§24.7 Private Person vs. Public Figure
The Case: Hibdon v. Grabowski, 195 S.W.3d 48 (Tenn. Ct. App. 2005), perm. appeal denied (Mar. 27, 2006).
The Basic Facts: Plaintiff/Appellant owner of jet ski customizing business brought defamation action against defendants alleging libel, civil conspiracy and false light invasion of privacy stemming from statements defendants made about plaintiff, which were published on an Internet news group.
The Bottom Line:
- “Tennessee has adopted the standards in § 580A and 580B of the [Restatement (Second) of Torts (1977)], which establish the distinction between defamation as to a public official or public figure and defamation of a private person. Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978). As to a public figure, one can only be held liable if he or she knows that the statement is false and that it defames another person, or if he or she acts in reckless disregard of such matters. Id. at 442. As to a private person, he or she may be held liable if he or she knows that the statement is false and that it defames the person, or if he or she acts in reckless disregard of these matters, or acts negligently in failing to ascertain them. Id. at 442.” 195 S.W.3d at 58.
· “A public controversy is defined as a real dispute, the outcome of which affects the general public or some identifiable segment of the public in an appreciable way. See Waldbaum v. Fairchild Productions, Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980). The United States Supreme Court stated that courts may not question the legitimacy of the public’s concern on a particular issue because such an approach would run the danger of the turning the courts into censors of what information is relevant to self-government. Gertz, 418 U.S. at 346; Waldbaum, 627 F.2d at 1297. A vital part of free, wide-open, and robust public debate protected by the First Amendment to the United States Constitution is deciding what issues should be debated. No arm of the government, including the judiciary, should be able to set society’s agenda for public debate, consequently, the courts look to see what matters were already in dispute prior to the time when the alleged defamatory statements were made. In determining whether there is a public controversy, it is vital to ascertain whether the dispute existed as a public concern prior to the alleged defamatory comments. Id.; Quigley v. Rosenthal, 43 F.Supp.2d 1163, 1176 (D. Col. 1999).” Id. at 59-60.
· “Here, the undisputed facts show that a public controversy developed over the purported success of Hibdon’s jet ski modifications. Hibdon himself knowingly and consciously sought publicity for his jet ski business by his initial postings on rec.sport.jetski. The controversy began following Hibdon’s posting on the news group of the success of his jet ski modifications, prior to the publishing of the defamatory statements made by the Defendants. The controversy was ‘public’ due to the international reach of the Internet news group rec.sport.jetski, the national circulation of SPLASH Magazine, as well as the significance of the claims being asserted by Hibdon. The dispute as to the accuracy of Hibdon’s claimed successes with modifying jet skis to achieve record-breaking speeds received public attention because its ramifications would be felt by persons who are not direct participants, those persons being individuals in the jet ski modification business, as well as recreational jet ski enthusiasts and purchasers of jet skis. This group includes individuals within the United States and many foreign countries. Further evidence of the breadth of the controversy is that Hibdon has also sued residents of Arizona, North Carolina, Texas and New Hampshire relating to postings those individuals made on rec.sport.jetski.FN5
FN5 The Memorandum Opinion entered on May 14, 2003 in the case of Hibdon v. ADA, Inc., et al., No. 4:01-CV-79 (E.D. Tenn. 2003) was included in the record before us on appeal. The U.S. District Court for the Eastern District of Tennessee granted summary judgment to the defendants ADA, Inc. and Wachendorf determining that, as a matter of law, no reasonable jury could find that any portion of Hibdon’s damages were proximately caused by the single message for which plaintiff sought to hold defendants liable. The Eastern District Court of Tennessee found that Hibdon, for purposes of that libel action, was a ‘public figure’ and that he was, accordingly, required to prove the actual malice of the defendants.”
Id. at 60.
· “This Court finds that, as a matter of law, the dispute that is the subject of this lawsuit meets the criteria for one involving a public controversy and that, consequently, the trial court did not err in so finding.” Id.
· “Since a public controversy does exist, we now turn to the question of whether Hibdon’s role in the controversy subjects him to the burdens of proof of a ‘public figure’ for purposes of a libel action. The majority of libel cases in Tennessee have not dealt with the question of when a private individual rises to the level of ‘public figure’ for purposes of a defamation action. Rather, the majority of Tennessee cases have addressed the question of whether government employees or political candidates and activists are public officials or figures.FN6
FN6 See, e.g., Ferguson v. Union City Daily Messenger, Inc., 845 S.W.2d 162 (Tenn. 1992) (ruling that county employee who had substantial responsibility for and control over financial affairs of the county was a public official for purposes of defamation action against newspaper), Press , Inc. v. Verran, 569 S.W. 2d 435 (Tenn. 1978) (finding that junior social worker in county office of State Department of Human Services, who had sufficient power to remove or cause parents’ children to be taken from their custody was a public figure under the law of libel), Piper v. Mize, 2003 WL 21338696 (Tenn. Ct. App. 2003) (stating that both plaintiffs, one the wife of mayor of Clarksville who had been a guest writer for the local newspaper, and the second who was the incumbent Grants Writer for the City of Clarksville and former mayoral candidate were public figures within the parameters laid down by the Tennessee Supreme Court), Murray v. Lineberry, No. M2001-00097-COA-R3-CV, 2001 WL 1141352 (Tenn. Ct. App. 2001) (holding that sheriff’s deputy was a public official for purposes of defamation action against candidate for office of sheriff), Tomlinson v. Kelly, 969 S.W. 3d 560 (Tenn. Ct. App. 2001) (finding members of city’s board of commissioners were public figures and thus required to show actual malice in defamation action), Campbell v. Robinson, 955 S.W.2d 609 (Tenn. Ct. App. 1997) (holding that public school teacher was a public official in libel action), Trigg v. Lakeway Publishers, Inc., 720 S.W.2d 69 (Tenn. Ct. App. 1986) (ruling that chairman of ‘Citizens for Tax Reform’ group whose activities included dealings with governmental affairs was a public figure for purposes of libel action), Cloyd v. Press, Inc., 629 S.W.2d 24 (Tenn. Ct. App. 1981) (finding that plaintiff in action who had prepared, circulated and filed petitions requiring town referendum and purchased advertising in newspaper representing his position injected himself into public controversy and was thus a public figure for purpose of libel action), Moore v. Bailey, 628 S.W.2d 431 (Tenn. Ct. App. 1981) (holding that a county environmentalist for the State Department of Health was a public official).”
· “However, states cannot be more restrictive than the United States Constitution requires in determining who is deemed a public official or figure for purposes of a defamation action. Campbell v. Robinson, 955 S.W.2d 609 (Tenn. Ct. App. 1997) (citing Rosenblatt v. Baer, [383 U.S. 75, 83-84 (1966)]). As stated by the Tennessee Supreme Court in Press v. Verran, 569 S.W.2d at 441, the term ‘public figure’ includes not only persons holding governmental positions but also those who ‘voluntarily inject themselves, or are drawn into public controversies, and become public figures for a limited range of issues.’ Other jurisdictions have readily found private individuals to be public figures for purposes of defamation actions.FN7
FN7 See, e.g., DiBella v. Hopkins, 403 F.3d 102 (2d Cir. 2005) (ruling former television executive who ran promotions and television packaging business was public figure for purposes of libel claim, given his achievements in boxing industry and his success in garnering public’s attention by organizing and promoting boxing bouts seen by cable subscribers); Alpine Industries Computers, Inc. v. Cowles Pub. Co., [57 P.3d 1178 (Wash. Ct. App. 2002)] (ruling that statements at issue in newspaper article relating to software manufacturer’s copyright infringement action against local retailer addressed public concern of software privacy, and therefore retailer was required, despite being a private figure plaintiff, to prove in defamation action that publisher acted with actual malice, i.e., that it acted with actual knowledge of falsity, or with reckless disregard as to the truth or falsity, of the story); Nadel v Regents of University of California, 28 Cal.App.4th 1251, 34 Cal.Rptr.2d 188 (Cal. Ct. App., 1994) (holding that court did not err in finding that activist-protesters were limited purpose public figures who had to demonstrate actual malice where they spoke publicly at city council meetings and at political and cultural rallies, where one of them wrote letter to editor of local newspaper and spoke to print media reporters who included his comments about park, and regularly staffed ‘information table’ at park); Martinez v Soignier, 570 So. 2d 23 (La App 3d Cir. 1990) (holding that the plaintiff doctor was a public figure for purposes of a defamation action against a plastic surgeon who allegedly defamed plaintiff by making oral statements that plaintiff was untrained, unqualified, a ‘quack,’ and fraudulent. The court noted that plaintiff advertised in the Yellow Pages under numerous advertising headings, that he performed cosmetic breast surgery. The court found that plaintiff sought public patronage and that his venture into breast augmentation was a matter of public interest, concluding that, considering the totality of the evidence, that plaintiff was a public figure); Kelly v State, [131 A.D.2d 176 (N.Y. App. Div. 1987)] (holding that the plaintiff, a licensed private investigator who specialized in ‘deprogramming’ religious cultists, was a public figure for purposes of a defamation action against the state police based on a press release detailing his arrest following an altercation with cult members. The court found that while plaintiff may not have sought the state and national publicity he received, he was, nonetheless, involved in a field, the deprogramming of cultists, which at the time attracted national interest. The court also noted that the plaintiff was not reluctant to submit to interviews or to testify on the subject, nor did he resist the publicity that followed); Brake & Alignment World Supply Corp. v Post-Newsweek Stations of Florida, Inc., [472 So.2d 517 (Fla. Dist. Ct. App., 1984), review denied, 484 So.2d 7] (finding that bicycle repair shop franchisor, by virtue of its advertising activities and access to the media, was a public figure for purposes of its defamation action against a television station relating to settlement of a consumer fraud action against one of its franchisees); James v Gannett Co. 353 N.E.2d 834 (N.Y. 1976) (stating the plaintiff, a professional belly danger, was a public figure for purposes of an allegedly defamatory article about her performance. The court noted that the category of ‘public figures’ was of necessity quite broad, including, without doubt, many types of public performers such as professional athletes, nightclub and concert singers, television and movie actors, and recording artists. The court found that the plaintiff welcomed publicity regarding her performance and, therefore, must be held to be a public figure with respect to newspaper accounts of those performances, and by her purposeful activity, she thrust herself into the public spotlight and sought a continuing interest in her activities).”
Id. at 61.
· “Furthermore, the United States Supreme Court has solidified the view that if one, by his own volition, thrusts himself on the passing scene to the extent that he knowingly and consciously wants and needs publicity or public support for his endeavors or activities, he submits himself to public scrutiny, which may justly expose his affairs as they might relate to the activities or endeavors for which he is seeking public approval and deems him a ‘public figure’ for matters relating to those endeavors and activities. See Gertz v. Robert Welch, Inc., [418 U.S. 323, 345 (1974)]; Ocala Star Banner Co. v. Damron, [401 U.S. 295 (1971)].” Id. at 62.
· “There is no question that Mr. Hibdon injected himself into the public controversy voluntarily by boasting about his jet ski modifications and speeds thereof on rec.sport.jetski. Hibdon had access to and used effective means of communication, both through the news group and through SPLASH Magazine, in order to counteract the Defendant’s statements. Furthermore, as the figure at the center of the controversy, Hibdon’s role was extensive. Upon consideration of the above factors, as a matter of law, we find that the trial court correctly characterized Mr. Hibdon as a ‘public figure.’” Id. at 62.
Other Sources of Note: Ferguson v. Union City Daily Messenger, Inc., 845 S.W.2d 162 (Tenn. 1992) (county purchasing agent held to be a public official); Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn. 1978) (adopting the standards in § 580A and 580B of the Restatement (Second) of Torts (1977) and finding junior social worker at State Department of Human Services to be a public official where social worker had power to remove children from parents’ custody and place in foster home and to lay down conditions for the return of children to parents); Murray v. Lineberry, 69 S.W.3d 560 (Tenn. Ct. App. 2001) (police officer held to be a public figure in defamation action); Campbell v. Robinson, 955 S.W.2d 609 (Tenn. Ct. App. 1997), perm. appeal denied (Oct. 6, 2007) (public school teacher is a public official for purposes of defamation action); Tomlinson v. Kelley, 969 S.W.2d 402 (Tenn. Ct. App. 1997) (members of city’s board of commissioners held to be public officials for purposes of defamation action); Trigg v. Lakeway Publishers, Inc., 720 S.W.2d 69 (Tenn. Ct. App. 1986) (spokesman for citizens group held to be a public figure); Moore v. Bailey, 628 S.W.2d 431 (Tenn. Ct. App. 1981) (county environmentalist for State Department of Health held to be a public official); Memphis Pub. Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978) (adopting ordinary negligence standard for defamation actions brought by private persons against media defendants); Restatement (Second) of Torts § 580 B (1977) (One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he (a) knows that the statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them); Restatement (Second) of Torts § 580 A (1977) (One who publishes a false and defamatory communication concerning a public official or public figure in regard to his conduct, fitness or role in that capacity is subject to liability, if, but only if, he (a) knows that the statement is false and that it defames the other person, or (b) acts in reckless disregard of these matters).