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Defamation: The Plight of Celebrity Relatives
Los Angeles Lawyer, September, 1983 (Reprinted with Permission)
The bright glow of the spotlight surrounding celebrities has often reflected upon their relatives. This mixed blessing has meant that, until recently, these relatives were considered public figures in defamation suits. Now the Supreme Court has limited this broad policy
By Jeffrey H. Lerman
Before the benchmark decision in Gertz v. Robert Welch, Inc., 1 relatives of “public figures” 2 were generally deemed to be public figures themselves for purposes of defamation suits. 3 In Gertz, the United States Supreme Court for the first time articulated a distinction between what it termed “general” public figures 4 and “limited” public figures. 5 Moreover, in Gertz, as well as in subsequent decisions 6 , the Supreme Court sharply curtailed the number of instances where an individual should be classified as either of the two classes of public figures.
Although this policy shift has been recognized and followed to a certain extent in California 7 it is uncertain whether relatives of public figures achieve limited public figure classification – either on the basis of pre-Gertz cases or on the application of Gertz and post – Gertz decisions – or whether the restrictiveness of Gertz and its progeny removes relatives of public figures from the public figure definition.
In order to clarify that uncertainty, it is first necessary to review briefly the relevant California and federal law 8 on this issue before and after the watershed Gertz decision. Against this background, three alternate legal theories emerge under which relatives of public figures may be deemed limited public figures.
CALIFORNIA LAW BEFORE GERTZ
Prior to Gertz, it was axiomatic in California that an individual who was “closely related” to a public person also became a public figure in his own right. This principle was articulated in the context of relatives of public persons in Carlisle v. Fawcett Publications, Inc. 9
In Carlisle, the plaintiff had been briefly married to actress Janet Leigh when they were teenagers. Plaintiffs claims for libel and invasion of privacy arose out of an article appearing many years later in a movie magazine reporting on the earlier marriage. In affirming the lower court’s dismissal of the actions, the court of appeals noted Leigh’s public status as follows:
[T]here is a public interest which attaches to people who by their accomplishments, mode of living, professional standing or calling, create a legitimate and wide-spread attention to their activities. Certainly, the accomplishments and way of life of those who have achieved a marked reputation or notoriety by appearing before the public such as actors and actresses, professional athletes, public officers, noted inventors, explorers, war heroes, may legitimately be mentioned and discussed in print or on radio or television. Such public figures have to some extent lost the right of privacy, and it is proper to go further in dealing with their lives and public activities than with those of entirely private persons.
The court then held that plaintiff necessarily became a public figure as a consequence of his relationship with Leigh:
A necessary corollary is that people closely related to such public figures in their activities must also to some extent lose their right to the privacy that one unconnected with the famous or notorious would have. If it be objected that the mere relation- ship with some public figure should not subject a person to a qualified loss of his privacy, the identical observation could be made logically as to the man held up on the street, the house- holder who is burglarized, or the victim of an accident; all may be equally unwilling to be publicized. 12
Similarly, in Kappellas v. Koffman, 13 the court held that children of a city council candidate did not have a cause of action for invasion of privacy for an editorial describing their juvenile lawbreaking, even though they did not engage in the described activities with their mother. In so ruling, the court acknowledged the line of cases holding that
[f]amily members, or others closely associated with newsworthy individuals, have been precluded from maintaining actions for invasion of privacy under circumstances in which the societal interest in disclosure was much less compelling than in the instant case. 14
The broad public figure definition developed in early California law was mirrored in pre-Gertz federal decisions.
GERTZ AND ITS PROGENY
In the seminal 1964 case of New York Times v. Sullivan, 15 the United States Supreme Court held that the First Amendment of the United States Constitution protects false, defamatory statements regarding public officials in their official capacity absent a showing by the defame plaintiff that the statements were made with “actual malice.” 16 Over the 10 years following New York Times, the Supreme Court extended the protection of the First Amendment to statements relating or referring to a public figure 17 and ultimately to all statements concerning matters of “legitimate public interest.” 18 However, in Gertz the Court sharply curtailed its liberal policy towards protecting defamation defendants.
The Gertz Court held that the level of constitutional protection to be accorded false, defamatory statements depends not on whether the speech involves a matter of public interest, but on whether the plaintiff is a public or private person. Gertz, a prominent Chicago attorney, filed a libel suit against the publisher of a newspaper containing an article falsely accusing Gertz of, among other things, having an extensive police record and being a Communist. The Court ruled that Gertz was neither a public official 19 nor a public figure 20 and, therefore, he should have been permitted to recover as a private plaintiff without having to show actual malice.
The Gertz Court defined a “public figure” as one who “assume[s] special prominence in the resolution of public questions.” 21 A plaintiff is a “public figure for all purposes and in all contexts” (i.e., a “general” public figure) if that individual has achieved “pervasive fame or notoriety.” 22 ” However, if a plaintiff is not so famous, that person may become a “public figure for a limited range of issues” (i.e., a “limited” public figure) only when the person either “voluntarily injects himself or is drawn into a particular public controversy.” 23
The policy rationale for according the above-described public figures less protection than private plaintiffs is that such individuals are presumed to have greater access to the media, thereby enabling them to obtain effective rebuttals of defamatory statements, and to have voluntarily assumed the risk of defamation. 24 As a consequence of Gertz, the crucial question in most defamation cases is whether the plaintiff is a public figure or a private individual.
In the cases decided since Gertz, the Supreme Court has continued to narrow the class of plaintiffs who may be deemed limited public figures. In so doing, the Court has adopted an increasingly restrictive interpretation of what constitutes a “public controversy” 25 and when an individual has “inject[ed] himself… into a particular public controversy.” 26
CALIFORNIA LAW AFTER GERTZ
In cases decided since Gertz, California courts apparently have “recognized the limits placed upon defamatory speech by the United States Supreme Court” 27 and have taken an equally conservative posture on limited public figures. In this connection, matters of alleged public controversy are closely scrutinized to see if they involve genuine issues of public debate. 28 Moreover, the defamation defendant must make a strong showing that the plaintiff has voluntarily sought to influence the resolution of that controversy. 29 It is against this background that one must consider the question of whether relatives of public people, found to be public personages in Carlisle and Kapellas, would be limited public figures under Gertz and its progeny.
Despite the restrictive gloss the United States Supreme Court and the California courts have placed on the limited public figure test with a particularly narrow interpretation of public controversies, there remain three alternate, yet related, theories under which a relative of a public figure may be deemed a limited public figure, discussed below in declining order of the significance or existence of any controversy: first, the “injection into controversy” theory; second, the “vortex of publicity” theory; and third, the “public figure by association” theory.
INJECTION IN TO CONTROVERSY
Under the Gertz test of limited public figures, a relative of a public figure may be deemed to be a limited public figure if he has injected himself into the public controversy surrounding the life of the public figure. This application of the public controversy theory received judicial approval in Hotchner v Castillo-Puche,’ 30 where the court held that a close personal friend of Ernest Hemingway, by injecting himself into the controversy surrounding the latter years of Hemingway’s life, had become a limited public figure.
Plaintiff Hotchner had been a “close personal friend” of the famous Ernest Hemingway for the last 14 years of the author’s life. As a result of that close association with Hemingway, Hotchner adapted certain Hemingway works for television, motion pictures, records and ballets, and lectured for compensation on various aspects of the late author’s life.
On the basis of the foregoing, the court was persuaded by the defendant’s argument that Hotchner “voluntarily inject[ed] himself… into a public controversy’ surrounding the latter years of Hemingway’s life, or into the controversy, stated in narrower terms, of Hotchner’s personal relationship with Hemingway.” 31 In finding that Hotchner had “achieved the status of a public figure,” the court was also persuaded by Hotchner’s access to the media, a policy consideration relied upon heavily in Gertz:
Hotchner continues to be an active author who lectures and contributes to popular magazines frequently. Hotchner has access to publications “‘to expose through discussion the falsehood and fallacies’ of the defamatory statements.” Indeed, Hotchner’s access to certain publications may have been improved by his personal involvement in this controversy.
The clear import of Hotchner is that, even under the Supreme Court’s more conservative injection into public controversy standard for determining whether an individual is a limited public figure, a defamation plaintiff who is a relative of a public person may still be deemed a public figure-or, more accurately, a limited public figure-if he or she has injected himself or herself into a controversy surrounding the famous person’s life. Three important qualifications, however, should be noted.
First, the Hotchner court agreed that Hemingway’s life was controversial:
Hemingway’s life as an expatriate is a matter of considerable public interest, as is evidenced by the success of Hotchner’s book and by Doubleday’s interest in Puche’s book.”
A court may be less inclined to find another celebrity’s life as controversial.
Second, Hotchner had, during the time he knew Hemingway, essentially centered his personal life and business career around Hemingway and his works. If a particular relative is more passive with regard to the famous person’s career, or has nothing to do with the public person other than being related to that person, then the facts may distinguish Hotchner.
Third, the court may examine the particular facts to determine the relative’s access to the media for rebuttal of defamatory statements and to ascertain to what extent there has been an assumption of the risk by the relative. If all the foregoing elements are present, then a strong argument could be made that the particular plaintiff relative is a limited public figure under Gertz and Hotchner However, even if a relative of a famous person cannot be said to have injected himself or herself into a controversy surrounding the well-publicized relation, he or she may still be a limited public figure under either the less rigid vortex of publicity or public figure by association standard.
INJECTION INTO VORTEX OF PUBLICITY
Before the Supreme Court’s articulation of the public controversy test in Gertz, the definition of a public figure included “artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who he is or what he has done.” Subsequent to Gertz, courts in California, as well as across the country, are still finding certain defamation plaintiffs to be limited public figures, notwithstanding the absence of any public controversy, simply because they have injected themselves into the “vortex of publicity,” their conduct has invited attention and comment and they have received substantial publicity, they have thrust themselves “onto the public scene,”” they are in the “public arena”‘ or simply because they have been “thrust into public prominence.”
Under any of the foregoing standards, a court does not have to go through the salutary, and sometimes awkward, exercise of attempting to identify a legitimate controversy relating to a famous, but relatively non-controversial, person. Rather, the court may simply take note of the tremendous publicity accorded the celebrity, any acts taken by the plaintiff relative in connection with the celebrity which have also received media attention, and conclude that the plaintiff relative has injected himself into the vortex of publicity and, therefore, is a limited public figure. Finally, even in the absence of any controversy or of significant media attention, a relative of a famous individual may still be a limited public figure simply because of the close relationship to the famous person.
PUBLIC FIGURE BY ASSOCIATION
The mere fact that a defamation plaintiff is “associated with newsworthy individuals” may be sufficient to support the judicial classification of the plaintiff as a public figure for a limited range of issues (i.e., usually confined to issues pertaining to the famous relationship).’° The “public figure by association” theory is conceptually very similar to the vortex of publicity theory when applied to relatives of public figures. However, since the two theories have developed separately, they are discussed separately herein.
For all intents and purposes, the theory of public figure by association was relied upon in Carlisle and Kapellas with regard to relatives of famous people. There is strong evidence that those cases would be decided the same way today.
In Johnson v. Harcourt, Brace, Jovanovich, Inc., a California appellate court, confronted with relatives of a public figure suing a media defendant for invasions of privacy, acknowledged Gertz but expressly relied upon the Carlisle public figure by association theory in finding the relatives to be limited public figures. This decision would appear to dispose of the issue herein but for the fact that it was rendered in 1974 before the series of Supreme Court and California decisions taking an increasingly restrictive position on the issue of who may be deemed a limited public figure.
Subsequent cases, however, have reinforced the public figure by association theory under factual circumstances closely paralleling the situation involving a relative of a public figure. In Brewer v Memphis Publishing Co.,’z the court held that a close relationship to a “star” confers on a companion the status of a public figure. The Brewer case involved a defamation action brought by the former Anita Wood, now Mrs. John Brewer, and her husband against the Memphis Publishing Company for publishing a newspaper item incorrectly stating that Mrs. Brewer was divorced from her husband and falsely implying that Mrs. Brewer had a recent affair with Elvis Presley. One of the questions decided by the court was whether Mrs.Brewer, as an entertainer and as Elvis Presley’s former “number one girlfriend,” was a public figure. In holding in the affirmative, the court reasoned as follows:
Both Mr. and Mrs. Brewer entered professions that by their I nature require public appearances and invite press attention. Anita’s relationship with Presley was not, and probably could not have been, kept out of the press. This relationship coincided with a portion of her career as an entertainer and it appears that during this time she invited press coverage, at least for her career. Further, as discussed above, her relationship with Presley advanced her career and it is clear from the exhibits that much press coverage focused both on the relationship and on her career, some items detailing a purported connection between these two aspects of her life.
Anita Wood Brewer who had gained media exposure and fame through her career and her romantic relationship with Presley, an extremely well-known entertainer, and whose name continued to appear in stories about Presley after her retirement, was required to prove malice in this suit based on an article that dealt primarily with that romantic relationship . . .
The relevant inquiry under Brewer operates on two levels. First, one must focus on the relative’s “actions in seeking publicity or voluntarily engaging in activities that necessarily involve the risk of increased exposure and injury to reputation:’°4 While the defamation plaintiff in Brewer, as an aspiring entertainer, clearly capitalized on her relationship with superstar Presley, it has been observed that, even absent such affirmative conduct, the relative of a highly publicized star almost automatically occupies a position which “invites press attention: ‘
At least one commentator concludes that the famous association, by itself, establishes the limited public figure status:
It is clear that persons who are otherwise private individuals may attain public figure status by proximity, close relationship or involvement with those who command the public eye . . . . by virtue of the association with those who are otherwise prominent, such individuals “invite attention and comment.” ….Those associating with public figures generally do so knowing of, and in some cases even primarily for the purpose of bating in, the reflected limelight of the principals’ prominence. It is certainly clear that the close associates and families of public figures have thereby attained the status of a public figure, although perhaps to a more limited extent than the person with whom they are associated or related.
Another view maintains that ‘a greater degree of activity and involvement with the public persons is required before limited public figure status is achieved:
If a relative frequently acted as a representative, the public might assume that the relative exercised broad influence over the views and activities of the public person member of the family; such relatives would then become public figures for the full range of publications dealing with the qualifications and performance of the public person.
Relatives who are not generally famous but whose characteristics are publicized by the public persons, who undertake public activities on behalf of the public persons, or who participate in activities related to public controversies surrounding the public persons in their families are voluntary limited public figures.
Second, if by virtue of the relationship the career of the relative is advanced, that relative may be effectively estopped from denying limited public figure status. A recent, much publicized example of a relative who may be so classified is Teri Shields, the mother of Brooke Shields. As in Brewer, “much press coverage [has] focused both on the relationship and on her career” as Brooke Shields’s manager and film producer. Consequently, Teri Shields would be a primary candidate for classification as a limited public figure with regard to published statements that “deal primarily with that … relationship” with her daughter, Brooke.
Courts in other jurisdictions have applied this public figure by association theory to hold that various defamation plaintiffs closely related to public people are limited public figures, including the personal friend and business consultant of a former president,’ the wife of a lieutenant governor and candidate for the Democratic nomination for governor, so the children of infamous national traitors, the close friend of a famous author and the “alter ego” of a well-known reclusive billionaire who represented the tycoon before government agencies and “maintained [the billionaire’s] contacts with the ‘outside world.'”
Thus, as recognized by courts and commentators, there remains after Gertz a class of defamation plaintiffs that have not necessarily thrust themselves into the forefront of any particular public controversy but nonetheless may be deemed limited public figures by virtue of their association with famous people. Depending upon the facts of the particular situation, a relative of a public figure could fall squarely within this class.
Due to the increasingly restrictive position post-Gertz courts have taken on the issue of whether an individual may be deemed a public figure, media defendants in defamation actions have been confronted with a more difficult task in attempting to convince the court that a particular plaintiff is a public figure.
Jeffrey H. Lerman received his B.S. from the University of California at Berkeley in 1977 and his J.D. from the University of California at Los Angeles School of Law in 1980, where he was comment editor on the UCLA Law Review.