Foretich v. Capital Cities/Abc, Inc.

Vincent and Doris Foretich filed a defamation action against the producers and broadcasters of an ABC docudrama in which a character apparently referred to one or both of them as "abusers" of their granddaughter, Hilary A. Foretich, who had been the subject of a prolonged and highly publicized child-custody dispute. On the defendants' pretrial motion, the district court ruled that Vincent and Doris Foretich were "private individuals," not "limited-purpose public figures," and therefore would not have to prove at trial that the defendants acted with "actual malice." The issue of the Foretiches' proper status--"private individuals" or "limited-purpose public figures"--is now before us on interlocutory appeal. Although we conclude that the Hilary Foretich custody battle became a "public controversy," we hold that neither of her paternal grandparents was a "public figure" for the purpose of comment on that controversy because their public statements and actions were made predominantly in self-defense. We therefore affirm the district court's ruling and remand the case for further proceedings.

* A

Hilary Foretich's parents, Dr. Elizabeth Morgan and Dr. Eric A. Foretich, were separated by the time she was born. By the time she learned to walk, the parents were divorced and embroiled in what would become one of the most notorious child-custody battles in American history.

In 1983, the Superior Court of the District of Columbia awarded temporary custody of Hilary to her mother, Dr. Morgan, subject to scheduled visitations by the child's father, Dr. Foretich. See Morgan v. Foretich, No. D684-83 (D.C.Super.Ct.1983). Over the next few years, Dr. Morgan allegedly came to believe that Hilary was being sexually abused during visitations with her father and the paternal grandparents, Vincent and Doris Foretich. Dr. Morgan sought a temporary suspension of the visitations, but the D.C. Superior Court denied her request. See Morgan v. Foretich, 564 A.2d 1, 2 (D.C.1989).

Following one of Hilary's visitations with the Foretiches in February 1986, Dr. Morgan refused to permit any further visits. A flurry of motions and hearings ensued, and in July 1986 Dr. Morgan was held in contempt and briefly incarcerated. See id. She still refused to turn the child over to her alleged abusers and, following another series of motions, hearings, contempt orders, and appeals, Dr. Morgan was again jailed for contempt in February 1987. Supervised weekend visitations then resumed for several months in compliance with the court's orders, while motions for emergency stays filed by Dr. Morgan, and by Hilary's guardian ad litem, were denied. See Morgan v. Foretich, 546 A.2d 407, 409-10 (D.C.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 790, 102 L.Ed.2d 781 (1989).

Also in 1986, Dr. Morgan and Hilary brought civil actions in the United States District Court for the Eastern District of Virginia, Alexandria Division, seeking damages and an end to Dr. Foretich's visitation rights. The plaintiffs claimed that Hilary had been physically and sexually abused by Eric, Vincent, and Doris Foretich, and that the Foretiches had threatened to kill or injure Hilary if she told anyone about the abuse. Specifically, the complaint accused the girl's grandfather, Vincent Foretich, of (1) manipulating Hilary's genitalia; (2) inserting various foreign objects into her vagina; (3) orally sodomizing her; (4) anally sodomizing her; and (5) masturbating himself and ejaculating into her face and hair. The complaint accused Doris Foretich of "various acts of sexual abuse and assault and battery upon her granddaughter, specifically including but not limited to acts in which she inserted objects into her vagina." Complaint, Morgan v. Foretich, C.A. No. 86-0944-A (E.D.Va.1986). The defendants filed counterclaims alleging defamation. In February 1987, following a four-day trial in which Hilary's parents and paternal grandparents testified, the jury returned a verdict against Dr. Morgan on the abuse claims and against the Foretiches on the defamation claims. Both sides appealed, and we reversed and remanded in part, see Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988), but the case was never retried.1 None of the Foretiches was ever indicted for, much less convicted of, any criminal act of child abuse.

In the meantime, Dr. Morgan hid Hilary. A District of Columbia Superior Court Judge ordered Dr. Morgan to disclose Hilary's whereabouts. She refused. Her third incarceration for civil contempt began in August 1987 and continued for twenty-five months, as Dr. Morgan steadfastly refused to reveal the location of Hilary's hideout. See Morgan v. Foretich, 564 A.2d at 3, 21.

While Dr. Morgan spent twenty-five months in a D.C. jail, the controversy generated a torrent of publicity. Dr. Morgan and Dr. Foretich (and their lawyers and surrogates) exchanged charges and countercharges. Each parent hired a public relations agent and commissioned a toll-free "800" number. Hundreds of newspaper and magazine articles were published about virtually every aspect of the controversy. The broadcast media devoted extensive coverage to the dispute and to the various public policy debates that it inspired. On Capitol Hill, the House Committee on the District of Columbia, having received "the largest outpouring of mail regarding a single issue" in its history, reported that the affair was "a local and national issue joining together various political, social, and religious organizations."2 Magazines termed it "a national cause, taken up by feminist groups, talk-show hosts, and columnists"3 and a "legal battle that made headlines around the world."4

Over Dr. Foretich's vocal objections, in September 1989 Congress enacted and President Bush signed into law the District of Columbia Civil Contempt Imprisonment Limitation Act of 1989, Pub.L. No. 101-97, 103 Stat. 633 (codified at D.C.Code Secs. 11-721(f), 11-741(b), 11-944(b)). The Act stated that no person could be imprisoned for civil contempt by the D.C. Superior Court for more than twelve months in connection with a child-custody case. It also specified the circumstances under which a criminal contempt conviction could be imposed in a child-custody dispute, and provided for expedited appeals for those incarcerated for contempt in such cases. See id. As a result of the new Act, the D.C. Court of Appeals ordered Dr. Morgan's release. See Morgan v. Foretich, 564 A.2d at 21.

In 1990, a private investigator hired by Dr. Foretich found Hilary living with her maternal grandparents in Christchurch, New Zealand. Hilary's father and the paternal grandparents rushed to New Zealand, in whose courts the next chapter of the custody battle ensued. Ultimately, the New Zealand Family Court awarded Dr. Morgan full custody of Hilary, and Dr. Foretich agreed neither to contest custody nor to seek visitations. See generally Jonathan Groner, Hilary's Trial (1991). Today Dr. Morgan and her now-twelve-year-old daughter remain in New Zealand.

Central to the resolution of this interlocutory appeal is the nature and extent of Vincent Foretich's and Doris Foretich's participation in the controversy surrounding their granddaughter's custody. Therefore, we will recount the Foretich grandparents' media exposure in some considerable detail.

The record does not suggest that either grandparent ever actively sought out press interviews. But, over a period of a few years, and most intensively during and immediately after Dr. Morgan's twenty-five months in jail, they did accede to requests for several newspaper and magazine interviews, attend at least three press conferences or rallies organized by or on behalf of their son, and appear on at least two television shows.5 The grandparents did not simply confine their remarks to denying Dr. Morgan's allegations. They also described the positive environment that they had provided for Hilary, the negative influence that Dr. Morgan had on the girl, their belief that Dr. Morgan was mentally unstable, and the distress that they had suffered as a result of Dr. Morgan's allegations.6

The record evidence indicates that the grandparents were first quoted in an article published in The Washington Post in August 1986, immediately after Dr. Morgan filed her federal lawsuit accusing Eric, Vincent, and Doris Foretich of abusing Hilary. The article said that the grandparents "denied the allegations" in Dr. Morgan's complaint and "reacted with dismay and outrage." Sandra G. Boodman, Mother Files Suit Alleging Child Abuse, Wash. Post, Aug. 20, 1986, at C3:

"This is filthy dirt created by Elizabeth Morgan," said Doris Foretich, a retired art teacher for the Newport News public schools. "We're not capable of doing things like this." Doris Foretich said that she and her husband lived in Great Falls [Virginia] with their son from June 1983 to June 1985 to help him care for his two daughters, each from a different marriage.7

Vincent Foretich, former manager of operations for Newport News Shipbuilding and Drydock, called the suits "a heinous lie by a woman who is mentally ill. We are honorable, clean-living people who love our granddaughter and would never abuse her."

Id.

Six days later, Doris and Vincent Foretich were quoted again on the pages of The Washington Post. Doris Foretich reportedly said, "I sacrificed like nobody's business and so did my husband, and now this.... I can tell you this: We did not abuse her. Ever." Sandra G. Boodman, The Public War over a Child Ugly, Wash. Post, Aug. 26, 1986, at C1. Speaking of her son, Eric, she said, "He loved those little girls [Hilary and her older half-sister] and did everything for them.... He would feed them, change them, everything." Id. She also said that she was

confident that her family [would] ultimately be vindicated. "I thought the worst thing in the world was when my children died," Doris Foretich said. (In 1958 the couple's 5-week-old daughter died during a blood transfusion. A decade later their 21-year-old son died in a car accident.) "People would say, 'Doris, there are worse things than death,' and they were right."

"I am the kind of person who believes that all truth surfaces," she said. "I believe that God, knowing my husband and Eric, will let justice be done.... In time everyone will know what the truth is."

Id. Vincent Foretich commented: "I know my son is a very honorable person despite being married four times." Id. Both of the parents claimed that Dr. Morgan was "mentally ill," and that "the allegations and ensuing investigation [were] the result of a conspiracy between [Dr. Foretich's] second and third wives, who coached their daughters and were assisted in their 'harassment' by the Fairfax [ (Virginia) ] Department of Social Services." Id.

Six months later, in February 1987, The Washington Post briefly reported on the grandparents' testimony at the Morgan v. Foretich trial in federal district court:

The grandparents of a 4-year-old District child, testifying yesterday in federal court in Alexandria, denied allegations by the child's mother that they sexually abused their granddaughter, calling the charges "ridiculous."

. . . . .

Doris Foretich, 68, testified she never saw any of the child's alleged abnormal behavior described earlier by Morgan. Asked if she ever sexually abused her granddaughter, she responded: "Never, may I drop dead if that's not true. I love her dearly."

Her husband, Vincent, 72, also denied the charges, adding that as a result of Morgan's lawsuit, filed last August, and the publicity that followed, "our reputations have been irreparably damaged."

Caryle Murphy, Grandparents Deny Abuse of 4-Year-Old, Wash. Post, Feb. 19, 1987, at C6.

The record indicates no further press contacts for Vincent or Doris Foretich before the fall of 1988 (halfway through Dr. Morgan's twenty-five months in jail), when Glamour magazine published an article about the custody dispute. The author, free-lance reporter Bob Trebilcock, spent at least thirty minutes interviewing Hilary's paternal grandparents. See Foretich v. Advance Magazine Publishers, Inc., 765 F.Supp. 1099, 1102 (D.D.C.1991) (citing Bob Trebilcock, Hiding Hilary, Glamour, Nov. 1988).

On December 16, 1988, a front-page article in The Washington Post described the scene in the packed courtroom as the D.C. Superior Court Judge denied the then-incarcerated Dr. Morgan's petition for a writ of habeas corpus:

"The wrong one's in jail," hissed one Morgan supporter.

"Trash," spat back Vincent Foretich, Eric Foretich's father.

"Trash is right," said Dorothy [sic] Foretich, the elder Foretich's wife.

Barton Gellman, Dr. Morgan Sent Back to Jail, Wash. Post, Dec. 16, 1988, at A1. Apparently, the Post reporter overheard the exchange in the courtroom and did not actually interview either grandparent.

Five months later, Vincent and Doris Foretich attended their son's press conference at a hotel in Washington, D.C. See Tr. of Press Conf., May 23, 1989. Vincent Foretich spoke literally one word, responding to a question by saying that Hilary called him "Gramps." Id. Doris Foretich interjected once to say that, when Dr. Morgan first leveled accusations of abuse, she (Doris) had taken Hilary to a doctor: "I had her thoroughly examined, and she found that she was perfectly intact. In fact, she didn't even have diaper rash. She was fine." Id.

Two and a half months later, an August 2, 1989 article in the Hampton Roads (Virginia) Daily Press quoted Doris Foretich as saying, "We have been the victims of an absolutely fiendish campaign of terror." Mathew Paust, Father's Dream Turns Nightmare, Daily Press, Aug. 2, 1989, at A1, A8. Vincent Foretich explained that he and his wife switched churches to avoid "embarrassing their friends.... 'They know we haven't done anything, but they feel like they have to console us and try to cheer us up. These are vicious lies that have been devastating to us. We'll carry this to the grave,' Vincent Foretich said." Id.

The next day, The Washington Times reported an interview with Dr. Foretich, conducted at his Great Falls home, in which he spoke of the difficulty of "prov[ing] a negative," i.e., that he had not abused Hilary.

His parents, Doris and Vincent Foretich of Gloucester Point, Va., have just arrived at the house for a visit after a 50th anniversary trip to Bermuda. They nod their agreement. In Alexandria courts in 1986 and again in 1987 Dr. Morgan accused them, too, of sexually abusing Hilary beginning shortly after the girl's birth. And as Eric Foretich runs down the list of Dr. Morgan's claims against his parents, his mother, a 70-year-old retired art teacher in summery pink, puts her head in her hands and says she doesn't want to hear it again.

"If you read her allegations, you would not think a person in her right mind would say that," says Vincent Foretich, 74. He is a retired manager of product engineering for Newport News Shipbuilding. "It was just like from the bottom of a filthy cesspool. I mean, downright filth. That woman is sick, capital letters SICK."

From June 1983 to June 1985 the senior Foretichs lived in an upstairs apartment here so they could be present for young Hilary's visits. Later they would drive up from Gloucester Point for each visit, on the advice of a lawyer friend who had warned Dr. Foretich to keep the house in "wall-to-wall people" because of the latest trend in child custody cases--accusations of sexual abuse.

"Not only did he have us," Mrs. Foretich says, "but we had many, many children spending the night, and people over from everywhere, and she did it anyway."

Cathryn Donohoe, Eric Foretich: Loser in Dr. Morgan's War, Wash. Times, Aug. 3, 1989, at E1.

Less than three weeks later, on August 21, 1989, Dr. Foretich held a press conference and rally on the steps of the United States Capitol to celebrate Hilary's seventh birthday and to demonstrate against legislation then pending in Congress, which would result in Dr. Morgan's release from jail. See Tr. of Press Conf., Aug. 21, 1989. Again, Vincent and Doris Foretich accompanied their son. Vincent was introduced as "the paternal grandfather of Hilary Foretich, the father of Eric Foretich, [and] accused of being a child abuser himself." Id. Vincent spoke only one sentence, merely "wish[ing] Hilary a very happy birthday, and may God bless her wherever she is." Id. Next, Doris was introduced, and she spoke about a dozen sentences:

The happiest time in my life was when I had my grandchildren there. We moved up from our home in Gloucester to look after them. I bathed and fed them, dressed them, slept with them, loved them. I miss them terribly. I hope she's all right. She told me things that happened in her home that were not very nice. I'm not going to repeat them now. But they were horrible. We loved them. We want to see them again. We pray that she's all right. That's all I can say at this time.

Id.

A month later, shortly after Dr. Morgan had been released from jail, Dr. Foretich held another press conference, this time in the drawing room of his house. See Tr. of Press Conf., Sept. 27, 1989. Both paternal grandparents were present, but neither spoke. Dr. Foretich's attorney, however, introduced them to the reporters and said:

I'd like to tell you that they are wonderful people. They are without both of their granddaughters at this time, which is a human tragedy of the worst sort. This is Doris and Vincent Foretich.... Their rights as grandparents have been violated, absolutely, by Dr. Morgan and her associates.... These two people were part of--were defendants in the case in federal court in Alexandria as harming Hilary. Now, I ask you, does that make any sense?

Id.

An October 1989 article in Cosmopolitan magazine described another reporter's interview with Dr. Foretich, at his home. The interview lasted five hours, "with only the occasional break while Doris replenishe[d] an iced-tea glass." Barbara Hustedt Crook, Elizabeth Morgan: A Mother Against the System, Cosmopolitan, Oct. 1989, at 238, 241. The reporter also recounted what she saw and heard during the hour or so before Eric's interview:"If you think that after losing two of my children I could be party of anything that would be detrimental to my two granddaughters ...," muses Doris Foretich, allowing the painful thought to trail off. We are sitting in Eric's family room, underneath Doris's painting of [her two granddaughters] (she briefly taught art). "We closed our houses to come here and help take care of those girls. We are God-loving people, law-abiding people. My God knows who's right...."

While we wait for Eric to return from his morning run--he is "addicted" to jogging, his father, a retired civil engineer, tells me--the elder Foretiches, who are visiting today, fill in the time as any loving grandparents might, by showing off snapshots. The only difference is that these are piled in neat stacks marked Exhibit A and Exhibit B. Snapshots of a smiling Hilary ... during weekends in Great Falls; in the pool; in the sandbox; by the Christmas tree, surrounded by cousins, neighbors, friends. Later, I will be given a tour of the girls' pink-and-white room, with its canopied double bed, which has been left exactly as it was when the sisters were last here.

. . . . .

"[Hilary] loved being with us," [Doris Foretich] says. "When Elizabeth came to drop her off, she'd pretend to be crying, then she'd look over her mother's shoulder and grin and wave. The last time she was here, she begged us not to send her home. She said, 'I love my mommy, but there's something wrong with her.' "

Id. at 241, 262. Once Eric Foretich arrived and his five-hour interview commenced, "his parents hover[ed] nearby, interjecting cries of 'That's right!' and 'That's exactly right!' " Eric Foretich told the reporter: " 'The only abuser is Elizabeth Morgan.... I think Elizabeth Morgan is a pervert. And I'll say it for your magazine on the record.' " Id. at 241.

Also in October 1989, Doris and Vincent Foretich made an appearance on national television. Phil Donahue introduced his show by proclaiming the Morgan-Foretich battle to be "the most widely discussed, reported, antagonistic, protracted, child-custody/domestic-relations accusation case in the history of family law." Tr. of The Phil Donahue Show (national television broadcast, Oct. 25, 1989). Dr. Foretich was the principal invited guest, and his parents were seated in the audience. According to their own deposition testimony, both Vincent and Doris Foretich were familiar with the format of the Phil Donahue Show and with Donahue's proclivity for talking with members of the audience, particularly those with relationships to his main guests. Both had executed "Donahue Guest in Audience Releases" prior to their appearances.

When Donahue ran a video clip of Dr. Morgan claiming that Dr. Foretich had himself been a victim of sexual abuse as an adolescent, Dr. Foretich replied, "I was never--my parents are sitting right there. Those two people, do you believe they could have--." Tr. of The Phil Donahue Show (national television broadcast, Oct. 25, 1989). Donahue thrust his microphone in front of Doris Foretich and said, "That's not the first time you've heard that accusation." Id. She replied:

Mrs. Foretich: It shocks me every time. He certainly was very much loved. I have lost two of my three children.

. . . . .

Mrs. Foretich: Yes. One died in an automobile accident on his way back to the University of Virginia his senior year and a little girl died in her infancy from a transfusion.

Donahue: Right. And your point is?

Mrs. Foretich: My point is that, do you think that any grandmother who has lost two of her own children would ever participate--I moved to this house, and I took sole care of my grandchildren. Do you think anybody like that would ever allow anyone to abuse her grandchildren? ...

Dr. Foretich: She accused my parents as well!

Mrs. Foretich: Nobody could agonize the way we have. I love that little girl and I would lay down my life for her. She never wanted to leave us. She wouldn't want to talk to her mother on the phone. I had to cajole her to talk with her, because I knew it would give us trouble. There's nothing in the world we would rather do for those children.

Id.

Later, in response to an audience member's remark, Doris Foretich added:

I've taught art for young people for 20 years. I happen to know that children will do anything their mothers tell them to do. And, I'm telling you, they want to please their parents. And whichever parent they're living with, poor little things, they have to, whether they want to or not.

Id. Vincent Foretich did not speak during the program.

The Phil Donahue Show was not the grandparents' sole television appearance. They also appeared and were interviewed in "Hilary in Hiding," a British-produced television documentary telecast on the Lifetime Cable Channel's "Frontline" program in April 1990. Again, only Doris Foretich spoke, as she showed the reporter her son's home:

This is my granddaughter's bedroom. And the little dolls and the pillows and things that you see around, I made for her--the little quilt. And she loved it here. The closet's quite large, as you can see. And we used to take the little quilt that I made her and put it right down here on the floor. She'd sit there and play with her dolls. And she had--of course, we don't have near as many dresses and things now as we did have for her, but it was packed full of all the things that she loved when she was here. And we're living for the day when we could have her back again, have her enjoy her room. It's a nice room. And it was a happy little room for her.

Tr. of Frontline (national television cablecast, Apr. 24, 1990).

Later in the program Doris Foretich described both her son and her former daughter-in-law:

He was determined to play a part in his child's life, and I'm proud of him for that, and would have been most displeased, as his mother, if he hadn't stood up as a man and fought. It would have been so much easier for him to have sort of ducked his tail and slunk away and--never to be heard of again. But that's not his style. That's not our style. We stand up for what we believe in, in our family, and what we know to be a true and right thing to do.

. . . . .

She [Dr. Morgan] has written many books, and still is, I'm sure, writing books--probably already finished, or well into the making. She's been offered two movie contracts. She had been touted by the women's lib NOW women in this country. She has--she's like a new Joan of Arc. I think that she's got notoriety to be noticed. She's being--money that--all kinds of contracts are offered her. I think that she's more famous than she ever could have hoped to be if she had just been a self-sacrificing mother running away with her little abused daughter. She knows none of this ever happened. She knows in her heart it never happened, as I do.

Id.

A full-length book on the dispute, Jonathan Groner's Hilary's Trial, published by Simon & Schuster in 1991, relied in part on interviews with the grandmother. Doris Foretich states that she spoke with Groner on occasion on the telephone and one other time when he was visiting Dr. Foretich at the latter's house. According to Doris Foretich, her conversations with Groner consumed a total of at most 30 minutes. There is no evidence that Vincent Foretich and Groner ever spoke.

On November 29, 1992, American Broadcasting Companies, Inc. aired, as its "ABC Sunday Night Movie," a 91-minute docudrama entitled "A Mother's Right: The Elizabeth Morgan Story." Being a "docudrama," the made-for-TV movie presented a dramatized and perhaps somewhat fictionalized account, with actors and actresses playing the roles of Dr. Morgan, Dr. Foretich, Hilary, et al.

Among the docudrama's scenes was one in which Hilary, then four years old, visits with her father and paternal grandparents at the Washington, D.C. office of a court-appointed psychiatrist. In the scene, Hilary is initially agitated, gradually warms to her grandparents, and eventually climbs into her grandfather's lap after joining in the singing of "Row, Row, Row Your Boat."

There immediately follows a conversation between Dr. Morgan and her friend, as they are leaving Washington by car. The friend had brought Hilary to the psychiatrist's office and had remained in an adjacent room during the visit. He describes to Dr. Morgan what he heard: "It was like a circus pony going through her tricks. You know, she even giggled on cue." Dr. Morgan responds, "It's just like the therapist said.... Classic response. She's being kind to her abusers so she won't be hurt again " (emphasis added).

The above-quoted dialogue from ABC's docudrama gave rise to the case at bar. Vincent and Doris Foretich filed a diversity action for defamation, intentional infliction of emotional distress, and "insulting words" in the United States District Court for the Eastern District of Virginia, naming as defendants the producers and broadcasters of the ABC docudrama (collectively, "the defendants" or "ABC"). Plaintiffs' entire case is based on the utterance of a single sound--the "s" in the word "abusers," which allegedly indicated that Hilary was being abused not only by her father but also by one or both of her paternal grandparents. At the present stage of the litigation, it is undisputed that the "s" that converted the singular "abuser" into the plural "abusers" was included unintentionally.

The defendants filed a motion to dismiss the complaint for failure to state a claim or, alternatively, for summary judgment, arguing that the statement at issue, as a matter of law, could not be construed to defame the plaintiffs. The district court denied the motion, finding the statement capable of defamatory meaning: "[T]he use of the term 'her abusers' [by the actress portraying Dr. Morgan] could be reasonably understood by a [viewer] ... to refer to the plaintiffs as child abusers, and thus to be defamatory." Tr. of Hr'g, Oct. 22, 1993.

The defendants then filed a motion in limine requesting a finding that the plaintiffs were "limited-purpose public figures" and therefore would have to prove at trial that the defendants acted with "actual malice" as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The district judge orally denied the motion and held that the plaintiffs were "private individuals" for purposes of their defamation action. Thus, the New York Times "actual malice" standard would not apply.

Specifically, the judge stated that the Morgan-Foretich custody fight "was a private controversy that got a lot of publicity [and] notoriety," not a "public controversy." Even if the controversy were "public," the court held that the nature and extent of the Foretich grandparents' participation in the controversy was insufficient to make them "public figures" for the limited purpose of comment on the controversy:

[I]f someone is accused as these grandparents were of fairly heinous behavior, ought they be required to sit silently on pain of being declared a public figure and be limited to doing no more than say, "I didn't do it"? Shouldn't they be allowed to attack their accuser without subjecting themselves to being a public figure?

. . . . .

[O]ught a person such as these plaintiffs be required to limit themselves to merely denials in order not to become a public figure?

When he announced the court's decision from the bench, the judge added,

These plaintiffs did no more than defend themselves against fairly outrageous, even if true, accusations. And while they aggressively sought to defend themselves, I don't think they injected themselves into a point where they can be considered to have voluntarily assumed the role of prominence to the extent that this can be transformed into a public controversy in which they sought to influence the outcome.

The defendants requested an interlocutory appeal, pursuant to 28 U.S.C. Sec. 1292(b). The district court issued a written order noting that "there is substantial ground for differences of opinion." Therefore, the district court stayed the proceeding and certified to this Court the question "whether the plaintiffs are limited-purpose public figures." The defendants filed a petition for interlocutory appeal, which we granted.

Because the question of whether a defamation plaintiff is a "limited-purpose public figure" is an issue of law, see Reuber v. Food Chemical News, Inc., 925 F.2d 703, 708 (4th Cir.) (en banc), cert. denied, 501 U.S. 1212, 111 S.Ct. 2814, 115 L.Ed.2d 986 (1991); Fitzgerald v. Penthouse Int'l, Ltd., 691 F.2d 666, 669-70 (4th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1277, 75 L.Ed.2d 497 (1983); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293 n. 12 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980), we review de novo. In conducting our review, we "must look through the eyes of a reasonable person at the facts taken as a whole." Waldbaum, 627 F.2d at 1292.

* Prior to 1964, the common law of defamation strongly favored the State's interest in preventing and redressing injuries to individuals' reputations, and the prevailing view gave little or no weight to First Amendment considerations. See, e.g., Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919 (1952); Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1897). In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,