The Death of the Public Figure Doctrine: How the Internet and the Westboro Baptist Church Spawned a Killer

31 Pages Posted: 3 Aug 2012 Last revised: 21 Feb 2013

Douglas B. McKechnie

United States Air Force Academy

Date Written: March 1, 2012

Abstract

My article suggests that the United States Supreme Court’s public figure/private figure dichotomy announced in Gertz v. Robert Welch, Inc. should be abandoned in light of the Internet and Supreme Court jurisprudence that predates and postdates Gertz. First, the article examines the Supreme Court’s decision to bring defamatory speech into the realm of First Amendment protection, the creation of different burdens of proof for defamation cases, and the struggle to create sensible doctrine. To that end, the article explores not only Gertz, but the Court’s pre-Gertz majority and plurality opinions that articulated the contours of the First Amendment and defamation. The article demonstrates that while Gertz created a distinction between “public figures” and “private figures” for the purposes of determining the burden of proof in a defamation lawsuit, the reasoning behind these distinctions is no longer persuasive. I argue that because of the Internet, public figures no longer have exclusive or considerably greater access to the channels of effective communication. I also argue that the Gertz public figure/private figure dichotomy is destined to be abrogated because of the Roberts Court’s recent First Amendment jurisprudence regarding speech on matters of public concern. I argue that the Roberts Court’s vigorous defense of speech on matters of public concern foreshadows a rejection of the Gertz Court’s view that the First Amendment analysis to apportion burdens of proof should focus on whether a plaintiff is a “public figure” or “private figure.” Instead, I argue the Roberts Court’s holdings demonstrate that the more constitutionally appropriate question, in the first instance, is whether the defendant in a defamation lawsuit was speaking on a matter of public concern.

Suggested Citation

McKechnie, Douglas B., The Death of the Public Figure Doctrine: How the Internet and the Westboro Baptist Church Spawned a Killer (March 1, 2012). 64 Hastings L.J. 469 (January 2013). Available at SSRN: https://ssrn.com/abstract=2122575

Douglas B. McKechnie (Contact Author)

United States Air Force Academy ( email )

2354 Fairchild Drive, Suite 6H-190
USAFA, CO 80840
United States

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