NORTHERN KENTUCKY LAW REVIEW Volume 15 1988 Number 1 ARTICLES PREFACE: FIRST AMENDMENT SYMPOSIUM-AN INTRODUCTION D avid A . Elder ...................................... 1 TAKING A LOOK AT "THE DISTORTED SHAPE OF AN UGLY TREE": EFFORTS AT POLICY-SURGERY ON THE LAW OF LIBEL DURING THE DECADE OF THE 1940s Norman Rosenberg ................................... 11 DEBATE ON THE CONSTITUTIONALITY AND DESIRABILITY OF A TOBACCO-PRODUCTS ADVERTISING BAN "Paul J. W eber ........................................ 57 DEFAMATION IN THE WORKPLACE: "THE NEW WORKHORSE IN TERMINATION LITIGATION" John Jay Fossett ........ ............................ 93 COMMENT THE FIRST AMENDMENT AND ATTORNEY DISCIPLINE FOR CRITICISM OF THE JUDICIARY: LET THE LAWYER BEWARE ................................................................. 1 2 9 NOTES OHIO PROVIDES EVEN GREATER PROTECTION FOR ITS PRESS: SCOTT V. NEWS-HERALD ............................... 153 MEESE v. KEENE - CONGRESS CAN SIDE-STEP THE FIRST AMENDMENT BY INDIRECT LEGISLATION ................ 181 BETHEL SCHOOL DIST. NO. 403 V. FRASER - Is THE PIG IN THE PARLOR? ........................................ 205 BOOK REVIEW IN SEARCH OF TRUTH: A REVIEW OF RENATA ADLER'S RECKLESS DISREGARD D ale M . Cendali ..................................... 227 First Amendment Symposium - An Introduction David A. Elder The Supreme Court's decision in New York Times v. Sullivan,' addressing an attempt by Southern politicians to squelch criticism from the eastern liberal press,' constitutes a landmark decision in the development of freedom of expression which has had a significant beyond the realm of libel law in focusing interest on the impact 3 "central meaning" of the first amendment. For example, the first incursion on the then existing doctrine that commercial advertising was unprotected speech was New York Times' decli- nation to treat the libel case before it, based on an advertisement entitled "Heed Their Rising Voices," as involving unprotected "commercial speech." 4 The almost quarter-century of precedent from New York Times to the recently-decided case of Hustler Magazine v. Falwell5 is well-known and will not be delineated in detail herein. It is worthwhile, however, to examine briefly the three roughly- sketched epochs in the Court's libel jurisprudence. The period from 1964 when New York Times was issued until Rosenbloom v. Metromedia6 in 1971 broadly constituted a period of expansion of the protection of freedom of expression-the subjective standard7 1. 376 U.S. 254 (1964). For an overview of the changes in media tort liability precipitated by New York Times see Elder, Freedom of Expression and the Law of Defamation: The American Approach to Problems Raised By The Lingens Case, 35 INT'L & COMP. L. Q. 891 (1986). 2. New York Times, 376 U.S. at 294 (Black, J., with Douglas, J., joining, concurring). 3. Id. at 273. 4. Distinguishing the then leading case of Valentine v. Chrestensen, 316 U.S. 52 (1942Xholding that an ordinance prohibiting street dissemination of commercial advertising did not violate the first amendment), the Court held that the advertisement before it was protected by the first amendment, as it "communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern." 376 U.S. at 266. 5. - U.S. - 108 S. Ct. 876 (1988). See infra note 27. 6. 403 U.S. 29 (1971). 7. St. Amant v. Thompson, 390 U.S. 727, 730-32 (1968)(The Court rejected an objective standard and required that complainant demonstrate defendant "in fact entertained serious doubts as to the truth" of the publication). 2 NORTHERN KENTUCKY LAW REVIEW [Vol. 15:1 of "actual malice" (knowing or reckless falsity) was extended to public officials,8 public figures,9 candidates for public office, 10 and, ultimately, by the Rosenbloom plurality, to all matters of public interest without regard to the plaintiffs status." In 1974 in Gertz v. Robert Welch, Inc.,12 the Court majority initiated a counter-revolution of sorts, retrenching from its briefly- lived expansionist plurality posture in Rosenbloom, revivifying the status approach and adopting a negligence standard for private individuals suing the media. 13 The Gertz court also rejected an attempt to give an open-ended definition to "public official" (by subsuming all attorneys thereunder as "officers of the court")14 and elucidated a detailed policy substratum for treating "public" persons differently from "private" persons -their greater access to the means of counter-argument and reply and the "normative" consideration of the "public" person's risk of enhanced media scrutiny.15 In this second period, initiated by Gertz and ending with a trio of libel decisions in 1979,16 the media suffered a number of setbacks by a Court that seemed intent on providing a better balance between the freedom of expression and the "basic" interest 17 in individual reputation. In these decisions the Court applied its new "all purpose" and "limited purpose" or 8. New York Times, 376 U.S. at 279-80. The "actual malice" standard applied only to matters "relating to his official conduct." For a discussion of the latter see Elder, Defamation, Public Officialdom, and the Rosenblatt v. Baer Criteria-A Proposal for Revivification Two Decades After New York Times Co. v. Sullivan, 33 BUFFALO L. REV. 579, 644-59 (1985). 9. Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967). 10. Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971). 11. Rosenbloom, 403 U.S. at 41-43. The views of the dissenters, i.e., that negligence was sufficient in private person cases, later became the majority view in Gertz. For a discussion of this development see Elder, supra note 8, at 604-14. 12. 418 U.S. 323 (1974). 13. Id. at 337-50. Gertz renders exceptionally doubtful the continuing validity of Time, Inc. v. Hill, 385 U.S. 374, 388, 390-91 (1967), where the Court extended New York Times to "false light" privacy cases involving "matters of public interest." See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 498 (1975), where Justice Powell, the author of Gertz, in a concurring opinion opined that the latter called "into question the conceptual basis" of the "public interest" New York Times rule in private person "false light" cases. 14. Gertz, 418 U.S. at 351. 15. Id. at 344-45. 16. Herbert v. Lando, 441 U.S. 153 (1979)[see infra note 7]; Hutchinson v. Proxmire, 443 U.S. 111 (1979)[see infra note 18]; Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157 (1979)[see infra note 18]. 17. Herbert, 441 U.S. at 169. 1988] PREFACE "vortex""' public figure criteria very restrictively, declined to revive New York Times for all cases involving abuse of the "fair report" privilege, 9 substantially aided public persons endeavoring to prove "actual malice" by permitting broad discovery, 20 declined to proscribe in toto presumed or punitive damages, 21 and broadly intimated that the "public official" doctrine did not encompass all ' 22 "public employees. The Court's next grouping of decisions in the third period, 1984 to the present, constitutes a mixed bag of decisions in which defamation plaintiffs and defendants each received some significant victories and decided setbacks. The Court finally resolved the dispute that existed (at least in private person cases)23 concerning the burden of proving fault and falsity and rejected imposition on the defendant of the burden of proving 18. In four decisions, including Gertz, between 1974 and 1979 the Court held all the plaintiffs not to be public figures: Gertz, 418 U.S. at 351-52 (A well-known attorney participating in a civil rights proceeding was not a "public figure"); Time, Inc. v. Firestone, 424 US. 448, 454-55 (1976)(A participant in a divorce, a cause celebre, was not a "public figure" despite her participation in several press conferences); Hutchinson,443 U.S. at 134-36 (A recipient of federal funds for research was not a "public figure" prior to the controversy generated by the award, the "Golden Fleece" award, bestowed by defendant-"those charged with defamation cannot, by their own conduct, create their own defense by making the claim- ant a public figure"); Wolston, 443 U.S. at 165-69 (Neither plaintiff's voluntary decision to not appear before a grand jury, with knowledge this might precipitate press publicity, nor his consequent citation for contempt rendered him a "public figure"). A third type, an "exceedingly rare," "involuntary," "public figure" was referenced by Gertz, 418 U.S. at 345. Subsequent decisions had generally ignored this variety and the Court's rejection of mere newsworthiness as sufficient for "public figure" status seemed to have implicitly repudiated the "involuntary" category. But see Dameron v. Washington Magazine, Inc. 779 F.3d 736 (D.C. Cir. 1985XAn air traffic controller at the time of a crash was held to be an "involuntary" "public figure"), cert. denied, 476 U.S. 1141 (1986). 19. Firestone,424 U.S. at 456-57. For private persons alleging abuse of "fair report" the standard is negligence. Id. at 457. For public persons the standard is "actual malice." Id. at 459 n.4 (citing Time, Inc. v. Pape, 401 U.S. 279 (1971)). For accurate reports of judicial proceedings the Court opined in dicta that the absolute immunity provided in Cox Broad- casting, 420 U.S. 469, applied. For an analysis of these issues of the "fair report" privilege see D. ELDER, THE FAIR REPORT PRIVILEGE (1988). 20. Herbert, 441 U.S. at 155, 169, 171 (The first amendment did not preclude a public plaintiff's inquiry into the "editorial processes of those responsible" for libel in endeav- oring to prove "actual malice," a "critical element" of his case). 21. Gertz, 418 U.S. at 349-50; Herbert, 441 U.S.