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Biro v Conde Nast (continued...)

By Richard A. Altman

This blog will provide some additional information regarding Mr. Biro's ongoing defamation case. The description of the case in Ms. Tempongko's post (http://nysbar.com/blogs/EASL/2016/03/peter_paul_biro_v_conde_nast.html) is fair and accurate, but I would like to add that Mr. Biro filed a petition for a writ of certiorari in the U.S. Supreme Court on March 4, 2016. certpetitionwcover.pdf Responses are due on April 7th. The petition makes three principal arguments for Supreme Court review; they are summarized here briefly.

1. There are irreconcilable conflicts in Federal and State case law over the definition of "public figure".

In the landmark cases of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the Supreme Court created significant First Amendment protections for criticism of public officials and public figures respectively, by holding that such persons had to prove constitutional malice by clear and convincing evidence, in order to prevail on a defamation claim.
In the 1970s, the Court decided four public figure defamation cases, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), Time, Inc. v. Firestone, 424 U.S. 448 (1976); Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157 (1979); and Hutchinson v. Proxmire, 443 U.S. 111 (1979). In each and every case, the Court ruled that, despite each plaintiff's extensive involvement in a controversy which had attracted significant public attention, he or she was not a public figure.

The Gertz case did not actually define the term. It is unclear whether the Gertz Court purported to define the term "public figure", or was only explaining why public figures are treated differently from others. A careful reading of the majority opinion strongly suggests the latter. (1 Sack, Sack on Defamation, 5:3.1 at 5-19 to 20 (4th ed. 2010, Rel. #4, 4/14)). Judge Sack said that, "[t]he lack of a comprehensive definition or description of the term "public figure", in the Supreme Court and the divergent case law in state and lower federal courts make the determination of a defamation plaintiff's status an uncertain process, differing from state to state and court to court." (Sack, supra, 5:3.6 at 5-45.)

The Supreme Court's reluctance to find public figure status in the seminal case law has been overlooked by the many courts which, since then, have been far more willing to do so. As one District Court observed about Gertz, "[i]n addition to injecting himself voluntarily into this area of public controversy, Gertz had achieved some public prominence in his own right. He had served as an officer of the National Lawyers Guild, and had considerable stature as a lawyer, author, lecturer, and participant in matters of public import. Perhaps if attorney Gertz was not a public figure, nobody is." (Hotchner v. Castillo Puche, 404 F. Supp. 1041, 1044 (S.D.N.Y.1975), rev'd on other grds., 551 F.2d 910 (2d Cir.1977), cert.den. 434 U.S. 834 (1977)(citation and quotation marks omitted)).

In the 47 years since, the Supreme Court has not elaborated further on the public figure question. This lack of elaboration since 1979 has led to irreconcilable conflicts among the cases in both Circuit and State courts. Mr. Biro's petition argues that the Supreme Court should set out a national and uniform definition of "public figure", one which considers not only the original purpose of the term, but also the last two decades' dramatically changed media landscape, including the Internet, social media, and the escalating threats to an individual's reputation posed by the new world of blogs, tweets and viral Internet postings, and that the Court should strike an appropriate balance between the First Amendment and a person's right to recover for unjustified reputation damage.

This issue has received much commentary. (See, e.g, Sanders & Miller, Revitalizing Rosenbloom: the Matter of Public Concern Standard in the Age of the Internet, 12 First Amend. L. Rev. 529 (2014); Kelley, Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims, 73 La.L.Rev. 559 (2013); Lat & Shemtob, Information Privacy: Public Figurehood in the Digital Age, 9 J. of Telecomm. & High Tech. L. 403 (2011).)

Depending on the Circuit or State where a claim is brought, there can be either a three-part, four-part or five-part test for determining public-figure status. Some courts (like the Second Circuit) consider whether a plaintiff has regular and continuing access to the media. (Lerman v. Flynt Distributing Co., 745 F.2d 123, 137 (2d Cir.1984)); others do not. Some courts examine whether the statements complained of are germane to the public controversy; the Second Circuit does not. Some courts examine whether the statements relate to matters of public concern; others do not.

In Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 757 758 (1985), the Supreme Court said that it was necessary to "balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression" and that "the individual's right to the protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty." Moreover, said the Court, "speech on matters of purely private concern is of less First Amendment concern. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent..." The Biro case squarely presents this issue.

Given the vagueness of the test, a test of constitutional dimension, and the profound consequences for a defamation plaintiff's burden of proof and likelihood of success, these disparities are not acceptable. (See Gertz, supra, 418 U.S. at 342 ("Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.")). Given those consequences, it is unacceptable for a plaintiff, particularly one like Mr. Biro, who the district court found had been potentially libeled, to be stopped from trying to surmount that barrier.

Even when a plaintiff is a limited-purpose public figure because of involvement in a public controversy, the First Amendment protections afforded a publisher should not extend to statements which are not germane to the controversy. Were it otherwise, a public figure would be essentially libel-proof. Involvement in a public controversy should not create an open license to defame, allowing publication of false and irrelevant statements about a public figure's personal life or history.

2. It is practically impossible for a public figure to plead malice successfully against a media defendant in Federal courts, but it is easily done in New York State courts. The conflict is irreconcilable.

Prior to the Biro case, the rule in the Second Circuit was that "resolution of the...actual malice inquir[y] typically requires discovery," (Church of Scientology Int'l v. Behar, 238 F.3d 168, 173 (2d Cir.2001); Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406 (2d Cir.2000).) With a media defendant, evidence of malice is by definition usually deeply embedded in the editorial process and is almost always unknown a priori to the plaintiff. Moreover, an allegation of malice is not a bare legal conclusion as to an element of a cause of action. To say that someone acted with malice is not a legal conclusion at all; it is rather a purely factual assertion about that person's subjective state of mind, i.e. that someone uttered a statement with knowledge that it was false.

New York State courts have approached this problem very differently from the Federal courts. New York cases are uniform and long-standing in requiring that a public figure must prove actual malice in order to prevail at trial (or defeat summary judgment). Yet the cases also recognize that a public figure's ability to plead facts demonstrating malice in a sworn complaint is limited, and can seldom be determined in the pre-discovery context of a motion to dismiss. In New York, therefore, once a plaintiff can allege the publication of statements which are susceptible of a defamatory connotation, he or she is entitled to proceed to discovery.

In this case, the district court had found that the New Yorker article contained four statements which were susceptible of a defamatory connotation, and were not protected opinion. Once that threshold determination had been made, Mr. Biro should have been afforded discovery rights. Whether he could eventually prove malice is not the issue; rather, he should have been given the opportunity to do so.

3. The difference between the Federal and State approaches is substantive, not procedural, and thus violates the Rules Enabling Act and principles of Erie federalism.

The third argument raised by the petition is that the disparity in outcomes between State and Federal courts violates the Rules Enabling Act and Erie federalism, which essentially say that the Federal Rules of Civil Procedure are to be construed so that the outcome of a diversity case, governed by state common-law principles, is the same in either court.

The Rules Enabling Act, 28 U.S.C. 2072(b), provides that the federal "rules shall not abridge, enlarge or modify any substantive right." An interpretation of a rule of procedure which bars a claim in Federal court at the pleading stage, but would permit it to proceed in State court amounts to the abridgment of a substantive right. It violates "the Erie prohibition of court created rules that displace state law." (Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 412 n. 9 (2010)), and "the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws." (Hanna v. Plumer, supra, 380 U.S. at 468 (footnote omitted).)

In this case, the long-standing rule allowing defamation plaintiffs in New York State courts to plead malice generally, without extensive factual detail, defines the scope of their right to proceed to adjudicate their claims. Thus it "is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state created right." (Id.) Therefore, Rule 9(b), which allows malice to pleaded generally, cannot be interpreted so as to displace that state rule.

The Second Circuit's refusal to follow New York law, and its unwarranted expansion of the minimal pleading requirement of Rule 9(b) so as to dismiss a state common-law defamation claim, violated the Rules Enabling Act and principles of Erie federalism. The Second Circuit's decisions conflict with more than a century of uniform holdings by all levels of New York State courts.

Whether the Supreme Court will grant the petition is unknown and in any event unlikely, as is true with any petition. Yet the issues the case raises are important ones.

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This page contains a single entry from the blog posted on March 30, 2016 10:05 AM.

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