Thursday, March 27, 2008

Spitzer's Kristen, The Blogosphere And The Law Of Defamation

In order to prove and recover for defamation, public figures and officials must prove that the harmful publication of the erroneous information was done with “real malice”. In contrast, for private persons, demonstrating negligence will suffice. There are several justifications for this disparity. One of these justifications is that public figures and officials, unlike private persons, have access to the mass media, allowing them to defend their good name and control their public persona. In contrast, the presumption is that when the media shines a spotlight on a private person, that person is as helpless and powerless as a cork at sea. In the aftermath of the Spitzer scandal I ask myself whether this factual observation, underpinning the "access justification” for the private/public distinction in the law of defamation, is as valid as it once was.

For me, the most interesting aspect of the Spitzer scandal was the role played by Ashley Dupre's (AKA "Kristen") MySpace page. The promo announced that on the "news at six" they would expose the request for privacy Dupre posted on her web page; it then dawned on me that I was not dependent on Fox News (yes I know…) for hearing what the mysterious Kristen had to say. When I found her web page (which by now has disappeared, replaced by what looks like a commercially oriented page) it already had over 10 millions hits!

Today we all have access to a mass media and we can all create our own public persona using a simple web page. What the majority of us lack is the most precious commodity of the information age: "name recognition." Few knew or cared to know the story and opinions of Ashley Dupre. Before the scandal broke she had access to a mass media in the form of her web page, but due to her anonymity she only had an unrealized or potential access to the public. The moment the spotlight was pointed at her she was also instantly bestowed with name recognition. Millions were interested in the story, opinions and pictures of "Kristen," and somehow many of them knew it was only a Google search away.

Considering the pervasive access to Internet-based mass media, today, unlike the days of N.Y. Times v. Sullivan, when private people are thrust into the public eye the byproduct is that they are given, ipso facto, a voice and a stage – allowing them to protect themselves. The more intensive the media focus on an individual the more amplified the "voice" of that individual becomes. It is a new form of protection that is organic to the system, not requiring legal intervention. Granted, this shift is only in its early stages; the power of the traditional exclusively held media is still much much stronger than freely accessible Internet based media. Nevertheless, the reality on which the "access justification" for the disparity between public officials and private persons has traditionally been based, is eroding.

Posted by Ori Herstein


Michael C. Dorf said...

It's true that ordinary people can better defend themselves now than in the past, but I'd always thought that two other factors were also part of the justification for less protection against defamation for public figures: (1) A person who has placed himself or herself in the public eye can be said to have assumed the risk of some sketchy things being said about him or her; and (2) there is a greater public interest in info about public figures, and thus we are more worried about chilling reporting about them. Both of these justifications appear to survive the internet age.

David C. said...

In Gertz v. Welch, Justice Powell explained the access justification: "Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy."

A key point here, I think, is that the Court was concerned with "*effective* communication." The problem with communicating via a MySpace page (or a site like is that you have to hope your audience makes the choice to actively seek out your information. When I read a story on Spitzer, I'm not necessarily looking for a statement from his press secretary, and when I watch a story on CNN about Clinton or Obama, it's not like I'm seeking out statements from advisors to their campaigns who have been given talking points. Nevertheless, the media is highly attuned to official sources for news stories, and most public officials know how to work the system to get their messages before the public at large.

By contrast, only people who want to learn more about the issue will visit a MySpace page or blog. Defamation law, I'm guessing, is concerned primarily with the public's willingness to jump to conclusions based on unfounded rumors, and those kind of people probably don't race out to visit websites to fact-check news stories. I, for one, was plenty happy to accept that Dupre did some naughty things based on my official media information.

It's true that the local news may sometimes quote a blog, but but it's not like in the 1970s private individuals didn't know how to call the news station and give a statement. Indeed, it's not like you need a blog to get on the news today if you are the subject of a salacious rumor; Dupre can probably get paid some good money for giving an exclusive interview to a mainstream news organization. But the point remains that public officials are much more adept at controlling their message and gaining deference from the media than the average shmoe.

In any event, it's unclear how much work the access justification should do. Recall Justice Powell's important caveat: "[A]n opportunity for rebuttal seldom suffices to undo harm of defamatory falsehood. Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie."

Ori Herstein said...

Thanks for this.
Sorry for taking so long to reply. I am in lovely Ithaca NY and only now got to the computer.


Yes I agree. My post was only directed at one of the three famous justifications. That being said, I am also skeptical about the “assumed the risk” justification (for different reasons than those raised on the post). I generally do not like constructive consent arguments. Perhaps a topic for a different post?


Very good points.

I do think that soon the distinction between passive information absorption (watching TV etc) and active information seeking (surfing the net) will become more and more blurred. News is becoming more and more personalized.

Also, I wonder if it is true that private people have accesses to mass media, is not that an argument against the accesses exception for private people?

I guess the strongest argument for my point is the fact that 10M people surfed to Dupree’s page in just a few days. That is amazing. If she chose to use her page in order to convey messages, feelings, request, her account of the affair etc. it would have reached millions. I think that indicates the beginning of a revolution. Sadly Dupree did not choose to take advantage of this opportunity to take control of her public image.

Thanks again


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