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August 11, 2005

Are bloggers public figures?

It occurred to me that in law there is a distinction made between private citizens and public figures. The dictionary at Law.com notes...

public figure
n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).

So I wondered how bloggers fit into that. We certainly try to make ourselves known, at least to one degree or another. Would we be considered private citizens or public figures? I emails some of the law bloggers and asked their opinion.

Tom Goldstein who writes for both SCOTUSBlog and The Supreme Court Nomination Blog emailed back...

It's way out of my field, but 1st A law tends to work on an intiuitive level, and my sense is that merely being a blogger doesn't make one a public figure, and that merely being a reporter wouldn't either. If you are very high profile, you could be, as could a columnist (eg, Novak). You might also be a limited purpose public figure if you got in the middle of a particular controversy. The doctrine, btw, is generally invoked to give greater protection for those who make mistakes about public figures.

I made the mistake of thinking that the public/private distinction impacted privacy issues, so Eugene Volokh responded along those lines...

It turns out that the public figure/private figure distinction is most relevant in *defamation* cases. False statements about private figures may lead to an award of compensatory damages if the speaker was negligent about the falsehood; false statements about public figures may lead to an award of compensatory damages only if the speaker knew the statement was false, or was reckless about the falsehood (i.e., knew that there was a substantial chance the statement was false, but proceeded without further investigation despite that)....

Generally, for First Amendment reasons, courts have read the disclosure-of-private-facts tort (that's the branch of invasion of privacy that I take it you're discussing) very narrowly. I can't speak in more detail about the issue without more specifics on the issue (whether real or hypothetical).

So I get the impression that more than likely a blogger wouldn't, but then again, it seems to me, so much depends on the whims of whatever judge happens to be deciding the case. Law, like most things, is a framework, supposedly, built on common sense, and implemented with common sense. We all can recognize that the c common sense part of it seems to be neglected a lot of the time.

Having said that, let me apply a little common sense and guess that if a person lives their life without trying to stand out to the world and be noticed, then when someone comes along and says something false about them, publicly, the courts allow for that person to claim more. But if a person lives their life in the public spotlight, something that is assumed will bring good and bad recognition, their claims of "injury" aren't quite as serious.

Obviously bloggers like Michelle Malkin, Hugh Hewitt and others who also work in the media, are public figures. But what about Charles Johnson of Little Green Footballs? They get almost 100,000 visits a day, but, there are no pictures of him on the blog. What about James Joyner, Kevin Aylward or John Hinderaker. I guess the most prominent bloggers (who aren't recognized journalists) might be borderline cases, but the rest of us probably have nothing to worry about.

It would be interesting to read more discussion on the matter from some more of the blawgers out there.

Posted by Danny Carlton at August 11, 2005 09:25 AM

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