Considered the worst act of bioterrorism in U.S. history, the 2001 anthrax mailings that followed the 9/11 attacks killed at least five individuals. Since then, litigation and investigations surrounding the anthrax mailings has spawned and taken unexpected twists and turns over the past few months. Bruce E. Ivans, the primary suspect in the anthrax investigation, committed suicide just before the Justice Department was about to file sweeping, but circumstantial, charges against him for his suspected role in the 2001 anthrax attack. Before that, the Justice Department settled a Privacy Act suit brought by former army scientist Steven J. Hatfill, who worked with Ivans at Fort Detrick, for $4.6 million where Hatfill claimed the Justice Department ruined his career when it leaked information about him to the media during the anthrax investigation.
And several months ago, a federal appeals court dismissed Hatfill’s lawsuit against the New York Times and its reporter, Nicholas Kristof, for defamation allegedly caused by a series of articles Kristof wrote about Hatfill’s status as a “person of interest” in the 2001 anthrax investigation. Hatfill’s lawsuit against the New York Times was among many litigated against the Justice Department and various media outlets before the investigation was declared “solved” by the FBI in August 2008.
The appeals court’s decision to dismiss Hatfill’s lawsuit against the New York Times ultimately turned upon its determination that Hatfill was a “public figure”; and therefore he had to meet a heightened legal standard by proving “actual malice,” which the court found he could not do. Hatfill’s designation as a “public figure” stands as a beacon to journalists and a warning to private citizens as to how fickle defamation suits can be; and how, in today's fast-paced media world, ordinary citizens who thrust themselves into the public realm of the news do so at the risk of diluting their legal rights.
What follows is a general overview of Hatfill v. New York Times and the legal elements of a defamation suit, with a particular emphasis on the heightened standard required when one is deemed to be a “public figure.”
Hatfill v. New York Times
Hatfill’s designation as a “public figure” was supported, in part, by evidence of his career expertise and media presence even before the 2001 anthrax attacks took place. In 1996, Hatfill obtained a research fellowship from the National Institute of Health (NIH) where he developed a reputation within the scientific community as an expert in the field of bioterrorism and gave multiple public lectures on preparing the country in the event of a bioterrorist attack. Upon completing his fellowship, Hatfill continued his research at the U.S. Army Medical Research Institute for Infectious Diseases at Fort Detrick. Hatfill authored multiple articles discussing his career in bio-defense and occasionally offered his expertise to the public through televised interviews.
On September 18, 2001 and October 9, 2001, an unidentified person mailed letters laced with anthrax to members of Congress and several news organizations. Within the first few weeks of its investigation into these attacks, the FBI considered Hatfill a “person of interest.” A televised search of Hatfill’s apartment and press coverage of the FBI’s investigation drew wide attention to Hatfill. During this time, Hatfill voluntarily met with reporters including Judith Miller of the New York Times, Tom Connelly and Ted Koppel of ABC News, and Jim Stewart and Mark Datov of CBS News to discuss the attacks.
Seven months after the attacks, and with the FBI investigation on a “slow track,” Kristof authored a series of articles published in the New York Times criticizing the investigation. As one example of its shortcomings, Kristof noted the FBI’s failure to properly investigate a scientist (who Kristof referred to as “Mr. Z” in early reports) who the scientific community thought warranted investigation. On August 13, 2002, after Hatfill publicly denied any involvement in the anthrax attack, Kristof acknowledged in his column that Hatfill was the “Mr. Z” to whom he previously referred.
Almost a year later, in federal court Hatfill filed suit on July 13, 2004 against Kristof and the New York Times for defamation. Hatfill argued that Kristof’s columns implied that he was the anthrax mailer and that Kristof wrote the columns to impute guilt to Hatfill in the minds of reasonable readers. On July 28, 2005, the trial court dismissed Hatfill’s action, concluding as matters of law that the columns did not suggest that Hatfill was guilty of the attacks and that the columns accurately reported questions raised in the investigation. An appeals court reversed the trial court’s dismissal and allowed Hatfill’s claims to proceed.
After Hatfill was allowed access to information from Kristof and the New York Times in order to help support his claims, Kristof and the New York Times filed another motion seeking to dismiss the lawsuit, arguing that since Hatfill was a “public figure,” he had to meet a heightened standard and prove the “actual malice” element of a defamation claim (i.e., that Kristof knowingly published false statements), and that the evidence did not support such malice. The trial court agreed that the facts warranted that Hatfill be considered a “public figure,” and dismissed the case, declaring that there was no evidence that Kristof knew his statements were false, and therefore Hatfill could not prove “actual malice.” On appeal, Hatfill argued that he was not a “public figure”; but the appellate court disagreed and affirmed the trial court’s dismissal of Hatfill’s claims.
The outcome of Hatfill’s lawsuit reminds journalists and private citizens alike of a fundamental issue in defamation claims brought by seemingly “average citizens”: Under what circumstances will an average citizen be deemed a “public figure”? In Hatfill’s case, his expertise and media presence before and after the anthrax investigation vaulted him into the “public figure” category and limited his legal recourse.
The Foundation of a Defamation Claim
Defamation is the communication of (1) a false statement (2) of fact (3) about an individual, (4) to another, (5) which tends to harm the individual’s reputation. Some examples of defamatory statements include: statements accusing a person of committing a crime, of having a contagious disease, or of being unfit for his or her employment. Generally, individuals need only show that the published statements were both false and defamatory (i.e., tending to harm the individual’s reputation).
In 1964, the Supreme Court in New York Times v. Sullivan explored defamation claims in the context of a public official and held that public officials were required also to prove actual malice (i.e., that the defendant had a “subjective awareness of the probable falsity” of the publication) in defamation suits. Three years later, in Curtis Publishing Co. v. Butts, the Supreme Court extended the actual malice standard to include “public figures” (i.e., a designation that is broader than “public officials” (politicians, celebrities, etc.) and includes either people involved in “high profile” conduct of public concern or people who engage in conduct which generates publicity within a narrow area of interest).
Public figures and public officials are held to a higher standard because, it is reasoned, they have exposed themselves to the risk of injury from defamation claims by assuming public roles and have a greater opportunity to publicly defend themselves. Therefore, they are less likely to be harmed by false statements than private individuals who generally lack that opportunity. Thus, the law affords greater protection to private individuals by not requiring proof of “actual malice.”
By adding an “actual malice” element to certain individual’s defamation proofs, these two Supreme Court cases made it significantly more difficult for one deemed to be a “public official” or “public figure” to prove a defamation claim. Proving that a publication was not only false and harmful, but also that one was aware that the publication was false and published it anyway, is extremely difficult. So, under what circumstances will one be considered a “public official” or a “public figure”?
Public Official & Public Figure Status
The law defines a “public official” as one whose government role is of such importance that the public has an independent interest in his or her fitness for office beyond a general interest in the fitness of all government employees. A person who is running for or holds a public office is generally categorized as a “public official.”
Whether one qualifies as a “public figure” requires a fact-specific inquiry. Hatfill v. New York Times reminds us that in today’s world of instant news and celebrity, average citizens can be converted into public figures in an instant. A “public figure” can be categorized as either an “all-purpose public figure” or a “limited-purpose public figure.”
An “all purpose public figure” is one who has a continuous and powerful influence on public matters and is always subject to the “actual malice” standard. A “limited purpose public figure” is one who voluntarily thrusts himself or herself into a particular public controversy and is thereby deemed to be a public figure only for purposes of that controversy (e.g., an anti-war activist would be considered a public figure only if the particular controversy is war).
To determine whether one is to be deemed a “limited purpose public figure,” courts look at whether the (1) person had access to channels of effective communication; (2) person voluntarily assumed a role of special prominence in a public controversy; (3) person sought to influence the resolution or outcome of a controversy; (4) controversy existed prior to the publication of the defamatory statement; and (5) person retained public-figure status at the time of the alleged defamation.
Weighing Factors: When an Ordinary Citizen Becomes a “Limited Purpose Public Figure”
When contemplating a defamation lawsuit, an individual should consider whether he or she could be categorized as a “limited purpose public figure.” A few things he or she should generally think about include: (1) the nature of the individual’s media presence, (2) the nature of the particular controversy, and (3) when the controversy arose in relation to the alleged defamation.
The nature of the individual’s media presence depends upon a variety of factors, including the ease at which one can command attention from the media and whether the individual had an opportunity to publicly refute the defamatory statement. In Hatfill v. New York Times, the court supported its conclusion that Hatfill was a “public figure” with evidence that he was an expert in the field of bioterrorism and frequently appeared in the media to discuss his research in the field. Further, the court determined that Hatfill attempted to “influence the outcome of the controversy” by criticizing the government’s lack of preparation for a bioterrorist attack.
The nature of the particular controversy depends on how narrowly or broadly the court reads the “particular controversy.” Hatfill argued that the particular public controversy in his case was: “Who committed the antrax attacks in 2001,” and that he never publicly participated in the resolution of that issue. The trial court disagreed, however, and adopted a broader context of the particular controversy—that of the threat of bio-terrorism in general.
Another important issue is to recognize when the particular controversy arose in relation to the republication of the alleged defamation. In order to be held to the higher standard, the controversy must exist prior to the publication, and the individual must qualify as a public figure at the time of the defamation. If the individual participates in the public controversy only after the alleged defamation was published, he or she will not be held to the higher standard. Further, if the controversy develops after the publication, then the private individual standard will apply. In Hatfill, the court determined that the controversy over bioterrorism clearly existed prior to Kristof’s columns and that Hatfill commented on the controversy before the columns were printed. Thus, the public controversy existed at the time of the defamation and Hatfill retained “public figure” status at the time of the defamation.
Ordinary citizens who thrust themselves into the public realm of the news do so at the risk of being labeled a “public figure” and thereby limit their legal rights. Knowing your status before bringing a defamation claim can significantly help you determine whether filing a claim is in your best interest.
This article is written to provide readers with a very general overview of “public figure” status and defamation claims. The information contained herein should not be construed as providing legal advice and should not be relied on for that purpose. If you have specific legal questions, the authors suggest seeking the advice of a qualified attorney.
 Fernando M. Pinguelo, a partner and Chair of Norris McLaughlin & Marcus’ Entertainment Law Group, has extensive experience in all facets of litigation in both the federal and state courts, and devotes his practice to electronic discovery, entertainment law, complex litigation, and employment matters. In the broadcasting sector, he represents Emmy Award-winning clients. Fernando also serves as a regular article contributor for the National Association of Television Arts and Sciences (New York Chapter), TVSpy, Next Generation TV, and Shop Talk. He has published several articles and lectures on a variety of topics including copyright, contracts, entertainment, employment law, and information technology. Fernando has appeared on television several times as a legal commentator on various high-profile trials, and has been quoted in many newspapers and magazines, and on radio and television broadcasts regarding high-impact cases he has handled. He is an Adjunct Professor of Law at Seton Hall University School of Law and creator of eLessons Learned, an eDiscovery best practices blog. Visit www.eLLblog.com and learn more.
 Melissa Szymansky is a student at Seton Hall University School of Law. She is the Vice President of Entertainment for SHU Law’s Entertainment and Sports Law Society, and is also a member of SHU Law’s Journal of Sports and Entertainment Law. Prior to attending law school, Melissa received her BS in film and television from Boston University College of Communication and interned for the E! Entertainment Network and Boston’s CW56. Melissa interned for Sony BMG Music Entertainment this past summer.
Fernando and Melissa welcome questions and/or feedback on any related issues and can be reached either by phone, (908) 722-0700, or via email, firstname.lastname@example.org. They invite you to visit the following website to learn more about similar topics: http://www.nmmlaw.com/index.php?option=com_content&task=view&id=140&Itemid=29