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1081 n.4 on libel actions instituted by persons who are not public instituted by persons who are not on libel actions New York Times New York . at 163 (Warren, J., dissenting) (indicating differentiation between “public . at 163 (Warren, J., dissenting) (indicating Public figures were specifically defined as persons who ordi- Public figures were specifically defined David W. Robertson, The issue for the courts then becomes whether the plaintiff is The issue for the courts then becomes at 154. 94 Curtis . . at 155. dismantled the guidelines in considering the impact of guidelines in considering the impact dismantled the 96 (3d Cir. 1985) (stating that “[t]he classification of a plaintiff as a public or private figure is a question of law to be determined initially by the trial court and then carefully scrutinized by an appellate court”). figures” and “public officials” and adoption of separate standards of proof for each figures” and “public officials” and adoption policy). has no basis in law, logic, or First Amendment Figures to Private Status See Gertz v. Robert Welch, Inc., 54 T figures established in the compan- decision probably borrowed the class of public ion cases of Id. See, e.g. Id Id. Id See id Unlike While reviewing the subject matter of the defamatory statement as While reviewing the subject matter 94. 95. 93. Olympia R. Duhart, 91. 90. 92. 96. 89. the door to far-reaching interpretations for a host of public figure de- the door to far-reaching interpretations terminations. the analysis because it did not sufficiently address the general issue it did not sufficiently address the analysis because for these cases. of determining whether the Instead those who commanded a substantial amount of independent public in- of independent amount commanded a substantial those who publications. the time of the terest at that the consideration of a public figure is a question of law for the that the consideration of a public court. invited subjective reasoning and, therefore, inconsistent analysis. and, therefore, reasoning invited subjective measuring the plaintiffs’ activities rather than their status. activities rather the plaintiffs’ measuring figures. of private persons and tailored one specific standard for defining “pub- and tailored one specific standard of private persons the issue. which had no basis in analogizing lic figure” status, York Times officials and therefore caused anyone to potentially metamorphose officials and therefore caused anyone into a public figure. public figure status, a faint litmus test for determining narily can gain access to the media to rebut defamatory charges and narily can gain access to the media in a meaningful sense to an en- who voluntarily expose themselves hanced risk of defamation. rule should apply only to public officials or whether it had a longer only to public officials or whether rule should apply reach, Curtis 2015] controversies public important into themselves thrust NEWS REPORTING CALUMNIOUS commanded suffi- plaintiffs in the bifurcated cases reasoned that both access to the means public interest and had sufficient cient continuing 709 the false- to be able “to expose through discussion of counterargument of the defamatory statements. hood and fallacies” \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 20 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 86 Side A 04/02/2015 08:48:02 A 04/02/2015 86 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 86 Side B 04/02/2015 08:48:02 R EC- 104 and and (S 108 100 Rosen- , 218 (2010). 103 , the Court stated ESTATEMENT PPROACH A Rosenbloom Rosenbloom ROBLEM Thus, it was held that a libel Rosenbloom v. Metromedia, Id. : A P AW L Thus, the private individual must ORTS , 403 U.S. 29. In T , distinguishing the subject matter in- , distinguishing 105 Curtis DVANCED a former professional football player who professional a former repudiated its position in Rosenbloom note 3. 98 , A 107 supra , OHNSON Gertz 106 OND ORTS Thus, with this question imbedded, the Supreme Court imbedded, the Supreme this question Thus, with R. J T 97 OF ) at 45. at 44 (holding that that the classification of status was a matter of content). at 44 (holding that that the classification a Playboy playmate who posed for a photograph seeking in- seeking posed for a photograph playmate who a Playboy the answer focused on the content of the debate. the answer focused . at 43. Therefore, after Therefore, after INCENT held that the First Amendment applied to state libel actions Amendment applied to state held that the First 99 that the First Amendment applied to state libel actions when the utterance in- volved issues of public or general concern. Id. Id. Id Id. further inquiries beyond the matter of the status of the individual into whether the fault standards applied as a matter of content or whether a public contro- versy was controlling. 102 , 101 Debates transpired on how to distinguish the subject matter for on how to distinguish the subject Debates transpired 3. Persons Private classification inquiry, the Su- In reexamining the public figure 98. Greenbelt Coop. Publ’g Assoc. v. Bresler, 398 U.S. 6 (1970); R 97. V 99. Chuy v. Phila. Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979). 106. 105. 104. 100. (E.D. Pa. 1978). Vitale v. Nat’l Lampoon, Inc., 449 F. Supp. 442 101. Monitor Patriot v. Roy, 401 U.S. 265 (1971). 102. 403 U.S. 29 (1971). 103. 107. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 108. Debates on the various public figure classifications of plaintiff status resulted in a candidate in the Democratic Party’s primary elections for U.S. Sena- Democratic Party’s primary elections a candidate in the tor. prove that the defamatory falsehood was published with knowledge prove that the defamatory falsehood of whether it was false (i.e., that it was false or with reckless disregard actual malice). creasingly blurred the effects of plaintiff status designation. creasingly blurred as inquiries into figure classifications as well the various public content or whether standards applied as a matter of whether the fault was controlling.a public controversy In gained prominence for being involved in a major, well-publicized involved in for being gained prominence trade; held that the following are public figures: a prominent local real estate prominent local public figures: a the following are held that plans for would affect his variance that who sought a zoning developer housing; high-density bloom Inc. ternational circulation, and whose expectations were fulfilled; and whose expectations were ternational circulation, when the utterance involved issues of public or general concern. involved issues of public or when the utterance preme Court in The case then went on to determine a fault standard.The case then went on to determine The Court re- for defamatory falsehood when the quired clear and convincing proof involvement in an event statement related to the private individual’s of public or general concern. 710the defamatory of matter to the subject respect with figure a public statement. NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 21 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 86 Side B 04/02/2015 08:48:02 B 04/02/2015 86 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 87 Side A 04/02/2015 08:48:02 , the Yet, 113 Gertz The Court 112 . at 332. Id. As a defense to the As a defense The typography sepa- The typography 110 The court held that news- The court held that 115 expanded the schematic of expanded the schematic 111 Classification then became a matter of New York Times Gertz Id. In essence, 114 court diverted classification on another course by es- court diverted classification The defendant was a magazine that published de- that published was a magazine The defendant at 343–44. 109 Id. Gertz , 418 U.S. at 325. at 339–48. . . at 325–27. lead to an ad hoc resolution of the status classification.lead to an ad hoc resolution of the status The Court stated, “Be- interests at stake in each particular cause an ad hoc resolution of the competing case is not feasible, we must lay down broad rules of general application. Such rules necessarily treat alike various cases involving differences as well as simi- larities.” content. cating the Court elaborated a typography of defamation plaintiffs). individual who is neither a public official nor a public figure it may not claim a individual who is neither a public official defamation. constitutional privilege against liability for action by a private individual against a media entity for a defamatory falsehood action by a private individual against a media public or general concern may be sus- relating to his involvement in an event of that the defamatory falsehood was tained only upon clear and convincing proof or with reckless disregard of whether published with knowledge that it was false it was false or not (i.e., actual malice). Gertz Id Id Id. 114. officials and public figures would Treating private persons differently than public 109. 115. (4th Cir. 1994) (indi- Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551–52 110. 113. defamatory falsehoods about an The Court held that when the media publishes 111. 112. defamed plaintiff was a lawyer who represented the family of a mur- the family who represented plaintiff was a lawyer defamed dered victim. public figure status the rationale for diverting the in recognizing that status classifi- an ad hoc resolution of the plaintiff’s rule would lead to cation, the noted that an absolute protection for the media requires a total sacri- protection for the media requires noted that an absolute values served by the law of defamation. fice of the competing defamation claim, the magazine asserted that the plaintiff was a pub- the plaintiff asserted that claim, the magazine defamation concerned in question and that the article or a public figure lic official interest and concern. an issue of public rated private individuals from public officials and public figures and rated private individuals from public for public officials and public further created a separate spectrum public persons: involuntary public figures to include three types of and limited-purpose public figures. figures, all-purpose public figures, like this: The schematic would look something papers and broadcasters that publish defamatory falsehoods about an that publish defamatory falsehoods papers and broadcasters figure may not neither a public official nor a public individual who is privilege under claim constitutional into two spectrums. defamation plaintiffs tablishing a broad rule to treat various cases alike, even when they rule to treat various cases alike, tablishing a broad are distinguishable. famatory statements about the plaintiff. statements about famatory 2015] course. another down and classification fault diverted In NEWS REPORTING CALUMNIOUS 711 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 22 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 87 Side A 04/02/2015 08:48:02 A 04/02/2015 87 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 87 Side B 04/02/2015 08:48:02 121 equated these Some occupy posi- Gertz 118 Yet 120 The Court avoided applying The Court avoided no purposeful action of one’s no purposeful action 117 all purposes andin all contexts coerced but > a minimal role The limited-purpose public figure labeled two types of public figures: labeled two types 119 Gertz ’s dichotomy of status offers disconcerting ex- ’s dichotomy of status Involuntarypublic figuresexceedingly rare All-purpose public figuresinstance pervasive fame voluntarily public figures purpose Limited or notoriety for injects oneself or Involuntarypublic figures All-purpose figures public public figures purpose Limited Gertz The Court’s support for the claim that this occurrence is for the claim that this occurrence The Court’s support 116 , 418 U.S. at 345. at 351. at 345. . . Gertz Id Id Id. Id. Id. Private Private but that instances of truly involuntary public figures are exceed- of truly involuntary public figures but that instances Consequently, individuals and Public Figures Public Officials individuals Figures Public Public Officials and 117. 121. 118. 119. 116. 120. two categories as public figures that stand in a similar position. two categories as public figures tions of such persuasive power and influence that they are deemed power and influence that tions of such persuasive public figures for all purposes. the involuntary public-figure status and failed to mention such status status and failed to mention the involuntary public-figure again in the case. Second, category, on the other hand, was defined as one who voluntarily in- category, on the other hand, was controversy, thereby becoming a jects oneself into a particular public issues. public figure for a limited range of the all-purpose public figure and the more common limited-purpose figure and the more common the all-purpose public public figure. as one who public figure was defined The all-purpose prominence in societal affairs. assumes a role of planations. public- determined that an involuntary First, the Court be obtained through figure status may exceedingly rare was unsubstantiated. exceedingly rare own ingly rare. This suggests that an individual could be deemed a limited-purpose This suggests that an individual to attaining such status were volun- public figure if his actions related somewhat coerced.tarily or, in some cases, if they were Whatever the schematic of involuntary pub- disconcerting explanation, a structural public figures would lic figures, and all-purpose and limited-purpose look something like this: 712 NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 23 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 87 Side B 04/02/2015 08:48:02 B 04/02/2015 87 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 88 Side A 04/02/2015 08:48:02 . EV the L. R 125 § 2.08, at ’s paral- OWA Gertz , 89 I EFAMATION 122 D 418 U.S. at 354, 404. Thus, the above sche- Thus, the above AW OF , L 123 Gertz, MOLLA but not the ambiguous language but not the ambiguous A. S Gertz Dragged into the Vortex: Reclaiming Private ODNEY R See generally replaced the easy grid with a public concern or sub- replaced the easy grid with a public the two remaining categories were less difficult to ma- categories were less difficult the two remaining Gertz (noting that in the following sentence after the involuntary public figure (noting that in the following sentence after 124 Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166 (1979); Hutchinson Wolston v. Reader’s Digest Ass’n, Inc., 443 . Christopher Russell Smith, rationale for distinguishing public figures from private figures rationale for distinguishing public 1419, 1428 (2004) (noting the requirement of an active participation of the two 1419, 1428 (2004) (noting the requirement categories with different definitions). 2–23 (1993) (“In the aftermath of Gertz, the Supreme Court undertook a series of (1993) (“In the aftermath of Gertz, the Supreme Court 2–23 refinements of the ‘limited’ public figure, consistently giving the term an applica- tion more restricted in scope than the simple word ‘public’ might suggest as a matter of popular colloquial usage.”). and Justice White filing dissenting opinions. definition, and in the rest of the paragraphs, the Court focused on active involve- definition, and in the rest of the paragraphs, ment of the limited-purpose public figure). v. Proxmire, 443 U.S. 111, 134–36 (1979); Time, Inc. v. Firestone, 424 U.S. 448, (1979); Time, Inc. v. Firestone, v. Proxmire, 443 U.S. 111, 134–36 (1976). 453–55 Plaintiffs’ Interests in Limited Purpose Public Figure Doctrine Plaintiffs’ Interests in Limited Purpose Public See See See id. Causing controversy among the Supreme Court justices, Causing controversy among the At first blush, the rubric classification appears to be user-friendly rubric classification appears to At first blush, the The opinion then offered a confusing nexus between two status cat- status two between nexus a confusing offered opinion then The Gertz 123. 125. The vote was 5 to 4 with Chief Justice Burger, Justice Douglas, Justice Brennan, 124. 122. lelism between the two categories and the subsequent applications categories and the the two lelism between concerning invol- render the previous statement throughout the case merely hypothetical. untary public figures matic follows the application of matic follows the of ject-matter debate, which was designed to trigger an analysis on the ject-matter debate, which was designed public-figure status.determination of limited-purpose This trigger which matters are of public came with very little guidance regarding ambiguity in the constitutional concern, thereby allowing further analysis. neuver. to distin- For the most part, it was presumed uncomplicated public figures.guish private individuals from all-purpose However, a straightforward methodology.new judicial trend altered this The progeny of created internal discontent and more confusion.created internal discontent and more Dissenting opinions and supported private-individual criticized public-figure designations designations. the Court must strike Justice Brennan stressed that for most cases. was reluctant in the past the Supreme Court Although its scope was limited-purpose public figure because to label anyone a restricted, Gertz B. Rubric of Classifications The Modification of the 2015] explanations. the disconcerting it expanded on egories as face In the “In either explained that, the Court unexpected event, of a totally NEWS REPORTING CALUMNIOUS and limited-purpose public figures persons, involuntary case[,] such of public in the resolution prominence assume special public figures, active participation.” thus, reemphasizing questions, 713 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 24 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 88 Side A 04/02/2015 08:48:02 A 04/02/2015 88 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 88 Side B 04/02/2015 08:48:02 129 127 New York Wolston v. rejected the He believed 130 and 126 133 holding discarded 135 , and abolished pre- 131 Gertz Justice White had the Justice White had 128 The hybrid formula, however, has side The hybrid formula, however, has Justice White warned, “[S]cant, if any, Justice White warned, 136 Hutchinson v. Proxmire 132 134 , established a hybrid between category determina- established a hybrid between category 418 U.S. at 355 (Burger, C.J., dissenting) (indicating the important 418 U.S. at 355 (Burger, C.J., dissenting) Gertz, at 380 (White, J., dissenting). (White, J., dissenting). at 380–81 at 355 (Burger, C.J., dissenting). J., dissenting). (White, at 392–98 at 381 (White, J., dissenting). at 361 (Brennan, J., dissenting). at 364 (Brennan, J., dissenting). standard to libel actions concerning media reports of private concerning media to libel actions standard public policy which underlies this tradition—the right to counsel—would be an “unpopular” case, civil or crimi- gravely jeopardized if every lawyer who takes for irresponsible reporters and editors nal, would automatically become fair game as a “mob mouthpiece” for represent- who might, for example, describe the lawyer or as an “ambulance chaser” for ing a client with a serious prior criminal record, action). representing a claimant in a personal injury Id. Id. Id. Id. Id. Id. Id. See Gertz, In lieu of completely destroying the categories, the justices, in the In lieu of completely destroying the 129. 130. 131. 132. 133. 134. 424 U.S. 448 (1976). 135. 443 U.S. 111 (1979). 136. 443 U.S. 157 (1979). 127. 128. 126. judgment arrived at by the fifty states that the reputation interest of at by the fifty states that the reputation judgment arrived deserves more protection; the private citizens that voluntarily or not, “we are all ‘public’ men to some degree.” men to some are all ‘public’ or not, “we that voluntarily history and precedent in a rush to refashion defamation law; in a rush to refashion history and precedent sumed, general, and punitive damages rules as to libels or slanders and punitive damages rules as to sumed, general, face. defamatory on their sternest dissent on this issue.sternest dissent on He felt that the effects. categories and subject The formula, combining the status the requirement for a defamed matter, both reinforced and narrowed libel suit.plaintiff to be a public figure in a In fact, one of the cases evidence exists that the First Amendment was intended to abolish the the First Amendment was intended evidence exists that extent of depriving ordinary citi- common law of libel, at least to the their defamers.” zens of meaningful redress against tion and the subject matter of the public controversy that, under cer- tion and the subject matter of the individuals from the analysis. tain circumstances, excludes private three years, through the opinions of This was completed in the span of Reader’s Digest Association. Times individuals and events of public or general interest. public or general and events of individuals progeny of Time, Inc. v. Firestone treated the First Amendment as if it were drafted to preclude a rem- Amendment as if it were drafted treated the First against a damaging falsehood; edy to private citizens 714 and self-censorship of media avoidance between proper balance the applying the reputations when of individual protection area of to “allow this that he would prefer indicated Justice Burger NEBRASKA LAW REVIEW respect has up to now with to evolve as it law to continue defamation doctrinal theory rather than embark on a new to private citizens ancestry.” which has no jurisprudential [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 25 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 88 Side B 04/02/2015 08:48:02 B 04/02/2015 88 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 89 Side A 04/02/2015 08:48:02 R , and Fire- , 2011 Hutchinson , + assumed the risk and had access to “self- help” triggered when the subject matter = public concern Defamation Test Firestone The Supreme Court The Supreme Gertz mean the determination mean the 137 court’s limited-purpose public figure The issue here was whether 139 all purposes andin all contexts coerced but > a minimal role Gertz Wolston— The condensed foci in the trilogy after foci in the The condensed , and 138 249, 255 (2011). Y ’ OL modifies the structural schematic to expand modifies the structural note 122 at 1430 (indicating that . & P Private or Public? Eliminating the Involuntarypublic figuresexceedingly rare All-purpose public figuresinstance fame pervasive voluntarily public figures Limited-purpose or notoriety for injects oneself or Hutchinson Gertz , ECH , supra , 424 U.S. at 454–55 (1976) (indicating that dissolution of a marriage , 424 U.S. at 454–55 reinforced and narrowed the . J.L. T . . . . Her actions, both in instituting the litigation and in its conduct, were LL Jeff Kosseff, Smith U. I doctrine). through judicial proceedings “is not the sort of ‘public controversy’ referred to in Wolston See See Firestone Gertz , the Court refused to grant all-purpose public-figure or limited- , the Court refused to grant all-purpose Private In the trilogy of cases, the new rule demanded that the subject In the trilogy of cases, the new individuals Officials and Public Figures Public 139. 138. 137. crossbred this concept by placing importance on the subject matter of on the subject placing importance this concept by crossbred in question. the statements of the limited-purpose public-figure plaintiff is now relevant only public-figure plaintiff is of the limited-purpose has been evalu- matter of the defamatory statement when the subject ated. Therefore, the limited-purpose public figure look something like: the limited-purpose stone purpose public-figure status to the plaintiff because the matter was purpose public-figure status to the controversy,” despite the new- not within the meaning of “public sworthiness of the reported matter. matter of the public controversy trigger the analysis on the determina- matter of the public controversy trigger public figure.tion of whether a plaintiff is a limited-purpose In 2015] a limited-pur- as designation plaintiff’s the defamed that mandated risk that has assumed the if he or she figure is determined pose public to help access to “self-help” figure and had being a public comes with NEWS REPORTING CALUMNIOUS or her reputation. damage to his mitigate Gertz—Firestone 715 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 26 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 89 Side A 04/02/2015 08:48:02 A 04/02/2015 89 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 89 Side B 04/02/2015 08:48:02 147 In 146 . . . . She In summa- , the Court 148 Hutchinson Curtis Publishing Co. In The Court concluded that, at The Court concluded 142 443 U.S. 157, 166 (1979). 145 , , 418 U.S. at 351). . and she did not “thrust herself to the fore- did not “thrust and she Id Gertz 141 trilogy placed primary weight on the controversial The Court acknowledged that although Ms. Fire- that although acknowledged The Court 140 Gertz Court noted that the undisputed facts did not justify the Court noted that the undisputed Here, the defendant publisher did not identify a particular Here, the defendant The Court expressed that Professor Hutchinson did not that Professor Hutchinson The Court expressed the Court refused to grant limited-purpose public-figure sta- the Court refused to grant limited-purpose at 167. at 452–55. (citing at 454–55 any role of especial prominence at 453 (indicating Respondent did not assume . 144 143 assumed no ‘special prominence in the resolution of public questions’”assumed no ‘special prominence in the resolution (quoting 351 (1974))). Gertz v. Robert Welch, Inc., 418 U.S. 323, in the affairs of society, other than perhaps Palm Beach society, and she did not in the affairs of society, other than perhaps public controversy in order to thrust herself to the forefront of any particular in it). influence the resolution of the issues involved Id Id. Id. quite different from those of General Walker in quite different from those of General Walker Id. Id. Id. research could be classified as a public figure—a conclusion that our previous opinions have rejected. Wolston 140. 148. 142. 147. Wolston v. Reader’s Digest Ass’n, Inc. 145. 141. 143. Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979). 144. 146. If it were, everyone who received or benefited from the myriad public grants for tion, the post- refused to grant limited-purpose public-figure status to a research di- limited-purpose public-figure status refused to grant projects once it was who received federal funds for rector and professor public expendi- research was a waste of general alleged that his tures. most, the defamatory statements concerned general public expendi- statements concerned general most, the defamatory expenditures; by most and relate to most public tures that are shared figure. to make Hutchinson a public they were not sufficient front of any particular public controversy in order to influence the res- order to influence controversy in particular public front of any involved in it.” olution of the issues content of the published information, followed by a secondary consid- content of the published information, stone was the wife of a descendant who was an heir to a wealthy in- an heir to a who was the wife of a descendant stone was in of especial prominence assume any role family, she “did not dustrial of society,” the affairs conclusion that the defamed plaintiff “voluntarily thrust” or “injected” conclusion that the defamed plaintiff public controversy surrounding the himself into the forefront of the in the United States. investigation of Soviet espionage controversy that was so compelling. controversy that thrust himself or his views into public controversy to influence his views into public controversy thrust himself or others. spy who failed to respond to tus to a nephew of an admitted Russian himself to a citation for con- grand jury subpoena, thereby subjecting media attention, the circum- tempt because, although they attracted regard to the public-figure issue. stances were not conclusive with Wolston, The 716 figure public a limited-purpose or all-purpose was an Firestone Ms. were member of society with a wealthy divorce proceedings since her public records. NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 27 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 89 Side B 04/02/2015 08:48:02 B 04/02/2015 89 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 90 Side A 04/02/2015 08:48:02 R R 152 Marcone v. Pent- Gilbert v. WNIR 100 and Imperial Apparel, Ltd. v. Compare with while other courts inter- while other courts Additionally, conflicting in- 150 whereas, several years later, whereas, several 154 153 Blum v. State, 255 A.D.2d 878, 880 (N.Y. App. Div. Blum v. State, 255 A.D.2d 878, 880 (N.Y. App. state and federal courts have found many categories state and federal courts have found many and Gertz The confusion is causing some lower courts to some lower courts is causing The confusion while, in another jurisdiction, a criminal defen- while, in another note 137, at 257 (citing a significant problem with the new note 137, at 257 nn.70–71, 73 & 76. note 137, at 257 nn.70–71, 151 149 supra supra 155 (indicating post- and its progeny more broadly. and its progeny For instance, one criminal Kosseff, FM, 756 N.E.2d 1263, 1272 (Ohio Ct. App. 2001) (finding that a prominent com- Cosmo’s Designer Direct, Inc., 853 N.E.2d 770, 777 (Ill. App. Ct. 2006) (holding that the mere fact that [plaintiff] advertised its merchandise does not, without more, establish it as a limited purpose public figure), 1998) (finding a professor involved in a tenure dispute to be a public figure be- 1998) (finding a professor involved in a tenure cause he “thrust” himself into the public sphere), of plaintiff to be both public figures and private figures, despite similar facts). of plaintiff to be both public figures and private See judicial inquiries beyond the compe- doctrine for defamation: as requiring both based on the content of published tence of courts and subjective determinations information). See id. 1083 (3d Cir. 1985) (finding that a house Int’l Magazine for Men, 754 F.2d 1072, gang was a public figure because “it lawyer representing a well-known motorcycle controversy”), Steaks Unlimited, is clear that the present case involves a public 1980) (holding that a company is a Inc. v. Deaner, 623 F.2d 264, 274 (3d Cir. blitz, [it] invited public attention, public figure because “through its advertising comment, and criticism”), Gertz Currently, the required subjective determination of public contro- of public determination the required subjective Currently, 151. Cir. 1978). Orr v. Argus-Press Co., 586 F.2d 1108, 1116 (6th 152. (N.H. 2007). Thomas v. Tel. Publ’g Co., 929 A.2d 993, 1018 153. 1982). Rodriguez v. Nishiki, 653 P.2d 1145, 1149 (Haw. 154. 822, 826 (Ga. Ct. App. 2005). Riddle v. Golden Isles Broad, LLC, 621 S.E.2d 155. See Kosseff, 150. 149. pret terpretations transpired because the subjective conclusions of pub- terpretations transpired because the plaintiff’s status required lished information along with of a plaintiff and, through some determinations about the status significance of the published unidentifiable measurement, the information. another jurisdiction held that a musician was not a limited-purpose held that a musician was not another jurisdiction where a radio there was no public controversy public figure because a listener who asked whether the station aired a telephone call from musician had murdered his girlfriend. construe the public-figure status narrowly with regard to the public with regard to status narrowly the public-figure construe published information, importance of the dant was not granted the same status because, from a narrow view- the same status because, from dant was not granted controversy. crimes were not matters of public point, his alleged defendant was broadly identified as a limited-purpose public figure identified as a limited-purpose defendant was broadly for information that the public had a need because it was determined and interpretation, Likewise, in the cases of defamed musicians, one jurisdiction took the cases of defamed musicians, one jurisdiction Likewise, in the at a political held that musicians who entertained broad approach and were public figures, fund-raising rally 2015] of the question event as in the role voluntary plaintiff’s of the eration law. NEWS REPORTING CALUMNIOUS legal ru- of the new crisis for the application an identity versy creates bric of defamation. 717 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 28 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 90 Side A 04/02/2015 08:48:02 A 04/02/2015 90 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 90 Side B 04/02/2015 08:48:02 R R R . OU 159 158 Dun , 33 H . 709, 719 AW Public Figures . L thereby ren- thereby note 122, at 1421 US 157 , 33 B the Court only de- , supra 164 , Smith an analysis of limited-purpose an analysis see also 156 162 Here, courts make this determination im- Here, courts make 161 but the analysis formed the antithesis. In note 122, at 1440 (indicating how courts weigh the public-con- note 122, at 1440 (indicating how courts weigh note 65, at 1005 n.38; 163 note 20, at as is obvious from these two leading 669 (indicating, note 122, at 1421. Or, if courts determine a controversy to be of suffi- Or, if courts determine note 122, at 1421. Unresolved Antitheses of the Limited Public Figure Doctrine Unresolved Antitheses of the Limited Public supra , supra 160 , supra . 1027, 1102 n.199 (1996) (citing Michael A. Bamberger, . 1027, 1102 n.199 (1996) (citing Michael , supra supra EV Smith King Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) at 1421. L. R (1978) (interpreting prior cases to suggest guidelines for determining a limited (1978) (interpreting prior cases to suggest the topic or controversy, the less public figure, including “the more significant of the individual participant”)). weight is given to the reputational rights troversy requirement may determine the level of voluntary action they require troversy requirement may determine the public figure). for a plaintiff to be found a limited-purpose (indicating the only remaining issue is whether petitioner’s credit report involved a matter of public concern). and the Law of Libel: A Concept in Search of a Definition and the Law of Libel: A Concept in Search (indicating if courts determine a controversy to be of sufficient public concern, a (indicating if courts determine a controversy figure even though he or she has private plaintiff may be found to be a public little or no involvement in that controversy). Id. See Id. munity attorney was not a public figure in a libel suit over news reporting about munity attorney was not a public figure in a murder investigation). See cases addressing the limited-pur- cases, that the common denominator in most has been the requirement of a public pose voluntary public-figure subcategory in it). controversy and the plaintiff’s voluntary participation See In addressing this problem, the Supreme Court sought to define In addressing this problem, the However, since the trilogy of cases provides little guidance as to as little guidance cases provides of the trilogy since However, 160. Chadwick, 159. Nat Stern, 162. 164. 163. 156. Smith 158. 161. Smith 157. dering himself as a limited-purpose public figure. public as a limited-purpose dering himself gen- But, courts are voluntary participation, the amount of to weigh erally required public figures also lacks guidance. also lacks public figures that the trilogy It is conceivable voluntarily activates it by when the plaintiff only works well analysis controversy, public himself in a recognized interjecting plicitly and without structured analysis, leaving the determination plicitly and without structured analysis, open to extrajudicial influences. cient public concern, a private plaintiff may be found to be a limited- a private plaintiff may be found cient public concern, little or no involve- even though he or she has purpose public figure, ment in the controversy. & Bradstreet, Inc. v. Greenmoss Builders, Inc. & Bradstreet, Inc. v. Greenmoss Builders, public controversy, This balance can, however, result in inconsistent outcomes. however, result in inconsistent This balance can, For in- an individual may of involuntary public figures, stance, in the case if the nature of the public-figure status qualify for a limited-purpose than the status of as a more central concern controversy is evaluated the plaintiff. 718 concern, are of public what matters NEBRASKA LAW REVIEW outcome.which affects the importance In doing so, it may be that the involvement to lowers the threshold for plaintiff’s of the controversy forefront. “thrust” himself to the controversy’s qualify as having [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 29 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 90 Side B 04/02/2015 08:48:02 B 04/02/2015 90 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 91 Side A 04/02/2015 08:48:02 The Su- The Court 166 , a credit re- , a credit Accordingly, But more di- 168 169 170 Thus, without giv- So, while the opinion did add to the private- 172 173 Dun & Bradstreet Dun Dun & Bradstreet , 472 U.S. at 761 (quoting Connick v. Myers, 461 U.S. 138, 145 It was speech solely in the individual interest of It was speech solely The Court held that speech on matters of purely on matters held that speech The Court 171 167 The construction contractor brought a defamation action brought a defamation contractor The construction at 761 (citing Connick v. Myers, 461 U.S. 138, 147–48 (1983) (holding that (1983) 138, 147–48 at 761 (citing Connick v. Myers, 461 U.S. . Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. cf at 760 (citing Harley Davidson Motorsports, Inc. v. Markley, 568 P.2d 1359, at 760 (citing Harley Davidson Motorsports, at 759. at 762. at 751. 165 .; . at 752. (1983)). whether speech addresses a matter of public concern must be determined by the whether speech addresses a matter of public as revealed by the whole record)). content, form, and context of a given statement, 557, 561 (1980). 1363 (Or. 1977)). Id. Id. Id. Id. Id Dun & Bradstreet Id. Id See id. 168. 173. 170. 169. 172. 167. 166. 171. 165. preme Court addressed whether the speech in question is a matter of in question is the speech addressed whether preme Court public concern. stated, “There is no threat to the free and robust debate of public is- no threat to the free and robust stated, “There is dialogue of potential interference with a meaningful sues; there is no threat of liability self-government; and there is no ideas concerning of self-censorship by the press.” causing a reaction porting agency sent an incorrect report to five subscribers indicating five subscribers report to sent an incorrect porting agency for bank- voluntary petition had filed a contractor that a construction ruptcy. when speech is wholly false and clearly damaging to the victim’s busi- false and clearly damaging when speech is wholly no special protection is warranted. ness reputation, rectly, the Court pointed out that petitioner’s credit report concerned pointed out that petitioner’s credit rectly, the Court no public issue. ing guidance, the Court merely recited precedent to the generic defini- Court merely recited precedent to ing guidance, the speech addresses a matter of public tion of public concern: “[W]hether expression’s] content, form, and concern must be determined by [the record.” context . . . as revealed by the whole did not define public concern, individual-category structural schematic, altering its appearance as individual-category structural schematic, follows: the speaker and its specific business audience. the speaker and private concern is of less First Amendment concern. private concern alleging that the false report had injured its reputation. had injured that the false report alleging 2015] not. is public concern what a fined In NEWS REPORTING CALUMNIOUS 719 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 30 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 91 Side A 04/02/2015 08:48:02 A 04/02/2015 91 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 91 Side B 04/02/2015 08:48:02 Court Dun & Hepps triggered when the subject matter = public concern the deemphasized the 178 , 174 , Gertz all purposes and > a coerced but Although the status of the plaintiffs and Although the status of the plaintiffs 177 published a series of five articles whose gen- published a series of five articles The Court held that where a newspaper publishes The Court held that where a newspaper The suit was brought by Hepps and a number of the The suit was brought by Hepps and 176 175 is whether there is another burden of proof for private is whether there is another burden The Inquirer Philadelphia Newspapers, Inc. v. Hepps Philadelphia Newspapers, Inc. v. at 770. at 778. at 769. . at 769. Id Id. Id. Id. Private The conundrum that ensued from the discontinuity left by The conundrum that ensued from individuals Figures Public Public Officials and triggered whenspeech solely inthe individualinterest of thespeaker and itsspecific businessaudience in all contexts minimal role + assumed the risk and have to “self- access help” triggered whentriggered whollyspeech is Involuntaryclearly false and public figures to the damaging victim’s business public figures All-purposereputation, or exceedingly rare pervasive fame public figures instance voluntarily Limited-purpose or notoriety for injects oneself or 176. 177. 178. 174. 475 U.S. 767 (1986). 175. did not highlight the involuntary status of these private plaintiffs. did not highlight the involuntary involuntary status of the private figure and attached the burden of involuntary status of the private challenges.proof to the undefined public-concern In this case, Hepps corporation that franchised a chain was the principal stockholder of a of stores. the content before the court were similar to the content before the court were eral theme was that Hepps and its franchisees had links to organized eral theme was that Hepps and its to influence the State’s governmen- crime and used some of those links tal processes. speech of public concern about private figures, the private-figure speech of public concern about without also showing that the state- plaintiffs cannot recover damages ments at issue are false. corporation’s franchisees on the basis that the defamed plaintiffs were corporation’s franchisees on the basis private figures. Bradstreet figures. the pendulum Having failed to define public controversy, issue.swung to this newly established To address the newly estab- of proof required by private lished issue concerning the burden figures, 720 NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 31 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 91 Side B 04/02/2015 08:48:02 B 04/02/2015 91 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 92 Side A 04/02/2015 08:48:02 R R R by ty- offered even they have , a false credit 181 Hepps Dun & Bradstreet perpetuated and, in dic- ruling, lower courts and the lower courts without consideration without 180 Hepps 179 Dun & Brandstreet Hepps At the same time, the media is by tying its proof-of-falsity holding its proof-of-falsity by tying provided minimal guidance for making public 183 and its progeny when news stories at- and its progeny when news stories Court offered was the indefinite public-con- indefinite was the offered Court Gertz note 57, at (indicating 104 note 65, at 1061–62 (1991) (indicating the particular test note 65, at 1061–62 note 57, at 930 (explaining that this issue exists because of the But more important to the private individuals who But more important Hepps Dun & Bradstreet supra Dun & Bradstreet supra , 475 U.S. at 789 (1986) (Stevens, Burger, White, and Rehnquist, J 182 supra REDRESS FOR CIVIC-DUTY PARTICIPANTS , 475 U.S. at 780–90 dissenting). (Stevens, J., Langvardt, Chadwick, ing its proof-of-falsity holding to cases involving matters of public concern). ing its proof-of-falsity holding to cases involving less in that respect). (noting that the Court is required to weigh the nuances of each particular circum- (noting that the Court is required to weigh stance on its scale of values regarding the relative importance of society’s interest in protecting individuals from defamation against the importance of a free press); report that the plaintiff had filed for bankruptcy, did not pertain to a matter of report that the plaintiff had filed for bankruptcy, public concern; concern/private concern determinations in future cases, while concern/private concern determinations in dissenting) (criticizing the majority for giving too little weight to the state’s inter- est in compensating private-figure plaintiffs for injuries to their reputations). see also Hepps See rationale of tum, arguably extended the public concern See the recognition that the status-based adopted by the Court is less important than doctrine has led this area of law far analysis in current constitutional defamation astray). Hepps in Court’s abrupt conclusion that the statement IV. OF DEFAMATORY THE APPROPRIATE EVALUATION Recognizing that the current constitutional analysis of the defama- analysis of the constitutional that the current Recognizing A dispositive analysis for defamation allegations against private A dispositive analysis for defamation 180. 183. 81 (1971) (Marshall, J., dissenting) Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 182. Langvardt, 181. 179. not yet definitively decided when the speech at issue is a matter of decided when the speech at issue not yet definitively public concern. media now hold various interpretations on the impact of the changing interpretations on the impact media now hold various law. are being applied to the detriment Their various interpretations of private individuals. sche- For the courts, following the structural on determining the but there is little to no direction matic is a start, meanings within the chart.full analysis of the the Supreme While still quibbling about the Court justices are of status. area of law astray, has led this tion doctrine blurring the lines of the structural schematic by treating private indi- blurring the lines of the structural news reporting. viduals as public figures for sensational approached with what civic-duty participants must be syntactically has been left behind by to cases involving matters of public concern, involving matters to cases cern rationale of cern rationale are wrongly placed in the public-figure category is the matter of the in the public-figure category is are wrongly placed the media. protecting their good name from state’s interest in The by possibly de- reached a pernicious end result Supreme Court has technique simi- courts create an ad hoc balancing manding the lower lar to its unintentional model. 2015] the what Rather, NEWS REPORTING CALUMNIOUS 721 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 32 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 92 Side A 04/02/2015 08:48:02 A 04/02/2015 92 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 92 Side B 04/02/2015 08:48:02 , the Crite- Dun & Gertz Dun & Brad- Rosenblatt v. Baer This is so even after New York Times Co. v. Sul- and even 185 is comprised of confusing de- is comprised of Wolston, Gertz , and . 579, 660 (1984) (referring to prototypical private persons). That extension still does not incorporate private That extension still does not incorporate EV implicitly adds to the private-individual status category of the implicitly adds to the private-individual status 187 186 . L. R Defamation, Public Officialdom and the the evolution of defamation law appears to alter the law appears of defamation the evolution UFF 184 Firestone, Hutchinson Gertz v. Welch, 418 U.S. 323, 335 (1974). Wells v. Liddy, 186 F.3d 505, 540 (4th Cir. 1999) (discussing the “exceedingly holdings purposely category from limit the private-individual livan, 33 B schematic. ria—A for Revivification: Two Decades After Proposal rare” individual who can be labeled in involuntary public figure). Dun & Bradstreet See See of the Entity with Which They Are Involved of the Entity with Which They Below are instances where the civic-duty roles of some private Below are instances where the Unlike public figures, civic-duty participants cannot defensibly be Unlike public figures, civic-duty participants 186. 185. Elder, David 187. 184. trilogy of a majority of the Supreme Court justices agreed to extend the consti- a majority of the Supreme Court of public figures to include tutional privilege to defamatory criticism nonpublic figures. terminations as to how much weight is to be placed on the public to how much weight is to be placed terminations as actually is, the confusion as to what public concern controversy and escape the tradi- of private civic-duty participants dissipating roles tional outcome. so notwithstanding the reality that This is civic-duty participants who are responsive to civic duties and engage civic-duty participants who are responsive are neither the central figures in in dissipating activities because they nor do they seek to publicize their a significant public controversy, views on relevant controversies. At most, they are private figures happenstance, have been mentioned among those individuals who, by interest or have merely been named peripherally in a matter of public in a press account. category specifications for these civic-duty participants. these civic-duty specifications for category de- However, the progeny of spite the fact that Bradstreet, street’s the public-concern argument.the public-concern above Thus, in applying the schematic participants, an evaluation of the roles of civic-duty with the proper occurs. unadulterated result civic-duty participants are limited by the constraints of the entity they civic-duty participants are limited said to have voluntarily subjected themselves, by bare membership in said to have voluntarily subjected for stringent scrutiny and utterly the body politic, to the potential lives whenever their limited ac- damaging exposition of their private the press. tivities are deemed newsworthy by A. the Constraints Civic-Duty Participants Are Limited by 722 is news article of the intent the original though such participants, tack or public concern. another cause to censure par- civic-duty Because of by the constraints civic-duty activities are limited in their ticipants not public they are with, and because they are involved the entity are guaranteed.their legal remedies figures, implied by As NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 33 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 92 Side B 04/02/2015 08:48:02 B 04/02/2015 92 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 93 Side A 04/02/2015 08:48:02 R R , H.R. The 192 archived at ULES OF THE ONGRESS R C WELFTH ANUAL AND T M S ’ UNDRED http://perma.unl.edu/LE2Q-5BHB H , 112th Cong. 3–4 (2012), , 112th Cong. 3–4 NE EFFERSON , J U.S. O archived at not on the reproductive rights of women. not on the reproductive rights of , March 8, 2012, http://swampland.time.com/2012/03/ In the Sandra Fluke situation, after the In the Sandra ONSTITUTION 193 IME T , C ’ 188 , http://perma.unl.edu/QZE9-PX2Q. ULLIVAN Sandra Fluke on Her Role in the Contraception Controversy: ‘I Sandra Fluke on Her Role in the Contraception note 189. The meeting included a hearing. Invitations were note 4. EPRESENTATIVES OF THE R 189 H. S Fluke was invited by virtue of the authority conferred on Fluke was invited by virtue of the supra . 111-157, at 563 (2011), supra archived at O The Oversight and Government Reform Committee how- The Oversight and Government OHN 190 J . N Curtis Publ’g Co. v. Butts, 388 U.S. 133, 164 (1967) (defining public figures). Curtis Publ’g Co. v. Butts, 388 U.S. 133, 164 191 OUSE OF OC D (noting that whenever a hearing is conducted by a committee on a measure or (noting that whenever a hearing is conducted shall be entitled, upon request to matter, the minority members of the committee completion of the hearing, to call wit- the chair by a majority of them before the respect to that measure or matter). nesses selected by the minority to testify with 08/sandra-fluke-on-her-role-in-the-contraception-controversy-i-would-do-this- again/, Would Do This Again Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?: Hearing Before the H. Comm. on Oversight and Gov’t Reform http://perma.unl.edu/FA4B-S2GE (arguing over the fact that the meeting was not about reproductive rights of women). See See H 1. Committee Meetings/Hearings Routine Congressional help congres- of private civic-duty participants While testimony 192. Altman, 190. Frank, 189. Alex Altman, 193. 188. 191. agenda, according to the Chairman, was to hear testimony on whether agenda, according to the Chairman, on the conscientious objec- the new healthcare law would encroach tions of religious groups, Obama Administration announced it would require Catholic universi- announced it would require Obama Administration coverage, the to include birth control in their health ties and charities a routine Reform Committee scheduled Oversight and Government impact of this an- meeting to review the congressional committee nouncement. sent to civic-duty participants from different faiths, and an invitation sent to civic-duty participants from to Fluke. the House Democratic Steering and Policy Committee members and the House Democratic Steering and and Government Reform Com- the minority members of the Oversight mittee. ever, rescinded the original invitation to Fluke because the Chairman ever, rescinded the original invitation the bounds of the agenda. believed her testimony fell outside sional committee members collect information in the early stages of members collect information in sional committee generally does not this type of limited input legislative policymaking, of impor- intimately involved in the resolution allow them to become tant public questions. 2015]in any position a dominant precluding with, thereby involved are event.newsworthy are unique rules role constraints Some civic-duty or in- are limited by formal constraints entity, while other within the NEWS REPORTING CALUMNIOUS order.formal judicial constraints preclude civic-duty Nevertheless, more than that are from activities civic-duty participants private fleeting. 723 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 34 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 93 Side A 04/02/2015 08:48:02 A 04/02/2015 93 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 93 Side B 04/02/2015 08:48:02 R R R (Feb. ALERIE V OST P archived at http://perma 195 So, prior to see also 199 UFFINGTON 2 (2012), H ’ , archived at However, approximately However, REPARATION to mitigate both influence to mitigate both 194 : P 198 EARINGS House Democrats Walk out of One-Sided Hear- H More specifically, the controlling com- More specifically, 197 OMMITTEE C In this environment, the Chairman controls, In this environment, note 191, at 557–58 (indicating that witnesses who appear note 191, at 557–58 (indicating that witnesses who appear note 191, at 557–58 196 ENATE note 26 (noting that, after Fluke’s testimony, it was said by one note 26 (noting that, after Fluke’s testimony, , S supra supra , , supra at 563 (explaining that whenever a hearing is conducted by a committee on a at 563 (explaining that whenever a hearing EITSHUSEN ULLIVAN ULLIVAN 16, 2012, 11:20 AM), http://www.huffingtonpost.com/2012/02/16/contraception- hearing-house-democrats-walk-out_n_1281730.html, .unl.edu/HS5J-6SA9. measure or matter, the minority members of the committee shall be entitled, measure or matter, the minority members them before the completion of the hear- upon request to the chair by a majority of to testify with respect to that mea- ing, to call witnesses selected by the minority of hearing thereon); sure or matter during at least one day ing on Contraception, Calling It an ‘Autocratic Regime ing on Contraception, Calling It an ‘Autocratic H how Senate rules allow the minority http://perma.unl.edu/Y4U5-F32H (noting of their choice on at least one day party members of a committee to call witnesses of a hearing, when the chairman receives a written request from a majority of the minority party members). before it are required to submit in advance written statements of proposed testimony). Democrat that Fluke would stand firm in the cause of women’s health, and no Democrat that Fluke would stand firm in longer be held silent). written statements of proposed testi- before it are required to submit in advance to the committee to brief summaries mony and to limit their initial presentations thereof). See id. Id. Under the congressional rules for witnesses, civic-duty partici- civic-duty rules for witnesses, congressional Under the 195. Pelosi, 199. S 196. S 197. 198. 194. Laura Bassett & Amanda Terkel, hearings, a witness must be deemed “appropriate and qualified,” and hearings, a witness must be deemed by the committee chair as a wit- then vetted before being accepted eight days later, the members of the minority party provided a plat- party provided of the minority later, the members eight days her input. hearing, to acquire way of an unofficial form by and controversy. A civic-duty participant called by the minority party interjection. is then “filtered” to prevent overwhelming mittee only allows minority party members to call witnesses of their minority party members to call mittee only allows one day of a hearing choice on at least and the participants seldom are central figures in a significant public seldom are central figures in and the participants their views on do they have full control to publicize controversy, nor the relevant controversy.and rules for As a matter of fact, the format preclude such as well as the Senate, the House of Representatives, influence. interjection and pants like Fluke are unable to voluntarily inject themselves or draw inject themselves to voluntarily Fluke are unable pants like a particular public controversy.attention toward process does This becoming a witness a person of notoriety from not, however, preclude are tailored such fact-finding, but the procedures for congressional for policymak- can only provide limited testimony that the participant ers’ consideration. 724 party minority of the members hearing, the Fluke from ejecting After the meeting. witness and left took their NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 35 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 93 Side B 04/02/2015 08:48:02 B 04/02/2015 93 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 94 Side A 04/02/2015 08:48:02 R R J. , 2012 UTGERS , 3 R Once part of the jury Once part of the They are, therefore, re- Therefore, whether the Therefore, 203 204 201 Juror Privacy in the Sixth Amendment Balance note 193, at 35 (indicating to be deemed “appropriate and note 193, at 35 (indicating to be deemed “appropriate note 198, at 1 (indicating the legislative, oversight, inves- note 198, at 1 (indicating the legislative, Privacy and Jury Selection: Does the Constitution Protect Privacy and Jury Selection: Does the Constitution Voter registration lists were chosen by Congress Voter registration lists were chosen 202 supra supra 287 (2006). Y , ’ 205 . 2023, 2035–36 (2012) (indicating because voir dire covers so many (2012) . 2023, 2035–36 OL EV . P ROSSED RB C L. R Melanie D. Wilson, Additionally, in some cases, it is a tradition, rather than a rather it is a tradition, cases, in some Additionally, Heitshusen, (indicating that the Oversight and Government Reform Committee noted it (indicating that the Oversight and Government TAH INES L. & U U topics, even jurors with no special sensitivity and nothing in particular to hide sometimes worry about exposing their private information). Prospective Jurors from Personally Intrusive Voir Dire Questions? Prospective Jurors from Personally Intrusive was a tradition and not a rule that the minority have one witness that is appro- was a tradition and not a rule that the minority matter). priate and qualified to speak on the subject See qualified,” a short proposed testimony by the civic-duty participant must be sub- qualified,” a short proposed testimony by party members). mitted to twenty-eight members of the majority Id. See hearings that share common elements tigative, confirmation, or a combination of of preparation and conduct). 200 Even the random selection of jurors in generating a jury pool is the Even the random selection of jurors In the matter of jurors, they are individually and collectively con- jurors, they are individually and In the matter of 2. The Jury System 204. 205. United States v. Cecil, 836 F.2d 1431, 1445 (4th Cir. 1988). 202. 201. 203. Lauren A. Rousseau, 200. L pool, they are treated as though their rights to privacy evaporate, and pool, they are treated as though their grounds of privacy may cause them the refusal to answer questions on jailed. to be held in contempt of court and strained in their roles by stringent rules. strained in their roles by stringent of a civic-duty participant.beginning of limiting the involvement In were derived from voter registra- federal courts, prospective juror lists tion enrollment. committee title is “legislative,” “oversight,” “investigative,” “confirma- “investigative,” “oversight,” title is “legislative,” committee common hearings share these, all routine a combination of tion,” or civic-duty against any conduct to guard of preparation and elements or creating a a central role in the proceedings participant usurping public controversy. in part because they provided each qualified citizen an equal opportu- in part because they provided each those from which random selection nity to cause his name to be among largest generally available source is made, and also because it was the rule, that the minority has only one witness that is appropriate and that is appropriate only one witness the minority has rule, that subject matter. to speak on the qualified strained in their involvement by the rules for jurors enunciated by the involvement by the rules for jurors strained in their judicial system. are ques- sitting on a jury, prospective jurors Prior to by the court and through written questionnaires tioned extensively meet statutory re- to determine whether they sometimes by attorneys that might pre- and whether they harbor biases quirements for service deciding a case. vent them from impartially 2015]ness. NEWS REPORTING CALUMNIOUS 725 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 36 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 94 Side A 04/02/2015 08:48:02 A 04/02/2015 94 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 94 Side B 04/02/2015 08:48:02 , 295 Pri- . 419, EV , 618 F.2d 209 MERICA L. R aff’d A N ECH I . T EX are all generated are all ), 464 U.S. 501, 514 (1984) 208 EMOCRACY , 42 T , D § 652C cmt. d (1977) (“No one has These lists, possibly derived These lists, ORTS 207 T Globe Newspaper Co., 920 F.2d 88, 98 (1st OCQUEVILLE OF Press-Enterprise I Now, with the use of technology, the use with Now, but, rather, an argument that seeks but, rather, an argument ) T E In re From a legal perspective, the authen- From a legal perspective, 210 206 D ECOND 211 (S LEXIS Systematic Negligence in Jury Operations: Why the Defi- Systematic Negligence in Jury Operations: , 472 F. Supp. 1049, 1054 (D. Minn. 1979), , 472 F. Supp. 1049, 1054 (D. Minn. 1979), Why Did Tinkerbell Get off So Easy?: The Roles of Imagination Why Did Tinkerbell Get off So Easy?: The Roles . 761, 779 (2011). EV ESTATEMENT L. R RAKE (stating of Columbia permit the use of how forty-three states and the District typically, registered voter, licensed driver, and state income or property tax lists). typically, registered voter, licensed driver, 59 D (Henry Reeves Trans. 1945)) (explaining that the jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist). 474–75 (2009) (citing A 474–75 1261 (8th Cir. 1980). (Blackmun, J., concurring) (declining to decide the issue, explaining how “[w]e (Blackmun, J., concurring) (declining to decide called upon to answer questions posed need not decide, however, whether a juror, expectation, rising to the status to him in court during voir dire, has a legitimate answer” personal questions); Whalen v. of a privacy right, that he will not have to right to withhold matters Roe, 429 U.S. 589, 599 (1977) (finding a constitutional of privacy); U.S. v. Wecht, 537 F.3d which are subject to a reasonable expectation 222, 240 (3d Cir. 2008) (noting that “‘[w]e cannot accept the mere generalized reason to conceal their identities in privacy concerns of jurors’ as a sufficient every high-profile case” (quoting the right to object merely because his name or his appearance is brought before the right to object merely because his name private matter and both are open to the public, since neither is in any way a public observation. It is only when the publicity is given for the purpose of appro- or other values associated with priating to the defendant’s benefit the commercial privacy is invaded.”). the name or the likeness that the right of Cir. 1990))); R two or more source lists to compile master jury lists, of which thirty-one mandate two or more source lists to compile master the use of three or more lists—the use of at least two lists and eleven mandate and Social Norms in Excusing Human Weakness nition of Systematic Exclusion in Fair Cross Section Claims Must Be Expanded nition of Systematic Exclusion in Fair Cross See id. United States v. Hanson Id. Protecting jurors from intrusions resulting from calumnious news from intrusions resulting from calumnious Protecting jurors 207. Paula Hannaford-Agor, 211. E. Taslitz, Andrew 208. 209. 210. Press-Enter. Co. v. Superior Court ( 206. vate individuals, without the opportunity to solicit for inclusion, are without the opportunity to solicit vate individuals, chosen for a jury.among those to be the ability to For that reason, controversy is prohibited. interject into a public of an actual right argument to assert the existence reporting is not an part of jurors, of privacy on the from personal private data.from personal of state courts the vast majority Today, of multi- adopted the use federal courts have number of and a sizeable jury list. point for creating a master ple lists as the starting from driver’s licenses, property tax rolls, etc., tax rolls, licenses, property from driver’s more inclusive and representative master jury lists are made possible jury lists are made master and representative more inclusive lists and or more source courts merge two state and federal wherein records. remove duplicate identify and engage in on behalf responsibility that jurors must to honor the civic of society. of private that protects the integrity It is an endowment but have not recoiled before their responsibility, individuals who have summons. answered a jury 726updated. was frequently that NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 37 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 94 Side B 04/02/2015 08:48:02 B 04/02/2015 94 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 95 Side A 04/02/2015 08:48:02 R (Oct. 3, EBATES D This is certainly true This is certainly RESIDENTIAL P 213 NON 212 ’ thereby reaching into a pool 214 OMM , C That goal was achieved by monitor- 215 note 20, at 667 (indicating that the existence of a supra and its progeny requiring the plaintiff’s central progeny requiring and its King, Gertz http://perma.unl.edu/D2JR-69AD (indicating the procedure for choos- see also Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1300 (D.C. Cir. 1980) Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) (indicating the lawyer Gertz v. Robert Welch, Inc., 418 U.S. 323, 2012), http://www.debates.org/index.php?page=october-3-2012-debate-transcript, ing civic-duty participants for the 2nd presidential debate). (defining public figure). was not a public figure because he played a minimal role at the coroner’s in- was not a public figure because he played quest); public controversy—and the plaintiff’s central role with it—is essential even in the recognition of voluntary public figures). See See October 3, 2012 Debate Transcript archived at Id. See Civic-duty participants who are involved in dissipation or inciden- Civic-duty participants who are involved 3. Political Engagement Inconsequential from an audience are chosen civic-duty participants When private 215. 214. 213. 212. for Katherine Fenton.one of many In her situation, she was merely their question to audience who was selected to read spectators in the the political candidates. of the risk There was no known assumption with this reporting or consequences associated of calumnious news participation. her triggered a candidate’s gaffe, While her question podium of project- in and of itself, was not from the civic participation, or views to the public. ing her own image allowed a dominant role when the tal political engagement are not civic-duty course of action is preset. Fenton’s case is a principal exam- involvement in incidental politi- ple in which the defamed individual’s role.cal engagement lacks a dominant First, the format of the activity is paramount. Here, the Gallup organization chose eighty-two unde- cided voters from the New York area, that is specified yet large. This format precluded some civic-duty par- the selected individuals were not ticipants from participating because the process.published until the beginning of Second, the goal of the moderator is predetermined. In the debate Fenton participated in, the the conversation direction and en- goal of the moderator was to give sure questions get answered. ing the political candidates and the civic-duty participants.ing the political candidates and the Third and would be chosen to ask a fourth, the order of when the participants the participant must conduct them- question and the manner in which question was preset.selves before, during, and after the In this case, role as essential to recognition of status. to recognition role as essential to ask political candidates a question at a public debate, they cannot a question at a public debate, to ask political candidates or notoriety for all rules to establish pervasive fame control the debate all contexts.purposes and in not Such private persons are generally their own image or views. allowed to project 2015] in is endowed reporting news from calumnious of the protection ticity of the holdings NEWS REPORTING CALUMNIOUS 727 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 38 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 95 Side A 04/02/2015 08:48:02 A 04/02/2015 95 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 95 Side B 04/02/2015 08:48:02 http://perma.unl.edu/E7AC-J5HN. yet their role in the trial is tran- 219 archived at 218 418 U.S. 323, 352 (1974) (indicating the Court would 418 U.S. 323, 352 (1974) (indicating the Court , Open Letter from Shirley Sherrod: You and I Can’t Yield—NotOpen Letter from Shirley Sherrod: You and , NAACP (Aug. 17, 2010), http://www.naacp.org/news/entry/you- The content and the context in which she was speaking The content and the context in Time, Inc. v. Firestone, 424 U.S. 448, 457 (1976) (indicating while partici- Time, Inc. v. Firestone, 424 U.S. 448, 457 As a result, the actions of civic-duty participants and the and of civic-duty participants the actions As a result, 217 not lightly assume that a citizen’s participation in community and professional not lightly assume that a citizen’s participation purposes). affairs rendered him a public figure for all and-i-cant-yield-not-now-not-ever, pants in some litigation may be legitimate “public figures,” either generally or for the limited purpose of that litigation, the majority will more likely resemble re- spondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against ac- tions brought by the State or by others). Now, Not Ever See See id. 216 When a private person accepts a government job, and an invitation accepts a government job, and When a private person In concluding that the above-mentioned private civic-duty partici- In concluding that the above-mentioned 218. Gertz v. Robert Welch, Inc. 219. 216. 217. Shirley Sherrod, was not derived from any real or implied pervasive fame on the topic was not derived from any real or of race relations. The NAACP narrowed her audience to attendees only. in commu- Also, there was no assumption that her participation her special prominence or the ability nity and professional affairs gave to gain access to the media. degree of public attention that developed from participating in fleeting participating that developed from public attention degree of domi- them from exercising event precluded in this political activities status. a limited-purpose public-figure nance and activating title or duties of participant is based on the to speak as a civic-duty to volun- is no substantial public controversy that job, there generally into.tarily interject oneself of Agriculture As the U.S. Department time of the defama- Development for Georgia at the Director of Rural attendees at a Sherrod was asked to address tory statement, Shirley People (NAACP) for the Advancement of Colored National Association Freedom Fund dinner.with this or- Some may consider involvement to political engagement.ganization synonymous this in- In accepting life story to urge duty, her speech was a personal vitation as a civic together and overcome racial di- poor people, white and black, to pull visions. pants are limited by the constraints of the entity they are involved pants are limited by the constraints nature and extent of their partici- with, it is important to consider the pation. the activities of As a general rule, society does not scrutinize in routine governmental commit- civic-duty participants who engage political engagements. tee meetings, jury service, and inconsequential activities of public concern or These activities have not been labeled public controversies. Jurors are drawn into a public forum largely by lot due to a jury summons system, 728 her respon- a question; to ask persons of eleven fourth was the Fenton she did. her seat, which a question and take simply to ask sibility was the moder- question posed, answered the each candidate In fact, after ques- to ask another civic-duty participant on to the next ator moved tion. NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 39 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 95 Side B 04/02/2015 08:48:02 B 04/02/2015 95 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 96 Side A 04/02/2015 08:48:02 221 identified categories sheds light on where , 424 U.S. at 454. Gertz Gertz Firestone is drawn into a particular public contro- is drawn into a particular but because the conditions around a con- but because the conditions around or 223 thereby placing more weight on the thrusting thereby placing more weight on goes on to say, “[I]n either case such persons goes on to say, “[I]n either case 222 Gertz , 418 U.S. at 351 (emphasis added). , (citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162 336–37 418 U.S. at But, Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166 (1979); Hutchinson 220 described the limited-purpose public figure in two ways. public figure in two described the limited-purpose The (1967) (Warren, C.J., concurring)). v. Proxmire, 443 U.S. 111, 135 (1979); Gertz Id. See Gertz Civic-duty participants are not all-purpose public figures—notCivic-duty participants are not all-purpose only The general responsibilities of private civic-duty participants do of private civic-duty The general responsibilities 223. 221. 220. 222. that fall short of logic and are inapplicable to civic-duty participants. logic and are inapplicable to civic-duty that fall short of the emphasis should lie. The trilogy opinions accentuate “thrust” more than coercion, versy and thereby becomes a public figure for a limited range of is- versy and thereby becomes a public sues.” troversy are weighed against this premise.troversy are weighed against this The Supreme Court has but even in declaring what not explicitly defined public controversy, no impact on the limited responsibil- public controversy is not, there is element in the definition and excluding the assumption of special element in the definition and excluding public questions.prominence in the resolution of Thus, for private concedes, at least to some civic-servant participants, this recognition the limited-purpose public figure, extent, a forceful intrusion activates which is not the essence of civic responsibility. involved in the resolution of impor- because they are not intimately of their fame, shaping events in tant public questions or, by reason areas of societal concern, assume special prominence in the resolution of public questions.” assume special prominence in the opinion defined a limited-purpose public figure as “an individual [who] limited-purpose public figure as “an opinion defined a himself voluntarily injects not fit within the definitions of all-purpose and limited-purpose public definitions of all-purpose and limited-purpose not fit within the of defamation law. figures for purposes Gertz public figure is separated by The first definition for limited-purpose the disjunctive conjunction of “or.” Conversely, the add-on sentence results in a linguistic conundrum. Specifically, “or” in this context descriptions set forth two quite dis- may be inclusive or exclusive; the tinct meanings. However, the progeny of 2015]sitory. political in an inconsequential participant’s role A civic-duty only dis- is meetings/hearings or routine congressional engagement of govern- ramifications to the substantial or fleeting relative sipating NEWS REPORTING CALUMNIOUS ment activities. of made outside employee A speech by a government trivial. is also of government employment the role ac- Therefore, the system, by the agency, court are limited these civic duties tivities from to shape participants not allow civic-duty and do or organization concern to society at large. events in areas of 729 B. Are Not Public Figures Civic-Duty Participants \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 40 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 96 Side A 04/02/2015 08:48:02 A 04/02/2015 96 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 96 Side B 04/02/2015 08:48:02 226 Dun & Brad- requirements. In addition, the In addition, and its progeny, and and absent a sub- Gertz 224 225 attempted to establish Gertz Curtis Publishing Co. v. Butts at 344 (“[P]ublic officials and public figures usually enjoy significantly (indicating those who assume the risk have “assumed roles of especial (indicating those who assume the risk have at 344 (“[P]ublic figures have thrust themselves to the forefront of particu- at 344 (“[P]ublic figures have thrust themselves , 418 U.S. at 352 (“[I]t is preferable to reduce the public-figure question to a , 418 U.S. at 352 (“[I]t is preferable to reduce Because civic duties are limited in scope, civic-duty partici- Because civic duties are limited By participating, they would be hard pressed to believe that they would be hard pressed to believe By participating, at 345. 228 had problems defining public concern; to relabel this measure- had problems defining public concern; prominence in the affairs of society”). greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals nor- mally enjoy.”). lar public controversies in order to influence the resolution of the issues lar public controversies in order to influence involved.”). more meaningful context by looking to the nature and extent of an individual’s more meaningful context by looking to the giving rise to the defamation.”). participation in the particular controversy Id. See id. See id. Gertz See id. 227 Categorizing a responsibility or activity at a congressional hearing Categorizing a responsibility or activity Participating in a routine congressional meeting or hearing does a routine congressional meeting Participating in 1. Meetings/Hearings Routine Congressional 228. 226. 225. 227. 224. for a civic-duty participant as beyond trivial or tangential participa- for a civic-duty participant as beyond public figure classification, but it is tion is the only way to achieve a for this sole purpose. not workable to relabel activities content, form, and context of a defamatory attack on civic-duty partici- attack on civic-duty of a defamatory form, and context content, cancels out problem and a remedy for this delineates pants constantly determination. public-figure an all-purpose of is a resuscitation Below are ana- circumstances but here the specific instances above, the same status. of public-figure the perspective lyzed from their participation must be more than minimal. must their participation poena, it precludes one from being coerced into a controversy. one from being coerced into poena, it precludes a formula to measure activity, it was in an ad hoc fashion to establish a formula to measure activity, it was individual to a limited-purpose an end result of reclassifying a private public figure. If used today, this method would necessitate substan- participant attempted to influ- tial proof showing that the civic-duty street pants are unable to voluntarily inject, thrust, or draw attention pants are unable to voluntarily with the towards their involvement in accordance their fleeting involvement would allow them the prestige to call a their fleeting involvement would in the case of a media contro- press conference for media redress versy. ment of activity would catapult defamation law into a greater identity ment of activity would catapult defamation crisis. Although not render a private civic-duty participant a public figure. civic-duty participant a public not render a private The meth- precludes in this type of civic involvement odology for participating into a vortex of controversy, one from interjecting Civic-duty participants are not volunteering to take a position of po- are not volunteering to take Civic-duty participants a risk of in- such that they are assuming tential public influence jury. 730 participants. of civic-duty ities According to NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 41 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 96 Side B 04/02/2015 08:48:02 B 04/02/2015 96 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 97 Side A 04/02/2015 08:48:02 R A- 232 N OX see also , F http://perma.unl.edu/ The context of public , is required. In the in- 229 archived at note 5 (discussing Limbaugh’s online This particular interest, accord- This particular interest, supra 231 , warrants no special protection when the warrants no special protection when Dun & Bradstreet http://nation.foxnews.com/rush-limbaugh/2012/05/24/left- , This is the type of defamatory attack that was not This is the type of 230 . . . . Her actions, both in instituting the litigation and in its conduct, TION , 418 U.S. at 351)). Gertz (May 24, 2012) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985). Gertz at 762 (“[T]his particular interest warrants no special protection when—as in Time, Inc. v. Firestone, 424 U.S. 448, 454–55 (1976) (“Dissolution of a mar- (1976) (“Dissolution Time, Inc. v. Firestone, 424 U.S. 448, 454–55 Dun & Bradstreet, 48YT-KXR9 (showing Arbitron ratings provided by an industry source); 48YT-KXR9 (showing Arbitron ratings provided wing-politico-busted-fudging-limbaugh-ratings, were quite different from those of General Walker in Curtis Publishing Co. . . . . were quite different from those of General resolution of public questions.’”She assumed no ‘special prominence in the (quot- ing Rush Limbaugh vs. Sandra Fluke this case—the speech is wholly false and clearly damaging to the victim’s busi- ness reputation.”). riage through judicial proceedings is not the sort of ‘public controversy’ referred riage through judicial proceedings is not the to in public apologies where approximately forty-five advertisers withdrew from his public apologies where approximately forty-five radio talk show as sources). See Id. See Fudging Limbaugh Ratings See John Nolte, Left-Wing Politico Busted In analyzing the content of the published information and the In analyzing the content of the In spite of the potential newsworthiness of some congressional newsworthiness of some In spite of the potential 230. 232. 231. 229. controversy, drawn from controversy, drawn stance where Rush Limbaugh made defamatory assertions, his conclu- Limbaugh made defamatory assertions, stance where Rush controversy or potential witness were not of public sions about the concern. inferences from Ms. Fluke’s He chose to take unreasonable ratings, and his listening audience, increase testimony to entertain please sponsors. ing to speech is wholly false and clearly damaging to Fluke’s reputation. speech is wholly false and clearly free and robust debate on public issues or meaningful dialogue of debate on public issues or meaningful free and robust self-government. ideas concerning Limbaugh directly defamed a civic-duty participant who was not nec- Limbaugh directly defamed a civic-duty essarily at the center of a public controversy. His goal, in making in- regard public controversy and, ferences from her speech, did not a private individual, not a public therefore, his attack was towards figure. interpretations also preclude civic- weight to be applied, conflicting in routine congressional hearings duty participants who are involved for several reasons.from being classified as public figures First, con- public figure status, rec- flicting interpretations about the involuntary 2015] to influence expected have been could or realistically the outcome ence of a controversy.an outcome be achieved with this proof cannot But participants. assigned to civic-duty responsibilities the limited it As NEWS REPORTING CALUMNIOUS be materi- rules cannot the witness congressional hearings, relates to amongst expedition than a fact-finding to establish more ally altered witnesses. congressional wit- news reporting on routine hearings, calumnious 731 matters that does not include assertions on subject nesses generally of public controversy. are within the context \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 42 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 97 Side A 04/02/2015 08:48:02 A 04/02/2015 97 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 97 Side B 04/02/2015 08:48:02 R R 235 On the and more , the reality 236 Gertz Lisa R. Pruitt, “ In examining the pub- see also 234 This case relied on precedent Thus, the content and weight of . L. J. 965 (2003) (discussing conceptions of This inference legitimizes involun- legitimizes This inference 237 ND § 569 (1977); at 762 (indicating the speech, “like advertising, is at 762 (indicating the speech, “like advertising, 233 . , 78 I ORTS T OF ) , 472 U.S Dun & Bradstreet. note 27, at 303 (“I am convinced that the most important thing , 472 U.S. at 761 (citing Connick v. Myers, 461 U.S. 138, 147–48 , 472 U.S. at 761 (citing Connick v. Myers, note 20, at 672 (arguing that “[t]he involuntary public figure note 20, at 672 (arguing that “[t]he involuntary ECOND , necessitate that the designation of involuntary of designation that the , necessitate (S supra supra , Gertz King, ESTATEMENT IMBAUGH harm associated with defamation law, particularly in sexual slander cases). harm associated with defamation law, particularly hardy and unlikely to be deterred by incidental state regulation” because “[i]t is solely motivated by the desire for profit, which, [the Court] noted, is a force less likely to be deterred than others”). (1983)). Chastity of Women All Property in the World Depends”: Injury from Sexual Slan- Chastity of Women All Property in the World der in the Nineteenth Century See Dun & Bradstreet conservatives have to do to win is to just keep saying no to the left. No to their See of content-based analysis” be- classification has contributed to the reemergence must relate to a public contro- cause “an alleged defamatory statement of content”). versy . . . [t]hat necessarily leads to considerations Dun & Bradstreet The second reason why the content and weight of calumnious news why the content and weight of calumnious The second reason 236. 237. L 235. R 234. 233. importantly, to advance the voice of the conservatives listening to his importantly, to advance the voice syndicated radio news talk show. exists that involuntary public figures become public figures through public figures figures become involuntary public exists that own. action of their no purposeful this determination cannot be But the content of the communications.made without considering Accord- and a “prostitute,” Limbaugh called Fluke “a slut” ingly, when Rush was not about the harmful, sensational reporting the content of his a witness on Reform Committee barring Oversight and Government rights.the subject of women’s was a vo- On the contrary, the content no purposeful act use of language based on ciferous and inappropriate the defamation.of Fluke’s to warrant language The weight of the foul to any public concern. cannot be applied for civic-duty par- be applied to a public figure status reporting cannot content, form, and these communications lack the ticipants is because context required by lic-concern inquiry as a threshold precondition, the content of calum- lic-concern inquiry as a threshold insignificant to the parameters of nious news reporting is generally the actual public controversy. In the Fluke incident, the parameter of charities to include birth control in requiring Catholic universities and controversy.their health coverage was the actual Yet, Limbaugh’s composition, and parts of the dis- form of speech was of malicious constituted defamation per se. course that surrounded his words that defined public concern “by [the expression’s] content, form, and that defined public concern “by [the record.” context . . . as revealed by the whole tariness as an option for valuable consideration.as an option for valuable tariness Although this status in after it was mentioned shunned was immediately public figures leads inevitably to considerations of the nature of the of the nature to considerations leads inevitably public figures the communication. content of His intent was solely motivated by the desire for profit, His intent was solely motivated by 732 in ognized NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 43 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 97 Side B 04/02/2015 08:48:02 B 04/02/2015 97 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 98 Side A 04/02/2015 08:48:02 They, like While they 238 240 In fact, they are figures less public than In fact, they are figures less public 239 , are not public figures as a result of being , are not public figures as a result Wells v. Liddy, 186 F.3d 505, 539–40 (4th Cir. 1999) (indi- Wells v. Liddy, 186 F.3d 505, 539–40 see also Firestone , 418 U.S. at 351 (requiring special prominence in the resolution of pub- 242 (“[W]hile participants in some litigation may be legitimate ‘public figures,’ (“[W]hile participants in some litigation may they are neither the central figures in a significant public they are neither the central figures Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1292 (D.C. Cir. 1980) Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (indicating that one can Gertz v. Robert Welch, Inc., 418 U.S. 323, 241 cating the defendant must put forth evidence that the plaintiff has been the lic questions); either generally or for the limited purpose of that litigation, the majority will either generally or for the limited purpose a public forum largely against their more likely resemble respondent, drawn into redress available to them or to defend will in order to attempt to obtain the only State or by others.”). themselves against actions brought by the (defining public figure for limited purposes). become a public figure for a limited purpose if one “voluntarily injects oneself or become a public figure for a limited purpose is drawn into a particular public controversy”). See See Gertz special-interest giveaways. No to their pork-barrel spending projects. No to their privileged congressional empire. If we can just deny them the fuel that runs their the communist empire did.”). corrupt empire, it will wither away just like See See id. 2. Jury Service civic duty upon recoil from the responsibility of Jurors who do not For the reasons stated above, civic-duty participants testifying in testifying civic-duty participants stated above, For the reasons 241. 242. 239. Time, Inc. v. Firestone, 424 U.S. 448, 457 (1976). 240. 238. the plaintiff in have or can be expected to have a major impact on the resolution of a have or can be expected to have a and substantial ramifications for specific trial with foreseeable others, the parties to the litigation because they were drawn into the legal the parties to the litigation because voir dire process. forum by a jury summons and the participants in litigation. controversy, nor did they seek to publicize their views on the relevant controversy, nor did they seek to publicize controversy. receiving a jury summons are not public figures.receiving a jury summons are not Similar to civic-duty testimony, there is no general participants providing congressional trial, nor do jurors voluntarily public concern inherent to a routine public controversy. inject themselves into a particular 2015]partici- the civic-duty impact does not reporting news his calumnious stand- public figure from an involuntary when viewed pant’s status figure standpoints. any other public point, nor NEWS REPORTING CALUMNIOUS figures. are not public and meetings hearings routine congressional content, of the nature of the interpretation with their own Courts, left based on a status to these participants would deny public-figure responsibility with balance the nature of the civic formula that would 733 rubric of defamation.the present legal news report- The calumnious concern and the to the parameters of a public ing must be significant participant.role of the civic-duty news re- Without the calumnious with the lack of to the civic responsibility, and porting being germane most courts and a more than trivial involvement, voluntarily injection to reject such a classification. would be obligated \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 44 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 98 Side A 04/02/2015 08:48:02 A 04/02/2015 98 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 98 Side B 04/02/2015 08:48:02 250 United In 243 was made prior to 249 This order activated an Welch 247 The lower court’s position measured 248 , 464 U.S. 501, 509 (1984)). Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (“[I]nfliction of Gertz v. Robert Welch, Inc., 418 U.S. 323 an acclaimed forensic pathologist was indicted, and an acclaimed forensic 244 , The pathologist asserted his indictment was “drafted as asserted his indictment was “drafted The pathologist An ancillary dispute occurred in this case, however, when occurred in this case, however, An ancillary dispute 245 abrogated by Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 68 (1971) (Harlen, J., dissent- Rosenbloom v. Metromedia, Inc., 403 U.S. at 226. 246 at 224–25. at 264 (J. Van Antwerpern, concurring in part and dissenting in part). . at 263 (J. Van Antwerpern, concurring in part and dissenting in part) (citing harm through the exercise of freedom of speech and the press to which the Con- harm through the exercise of freedom of speech damages must be limited to those stitution gives explicit protection, recoverable reasonably foreseeable.”). consequences of the publication which are ing), Id. Id. Id. Id. Id. Id Press-Enterprise I regular focus of media reports to prove that the plaintiff is a central figure in the regular focus of media reports to prove that controversy). See Although the unconventional analysis in Although the unconventional analysis Both an unconventional and conventional analysis is needed when is needed analysis and conventional an unconventional Both 244. 537 F.3d 222 (3rd Cir. 2008). 245. 249. 246. 250. 243. 247. 248. the vast, sensational calumnious news reporting by the 24-hour news the vast, sensational calumnious trial court is consistent with the media of today, the rationale of the need to protect jurors. Nevertheless, the Third Circuit held that when Amendment right to access to trial contrasted with the media’s First be able to show “that denying the proceedings, the lower court must the value of openness.” names and addresses of jurors outweighs appeal to the Third Circuit. the weight of the potential public controversy over the release of the weight of the potential public names and addresses of jurors. It was believed by the Board of Judges news stories that would negatively that the press would disseminate serve and hinder their inability to impact the jurors’ willingness to on the case. remain fair, impartial, and focused local television stations and newspapers covered the execution of the and newspapers covered the local television stations warrants. much for media attention as legal merit” and that the U.S. Attorney attention as legal merit” and that much for media by calling a to the extensive media exposure “personally contributed attended by the conference which was widely highly unusual press media.” States v. Wecht the Board of Judges for the Western District of Pennsylvania entered for the Western District of Pennsylvania the Board of Judges identified in court order directing that all jurors be an administrative generated would be juror numbers, and all juror lists only by assigned Court. deemed confidential property of the 734 of jurors, who are members reporting on calumnious news examining a small group. ap- the analysis, notwithstanding The unconventional the of understanding analysis, consists of a right-of-privacy pearance persons. status as private of protecting jurors’ rationale Some courts denying a controversy in the public rationale in weighing used this NEBRASKA LAW REVIEW to pre- jurors to the press and addresses of release names motion to foreseeable defamatory publications. vent reasonably [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 45 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 98 Side B 04/02/2015 08:48:02 B 04/02/2015 98 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 99 Side A 04/02/2015 08:48:02 R . EPP , 17 P . 203, 231–33 (1986); Public (1986); . 203, 231–33 . 886, 888–92 (1983)). . 886, 888–92 EV ROBS The First Amendment and Post- . P . L. R OC The State’s justification in de- The State’s justification For example, in cases in which For example, in cases However, in either instance, if it ARV & S 252 253 AW 255 . J.L. L A First Amendment Right of Access to a Juror’s Iden- A First Amendment Right of Access to a Juror’s OLUM , 20 C note 252, at 375 (citing Note, In cases where postverdict access to the names and In cases where postverdict access The reasonably foreseeable theory temporarily pre- theory temporarily foreseeable The reasonably 254 supra 251 . 357, 374 (1990) (highlighting that this is the case even when a first . 357, 374 (1990) (highlighting that this EV Robert Lloyd Raskopf, at 606–07. Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 606 Globe Newspaper Co. v. Superior Court for L. R Disclosures of Jury Deliberations, 96 H amendment right of access is found to exist). (1982) (“[T]he circumstances under which the press and public can be barred (1982) (“[T]he circumstances under which justification in denying access must from a criminal trial are limited; the State’s be a weighty one.”). Verdict Interviews tity: Toward a Fuller Understanding of the Jury’s Deliberative Process tity: Toward a Fuller Understanding of the See Id. See Release of Juror Information Once Jury Is Discharged, State v. Anthony, No. Release of Juror Information Once Jury Ct. July 26, 2011). 2008CF015606, 2011 WL 3112070 (Fla. Cir. While some debate continues to brew as to whether the right to continues to brew as to whether While some debate 253. 254. 255. Raskopf, 251. for the Limited Purpose of Seeking Order Granting in Part Motion to Intervene 252. nying access must be a weighty one. nying access must preverdict access to jury information is considered, a restriction on ac- preverdict access to jury information restriction is: (1) necessitated by a cess may be granted only if the and (2) narrowly tailored to serve compelling government interest, that interest. is determined that the rights of the jurors’ information does not over- is determined that the rights of the addresses of jurors is sought, two competing interests are generally addresses of jurors is sought, two (1) the jurors’ right to privacy and asserted in opposition to access: after the conclusion of their service; freedom from media harassment of debate and independence of and (2) the concern that freedom deliberations will be stifled if jurors thought central to impartial jury and ballots might be disclosed by fel- know their individual arguments low jurors contacted by the media. vents jurors from being treated like public figures. like public from being treated vents jurors jurors It protects over releas- after weighing the public controversy from potential harm of de- addresses of jurors with the consequences ing the names and famatory publications. individual Therefore, it maintains the private long as possible. classification as by the media, an addresses of jurors is privileged access names and private persons does not alter their status from affirmative response to public figures. of media Court has held that the right The Supreme apply restrictions names is not absolute; courts may access to jurors’ interests. to protect their overriding 2015] the faced with jurisdictions in various judges ruling, of the In spite when de- protect the jury same argument: rely on the same dilemma injury is foreseeable.famatory in- in releasing vital believe that They NEWS REPORTING CALUMNIOUS therefore, may occur; consequence of jurors, an alternative formation be- the public controversy information until the release of they delay comes stale. 735 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 46 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 99 Side A 04/02/2015 08:48:02 A 04/02/2015 99 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 99 Side B 04/02/2015 08:48:02 R Press- Judge: ruled note 251. it can be it can supra , June 17, 2013, 256 Recalling the note 251. , the judges be- ODAY 258 Zimmerman supra , USA T trial ordered a delay in http://perma.unl.edu/U5ZF-Y5QN. This action treats jurors as pri- treats jurors This action the judge in Anthony 464 U.S. 501, 510 (1984)) (“[T]he presump- Anthony Jurors Unreachable After Names 259 257 State v. Zimmerman , Oct 25, 2011, at A4; Yamiche Alcindor, trial “devolved into cheap, soap opera- trial “devolved into cheap, soap and archived at trial, Specifically, this local court made a deter- Specifically, this local court made note 258 (indicating the judge recalled that many, if note 258 (indicating the judge recalled that ENTINEL , July 14, 2013, at A4. 262 S supra Anthony Press-Enterprise I, Anthony Not only did the defense attorney ask to extend the Not only did the Will Jurors in Zimmerman Trial Remain Anonymous? It’s Possi- RLANDO ENTINEL S 260 ), 478 U.S. 1, 9 (1986) (“[T]he trial court must determine whether the ), 478 U.S. 1, 9 (1986) (“[T]he trial court must , O the judge believed it was an inherent duty to protect the judge believed State v. Anthony Order Granting in Part Motion to Intervene for the Limited Purpose of Order Granting in Part Motion to Intervene 261 RLANDO at 9–10 (citing at 9–10 Press-Enter. Co. v. Superior Court of California for Riverside Cnty. ( Press-Enter. Co. v. Superior Court of California , O http://www.usatoday.com/story/news/2013/06/17/george-zimmerman-hearing- continues-monday/2432571/, tion may be overcome only by an overriding interest based on findings that clo- tion may be overcome only by an overriding and is narrowly tailored to serve that sure is essential to preserve higher values with findings specific enough that interest. The interest is to be articulated along the closure order was properly a reviewing court can determine whether entered.”) Release of Juror Information Once Jury Is Discharged, situation is such that the rights of the accused override the qualified First situation is such that the rights of the Amendment right of access.”). Seeking Release of Juror Information Once Jury Is Discharged, Enterprise II Zimmerman Jurors’ Names to Stay Secret for Now Zimmerman Jurors’ Names to Stay Secret Made Public ble not all, people were outraged and distressed by the verdict, and were not hesitant not all, people were outraged and distressed to show their contempt for the jurors). Id. See See Id. The prevention of intrusion on jurors has also continued to be seen intrusion on jurors has also continued The prevention of 261. Rene Stutzman, 259. Pavuk & Colarossi, 258. Amy Pavuk & Anthony Colarossi, 262. Order Granting in Part Motion to Intervene for the Limited Purpose of Seeking 257. 260. 256. that jurors’ identities would be kept secret for an undetermined period would be kept secret for an undetermined that jurors’ identities their names could decision to be made as to when with a subsequent be made public. straightforwardly asserted that there is no lack of a free, uninhibited, that there is no asserted straightforwardly is im- news reporting when calumnious wide-open debate robust, and minent. may in- an alternative the strongest argument, Although not dignity of the human to preserve reasonable safeguarding clude some speech. the calumnious victims of incidents after the incidents after the lieved the local and national media organizations that gave the case so national media organizations that lieved the local and likely seek out those jurors. much attention would releasing the names of the jurors and condemned the media.releasing the names of the jurors He said the broadcast of the vate individuals and not as public figures. and not vate individuals televised criminal cases in America.in high profile and In the infa- mous cases like entertainment” and the Florida Public Records Law had “become like entertainment” and the Florida mination that the jurors, as a whole, were still private individuals. mination that the jurors, as a whole, Prior to this case, the judge in the anonymity, court participants, especially those participating because of civic duty especially those participating because court participants, rather than voluntarily. 736of access, right Amendment First the qualified ride NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 47 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 99 Side B 04/02/2015 08:48:02 B 04/02/2015 99 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 100 Side A 04/02/2015 08:48:02 R . 259, 269 EV The content, . L. R 265 UMB Venire persons are note 251. , 43 C 267 supra In fact, he took the position that “the that the position he took In fact, 263 and the balance of the state’s interest in and the balance of the state’s interest note 258. The Socially Unpopular Verdict: A Post-Casey Anthony The Socially Unpopular Verdict: A Post-Casey Admittedly, during the voir dire process, the Admittedly, during the voir dire supra Gertz 266 Clinton T. Speegle, at 10–11. 264 , causing one to become a public figure for a limited purpose, is , causing one to become a public (2013) (“[T]he venire-member is forced to publically reveal ‘[his] darkest mo- ments, which [he] may have struggled for years to forget.’”) (quoting Order Granting in Part Motion to Intervene for the Limited Purpose of Seeking Release of Juror Information Once Jury is Discharged, Analysis of the Need to Reform Juror Privacy Policy See id. See Id. Moving from the unconventional and conventional analyses, an- Moving from the unconventional The matter of defaming jurors, who are members of a small group, of a small who are members of defaming jurors, The matter 264. Pavuk & Colarossi, 265. 266. (1974). Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 267. 263. form, and context of her statement that the jury was “kooky” served of her statement that the jury form, and context and, therefore, was not relevant only to defend her reporting practices the public controversy.to the merits of the trial, which was Because no issue of public concern, the ap- the calumnious statement involved proach approved in Legislature must examine whether an exemption barring release of barring whether an exemption must examine Legislature in order cases, is needed to specific, rare albeit limited jurors’ names, willing to those citizens well-being of the safety and to protect serve.” compensating private individuals for such harm is in favor of the jury, compensating private individuals but not as public figures. figures when subjected to ca- other reason why jurors are not public the mandatory public voir dire lumnious news reporting is that process, although on public record, proceedings in the jury selection prevent such a designation. One may argue that the coercion factor in venire member is forced, under the government’s threat of contempt of venire member is forced, under the matters. court, to publically reveal private evident in the voir dire process, thereby drawing one into a particular evident in the voir dire process, thereby public controversy. also warrants a conventional defamation analysis of the expression’s defamation analysis also warrants a conventional record. context as revealed by the whole content, form, and This con- a whole, from being precludes members of a jury, as ventional analysis figures.classified as public as a juror is As mentioned above, serving procedure, and summoned by an involuntary a voluntary undertaking be assessed with- the status of a jury cannot for defamation purposes, the content of the defamatory communications.out considering In it cannot be said in the Nancy Grace incident, considering the content flow of commer- news reporting involved the free that her calumnious cial information. “uninhib- comment did not ensure The defamatory wide-open debate” on public issues. ited, robust, and Gertz 2015] story.” to sell a a tool simply NEWS REPORTING CALUMNIOUS 737 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 48 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 100 Side A 04/02/2015 08:48:02 A 04/02/2015 100 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 100 Side B 04/02/2015 08:48:02 R not . L.Q. Gertz but see 271 ONST C However, this However, ASTINGS note 15. 268 her linguistic form , 25 H Therefore, the jurors supra 272 , The content of her en- 274 273 Her response appeared to be Her response appeared 270 makes clear that playing a mini- that playing makes clear http://perma.unl.edu/KJL9-ZDSK (last vis- , http://www.thefreedictionary.com/kooky (last , http://www.thefreedictionary.com/kooky trial. Gertz COM . Permissible Content Discrimination Under the First archived at Anthony ICTIONARY D REE case do not qualify for a public figure classification. case do not qualify for a public figure F HE , T , 418 U.S. at 352. Lawrence Rosenthal, (“[V]enire persons are powerless against this privacy invasion.”); (“[V]enire persons are powerless against (“George, I tell the truth. Am I taking the heat for it? Yeah. Is that gonna Therefore, jurors who are subject to a system that could only subject to a system jurors who are Therefore, Anthony 529, 535 (1998) (indicating the question of whether a defendant’s speech ad- dresses a matter of public concern “must be determined by the content, form, and context of a given statement” and can be proven by the test that requires the ited January 18, 2014). visited January 18, 2014), make me stop looking for missing children and trying to solve unsolved homi- make me stop looking for missing children cides? No. I’m not going to let some kooky jury stop justice. Not for me anyway.”) Amendment: The Strange Case of the Public Employee Id. Kooky See Id. (E.D. Tex. 1995) (“[A]t voir dire the Brandborg v. Lucas, 891 F. Supp. 352, 360 their right to non-disclosure of court should put the juror on notice concerning private matters.”). Gertz Verdict Nancy Grace Discusses Casey Anthony Trial Id. 269 In the Nancy Grace incident, the weight of the calumnious news incident, the weight of the calumnious In the Nancy Grace 274. 270. 272. 269. 273. 268. 271. as speech significant to the parameters of the actual trial. to the parameters of the actual as speech significant Calling a statement manner revealed that the defamatory jury “kooky” in this the controversial aspects of the trial.was not major to view of the In her media coverage that she would take the heat for fact that she said looking for missing jury would not stop her for tactics, and the “kooky” homicides, children and trying to solve unsolved type of coercion alone is insufficient to propel the potential juror into a the potential to propel alone is insufficient type of coercion classification. public-figure limited-purpose reading of A further was to use the word “kooky” as an adjective denoting an informal or was to use the word “kooky” as an person. slang term for a mentally irregular in the tire communications was not of public concern, but in fact resembled tire communications was not of public of the discourse that surrounded her mockery, while the broader parts towards the news broadcast entire statement resembled resentment style.host who challenged her reporting The communications, as a public that the jury was not dis- whole, neither sought to inform the nor “brought to light actual or po- charging its civic responsibilities, trust.” tential wrongdoing or breach of public motivated by a personal desire to defend her reporting tactics, desire to defend her reporting motivated by a personal mal role precludes a defamed plaintiff from becoming a public fig- becoming a plaintiff from precludes a defamed mal role ure. identify or disqualify them for service in a public trial are not public a public trial are for service in or disqualify them identify their minimal role in the process. figures because of persons to public reclassify the jury from private reporting did not figures. her by a news broadcast host about Nancy Grace was asked the coverage tactics on 738 invasion. this privacy against powerless somewhat this from occurring. precludes NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 49 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 100 Side B 04/02/2015 08:48:02 B 04/02/2015 100 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 101 Side A 04/02/2015 08:48:02 R 278 , 72 , 31 See also . L. 97, 99 (2009) (writ- Although there has Although there RIM 277 . J. C M , 36 A : Death Qualifications as a Determinant This spirit is what the Supreme Court is what the Supreme This spirit 276 Trial by Jury and the Reform of Civil Procedure it is fundamental that they be protected as pri- be protected as that they it is fundamental . 1755, 1757 (2001) (quoting Beacon Theatres, Inc. v. West- . 1755, 1757 (2001) (quoting Beacon Theatres, Juries: On the Verge of Extinction? A Discussion of Jury Re- Juries: On the Verge of Extinction? A Discussion EV “What’s in A Name?”: A Paradigm Shift from Press-Enterprise “What’s in A Name?”: A Paradigm Shift from 275 . 1075, 1080 (1987) (“[T]he reference to ‘a phase of civic responsi- . 1075, 1080 (1987) (“[T]he reference to ‘a phase note 211, at 474. EV . 669, 676 (1918) (explaining how during the 18th century treatises . 669, 676 (1918) (explaining how during the EV without exposure to calumnious news reporting. without exposure L. R supra . L. R 279 , 54 SMU L. R However, when an individual voluntarily participates in However, when an individual Scott Sholder, Gertz v. Robert Welch, Inc., 418 U.S. 323, 344–45 (1974) (indicating when an Gertz v. Robert Welch, Inc., 418 U.S. 323, 344–45 John A. Wasleff, Lockhart v. McCree Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (emphasis added) (quoting Taylor v. Louisiana, 419 U.S. 522, 530 ARV ORNELL C H ing on the ongoing conflict that arises when the press seeks to obtain the identi- ing on the ongoing conflict that arises when trial). ties and addresses of jurors in a criminal over, 359 U.S. 500, 501 (1959)) (internal quotation marks omitted). over, 359 U.S. 500, 501 (1959)) (internal bility’ suggests that the definition of a ‘distinctive group’ is grounded partly in a bility’ suggests that the definition of a ‘distinctive societal interest involving the rights of citizens to serve as jurors.”). extolling the jury “as a bulwark of liberty, as a means of preventing oppression by extolling the jury “as a bulwark of liberty, and America). the Crown” were common in both England individual who voluntarily thrusts himself into the public arena, in the manner that public officials and public figures do, he must accept the necessary conse- quences resulting from involvement in public affairs). of the Impartiality and Representativeness of a Jury in Death Penalty Cases of the Impartiality and Representativeness Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)). Thiel v. Southern Pac. Co., 328 U.S. 217, 227 form Considering the Release of Juror- to Time, Place, and Manner Restrictions When Identifying Information in Criminal Trials See See See Austin Wakeman Scott, See comment to seek to “inform the public that [the defamed person] was not dis- comment to seek to “inform the public that nor “bring to light actual or potential charging its governmental responsibilities,” wrongdoing or breach of public trust”). 280 3. Engagement Inconsequential Political engagement, in thrusts oneself into political When one voluntarily Because jurors cumulatively play a political function in the admin- in function a political play cumulatively jurors Because 279. 280. 278. 276. Taslitz, 275. 277. Tom M. Dees, III, also been constitutional debate on whether jurors are protected from debate on whether jurors also been constitutional and addresses, access to their names, identities, the press having acknowledged when it said: “maintenance of the jury as a fact-finding “maintenance when it said: acknowledged our history firm a place in and occupies so such importance body is of the right to a jury that any seeming curtailment of and jurisprudence with utmost care.” trial should be scrutinized vate individuals from certain intrusions. from certain vate individuals not generally Although of justice the spirit serve to communicate of notoriety, jurors persons of all citizens. to the minds political engagement in a manner that is inconsequential, like voting political engagement in a manner the manner that public officials and public figures do, he or she ac- the manner that public officials of that involvement in the public af- cepts the necessary consequences fairs. this argument furthers the conclusion that they are not public figures. the conclusion that they are this argument furthers recognizes a socie- need to protect jurors as a group This fundamental citizens to serve the rights of private individual tal interest involving as jurors, 2015] of the law, istration NEWS REPORTING CALUMNIOUS 739 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 50 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 101 Side A 04/02/2015 08:48:02 A 04/02/2015 101 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 101 Side B 04/02/2015 08:48:02 R , Gertz This private 282 . But, even if it is 285 Gertz The participation is usually in 284 , http://www.thefreedictionary.com/coerce, 283 COM . ICTIONARY note 23. D REE F Robust as they are, political campaigns are generally Robust as they are, , supra HE http://perma.unl.edu/V2XG-FEZL (last visited January 25, 2014) (de- T 281 on , Alarc´ at 345 (“[C]ommunications media are entitled to act on the assumption that at 345 (“[C]ommunications media are entitled at 351. fining coerce as: “To force to act or think in a certain way by use of pressure, threats, or intimidation; compel”). public officials and public figures have voluntarily exposed themselves to in- public officials and public figures have concerning them.creased risk of injury from defamatory falsehood No such as- individual [who has] not accepted sumption is justified with respect to a private in ordering society.’”public office or assumed an ‘influential role (quoting Curtis Publ’g Co. v. Butts, 388 U.S. 130, 164 (1967))). Id. Coerce archived at See Id. Id. Civic-duty participants are also not public figures even if it is al- Civic-duty participants are also not Fleeting participation in political activities precludes private civic- in political activities precludes Fleeting participation 285. 282. 283. 284. 281. amount to a coercion or drawing in of the civic-duty participant into a amount to a coercion or drawing in particular public controversy. Generally, others do not force participa- functions at political events through tion in these dissipating, minimal pressure, threats, or intimidation. civic-duty participant has relinquished no part of his interest in the civic-duty participant has relinquished protection of his own good name. response to a high value on civic responsibility. response to a high value on civic public controversies. But deeds that dissipate cannot meet the re- participation does not rise to quirement of “thrust” because fleeting in the resolution of public the level of assuming special prominence questions. participant asks ques- More importantly, when a civic-duty are not accepting the risk of tions at a political debate, such persons defined in injury by defamatory falsehood as leged they were coerced to participate in trivial or fleeting political leged they were coerced to participate activities. do not, under Trivial or fleeting political activities 740 session, a question-and-answer for debates in political or participating public figures. category of all-purpose not subject to the they are Such that dissi- an activity political engagement only render the activities it was complete even though outcome is the entire political pates when process to help the political been necessary that may have an activity develop. NEBRASKA en- persons who incidentally to designate The mere attempt LAW REVIEW confusion figures forges as public political interaction gage in limited public-concern defi- itself and on the disjointed about the designation nition or lack thereof.public-figure Clear evidence of the elements of without such evi- crucial to public-figure status, but requirements is [Vol. 93:690 political must be considered inconsequential dence, the activity engagement. of the public from existing within the parameters duty participants figure category. can- and extent of activities by a political The nature political affairs re- of a political party in public didate or chairman potential public oneself or be drawn into quires one to interject controversy.” \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 51 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 101 Side B 04/02/2015 08:48:02 B 04/02/2015 101 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 102 Side A 04/02/2015 08:48:02 R 287 , CNN OUSTON Accord- archived at 289 Washington Free Bea- Washington Free (Oct. 18, 2012), http://www AILY the controversy must have the controversy note 214 (indicating the questions D Simply put, her question was Simply put, her 290 EWS 288 supra N , http://perma.unl.edu/3T6T-4SYR (asking about Quote Ignites Furor on Social Media, H , October 18, 2012, http://www.highbeam.com/doc/ TUDENT S LOBE G ‘Binders’ archived at OSTON Here, the calumnious news reporting was directed Here, the calumnious news reporting Putting ‘Binders’ in Context; Romney Pushed to Recruit Women at Putting ‘Binders’ in Context; Romney Pushed , B Romney Takes Debate to Obama over Economy, Health Care Romney Takes Debate to Obama over Economy, 291 http://perma.unl.edu/BP5F-JXNX. , Oct. 18, 2012, http://www.chron.com/news/politics/article/Binders-re- 286 but, rather, the Republican candidate’s response, which but, rather, the Republican candidate’s , 418 U.S. at 352. creating a second public controversy. Carla Marinucci, 292 Matt Viser, HRONICLE 293 emphasized that a minimal function does not equal public figure not equal public function does that a minimal emphasized (Oct. 4, 2012, 12:17 AM), http://www.cnn.com/2012/10/03/politics/debate-main, .studentnewsdaily.com/daily-news-article/2nd-presidential-debate/, inequities in the workplace, with females often earning less than their male counterparts). 1P2-33776017.html, Group’s Behest See See C Gertz archived at 2nd Presidential Debate, new ways do you intend to rectify http://perma.unl.edu/EXM8-PAUV (“In what regarding females making only 72 the inequalities in the workplace, specifically percent of what their male counterparts earn?”). October 3, 2012 Debate Transcript domestic issues: three on the economy asked and a description of the debate on and governing, with an em- and one each on health care, the role of government and choices). phasis throughout on differences, specifics not necessarily causally linked, have actually arisen that is related to, although to [sic] the action. The involuntary public figure must be recognized as a central figure during debate over that matter.”). , the public controversy was between opposing candidates., the public controversy In fact, In balancing dissipating and incidental political engagement with engagement and incidental political dissipating In balancing 293. 288. 287. Tom Cohen, 289. 290. Waldbaum v. Fairchild Pub., 627 F.2d 1287 (D.C. Cir. 1980). 291. (“A public controversy must Wells v. Liddy, 186 F.3d 505, 540 (4th Cir. 1999) 292. 286. ing to one circuit court’s requirement, ing to one circuit actually arisen. one that was not previously mentioned in the first debate. previously mentioned in the first one that was not toward a private person without a preexisting public controversy re- toward a private person without lating to her question. What ultimately drew attention was not her question immediately ignited uproar on social media forums and in the immediately ignited uproar on press, con designation. the contention between the candidates during the second debate was the candidates during the the contention between key issues. between them regarding based on past controversies the designation of public figure status, a clear perception of public con- public figure status, a clear perception the designation of that private of the defamatory content conclude cern and the nature are not eligible for the category.civic duty participants In the in- news reporting of the stance of the calumnious The civic-duty participant’s input in the question-and-answer debate input in the question-and-answer The civic-duty participant’s nor was it to the ongoing political controversy, was neither germane controversy. the basis of a primary 2015]propa- is responsibility of civic concept the proven that and alleged indi- cannot alter a private the activities brainwash citizens, ganda to vidual status. discussion of jurors, similar to the This is because, NEWS REPORTING CALUMNIOUS Gertz 741 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 52 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 102 Side A 04/02/2015 08:48:02 A 04/02/2015 102 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 102 Side B 04/02/2015 08:48:02 R of 296 294 , had not note 14 (re- She did not BINDERS FULL Because ca- http://perma.unl supra 295 297 incident, imparting Rohter, cf. archived at incident, prior to the Re- incident, Washington Free Beacon Washington Free 461 U.S. 138, 147–48 (1983)). 461 U.S. 138, 147–48 , Washington Free Beacon Washington Free Beacon Washington , 627 F.2d at 1292 (defining aspects of public concern). , 627 F.2d at 1296–98. 186 F.3d at 540 (indicating that a public controversy must have actu- 186 F.3d at 540 (indicating that a public controversy ” for possible hires when he was the governor of Massachusetts spiraled ” for possible hires when he was the governor Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) .edu/VEA9-9PFX (reporting Republican presidential candidate Mitt Romney’s .edu/VEA9-9PFX (reporting Republican about gathering “ comment during Tuesday’s presidential debate ally arisen that is related, although not necessarily causally linked, to the action ally arisen that is related, although not necessarily recognized as a central figure during and the involuntary public figure must be debate over that matter). into the social media stratosphere within minutes); into the social media stratosphere within (citing Connick v. Myers See Wells, See Waldbaum Waldbaum See mark-ignites-furor-on-social-media-3958155.php, WOMEN when Joe Wurzelbacher, just another porting on the Joe the Plumber incident Barack Obama during a political working man, stopped presidential candidate make a controversial statement, set rally, caused the presidential candidate to newest media celebrity—andhimself on a path to becoming America’s as such scrutiny). suddenly found himself facing celebrity-level Knowing that essentially private concerns or disagreements do not Knowing that essentially private When the original intent of a news article is to censure a cause or a cause censure is to news article of a intent the original When 296. 297. 295. 294. actually happened.that created a question only set off a response Her to assess.the political candidate for voters new focus about The ca- which were about her personal attributes, lumnious news reporting controversy be- were not relevant to the prior taken out of context, candidates.tween the political engagement Her incidental political articulated them to the candidates’ views, as they was not central the question.before she asked not a public For that reason, she is figure. because they attract attention, become public controversies simply lumnious news reporting includes deleterious comments, denigrating lumnious news reporting includes defamatory statements, these cate- expressions, indecent words, and not involve issues of public concern. gories of statements generally do Comparatively, in the publicize her views about the presidential candidates.publicize her views fact, at the In over the candi- question the public controversy time she asked the identified by the date’s response, as publican candidate’s statement there was no specific public dispute no specific public there was candidate’s statement publican substantial ramifications foreseeable and Fenton that had involving the civic-duty participant herself. for persons beyond the next step in determining that private civic-duty participants are the next step in determining that content of the defamatory speech. not public figures is to evaluate the about the civic-duty participant Whether the calumnious news report must be determined, although the addresses matters of public concern in political affairs. participation is a fleeting activity 742 civic-duty reporting about a news and the calumnious public concern make the alone does not to the story, this is incidental participant activity. person to the as a central participant known civic-duty in the Once again NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 53 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 102 Side B 04/02/2015 08:48:02 B 04/02/2015 102 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 103 Side A 04/02/2015 08:48:02 R R R 300 , Dun & Gertz Dun & Bradstreet holds that it is pref- . 1, 11–12 (1990). . 1, 11–12 article termed his in- plurality or EV Gertz . L. R classifications nor did he was expressly meant to sup- meant to was expressly ASH note 47. This technique, although in- Gertz . W Rosenbloom Gertz EO supra note 14. In this manner, In this manner, , 59 G examination. 299 supra Gertz Washington Free Beacon Speech on Matters of Public Concern: The Perils of an Emerg- Speech on Matters of Public Concern: The Perils Stafford, , 472 U.S. at 757–58. note 298, at 55 n.65. See —the very test that supra , he did not change the ’s adoption of a “public interest or concern” requirement, in- or concern” of a “public interest ’s adoption Washington Free Beacon Staff, 301 —was statements reasoning that defamatory based on the 298 ing First Amendment Category Dun & Bradstreet Estlund See novative, allows for the media or other speakers to take tweets or posts out of context, presumably in the hopes of calling the credibility of the targeted person into question. Whether creating a controversy by misusing video editing or social Whether creating a controversy by The Shirley Sherrod instance discussed above also failed to show instance discussed above also The Shirley Sherrod Rosenbloom 299. 300. 298. Cynthia L. Estlund, 301. erable to reduce the public-figure question to a more meaningful con- erable to reduce the public-figure and extent of an individual’s text by looking to the nature giving rise to the defama- participation in the particular controversy tion. was not surrounded by In this instance, the NAACP fund dinner the speech.controversy at the time she gave Without first having a of her giving a speech is not de- controversy, the nature and extent claim.serving of an analysis in the defamation Her status as a pri- it was not derived from speech vate individual is not altered because the context of notoriety. involving the affairs of society in news reporting or directly making media as a source for calumnious participants involved in polit- defamatory statements about civic-duty is not altered.ical activities, the status of the participant When the unnamed author of the vestigative reporting skills a “study” of the victim’s personal Twitter vestigative reporting skills a “study” account, plant Bradstreet distinguishable from the “public or general interest” test formulated interest” test “public or general from the distinguishable in that do not involve issues of public concern yield a less compelling yield a less of public concern not involve issues that do interest. First Amendment and position to maintain the civic-duty participants in a better leaves and demand a remedy. private-person status and per- general fame or notoriety in the community clear evidence of deem her a pub- in the affairs of society that would vasive involvement all aspects of her life.lic personality for in the Her employment her an all-purpose is not sufficient enough to label governmental office public figure. position in not meet the test that requires her She does importance that the public has an government to be of such apparent and performance beyond the independent interest in the qualifications employees.general public interest in all governmental Additionally, such a conclusion fails a 2015] deni- speech of is assertion an untrue fabricate to out of context facts of public concern. not grating expressions, by analysis, So, NEWS REPORTING CALUMNIOUS 743 protection news reporters less First Amendment gives calumnious under either the than they enjoyed \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 54 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 103 Side A 04/02/2015 08:48:02 A 04/02/2015 103 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 103 Side B 04/02/2015 08:48:02 R . , Gertz Gertz 304 and its Gertz And it makes no And it makes The instances of 302 303 Justice Powell, in 305 note 20, at 667 (indicating that the existence of a public contro- note 20, at 667 (indicating that the existence supra , 418 U.S. at 345 (indicating the plaintiff has relinquished no part of his , 418 U.S. at 352. King, interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood). See versy—and it—is the plaintiff’s central role within essential even in the recogni- tion of voluntary public figures). See Gertz Gertz 1. Congressional Meetings/Hearings Routine should not be deemed a public In determining that an individual Private civic-duty participants are private individuals for purposes participants are private individuals Private civic-duty 305. 303. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). 304. 302. is essential even with some recognition of status. recognition of even with some is essential sought to prevent private persons from losing their status.sought to prevent private persons For him, it question to a more mean- was preferable to reduce the public-figure and extent of an individual’s ingful context by looking to the nature giving rise to the defama- participation in the particular controversy The same is applicable for video editing done to manufacture a story. to manufacture video editing done is applicable for The same or fleeting in a dissipating simply engaging participants For civic-duty the exis- court is clear that affairs, the in political civic responsibilities public controversy—andtence of a role with it— plaintiff’s central the progeny presented this conclusion by reasoning that defamatory state- this conclusion by reasoning that progeny presented in “uninhibited, ro- advance society’s interest ments do not materially debate on public issues. bust, and wide-open” difference that it was an activity that may have been necessary to help have been necessary that may that it was an activity difference develop. the political outcome calumnious news reporting illustrated above clearly demonstrate no reporting illustrated above clearly calumnious news dialogue of ideas concerning potential interference with a meaningful self-government. not have First Amend- Therefore, the media does news stories that assault ment protection when it reports calumnious in dissipating responsibili- a civic-duty participant as they participate intent of the news article is actu- ties especially when and the original or public concern.ally to censure another cause The resultant particularly because the conse- behavior warrants compensation abandons civic-duty partici- quences of calumnious news reporting they have not relinquished any pants as collateral damage although of their own good name. part of their interest in the protection personality for all aspects of his or her life, personality for all aspects of his or of defamation and are afforded the opportunity to seek legal redress are afforded the opportunity to of defamation and with calumnious news reporting. when they are faced 744 of the progeny set by standards controversy the public change NEBRASKA LAW REVIEWC. [Vol. 93:690 are Private Individuals Civic-Duty Participants \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 55 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 103 Side B 04/02/2015 08:48:02 B 04/02/2015 103 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 104 Side A 04/02/2015 08:48:02 New Curtis , private-person recognized defama- Limbaugh’s statements Wolston With the subject matter 310 309 , and The civic-duty participant’s involve- The civic-duty participant’s Dun & Bradstreet 308 311 Hutchinson . . . and her actions, both in instituting the litigation . . . and her actions, both in instituting the , Gertz Firestone ., and she assumed no “special prominence” in the resolution of ., and she assumed no “special prominence” , 424 U.S. 448 (1976); Hutchinson v. Proxmire, 443 U.S. 111 (1979); Rather, he would say that Fluke played a minimal role say that Fluke played a minimal Rather, he would (indicating that the plaintiff played a minimal role at the coroner’s in- (indicating that the plaintiff played a minimal 307 So, in the Fluke So, have agreed Justice Powell would incident, Time, Inc. v. Firestone, 424 U.S. 448, 454–55 (1976) (indicating that dissolu- (1976) (indicating Time, Inc. v. Firestone, 424 U.S. 448, 454–55 and in its conduct, were quite different from those of General Walker in and in its conduct, were quite different from public questions). dissenting). Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157 (1979). quest, his participation related solely to his representation of a private client, he quest, his participation related solely to his of Officer Nuccio, he never discussed took no part in the criminal prosecution the press, he plainly did not thrust either the criminal or civil litigation with nor did he engage the public’s atten- himself into the vortex of this public issue, tion in an attempt to influence its outcome). Publishing Co tion of a marriage through judicial proceedings is not the sort of “public contro- tion of a marriage through judicial proceedings versy” referred to in See Firestone Id. See id. See 306 According to many statements of Supreme Court justices, the First According to many statements of Supreme According to 309. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 785 (1986) (Stevens, J., 310. 311. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 81 (1971).(Marshall, J., dissenting). 308. 306. 307. witnesses at congressional hearings do not meet the criteria for status hearings do not meet the witnesses at congressional matter of the state- is placed on the subject change when importance participant is of the defamed private civic-duty ment and the status devalued. to iso- theoretically, the primary task is Under these cases, participant’s then consider the civic-duty late the public controversy, involvement in it. testimony routine congressional meeting with A regard- controversy in spite of the newsworthiness triggers no public the hearing. ing the reason for tory speech as far more limited when the concerns that activated tory speech as far more limited when instantly fall in that category of unprotected speech.instantly fall in that category of unprotected Defamation of a is not one of the occasions for private individual by the mass media unfettered ad hoc balancing. being so prevalent, according to the trilogy, being so prevalent, according to the ment in it is not the primary weight to be placed on the matter; his or ment in it is not the primary weight her role is secondary. Constitution does not protect delib- Amendment to the United States erate, malicious character assassinations. and her participation related solely to her representation as a private related solely to her representation and her participation individual. that evidence was lacking that she was cloaked in general fame or cloaked in general that she was was lacking that evidence meeting. at a congressional her testimony before she gave notoriety partici- that this civic-duty determined he would have Additionally, nor of a public controversy into the vortex thrust herself pant neither its an attempt to influence attention in engage the public’s did she outcome. 2015]tion. NEWS REPORTING CALUMNIOUS 745 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 56 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 104 Side A 04/02/2015 08:48:02 A 04/02/2015 104 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 104 Side B 04/02/2015 08:48:02 , de- are absent). Gertz Thus, according Dun & Bradstreet Dun and 313 So amalgamating the Dun & Bradstreet to deal with a matter of public 314 which impacts matters of Focusing primarily on the Gertz 315 New York Times Gertz, In this case, case, In this 312 For that reason it does not trigger § a member of a 589 (1977) (indicating that 316 ORTS 472 U.S. at 787 (showing Justice Powell’s opinion 472 U.S. at 787 (showing Justice Powell’s T OF ) are absent. are ECOND Gertz (S and and at 774 (referring to the application of at 760. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985) Dun & Bradstreet, Inc. v. Greenmoss Builders, ESTATEMENT importance). grand or petit jury is absolutely privileged to publish defamatory matter concern- grand or petit jury is absolutely privileged as a juror, if the defamatory mat- ing another in the performance of his function which he is acting as juror). ter has some relation to the proceedings in excluded the subject matter of credit reports from matters of public concern be- cause the speech was predominantly in the realm of matters of economic concern). (indicating the role of the Constitution in regulating state libel law is far more (indicating the role of the Constitution in limited when the concerns that activated See Dun & Bradstreet Inc., Id. See Id. 2. Jury Service private person jury system does not change the Participating in a 313. 315. 316. 314. R 312. fending herself to another reporter is excluded from matters of public fending herself to another reporter predominantly in the realm of mat- concern because the speech was ters of personal and economic concern. to gratis dicta from five justices and controlling precedent, when a pri- precedent, and controlling dicta from five justices to gratis by the media, after duty participant is called a “slut” vate female civic the importance of invited her to educate them on members of Congress law, such harmful women under the new healthcare contraception for interest nor re- reporting does not advance society’s and sensational verse her status. private person status of a jury serving a public duty with the individ- private person status of a jury serving an analysis of general or public ual interest of the speaker precludes of status.interest and the subsequent transformation In the Nancy holding in Grace incident, comparable to the public or general importance. content of her statement, this speech involved a subject of purely pri- content of her statement, this speech to a matter of public importance vate concern and does not relate of thereby restricting the applicability the secondary analysis to considering altering the role of the civic- the secondary analysis to considering duty participant jurors. status of private civic duty participants.status of private law per- From a defamation that jurors partici- (Second) of Torts reads spective, the Restatement duty. pate in judicial proceedings as a public 746 Times York public is- robust debate of to the free and is no threat adds, “[t]here dialogue of a meaningful interference with is no potential sues; there of liability is no threat and there self-government; ideas concerning press.” by the reaction of self-censorship causing a NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 57 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 104 Side B 04/02/2015 08:48:02 B 04/02/2015 104 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 105 Side A 04/02/2015 08:48:02 Hutchin- , Gertz and its progeny Gertz , the plaintiff was a research Hutchinson , the plaintiff was the principal stockholder of , the plaintiff was the principal stockholder Hepp Their contributions to society far outweigh the Their contributions to society far 318 are examples of how mere employment or participation employment or of how mere are examples , the plaintiff was a lawyer; in Hepp Gertz Similar to the plaintiffs in these cases, Shirley Sherrod plainly in these cases, Shirley Sherrod Similar to the plaintiffs director and professor; and in General Programming, Inc. (GPI), a corporation that franchises a chain of stores. General Programming, Inc. (GPI), a corporation when media reports concern pri- Amendment values are of no less significance vate persons’ involvement in matters of public concern, but refusing to provide the same level of constitutional protection that has been afforded the media in the context of defamation of public persons because the private individual does not have the same degree of access to the media to rebut defamatory comments as does the public person). 317 , and Private civic-duty participants do not relinquish part of their inter- participants do not relinquish part Private civic-duty 3. Political Engagement Inconsequential per- jobs, one may accept government individuals When private 318. that First (1974) (indicating Gertz v. Robert Welch, Inc., 418 U.S. 323, 362–63 317. In allow for defamatory redress for civic duty participants to look like allow for defamatory redress for this: advancement to society’s interest that calumnious news reporting of- advancement to society’s interest fers. in the offering of They have little individual or business interest juries, or political engage- their time or service towards Congress, ments. attacked by ca- However, when they are directly or indirectly for the business interest of the lumnious news reporting, it is either media or their specific news audience. Since this is not a meaningful dialogue of ideas concerning self-government, in a particular venture is not enough to alter a private person sta- is not enough to alter a in a particular venture tus. son neither thrust herself into the vortex of the public controversy, nor did into the vortex of the public controversy, neither thrust herself influence its out- attention in an attempt to she engage the public’s a speech at the NAACP event.come when she gave her func- Rather, lunch. as a guest speaker at an organization’s tions were minimal Her exclusion from the must be given carte blanche private-figure status media’s privilege. a misconceived under- Thus, mere employment and status. position do not affect a private-person standing of that status when they name and their private-person est in their own good fulfill a civic responsibility. Generally, they do not voluntarily inject controversy; they simply step into themselves into a particular public areas of need to help facilitate government. They do not have availa- by public officials to rebut defama- ble opportunities usually enjoyed tory comments. haps infer that their job duties or extra activities are synonymous duties or extra that their job haps infer not initi- does however, this misconception engagement; with political status. private-individual of the ate transformation 2015] NEWS REPORTING CALUMNIOUS 747 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 58 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 105 Side A 04/02/2015 08:48:02 A 04/02/2015 105 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 105 Side B 04/02/2015 08:48:02 R triggered when the subject matter = public concern and its progeny are not applica- Gertz V. CONCLUSION and on to its progeny—made the task increasingly , note 20, at 661 (indicating that the problem has come in the and its progeny is not as blurred when a media privi- and its progeny is not as blurred when Gertz supra Gertz King, In such a case, the reasons for the lack of complications are In such a case, the reasons for the See attempts by the Supreme Court and lower courts to delineate the scope of consti- tutional restrictions on defamation once we have passed beyond claims by public officials). Private 319 The meaning of public interest and the discernible status of plain- The meaning of public interest and individuals Figures Public Public Officials and triggered whentriggered whollyspeech is Involuntaryclearly false and public figures to the damaging victim’s business public figures All-purposereputation, or exceedingly raretriggered when pervasive fame public figures speech solely in instance voluntarily the individual Limited-purpose interest of thespeaker and itsspecific business or notoriety foraudience injects oneself or all purposes and in all contexts coerced but > a minimal role + assumed the and have risk access to “self- help” 319. starting with ble. its unstructured con- Second, the public-figure classification and to the public-figure subcategories, straints, particularly with respect who have not obtained are not applicable to civic-duty participants do not voluntarily thrust them- pervasive fame or notoriety or who assume the risk, or when the sub- selves into a public controversy and ject matter is not of public concern. Third, although there has been public controversy so as to little guidance by the Court in defining situations, the direction on what serve as a funnel for all persons and tiffs under difficult once the plaintiff’s status was beyond that of a public offi- difficult once the plaintiff’s status cial. lege is asserted against defamation claims by civic-duty participants. lege is asserted against defamation case, but defamation decisions—Traditionally, this was usually the fourfold. implicated in mat- First, civic-duty participants are usually the public interest or public concern ters that so narrowly dribble into that the privilege expanded by 748 NEBRASKA LAW REVIEW [Vol. 93:690 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 59 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 105 Side B 04/02/2015 08:48:02 B 04/02/2015 105 Side Sheet No. 35748-neb_93-3 35748-neb_93-3 Sheet No. 106 Side A 04/02/2015 08:48:02 public concern and when the controversy must start excludes must controversy the and when concern public not the dissipating activities of civic-duty participants. activities the dissipating Fourth, evaluat- calumni- in a finding that usually results of the speech ing the content concern to in areas of not help shape events reporting does ous news large.society at sta- individual solidify the private These four reasons participants.tus of civic-duty to citizens who want private Therefore, may seek or mandate, by invitation civic responsibilities, engage in reporting ensu- the media for calumnious news legal redress against public figures. because they are not ing from their participation 2015]was NEWS REPORTING CALUMNIOUS 749 \\jciprod01\productn\N\NEB\93-3\NEB304.txt unknown 60 Seq: 31-MAR-15 11:41 35748-neb_93-3 Sheet No. 106 Side A 04/02/2015 08:48:02 A 04/02/2015 106 Side Sheet No. 35748-neb_93-3