The Reduced Rights of the Public Figure

Are you a public figure? If you are, you have fewer rights than everyone else.

Wait a sec. Say what?

Most people think the U.S. Constitution, as interpreted by the Supreme Court, guarantees equal rights to everyone: white or black, male or female, short or tall, smart or stupid, Christian, Jewish, Muslim, or atheist, athletic or couch potato, public figure or not public figure. If you thought this, you are wrong.

Yes to all of this, with the exception of the very last one. Only public figures have fewer rights than anyone else. All others, apart from these poor unfortunates, are equal under the law. Doesn’t sound quite right, does it?

What is a public figure? This appellation refers to people who are (regularly?) in the news, to those who take a public stance on the issues of the day. It includes those who are famous movie stars, musicians, politicians, professional athletes, whether or not they have ever contributed to the public dialogue. If you are listed on Wikipedia, it is safe to assume you are a public figure.

In what way are your rights then atrophied? If an ordinary citizen is subject to libel, all he has to do to prevail in a lawsuit for defamation is prove that the claims about him are false, and that they cost him something significant, such as money, loss of reputation, unemployment, etc. However, if the victim of the lie is a public figure, he has a harder row to hoe. He must demonstrate, in addition, that the falsity was purposeful, not accidental, and that “it was made with the knowledge that it was false, or else with reckless disregard for its truth or falsehood.” Thus, it is far more difficult for a public figure to prevail in a defamation lawsuit than other, lesser, mortals.

Why was this profoundly unfair and unegalitarian decision made by the Supreme Court? They did so in the case of New York Times v. Sullivan. The goal was to ensure that public figures did not run roughshod over the press, did not too seriously attack their freedom of speech. So the justices placed their big, fat thumbs on the balance wheel of justice in favor of the possible libelers. The idea was that if you are a public figure, and hand it out, you should be able to take it, too.

The case for libel law is that it can ruin reputations. Such acts are akin to stealing cars or boats or other valuables. Often, what others think of us is even more important than any of these physical goods.

However, while we can indeed properly own these items, paradoxically, we cannot legitimately own our own reputations. This is indeed a paradox in that we work hard to establish a good reputation and benefit from it, while we lose from a poor one, besmirched by slander. Often, when a business is sold, its goodwill — that is, its reputation — accounts for a significant proportion of the sale price.

However, a person’s reputation consists of the thought of other people about him. Since he cannot own these other folks, nor their thoughts, paradoxically, he cannot even own his own reputation.

Here is another paradox. Reputations might well be safer, not more endangered, if these laws were repealed. Right now, people operate under the aphorism “where there is smoke, there is fire.” If Smith attacks Jones, there must be something wrong with the latter.

However, in the absence of these laws, and present judicial interpretation, allegations would come so thick and fast that they would lose their power to alone besmirch reputations. Then, in order to ruin them, you would have to prove something negative about your targets, not merely assert it.

So let us repeal all libel laws and thereby give back equal rights to public figures.



Originally published here.