Eric Waldbaum v. Fairchild Publications, Inc

In this action we must determine when an individual not a public official has left the relatively safe harbor that the law of defamation provides for private persons and has become a public figure within the meaning of the Supreme Court’s decision in Gertz v. Robert Welch, Inc., 418 U.S. 323,94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). After examining affidavits and exhibits submitted by the parties, Judge Howard F. Corcoran of the United States District Court for the District of Columbia concluded that the plaintiff was a limited public figure under Gertz. Because the plaintiff admitted that he could not prove “actual malice” on the part of the defendant, which Gertz requires public figures to do, Judge Corcoran entered summary judgment for the defendant. Having reviewed the facts in light of the criteria that govern the status of a defamation plaintiff, we agree with Judge Corcoran’s decision and affirm.

*1290 I.

Although the parties in this case differ over how to classify the plaintiff, they fundamentally agree on the underlying facts. Eric Waldbaum, the plaintiff, became president and chief executive officer of Greenbelt Consumer Services! Inc. (Greenbelt) in January of 1971. Greenbelt is a diversified consumer cooperative that, during Waldbaum’s tenure, ranked as the second largest cooperative in the country. 1

While serving as Greenbelt’s president, Waldbaum played an active role not only in the management of the cooperative but also in setting policies and standards within the supermarket industry. He battled the traditional practices in the industry and fought particularly hard for the introduction of unit pricing and open dating in supermarkets. 2 He held several meetings, to which press and public were invited, on topics varying from supermarket practices to energy legislation and fuel allocation. He pursued a vigorous policy of consolidating Greenbelt’s operations to eliminate unprofitable outlets. These actions generated considerable comment on both Greenbelt and Waldbaum in trade journals and general-interest publications. 3

On March 16, 1976, Greenbelt’s board of directors dismissed Waldbaum as the cooperative’s president and chief executive officer. Supermarket News, a trade publication owned by the defendant, Fairchild Publications, Inc. (Fairchild), 4 ran an item on Waldbaum’s ouster on page 35 of its March 22 issue. The five-sentence article stated at one point that Greenbelt “has been losing money the last year and retrenching.” Supplemental Appendix (Supp. App.) at 328. 5

On September 27,1976, Waldbaum filed a libel action in the district court based upon this comment in the article. 6 He contended that in fact Greenbelt had not been losing money or retrenching and that this allegedly false report damaged his reputation as a businessman. Waldbaum sought actual and exemplary damages totalling $75,000.

After discovery, Fairchild moved for summary judgment. It argued that Waldbaum was a public figure and, because he had admitted the absence of “actual malice,” he could not recover damages for defamation. Waldbaum countered that he was *1291 not a public figure and thus would have to prove only negligence on the part of Fair-child in researching and publishing the article. On February 15, 1979, Judge Corcoran granted Fairchild’s motion. He concluded that although Waldbaum could not be considered a public figure for all purposes, he was a public figure for the limited range of issues concerning “Greenbelt’s unique position within the supermarket industry and Waldbaum’s efforts to advance that position.” Waldbaum v. Greenbelt Consumer Services, Inc., Civ.No. 76-1810, at 15 (D.D.C. Feb. 15, 1979) (memorandum and order granting Fairchild’s motion for summary judgment), reprinted in Appendix (App.) at 150, 164. Waldbaum now appeals. 7

II.

In the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that certain rules of law historically applied in defamation cases impinge upon the first amendment’s guarantee of freedom of the press. Specifically, the Court announced that a public official may not recover in a defamation action absent a showing “that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. at 726. Subsequently, the Court applied the same standard to public figures. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

These rulings balance the competing interests of the public, the press, and the individual. From its earliest days, the law of defamation made the individual’s interest in his reputation supreme. Beginning with New York Times, however, the Court recognized the hard reality that society must afford a certain amount of “strategic protection” to defamatory statements to avoid chilling the dissemination of truth and opinions. Gertz v. Robert Welch, Inc., 418 U.S. at 342, 94 S.Ct. at 3008. Thus, these decisions do not insulate the defamei because of the value of his message as such Rather, they give the media “breathing space” to ensure “that debate on publi< issues [is] uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. at 270, 272, 84 S.Ct. at 721, while accommodating the .conflicting need of the individual to redress wrongful injury to his reputation. Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411 (1979); Gertz v. Robert Welch, Inc., 418 U.S. at 342, 94 S.Ct. at 3008.

In Gertz, decided in 1974, the Court focused on the public or private status of the plaintiff in determining how to protect simultaneously individual reputation, freedom of the press, and public debate. It found that a private individual has little means of redressing a defamatory statement except by legal action. See id. at 344, 94 S.Ct. at 3009. It therefore held that a state may allow a private person to recover for defamation under any standard, as long as that standard does not impose liability without fault. Id. at 347, 94 S.Ct. at 3010.

This balance shifts, however, when one turns from private persons to public officials or figures. First, those who enter the public spotlight have greater access to the media to correct misstatements about them, as shown by their preexisting media exposure. Id. at 344, 94 S.Ct. at 3009. 8 More important, in “assuming] special prominence in the resolution of public questions,” id. at 351, 94 S.Ct. at 3013, public figures *1292 “invite attention and comment,” id. at 345, 94 S.Ct. at 3009. They thus accept the risk that the press, in fulfilling its role of reporting, analyzing, and commenting on well-known persons and public controversies, will focus on them and, perhaps, cast them in an unfavorable light. See id. at ,344-45, 94 S.Ct. at 3009. 9 Although these ’generalities may not fit every situation exactly, they draw a relatively clear line for the press to follow. See id. at 345, 94 S.Ct. at 3009. 10

In trying to define who is a public figure, the Court in Gertz created two subclassifications, persons who are public figures for all purposes and those who are public figures for particular public controversies. An individual may have attained a position “of such persuasive power and influence,” id., and of “such pervasive fame or notoriety,” id. at 351, 94 S.Ct. at 3013, that he has become a public figure in all situations. This test is a strict one. The Court stated flatly that “[ajbsent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life.” Id. at 352, 94 S.Ct. at 3013. Accord, Wolston v. Reader’s Digest Association, 443 U.S. 157, 165, 99 S.Ct. 2701, 2706, 61 L.Ed.2d 450 (1979).

The Court in Gertz acknowledged freely that under this definition the general public figure is a rare creature. More common are persons who “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” 418 U.S. at 345, 94 S.Ct. at 3009. Put slightly differently, this limited-purpose public figure is “an individual [who] voluntarily injects himself or is drawn into a particular public controversy and therefore becomes a public figure for a limited range of issues.” Id. at 351, 94 S.Ct. at 3013. The relevant examination turns on “the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Id. at 352, 94 S.Ct. at 3013.

III.

Unfortunately, the Supreme Court has not yet fleshed out the skeletal descriptions of public figures and private persons enunciated in Gertz. The very purpose of the rule announced in New York Times, however, requires courts to articulate clear standards that can guide both the press and the public. From analyzing Gertz and more recent defamation cases, we believe that aJ person can be a general public figure only in he is a “celebrity” — his name a “household] word” — whose ideas and actions the publiq in fact follows with great interest. We also conclude that a person has become a public figure for limited purposes if he is attempting to have, or realistically can be expected to have, a major impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants. In undertaking this examination, a court must look through the eyes of a reasonable person at the facts taken as a whole.

A.

The Supreme Court acknowledged in Gertz that the peculiar circumstances of each case affect the balance between freedom of the press and an individual’s interest in his reputation. See 418 U.S. at 343, 94 S.Ct. at 3008. The Justices nevertheless eschewed analyzing a person’s status as a public figure case by case: a purely ad hoc approach, though perhaps more accurate in its final outcome, “would lead to unpredictable results and uncertain expectations . .” Id. Instead, courts should formulate “broad rules of general application” that accommodate the competing interests *1293 of press and personal reputation. Id. at 343-44, 94 S.Ct. at 3008-3009. Of course, litmus tests that define what is and is not protected and that the press, the public, and the courts could apply with perfect consistency and accuracy would reduce the need for the “breathing space” that New York Times creates. Unfortunately, we do not have such tests. Until we find them, we must search for more precise articulations of all aspects of the New York Times rules, realizing that the more certain our determinations become the less need there is to extend first amendment safeguards to matters that do not merit those safeguards on their own account.

Clear guidelines are important, first, for the press. As noted above, the entire »scheme of “strategic protection” for certain defamatory statements rests not on the Inherent value of those statements but instead on the need to avoid chilling the dissemination of information and ideas that are constitutionally protected for their own sake. See p. 1291 supra. Because the outcome of future litigation is never certain, members of the press might choose to err on the side of suppression when trying to predict how a court would analyze a news story’s first amendment status. Questionable areas thus receive prophylactic protection to ensure that the press will not refrain from publishing material that has value under the first amendment due to its own content.

Precision also is important to members of the public generally, any one of whom might become the subject of a press defamation. Our society always has encouraged citizen involvement in public affairs. The fear of no redress for injury to reputation may deter an individual from engaging in some course of conduct that a court later might find to have altered his status. 11 Similarly, a person desiring to voice his views on public issues may not wish to have some aspects of his private life exposed and therefore may refrain from entering the public arena. To guard against these possibilities, society must provide the individual with clear rules that govern the potential consequences of his participation in public life. Clarity allows him to calculate correctly, and not overestimate or underestimate, the effect that undertaking some activity will have on the legal recourse available to him should he suffer injury due to defamation by the press.

B.

Given these considerations, a court 12 analyzing whether a given plaintiff is a public figure must look at the facts, taken as a whole, through the eyes of a reasonable person. This objective approach should enable both the press and the individual in question to assess the individual’s status, in advance, against the same yardstick. Focusing on what a reporter, editor, or publisher actually knew or believed could introduce subjective elements that are difficult to prove and even more difficult to predict. Such a perspective would give the individual little opportunity to alter his conduct or lifestyle to preserve his anonymity. Similarly, looking only to what the individual thought would charge the press with discovering and evaluating the inner beliefs and peculiarities of particular individuals *1294 and thus would deprive the media of the very “breathing space” that New York Times sought to create and protect. Resolving these questions based upon what a reasonable person, looking at the entire situation, would conclude allows the press and the individual to evaluate public-figure status against a single, discoverable norm and from there to act as they see fit, understanding the consequences of their conduct under New York Times. 13

C.

With this background, we turn to the standards themselves for determining when a person is a public figure. A court first must ask whether the plaintiff is a public figure for all purposes. Gertz, as noted above, held that a plaintiff could be found to be a general public figure only after a clear showing “of general fame or notoriety in the community, and pervasive involvement in the affairs of society . . . 418 U.S. at 352, 94 S.Ct. at 3013. He must have assumed a “role of especial prominence in the affairs of society. . . . ” Time, Inc. v. Firestone, 424 U.S. 448, 453, 96 S.Ct. 958, 965, 47 L.Ed.2d 154 (1976). Accord, Wolston v. Reader’s Digest Association, 443 U.S. 157, 165, 99 S.Ct. 2701, 2706, 61 L.Ed.2d 450 (1979). In other words, a general public figure is a well-known “celebrity,” his name a “household word.” 14 The public recognizes him and follows his words and deeds, either because it regards his ideas, conduct, or judgment as worthy of its attention or because he actively pursues that consideration. 15

As a general rule, a person who meets this test has access to the media if defamed. The public’s proven preoccupation with him indicates that the media would cover such an individual’s response to statements he believes are inaccurate or unsupported. 16 In general, too, the person has assumed the risk that public exposure might lead to misstatements about him. Famous persons may not have submitted voluntarily to a loss of reputation as such. Nevertheless, their renouncement of anonymity or tolerance of publicity unavoidably carries with it the possibility that the press, in fulfilling its role of reporting and critiquing matters of public concern, may investigate their talents, character, and motives. The media serve as a check on the power of the famous, and that check must be strongest when the subject’s influence is strongest. 17 Fame often brings power, money, respect, adulation, and self-gratification. It also may bring close scrutiny that can lead to adverse as well as favorable comment. When someone steps into the public spotlight, or when he remains there once cast *1295 into it, he must take the bad with the good. 18

In determining whether a plaintiff has achieved the degree of notoriety and influence necessary to become a public figure in all contexts, a court may look to several factors. 19 The judge can examine statistical surveys, if presented, that concern the plaintiff’s name recognition. 20 Previous coverage of the plaintiff in the press also is relevant. The judge can check whether others in fact alter or reevaluate their conduct or ideas in light of the plaintiff’s actions. He also can see if the plaintiff has shunned the attention that the public has given him and determine if those efforts have been successful. 21 At all times, the judge should keep in mind the voluntariness of the plaintiff’s prominence and the availability of self-help through press coverage of responses — in other words, whether the plaintiff has assumed the risk of reputational injury and whether he has access to the media. No one parameter is dispositive; the decision still involves an element of judgment. Nevertheless, the weighing of these and other relevant factors can lead to a more accurate — and a more predictable — assessment of a person’s overall fame and notoriety in the community. 22

*1296 D.

New people, of course, attain the general notoriety that would make them public figures for all purposes. Nevertheless, many persons “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. at 345, 94 S.Ct. at 3009. Thus, even if a court finds that a plaintiff is not a general public figure, it still must examine “the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Id. at 352, 94 S.Ct. at 3013.

As the first step in its inquiry, the court must isolate the public controversy. A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way. The Supreme Court has made clear that essentially private concerns or disagreements do not become public controversies simply because they attract attention. Time, Inc. v. Firestone, 424 U.S. 448, 454-55, 96 S.Ct. 958, 965-66, 47 L.Ed.2d 154 (1976). 23 Rather, a public controversy is a dispute that in fact has received public attention because its ramifications will be felt by persons who are not direct participants.

Courts must exercise care in deciding what is a public controversy. Newsworthiness alone will not suffice, for the alleged defamation itself indicates that someone in the press believed the matter deserved media coverage. 24 Moreover, a *1297 court may not question the legitimacy of the public’s concern; such an approach would turn courts into censors of “ ‘what information is relevant to self-government.’ ” Gertz v. Robert Welch, Inc., 418 U.S. at 346, 94 S.Ct. at 3010 (quoting Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 79, 91 S.Ct. 1811, 1837, 29 L.Ed.2d 296 (1971) (Marshall, J., dissenting)). Accord, Time, Inc. v. Firestone, 424 U.S. 448, 454, 96 S.Ct. 958, 964, 47 L.Ed.2d 154 (1976) 25 A vital part of open public debate is deciding what should be debated. No arm of the government, including the judiciary, should be' able to set society’s agenda. 26 Thus, courts must look to what already were disputes. See Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411 (1979).

To determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question. 27 A general concern or interest will not suffice. Id. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. 28 It should ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. 29 If the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.

Once the court has defined the controversy, it must analyze the plaintiff’s role in it. Trivial or tangential participation is not enough. The language of Gertz is clear that plaintiffs must have “thrust themselves to the forefront” of the controversies so as to become factors in their ultimate resolution. 418 U.S. at 345, 94 S.Ct. at 3009. They must have achieved a “special prominence” in the debate. Id. at 351, 94 S.Ct. at 3012. The plaintiff either must have been purposely trying to influence the outcome or could realistically have been expected, because of his position in the controversy, to have an impact on its resolution. 30 In undertaking this analysis, a court can look to the plaintiff’s past conduct, the extent of press coverage, and the public reaction to his conduct and statements. See pp. *1298 1295-1296 supra. 31 See generally Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440, 445 (S.D.Ga.1976), aff’d, 580 F.2d 859 (5th Cir. 1978). 32

Finally, the alleged defamation must have been germane to the plaintiff’s participation in the controversy. His talents, education, experience, and motives could have been relevant to the public’s decision whether to listen to him. 33 Misstatements wholly unrelated to the controversy, however, do not receive the New York Times protection.

Those who attempt to affect the result of a particular controversy have assumed the risk that the press, in covering the controversy, will examine the major participants with a critical eye. Occasionally, someone is caught up in the controversy involuntarily and, against his will, assumes a prominent position in its outcome. Unless he rejects any role in the debate, he too has “invited comment” relating to the issue at hand. In any event, media coverage of the controversy can be expected to include reports on a major participant’s reply to misstatements made about him. 34 In short, the court must ask whether a reasonable person would have concluded that this individual would play or was seeking to play a major role in determining the outcome of the controversy and whether the alleged defamation related to that controversy.

IV.

With the foregoing analysis in mind, we now must determine whether Judge Corcoran correctly concluded that Waldbaum was a public figure. As noted above, Fairchild concedes that he was not a general-purpose public figure, and Waldbaum concedes that he cannot prove “actual malice” within the meaning of New York Times. Thus, if we agree with Judge Corcoran that Waldbaum was a limited-purpose public figure and that Fairchild’s alleged defamation fell within the relevant range of issues, we must affirm the grant of summary judgment. After examining the facts, we do agree and, therefore, affirm.

Evidence submitted with Fairchild’s motion for summary judgment indicates dear *1299 ly that Greenbelt was an innovative company often the subject of news reports. As the second largest cooperative in the nation it attracted attention, and its pathbreaking marketing policies — e. g., unit pricing, open dating, and highly competitive advertising — became the subject of public debate within the supermarket industry and beyond, debate that would affect consumers and retailers in the Washington area and, perhaps, elsewhere. We therefore believe that, before Supermarket News published its story about Waldbaum’s dismissal, public controversies existed over the viability of cooperatives as a form of commercial enterprise and over the wisdom of various policies that Greenbelt in particular was pioneering.

With some admittedly overlapping controversies identified, we now must examine Waldbaum’s role in them. Waldbaum was known as a leading advocate of certain precedent-breaking policies before coming to Greenbelt. See, e. g., Eric Waldbaum New Head at Greenbelt, Supermarket News, Jan. 4, 1971, at 4, col. 1, reprinted in Supp.App. at 320. He has admitted that as president and chief executive officer, he pursued these policies and other consumer-oriented activities. App. at 58-59 (deposition of Waldbaum). He felt that educating the community at large was one function of a cooperative such as Greenbelt. Id. at 56. 35 Greenbelt published its own monthly newspaper, Co-op Consumer, and Waldbaum “insisted” that he, as president, approve all information placed in it for the shareholders. Id. at 48.

Being an executive within a prominent and influential company does not by itself make one a public figure. In many cases, a corporate official is simply a conduit for announcing and administering company policies made by others. Similarly, many executives who do make corporate policy do not thereby take stands in public controversies. 36 These descriptions, how *1300 ever, do not fit Eric Waldbaum at Greenbelt. His own deposition indicates that he was the mover and shaper of many of the cooperative’s controversial actions. He made it a leader in unit pricing and open dating. He supervised, or at least approved, the consumer-oriented views that appeared in Co-op Consumer. In short, as Judge Corcoran so aptly put it, “he did not become merely a boardroom president whose vision was limited to the balance sheet. He became an activist, projecting his own image and that of the cooperative far beyond the dollars and cents aspects of marketing.” Waldbaum v. Greenbelt Consumer Services, Inc., Civ. No. 76-1810, at 12 (D.D.C. Feb. 15, 1979) (memorandum and order granting Fairchild’s motion for summary judgment), reprinted in App. at 150, 161. Given Greenbelt’s prominence, his activities certainly extended beyond those of a profit-maximizing manager of a single firm.

Thus, it would appear to a reasonable person that Waldbaum had thrust himself into the public controversies concerning unit pricing, open dating, the cooperative form of business, and other issues. He did so in an attempt to influence the policies of firms in the supermarket industry and merchandising generally. In the process, he assumed the risk that comment in the press might turn to the successfulness or profitability of enterprises under his management, for the commercial success or failure of the actions he was advocating certainly is strong evidence in the public debate over whether other firms should adopt them. Furthermore, Waldbaum had prior dealings with the media. See App. at 44-46, 62-67 (deposition of Waldbaum) (descriptions of dealings with the press). Although he personally was not frequently the subject of articles, he was somewhat familiar with press operations and had held press conferences to discuss Greenbelt’s policies and operations. Looking at the overall picture, we conclude that Waldbaum was a public figure for the limited purpose of comment on Greenbelt’s — and his own — innovation policies and that the article giving rise to this action was within the protected sphere of reporting. Because Fairchild concededly did not act with “actual malice,” it was entitled to summary judgment.

V.

Not everyone who participates in activities that affect the public becomes a public figure. Nevertheless, when one assumes a position of great influence within a specific area and uses that influence to advocate and practice controversial policies that substantially affect others, he becomes a public figure for that debate. Waldbaum