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

Douglas B. McKechnie

Volume 64, Issue 2, 469-498

This Article suggests that the U.S. 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. This Article begins by examining 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, this 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.This 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.

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