SPEAKER_01 0:00

You know, usually when someone steals something from you, it is um it's entirely obvious. Right. Yeah. You walk out to your driveway in the morning, you've got your coffee in hand, and where your car used to be, there's just an empty patch of concrete.

SPEAKER_00 0:13

Yeah. You know immediately that something is wrong.

SPEAKER_01 0:16

Exactly. Or you reach into your pocket while standing at the cash register and your wallet is just gone. It's a physical, tangible loss. Right. It's clean, it's undeniable, and you immediately know exactly what to do. I mean, you call the police, you file a report, and you start the process of trying to get your property back. Trevor Burrus, Jr.

SPEAKER_00 0:35

Sure, because it's a very straightforward violation of your rights.

SPEAKER_01 0:38

But then you step into the world of defamation, and well, you have to ask yourself a much harder, much more existential question.

SPEAKER_00 0:46

Trevor Burrus, Jr.: Which is how do you measure the loss of your good name?

SPEAKER_01 0:48

Exactly. What happens when someone steals your reputation? Suddenly that clean, undeniable theft becomes incredibly murky.

SPEAKER_00 0:56

Oh, absolutely. It's a totally different landscape.

SPEAKER_01 0:59

We are looking at a landscape where the weapon used against you is just words. The damage is entirely invisible to the naked eye.

SPEAKER_00 1:05

Aaron Powell But the consequences are so real.

SPEAKER_01 1:08

Yeah. It can cost you your job, your friends, your standing in your community, and I mean your mental health. When your reputation is taken from you, there is no smoking gun, there is no broken window, and no obvious criminal to arrest.

SPEAKER_00 1:23

Aaron Powell It really is the absolute definition of diagnostic muddy waters in the legal world. Because unlike a stolen car, where your property rights are absolute and unquestioned, I mean nobody has a constitutional right to take your Honda Civic.

SPEAKER_01 1:37

Right.

SPEAKER_00 1:38

A stolen reputation forces us to confront a situation where two fundamental bedrock principles of our society are just colliding at high speed.

SPEAKER_01 1:46

The unstoppable force and the immovable object.

SPEAKER_00 1:48

Exactly. On one hand, you have an inherent right to protect your good name and your dignity, but simultaneously you have the First Amendment right of another person, or you know, a massive media corporation to speak their mind freely.

SPEAKER_01 2:00

Okay, let's unpack this because today that is exactly what we are mapping out. Welcome to the deep dive.

SPEAKER_00 2:06

Glad to be here.

SPEAKER_01 2:06

Today we are exploring the invisible legal architecture that dictates exactly what the media, or really anyone else for that matter, can and cannot say about you.

SPEAKER_00 2:17

And about me and the local baker down the street.

SPEAKER_01 2:20

Yes, and about the president of the United States. And as we're gonna see today, it turns out the rules are absolutely not the same for everyone.

SPEAKER_00 2:28

No, they aren't. And honestly, they can't be the same. That is the fascinating tension we are exploring today.

SPEAKER_01 2:35

Right.

SPEAKER_00 2:35

Because this isn't just about abstract legal theory, and we aren't just going to be, you know, memorizing Latin phrases.

SPEAKER_01 2:42

Thank goodness.

SPEAKER_00 2:42

This entire field of law from the sources we're looking at today, it's about the fundamental breathing space required for a functioning democracy to exist.

SPEAKER_01 2:51

Breathing space.

SPEAKER_00 2:52

Yeah. That breathing space is weighed directly against the essential dignity of every human being.

SPEAKER_01 2:57

Breathing space. I mean, that is a great phrase.

SPEAKER_00 2:59

It's crucial to understand it. Think of it this way: if the press is terrified to publish anything, if every single journalist has to worry that one minor factual error could result in a multimillion dollar lawsuit that just bankrupts their publication.

SPEAKER_01 3:16

Then democracy suffocates.

SPEAKER_00 3:18

Exactly. The press becomes completely paralyzed.

SPEAKER_01 3:20

But on the other side of the coin, if the press can say whatever they want with absolute unchecked immunity, then human dignity is destroyed.

SPEAKER_00 3:29

Yes. People's lives would be ruined by pure fabrication.

SPEAKER_01 3:33

And they would have zero recourse. The law of defamation is essentially society trying to find the exact midpoint on a constantly swaying tightrope.

SPEAKER_00 3:41

That's a perfect analogy.

SPEAKER_01 3:42

And for you listening right now, whether you are a voracious consumer of the daily news, someone who posts frequently on social media, or even just a professional navigating the corporate world.

SPEAKER_00 3:52

Which is most of us.

SPEAKER_01 3:53

Right. These rules govern the information you consume and the content you create every single day.

SPEAKER_00 3:58

You are actively participating in this legal framework all the time.

SPEAKER_01 4:02

Every time you retweet a controversial article, or every time you share a rumor on a neighborhood app, or, you know, leave a scathing review for a local restaurant.

SPEAKER_00 4:09

You're walking that tightrope.

SPEAKER_01 4:11

So to understand how this tightrope walk actually works in practice, we have to go back to a foundational moment. We need to look at the catalysts that really reshape this entire landscape of who can say what about whom. Right. We are talking about a major Supreme Court case from 1974. It's called Gertz versus Robert Welch, Inc.

SPEAKER_00 4:31

It is honestly impossible to understand modern defamation law without understanding the story of Elmer Gertz.

SPEAKER_01 4:38

So let's set the stage here.

SPEAKER_00 4:39

To set the stage, we have to look at the incredibly volatile core facts of this case. The plaintiff, Elmer Gertz, was just a private attorney in Chicago.

SPEAKER_01 4:48

Right.

SPEAKER_00 4:48

He had been retained by the family of a young man who had tragically been shot and killed by a Chicago police officer named Nuccio.

SPEAKER_01 4:55

Okay, so a very high-stakes emotional situation.

SPEAKER_00 4:59

Very much so. Now the police officer had actually already been convicted of second-degree murder in a criminal trial.

SPEAKER_01 5:04

So the criminal part was over.

SPEAKER_00 5:06

Yes. But Gertz wasn't a prosecutor, he was a civil attorney.

SPEAKER_01 5:09

Right, he's just representing the family.

SPEAKER_00 5:11

Exactly. His job was simply to represent the grieving family in a civil lawsuit against the officer, trying to get them financial compensation for their loss.

SPEAKER_01 5:20

So he was just doing his job as a lawyer in private practice.

SPEAKER_00 5:24

That's all he was doing.

SPEAKER_01 5:25

But the context of the era and the specifics of the case drew a lot of attention. I mean, we are talking about the late 60s and early 70s.

SPEAKER_00 5:33

Oh, yeah, a time of immense social upheaval.

SPEAKER_01 5:35

Trevor Burrus, Jr. Right. Civil rights struggles, high tensions between law enforcement and the public.

SPEAKER_00 5:40

It was a powder keg.

SPEAKER_01 5:41

And this is where a specific publication enters the story. A magazine published by the John Birch Society decided to run a story about the criminal trial of this police officer.

SPEAKER_00 5:51

Right. And we should explain who they were.

SPEAKER_01 5:53

Aaron Ross Powell Yeah. For some context from the source material on the publisher, the John Birch Society is a far-right wing group.

SPEAKER_00 5:59

Yes.

SPEAKER_01 6:00

And their stated organizational focus during this era was warning the American public about incursions on American institutions by communists.

SPEAKER_00 6:08

Right. They believed there were subversive, widespread communist plots operating within the United States.

SPEAKER_01 6:14

Aaron Powell And in this particular magazine article, they leveled some incredibly heavy, targeted accusations against several people involved in the prosecution of the police officer.

SPEAKER_00 6:23

And specifically against Elmer Gertz, the civil attorney.

SPEAKER_01 6:27

What exactly did they say about him?

SPEAKER_00 6:29

Well, the magazine made very specific, very damaging claims. They published statements accusing him of being a Leninist and a communist fronter.

SPEAKER_01 6:38

Wow.

SPEAKER_00 6:39

Yeah. And they went even further than that. They claimed he had been an official or member of organizations with names like the Marxist League for Industrial Democracy and the Intercollegiate Socialist Society.

SPEAKER_01 6:51

So they basically painted a picture of this private attorney as a central figure in a massive communist conspiracy to frame a police officer.

SPEAKER_00 6:59

Exactly. That was the narrative. Yeah. And we need to be completely unequivocal on this point. All these statements about Elmer Goertz were false.

SPEAKER_01 7:07

Completely fabricated.

SPEAKER_00 7:08

Yes. They were not matters of political interpretation. You know, they were factually demonstrably incorrect. Trevor Burrus, Jr.

SPEAKER_01 7:13

He was not a member of those organizations.

SPEAKER_00 7:15

He was not.

SPEAKER_01 7:16

So Gertz does what anyone in his position would do. He sues for defamation. Of course. He goes to court and says, look, you publish lies about me. My reputation in the community and in my profession is deeply damaged, and I want to be compensated for that harm. Right. But the publisher's defense is where the legal architecture really starts to bend in a fascinating way.

SPEAKER_00 7:36

Aaron Powell Because they didn't back down.

SPEAKER_01 7:38

No, the publisher didn't just say, oops, our bad, we made a mistake. They invoked a Supreme Court standard from a previous case. Trevor Burrus, Jr.

SPEAKER_00 7:46

Right. New York Times versus Sullivan.

SPEAKER_01 7:48

Yes. They claimed that Gertz was a public figure and that the trial of this police officer was a matter of public concern.

SPEAKER_00 7:55

Aaron Ross Powell So basically the publisher argued that because Gertz was tangentially involved in a high-profile case, he lost his normal protections as a private citizen.

SPEAKER_01 8:05

Aaron Powell That's a bold strategy.

SPEAKER_00 8:06

It really was. They argued the magazine should be protected from liability unless Gertz could prove something almost impossibly difficult.

SPEAKER_01 8:13

Trevor Burrus, Right. The publisher was trying to pull Gertz out of the category of a regular private citizen and like drag him into the category of a public figure.

SPEAKER_00 8:22

Exactly. And the reason they fought so hard to do that is because of a fundamental philosophical dilemma the Supreme Court had been wrestling with for a decade.

SPEAKER_01 8:32

A dilemma regarding free speech.

SPEAKER_00 8:34

Yes. In this decision, the Supreme Court has a famous, almost poetic line.

SPEAKER_01 8:40

I know the one.

SPEAKER_00 8:41

They stated, under the First Amendment, there is no such thing as a false idea.

SPEAKER_01 8:46

Okay, I want to stop right there because no such thing as a false idea sounds incredibly broad.

SPEAKER_00 8:51

It does sound massive.

SPEAKER_01 8:52

To a layperson, it almost sounds like the Supreme Court is saying that in the eyes of the Constitution, truth doesn't exist at all, but that's not what they mean, right?

SPEAKER_00 9:00

No, not at all.

SPEAKER_01 9:01

They are talking about the realm of philosophical ideas, opinions, and political beliefs.

SPEAKER_00 9:06

That's right. The court goes on to explain that however pernicious, controversial, or terrible an idea or opinion might seem to the majority of people, in a free society, we do not depend on judges and juries to correct it.

SPEAKER_01 9:18

We depend on the competition of other ideas.

SPEAKER_00 9:21

Yes, exactly. It is the classic marketplace of ideas concept.

SPEAKER_01 9:25

Right. So if someone is out there advocating for a terrible political philosophy, the constitutionally approved remedy isn't to sue them into silence.

SPEAKER_00 9:34

No, the remedy is more speech.

SPEAKER_01 9:37

It's better speech to counteract the bad idea.

SPEAKER_00 9:40

Exactly. That's the core of the First Amendment.

SPEAKER_01 9:42

I see the logic there. If you start letting the government decide which ideas are false, you're on a fast track to censorship.

SPEAKER_00 9:48

Oh, immediately.

SPEAKER_01 9:49

But here is the rub with the Goertz case. Calling someone a card-carrying member of the Marxist League for Industrial Democracy isn't just floating a philosophical idea about the merits of Marxism.

SPEAKER_00 10:01

Not at all.

SPEAKER_01 10:02

That is a concrete, verifiable claim about a specific person's actions.

SPEAKER_00 10:07

Precisely. And the Supreme Court recognized that exact distinction.

SPEAKER_01 10:10

Yeah.

SPEAKER_00 10:11

That brings us to the very next sentence in their logic in the source text.

SPEAKER_01 10:14

Okay.

SPEAKER_00 10:14

While there is no such thing as a false idea, there's absolutely no constitutional value in false statements of fact.

SPEAKER_01 10:21

So facts and ideas are treated totally differently.

SPEAKER_00 10:24

Yes. A deliberate lie, or even just a careless factual error about a person, it doesn't materially advance society's interest in having a robust, wide open debate.

SPEAKER_01 10:35

It just muddies the waters.

SPEAKER_00 10:36

Right. In fact, false statements of fact are seen as having such slight social value that any marginal benefit they might provide is clearly outweighed by the social interest in order, morality, and protecting citizens.

SPEAKER_01 10:51

It makes me think of trying to tune a really delicate, complex instrument like a grand piano.

SPEAKER_00 10:57

Okay, I like this analogy.

SPEAKER_01 10:59

If the Supreme Court decides to punish every single tiny factual error that a newspaper makes, if they tighten the strings of liability too much, the press becomes utterly paralyzed.

SPEAKER_00 11:09

They absolutely would.

SPEAKER_01 11:10

Imagine a world where a local newspaper is investigating deep-seated corruption in the city hall.

SPEAKER_00 11:15

Okay.

SPEAKER_01 11:16

If they know that getting one minor date wrong or misidentifying a minor player in the scheme could result in a defamation judgment that literally bankrupts the paper.

SPEAKER_00 11:25

And shuts down their printing presses.

SPEAKER_01 11:26

Right. They just won't run the story.

SPEAKER_00 11:28

They couldn't afford to risk it.

SPEAKER_01 11:29

Exactly. They play it so safe that they stop investigating corruption altogether. They stop reporting on controversial figures because the financial risk of a minor mistake is just way too high.

SPEAKER_00 11:40

It leads to what legal scholars call intolerable self-censorship.

SPEAKER_01 11:44

Intolerable self-censorship. They stop playing the music entirely and the public is left in the dark.

SPEAKER_00 11:50

That is a phenomenal way to conceptualize the danger of strict liability for the press.

SPEAKER_01 11:54

Thanks.

SPEAKER_00 11:55

And actually, James Madison, one of the primary architects of the First Amendment, he pointed this out way back in 1798.

SPEAKER_01 12:01

Really? That early.

SPEAKER_00 12:02

Yeah. He noted that some degree of abuse is inseparable from the proper use of everything. And that is especially true of the press.

SPEAKER_01 12:10

I mean, that makes sense. Human beings are running the presses.

SPEAKER_00 12:13

Right. The inevitable reality of human error in a system of free, rapid debate is that erroneous statements of fact are just going to happen.

SPEAKER_01 12:22

Deadlines exist.

SPEAKER_00 12:23

Sources lie. Exactly. If you demand perfect, flawless accuracy 100% of the time under threat of massive company-ending lawsuits, you destroy the institution of the press.

SPEAKER_01 12:35

The strings are too tight and the piano breaks.

SPEAKER_00 12:37

Yes. The First Amendment actually requires us to protect some level of falsehood in order to protect the speech that actually matters. It needs that breathing space we talked about to function.

SPEAKER_01 12:48

But let's look at the flip side of that piano analogy. If you loosen the strings completely, if you grant the press absolute unconditional immunity to say whatever they want without any consequences whatsoever, the instrument just makes a horrible, chaotic noise. If a major broadcast network can just invent a story out of thin air that a local teacher is a serial arsonist and they face zero legal consequences. People's reputations, their livelihoods, and their standing in their communities are utterly destroyed.

SPEAKER_00 13:22

And they would have absolutely no recourse to fix it. Aaron Powell, which brings us back to Justice Stewart's profound observation during these debates in the Supreme Court.

SPEAKER_01 13:33

What did he say?

SPEAKER_00 13:34

He reminded the court that an individual's right to the protection of his own good name is not just some frivolous vanity project.

SPEAKER_01 13:42

It's not just about ego.

SPEAKER_00 13:44

No. It reflects our basic concept of the essential dignity and worth of every human being. He said it is at the root of any decent system of ordered liberty.

SPEAKER_01 13:54

That's a really powerful way to frame it.

SPEAKER_00 13:56

We cannot lightly ask the state to abandon the compensation of individuals who have been deeply materially harmed by defamatory falsehoods.

SPEAKER_01 14:04

Because if society tells an innocent person whose life was ruined by a lie, sorry, you just have to take the hit for the greater good of free speech.

SPEAKER_00 14:13

Then society loses its moral center.

SPEAKER_01 14:15

So how did the Supreme Court ultimately resolve this incredible tension in the Goertz case?

SPEAKER_00 14:20

Well, remember the publisher's argument.

SPEAKER_01 14:21

Right. The John Bridge Society magazine was arguing that Goertz, by virtue of taking this high-profile police shooting case, had become a public figure.

SPEAKER_00 14:30

Yes, and therefore should have almost no protection against their false claims.

SPEAKER_01 14:34

Did the court agree with that?

SPEAKER_00 14:36

They did not.

SPEAKER_01 14:36

Oh, interesting.

SPEAKER_00 14:37

The Supreme Court looked closely at the facts of Elmer Goertz's life and his specific involvement in the case. The trial court had initially concluded that Gertz was neither a public official nor a public figure.

SPEAKER_01 14:50

Okay.

SPEAKER_00 14:50

And the Supreme Court ultimately agreed with that assessment.

SPEAKER_01 14:53

Aaron Ross Powell Because he was just a lawyer doing his job.

SPEAKER_00 14:56

Exactly. They pointed out that he was just a private attorney representing a client. He didn't take any part in the criminal prosecution of the police officer.

SPEAKER_01 15:04

Right. That was already done.

SPEAKER_00 15:05

Right. He didn't actively discuss the civil litigation with the press. He didn't thrust himself into the vortex of this massive public issue to try and influence its outcome on a national scale.

SPEAKER_01 15:16

He didn't call press conferences.

SPEAKER_00 15:17

No, he was just a private individual. And because of that, the Supreme Court ruled that the incredibly high, nearly impossible burden of proof placed on public figures in defamation suits did not apply to him.

SPEAKER_01 15:29

Okay, that makes sense.

SPEAKER_00 15:30

The states needed to retain substantial latitude to protect private individuals like Elmer Goertz.

SPEAKER_01 15:35

Aaron Powell And this decision right here this is the earthquake that creates the modern landscape.

SPEAKER_00 15:40

It really is.

SPEAKER_01 15:41

Because the Supreme Court decided that Gertz's specific status mattered so much that the rules for him as a private citizen were fundamentally different than the rules for a politician or a celebrity. Yes. We now have a legal system that categorizes every single person into different buckets.

SPEAKER_00 15:59

That's the architecture.

SPEAKER_01 16:00

That invisible legal architecture we talked about at the very beginning is entirely dependent on which bucket you fall into.

SPEAKER_00 16:06

Because those buckets dictate exactly what your rights are.

SPEAKER_01 16:09

And how hard it is to fight back when someone lies about you.

SPEAKER_00 16:12

Yes, the Goertz decision solidified a tiered system of justice in defamation law.

SPEAKER_01 16:17

So if I file a lawsuit tomorrow.

SPEAKER_00 16:20

Whenever a defamation case is filed today, the very first step before looking at the lie itself, before looking at the damage, is figuring out who the plaintiff is.

SPEAKER_01 16:29

What bucket they are in.

SPEAKER_00 16:31

Exactly. And the most heavily scrutinized bucket, the one that affords you the absolute fewest protections against defamatory falsehoods, is the combined category of public officials and all-purpose public figures.

SPEAKER_01 16:44

Let's dig into that first bucket. Let's start with public officials. Right. Because on its face, that term could mean a lot of things. Who exactly counts?

SPEAKER_00 16:52

It's a broad term.

SPEAKER_01 16:53

Right. So for example, is the person who sorts the mail at the local Department of Motor Vehicles a public official? Because they do get a government paycheck. They do. And a public school kindergarten teacher gets a government paycheck. If every single government employee is a public official, that seems like a massive, really unwieldy category. Trevor Burrus, Jr.

SPEAKER_00 17:14

You're hitting on the exact problem the courts faced immediately after creating this category. They quickly realized they had to draw a line.

SPEAKER_01 17:21

Where did they draw it?

SPEAKER_00 17:22

In a subsequent case called Hutchinson versus Proxmire, the Supreme Court explicitly held that the term public official cannot be thought to include all public employees.

SPEAKER_01 17:31

Okay, good. So just getting a paycheck from the government doesn't strip you of your private reputation rights?

SPEAKER_00 17:37

No, it doesn't. Instead, courts use a standard that was articulated in a case called Wilkinson. They look at the extent to which the government employee has the authority to affect public policy in their official capacity.

SPEAKER_01 17:49

Okay, authority to affect public policy. I think I see where the line is drawn.

SPEAKER_00 17:54

Give me an example.

SPEAKER_01 17:55

So the male clerk at the DMV who has zero say in how the department is run is not a public official. Correct. But the appointed director of the department of motor vehicles, the person who actually decides the policies for the whole state, who decides how licenses are issued and how data is managed.

SPEAKER_00 18:14

Yes.

SPEAKER_01 18:14

That person is definitely a public official.

SPEAKER_00 18:17

Exactly. The rule of thumb is that elected officials, your mayors, city council members, state senators, and obviously the president of the United States. Right. As well as high-ranking appointed officials and even former office holders who still wield influence, they fall squarely under the definition of public officials. They are the ones pulling the levers of state power.

SPEAKER_01 18:37

And sharing that exact same difficult bucket are the all-purpose public figures?

SPEAKER_00 18:41

Yes.

SPEAKER_01 18:42

These are people who do not hold any government office, but they have achieved what the courts call pervasive fame or notoriety.

SPEAKER_00 18:49

We are talking about A-list Hollywood celebrities.

SPEAKER_01 18:53

World famous athletes.

SPEAKER_00 18:54

Household name billionaires.

SPEAKER_01 18:56

Right. They are public figures for all purposes and in all contexts.

SPEAKER_00 19:00

Anywhere they go.

SPEAKER_01 19:01

But here is the question that I think a lot of people struggle with. Why do we group the mayor of a major city and a movie star together?

SPEAKER_00 19:10

It does seem strange at first glance.

SPEAKER_01 19:11

And we say to both of them, you both get drastically less protection if someone prints a lie about you. I mean, I I understand why we scrutinize the mayor.

SPEAKER_00 19:20

They control our taxes.

SPEAKER_01 19:21

Exactly. But why do we strip protections from the movie star? What is the underlying rationale for this grouping?

SPEAKER_00 19:28

It's a great question. And the Supreme Court articulated two distinct, very compelling reasons for this disparity in protection. Okay. The first reason is entirely practical. It is about access to self-help.

SPEAKER_01 19:41

Self-help meaning defending themselves.

SPEAKER_00 19:44

Yes. The courts recognize that the first and most effective remedy for any victim of defamation isn't spending five years in a civil lawsuit.

SPEAKER_01 19:52

Right. Lawsuits take forever.

SPEAKER_00 19:53

It's using available opportunities to contradict the lie publicly and minimize the impact in real time.

SPEAKER_01 19:59

Okay, so how does that connect to celebrities?

SPEAKER_00 20:02

Well, public officials and famous public figures enjoy significantly greater access to the channels of mass communication.

SPEAKER_01 20:10

Ah, I see.

SPEAKER_00 20:11

If a tabloid prints a massive, damaging lie about a famous actor, that actor doesn't just have to sit there and take it.

SPEAKER_01 20:18

They can call a press conference.

SPEAKER_00 20:20

They can go on a late night talk show the very next evening.

SPEAKER_01 20:23

Or they can post a video to their 50 million followers on social media to set the record straight immediately.

SPEAKER_00 20:29

Exactly. They have a realistic, powerful opportunity to counteract the falsehood with their own megaphone.

SPEAKER_01 20:36

Which is completely different from a private individual.

SPEAKER_00 20:38

Completely different.

SPEAKER_01 20:39

If the local paper prints a lie about Elmer Gertz or a local plumber or a small business owner, they don't have a megaphone.

SPEAKER_00 20:47

No.

SPEAKER_01 20:47

They can scream the truth from their front porch all day long, but nobody is going to hear them.

SPEAKER_00 20:52

Nobody cares.

SPEAKER_01 20:53

They can't demand a spot on the evening news to clear their name. They are far more vulnerable to injury because they lack the practical means of self-defense.

SPEAKER_00 21:01

Precisely. Vulnerability is the core practical difference.

SPEAKER_01 21:04

Okay. What was the second reason?

SPEAKER_00 21:05

The second reason the court gave is a normative consideration, a moral rationale about how society operates. It essentially comes down to the assumption of risk.

SPEAKER_01 21:15

Assumption of risk, like signing a waiver.

SPEAKER_00 21:18

Sort of. An individual who decides to run for governmental office knows exactly what they are doing.

SPEAKER_01 21:23

They know they are stepping into the arena.

SPEAKER_00 21:25

Yes. They must accept the necessary consequences of that involvement, which inevitably includes running the risk of much closer, sometimes brutal public scrutiny.

SPEAKER_01 21:36

Because the public has a right to know.

SPEAKER_00 21:38

The public has a legitimate, burning interest in the character and fitness of the people who govern them.

SPEAKER_01 21:44

But wait, even if that scrutiny touches on their completely private lives, say something they did before they even ran for office.

SPEAKER_00 21:50

Yes. The court noted that few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or a lack of integrity.

SPEAKER_01 22:00

Of those show up in their private character.

SPEAKER_00 22:01

Trevor Burrus Exactly. If you want to govern us, we get to scrutinize your character deeply.

SPEAKER_01 22:04

Okay. And how does that apply to the celebrities?

SPEAKER_00 22:06

Aaron Ross Powell Society assumes that those who achieve pervasive fame, the celebrities, the billionaires, have also, for the most part, voluntarily exposed themselves to increased risk.

SPEAKER_01 22:18

Aaron Powell They invited the attention.

SPEAKER_00 22:20

They built their careers on public attention.

SPEAKER_01 22:22

Yeah.

SPEAKER_00 22:23

And they cannot suddenly turn off the public's interest when the coverage becomes negative.

SPEAKER_01 22:27

Aaron Powell So if you are in this bucket, if you are famous or you hold office, does that basically mean you lose your right to sue entirely? Oh no. Is it just open season? Can a newspaper or a political rival print a totally fabricated lie about the president or a famous actor and face absolutely zero consequences?

SPEAKER_00 22:47

Aaron Ross Powell No, it is not a complete free-for-all. They don't lose the right to sue completely, but they are handed a massive legal shield they have to break through.

SPEAKER_01 22:54

Aaron Powell The Shield protects the publisher.

SPEAKER_00 22:56

Yes. This is where we encounter the infamous standard established in the New York Times versus Sullivan case.

SPEAKER_01 23:01

Okay.

SPEAKER_00 23:01

If a public official or an all-purpose public figure wants to win a defamation lawsuit, they cannot just walk into court and prove that the statement was false and that it damaged their reputation.

SPEAKER_01 23:12

That's not enough.

SPEAKER_00 23:13

That's not enough. They must prove with clear and convincing evidence that the publisher acted with what the law calls actual malice.

SPEAKER_01 23:22

Actual malice. Okay, this is one of those legal terms that drives me crazy.

SPEAKER_00 23:25

I know, it's very misleading.

SPEAKER_01 23:26

Because it sounds like it means one thing in plain English, but it means something entirely different when you step inside a courtroom.

SPEAKER_00 23:33

It really does.

SPEAKER_01 23:33

In everyday language, if I say someone acted with malice toward me, it means they hate me.

SPEAKER_00 23:38

Yes, exactly.

SPEAKER_01 23:39

They have an evil intent, a vendetta, they want to destroy my life out of pure spite and vindictiveness.

SPEAKER_00 23:45

And that plain English definition is exactly what the Supreme Court warned about. It causes endless confusion.

SPEAKER_01 23:51

I bet.

SPEAKER_00 23:52

In fact, the court itself later called actual malice an unfortunate phrase because it misleads juries so often.

SPEAKER_01 23:59

Aaron Ross Powell Because legally, in the strict confines of defamation law, actual malice has absolutely nothing to do with hatred, spite, or ill will.

SPEAKER_00 24:08

Nothing at all. A journalist could absolutely hate a politician's guts, write a highly critical article hoping to ruin their career, and still not be guilty of actual malice.

SPEAKER_01 24:18

Wait, really? Even if they want to destroy the person.

SPEAKER_00 24:22

Yes. Because actual malice is a highly specific, two-pronged technical test regarding the truth of the statement, not the motive of the writer. Aaron Powell Okay.

SPEAKER_01 24:33

What are the two prongs?

SPEAKER_00 24:35

To prove actual malice, the public figure plaintiff must prove that the publisher either, number one, actually knew that the statement was false when they published it.

SPEAKER_01 24:45

Aaron Powell Meaning it was a calculated, deliberate lie.

SPEAKER_00 24:48

Yes. Or, number two, that they published it with reckless disregard for whether it was true or false. Trevor Burrus, Jr.

SPEAKER_01 24:54

They knew it was a lie, or they recklessly didn't care if it was a lie.

SPEAKER_00 24:57

That's the test.

SPEAKER_01 24:58

I mean, that is an incredibly high bar to clear. Because think about what that means practically. You aren't just proving the article is wrong. You were having to prove what someone knew at the exact moment they hit the publish button. How do you prove what was inside a journalist's head three years ago?

SPEAKER_00 25:12

It's notoriously difficult. It's no wonder this standard is so tough. It exacts a massive price from the victims. Many deserving plaintiffs, even those who were intentionally targeted and subjected to terrible injury by sloppy reporting, will be completely unable to surmount this evidentiary barrier.

SPEAKER_01 25:30

They just won't be able to find the smoking gun email that proves the journalist knew it was a lie.

SPEAKER_00 25:35

Exactly. It is a barrier designed intentionally to be nearly insurmountable. It goes back to that breathing space.

SPEAKER_01 25:41

Better to let a few lies slide than freeze the press.

SPEAKER_00 25:44

The court would rather a few public figures suffer unfair reputational damage than have the press terrified to publish anything critical about powerful people.

SPEAKER_01 25:54

But while we are on the topic of powerful people, I want to highlight something fascinating from the sources about how this public figure category evolved. It involves Chief Justice Earl Warren.

SPEAKER_00 26:05

Ah yes.

SPEAKER_01 26:05

Warren joined the Sullivan majority that established this actual malice rule for government officials. But a few years later, in a case called Curtis Publishing Co. vs. Butts, he offered a really profound, forward-looking critique of the distinction between public officials and private citizens.

SPEAKER_00 26:21

Oh, this is the corporate power broker argument.

SPEAKER_01 26:24

Yes. I found this part incredibly relevant to today's world, maybe even more so than when he wrote it. What was Justice Warren's observation?

SPEAKER_00 26:32

So Warren observed that in the post-war period, there was a massive, unprecedented growth in the power of corporate America.

SPEAKER_01 26:40

Right.

SPEAKER_00 26:40

He argued that the strict, traditional line between a government official and a powerful private citizen was becoming an illusion.

SPEAKER_01 26:48

Aaron Powell Because they both have so much power.

SPEAKER_00 26:50

Aaron Ross Powell Exactly. He pointed out that people in positions of immense private power, like a senior corporate executive at a critical industry, a major defense contractor, or a banking magnate. Yeah. They wielded just as much, if not more, influence over the daily lives of everyday Americans as many elected officials. Trevor Burrus, Jr.

SPEAKER_01 27:08

And yet they aren't directly accountable to voters.

SPEAKER_00 27:10

No, they aren't.

SPEAKER_01 27:11

I mean, if a state senator passes a bad law, we can vote them out in two years. Right. But we can't vote out the CEO of a massive tech monopoly or the head of a major pharmaceutical conglomerate or an energy titan whose decisions affect the climate.

SPEAKER_00 27:25

Exactly. They hold systemic power over our lives, but they operate legally as private citizens.

SPEAKER_01 27:31

So what did Warren suggest?

SPEAKER_00 27:33

Because of this reality in our political economy, Warren argued that these private power brokers possessed ready access to mass media, to influence policy, and to counter criticism, just like public officials.

SPEAKER_01 27:46

They hire massive PR firms.

SPEAKER_00 27:48

They can get on the cover magazines whenever they want. Therefore, he believed it was intellectually dishonest to treat them like fragile private citizens.

SPEAKER_01 27:56

So he wanted to hold them to the actual malice standard, too.

SPEAKER_00 28:00

Yes. He argued they should absolutely be required to meet the same tough standard when they sue their critics. They are public figures, not just because they are famous, but because they hold systemic societal power.

SPEAKER_01 28:12

And did the rest of the court agree?

SPEAKER_00 28:14

The Supreme Court ultimately adopted Warren's view in Gertz, cementing the reality that if you hold enough private power, you are treated with the same tough standard as a politician.

SPEAKER_01 28:24

So mapping this out, it makes total sense that the president of the United States is in the public official bucket. And it makes sense that a famous CEO, a tech billionaire, or a Hollywood star is in the all-purpose public figure bucket. The rules for them are clear. If you want to sue the media, prove actual malice or go home.

SPEAKER_00 28:43

That's the baseline.

SPEAKER_01 28:44

And the rules for a totally private citizen, like Elmer Goertz just going to work and minding his own business, are also fairly clear.

SPEAKER_00 28:51

Right. They don't have to prove actual malice because they didn't invite the scrutiny and they can't easily fight back.

SPEAKER_01 28:57

But what if you don't fit neatly into either of those extremes? What if you are a completely normal, everyday person who just happens to get caught up in a massive hot button issue?

SPEAKER_00 29:08

Where do you fall on the grid?

SPEAKER_01 29:09

Yeah, exactly. Where do they go?

SPEAKER_00 29:10

Now we are entering the true gray area. This is the most difficult, heavily litigated terrain in all of defamation law. Okay. The Supreme Court recognized that there are people who aren't pervasively famous. They aren't movie stars or CEOs, but who shouldn't be treated as purely private citizens either, at least regarding certain specific topics.

SPEAKER_01 29:31

So they made a new category.

SPEAKER_00 29:32

Yes.

SPEAKER_01 29:33

Yes.

SPEAKER_00 29:33

They created a hybrid subcategory called the limited public figure.

SPEAKER_01 29:37

The limited public figure, this is where my favorite legal description of all time comes into play.

SPEAKER_00 29:41

From the Rosanova case.

SPEAKER_01 29:43

Yes. A 1976 case, Rosanova vs. Playboy Enterprises, stated that trying to distinguish between limited public figures and private individuals in court is, quote, much like trying to nail a jellyfish to the wall.

SPEAKER_00 29:57

It is a brilliant, highly accurate metaphor. The category is incredibly elusive, fluid, and context-dependent.

SPEAKER_01 30:05

So how does that work?

SPEAKER_00 30:06

Under the Gertz framework, if a court deems you a limited public figure, you are judged by that same unforgiving, actual malice standard that the president faces.

SPEAKER_01 30:15

But only for certain things.

SPEAKER_00 30:17

Exactly. Only for a limited range of issues related to a specific controversy.

SPEAKER_01 30:21

How do they figure out who fits this?

SPEAKER_00 30:23

Initially, the court provided very little guidance, simply stating that these are individuals who voluntarily inject themselves or are drawn into a particular public controversy to influence its outcome.

SPEAKER_01 30:35

So expanding on that idea, it's the difference between volunteering to step into a boxing ring versus getting punched while you're just walking down the street minding your own business.

SPEAKER_00 30:44

That's a good way to look at it.

SPEAKER_01 30:45

If you voluntarily put on the gloves, step through the ropes, and start throwing punches in a public match, you have assumed the risk of getting hit.

SPEAKER_00 30:53

You can't complain to the referee when the opponent swings back at you. That's what you signed up for.

SPEAKER_01 30:58

But if you are just walking to the grocery store and someone sucker punches you, you are a victim who deserves full protection.

SPEAKER_00 31:04

Exactly.

SPEAKER_01 31:04

The really tricky part in the modern era, though, is figuring out how a court actually decides if you stepped into the ring.

SPEAKER_00 31:12

Especially today.

SPEAKER_01 31:13

Right. Where a private citizen can film a controversial video on their phone, post it online, and suddenly it's viewed by 10 million people in a day. Did they step into the ring or were they dragged into it by the algorithm?

SPEAKER_00 31:26

It's messy.

SPEAKER_01 31:27

What is the legal test for nailing this jellyfish to the wall?

SPEAKER_00 31:32

The courts absolutely had to develop a more rigid framework because lower courts were wildly inconsistent.

SPEAKER_01 31:38

Okay, what's the framework?

SPEAKER_00 31:39

A pivotal case from 2005 out of the DC circuit, OAO Alpha Bank versus Center for Public Integrity, applied a very specific, stringent three-part inquiry.

SPEAKER_01 31:50

Okay, three parts.

SPEAKER_00 31:51

If a publisher is being sued by someone and the publisher wants to claim, hey, this person is a limited public figure, hold them to the actual malice standard, the publisher has to prove three distinct things to the judge.

SPEAKER_01 32:03

What's the first one?

SPEAKER_00 32:04

First, is there a public controversy at issue? And it can't just be a matter of private gossip or a local spat. It has to be a debate that has real, foreseeable societal implications.

SPEAKER_01 32:17

Okay. What's the second part?

SPEAKER_00 32:18

Second. Did the plaintiff achieve prominence in that specific debate? Did they step into a leadership role or try to actively steer the conversation?

SPEAKER_01 32:26

Did they put on the gloves?

SPEAKER_00 32:28

Yes. And third, is the alleged defamation actually related to their participation in that controversy?

SPEAKER_01 32:34

So the lie has to be about the thing they're fighting about in the ring.

SPEAKER_00 32:38

Exactly.

SPEAKER_01 32:38

Let's look at some concrete examples from the sources, because they perfectly illustrate how this three-part test works in practice and how razor-thin the margins can be.

SPEAKER_00 32:47

Okay, let's do it.

SPEAKER_01 32:48

The first example is from that Alpha Bank case itself. The plaintiffs in this defamation suit were two very powerful Russian oligarchs.

SPEAKER_00 32:56

Yes. The context here is crucial. These individuals played a highly significant, well-documented role in Boris Yeltsin's move to privatize the Russian economy after the fall of the Soviet Union.

SPEAKER_01 33:08

A massive historical event.

SPEAKER_00 33:10

Exactly. That privatization was a definitive public controversy that affected global markets and the lives of millions. So part one of the test is met. There is a major public controversy.

SPEAKER_01 33:22

Did they achieve prominence?

SPEAKER_00 33:24

Absolutely. These oligarchs achieved undeniable prominence in that economic transition. They weren't just bystanders, they were key players actively shaping the new economic reality.

SPEAKER_01 33:35

Aaron Powell So they are in the ring. What about part three?

SPEAKER_00 33:38

Part three. The defamation alleged against them in the publication was directly related to their business dealings and their specific role in that economic shift.

SPEAKER_01 33:45

Aaron Powell It wasn't about their private family life.

SPEAKER_00 33:48

No, it was about their public actions in this controversy.

SPEAKER_01 33:50

So the court looked at the three-part test and concluded that yes, they were limited public figures regarding their involvement in Russian privatization.

SPEAKER_00 33:57

They knowingly stepped into that specific boxing ring.

SPEAKER_01 34:00

Therefore, to win their defamation suit, they had to prove actual malice. They had to prove the publisher knew the claims were false or was reckless. Yes. Now, let's contrast that powerful example with a second scenario involving a much more ordinary person. The case is Sewell versus Tribb publications from Georgia.

SPEAKER_00 34:19

Oh, this is a very different fact pattern.

SPEAKER_01 34:21

Completely different. The plaintiff in this case was an assistant university professor. He was in his own classroom doing his job discussing America's military involvement in the Iraq War with his students. Okay. A local newspaper subsequently got wind of this and reported that the professor had made anti-American remarks in class. The professor sued the newspaper for defamation, saying this false report ruined his reputation and his career prospects.

SPEAKER_00 34:47

So the newspaper tries to use the exact same defense. They say he's a limited public figure.

SPEAKER_01 34:52

Let's run the three-part test on the professor.

SPEAKER_00 34:54

Part one. Is there a public controversy?

SPEAKER_01 34:56

Definitely. The war in Iraq was one of the biggest public controversies of the decade.

SPEAKER_00 35:01

Okay, but what happens when we hit the second part of the test? Did this assistant professor achieve prominence in the national debate about the Iraq War?

SPEAKER_01 35:10

The Georgia Court of Appeals looked at that exact question and said absolutely not.

SPEAKER_00 35:15

They held that the professor was not a limited purpose public figure.

SPEAKER_01 35:19

Right. Their key reasoning was evaluating his actions and his access to the media.

SPEAKER_00 35:25

Because he didn't thrust himself to the forefront of the controversy in any public forum.

SPEAKER_01 35:29

Exactly. He was speaking in a closed classroom to a captive audience of his students. He didn't seek out media outlets that are generally unavailable to private citizens.

SPEAKER_00 35:40

He didn't hold a press conference.

SPEAKER_01 35:41

He didn't write op-eds for national syndication. He didn't go on cable news to debate foreign policy.

SPEAKER_00 35:47

He did not assume the risk incident to a public role. He was just doing his job as an educator in a private setting.

SPEAKER_01 35:53

So because he didn't put on the gloves, because he didn't actively seek out the fight in the public square, he remains a private citizen in the eyes of the law. And for anyone wondering how this practically affects a lawsuit, I want to clarify a legal term that pops up here in the source material. The court reversed the summary judgment for the newspaper. Right, let's explain that. In plain English, a summary judgment is when a judge looks at a case early on and says, there's no point in having a trial because the law is so clearly on one side. Case dismissed.

SPEAKER_00 36:25

The newspaper had initially won a summary judgment by claiming he was a public figure who couldn't prove actual malice.

SPEAKER_01 36:31

But the appellate court reversed that. They said, no, he's a private citizen. The high bar of actual malice does not apply to him.

SPEAKER_00 36:38

Which is a huge win for the professor.

SPEAKER_01 36:40

This means he actually gets to take his case to a jury and just prove the newspaper was negligent.

SPEAKER_00 36:45

It is a razor-thin distinction where you are speaking and to whom, but it changes the entire trajectory of a lawsuit.

SPEAKER_01 36:53

It dictates whether a plaintiff's case is thrown out on day one or if they have a realistic chance of winning compensation from a jury.

SPEAKER_00 37:00

It's the difference between hitting a brick wall and having an open door to the courtroom.

SPEAKER_01 37:04

Which brings us to a critical logistical juncture in all of this. Let's go back to our public officials, our all-purpose publisher figures, and our limited public figures.

SPEAKER_00 37:14

The actual malice group.

SPEAKER_01 37:16

Yes. If any of those people actually decide to push forward and sue a publisher, they are staring down the barrel of that actual malice requirement. Right. We know they have to prove, with clear and convincing evidence, that the publisher acted with reckless disregard of the truth. But how does a lawyer actually do that in a courtroom?

SPEAKER_00 37:37

That is a fascinating problem of evidence.

SPEAKER_01 37:39

It's one thing to say a legal standard exists as a textbook. It's another to prove it in front of 12 jurors.

SPEAKER_00 37:45

Oh, absolutely.

SPEAKER_01 37:46

I mean, how do you legally prove what was going on inside a journalist's head at the precise moment they hit the publish button? How do you prove recklessness?

SPEAKER_00 37:54

You can't read minds.

SPEAKER_01 37:55

Exactly. Are you just relying on them to confess on the stand, yes, I knew it was being reckless because that's never gonna happen.

SPEAKER_00 38:01

No, it never happens. And the Supreme Court knew they had to tackle this exact evidentiary nightmare. They had to give lower courts instructions on what reckless disregard actually looks like in practice.

SPEAKER_01 38:14

How do they do that?

SPEAKER_00 38:16

In a 1968 case called Sandamont vs. Thompson, Justice White attempted to define the outer limits of reckless disregard. Okay. And he articulated two tests that, on their face, appear somewhat inconsistent. It is one of the most nuanced, heavily debated details in this area of law.

SPEAKER_01 38:35

I want to really dig into this because this is where the rubber meets the road in litigation. What was the first test Justice White proposed for proving recklessness?

SPEAKER_00 38:44

The first test is highly subjective. It's focused entirely on the inner workings of the journalist's mind.

SPEAKER_01 38:50

Okay.

SPEAKER_00 38:50

Justice White held that to prove reckless disregard, there must be sufficient evidence to permit the conclusion that the defendant in fact entertains serious doubts as to the truth of his publication.

SPEAKER_01 39:02

Entertain serious doubts. Yes. That is purely subjective. That means the jury has to look at the journalist and try to determine did you personally, in your own mind, think this story might be a lie, but you went ahead and published it anyway? And practically speaking, how does a lawyer prove that? They do it through the discovery process. They subpoena the journalists' emails, their text messages, the internal Slack channels at the news organization.

SPEAKER_00 39:26

Yes. You are looking for evidence of their state of mind.

SPEAKER_01 39:29

The lawyer is looking for that one message from an editor that says, Hey, the soul seems really shady. Are we sure about this?

SPEAKER_00 39:35

And the reporter replying, I don't know, but it'll get a lot of clicks. Let's run it.

SPEAKER_01 39:39

Right. That email proves they entertained serious doubts.

SPEAKER_00 39:43

Exactly. You are hunting for a paper trail of doubt.

SPEAKER_01 39:46

Okay, what was the second test?

SPEAKER_00 39:48

Later in that exact same opinion, Justice White introduced a second entirely different test. He held that a publisher is not likely to prevail when their allegations are so inherently improbable that only a reckless man would have put them in circulation.

SPEAKER_01 40:03

Okay, now that sounds totally different. That is an objective test.

SPEAKER_00 40:07

Very much so.

SPEAKER_01 40:08

It doesn't ask what the specific individual journalist was thinking or feeling. Yeah. It asks what a reasonable, hypothetical, reckless man would do.

SPEAKER_00 40:15

It looks at the story itself.

SPEAKER_01 40:17

The actual content of the article and says this claim is so absurd, so entirely devoid of logic or supporting evidence on its face that anyone, literally anyone publishing it must be acting recklessly. Right. It's like if a newspaper published a story claiming the mayor is an extraterrestrial alien who eats cars.

SPEAKER_00 40:36

That's a great example.

SPEAKER_01 40:37

You don't need an email proving the journalist had doubts. The claim itself is inherently improbable.

SPEAKER_00 40:43

Precisely. You have a subjective test looking at actual documented doubt, and an objective test looking at the inherent improbability of the claim itself.

SPEAKER_01 40:52

That seems like it could cause problems.

SPEAKER_00 40:54

It did. This dual approach created a significant tension in the lower courts for years. Judges were constantly trying to figure out which side of the line a specific defamer's conduct fell on and which test to emphasize.

SPEAKER_01 41:07

Here's where it gets incredibly problematic to me. Because if a court leans too heavily on that first test, the subjective one, the one that requires proving the journalist, entertains serious doubts. Doesn't that just create a massive glaring loophole for bad actors? Doesn't it actively encourage journalists to be willfully ignorant?

SPEAKER_00 41:29

It's a huge risk.

SPEAKER_01 41:30

Let's play this out. If I'm a hyperpartisan reporter and some anonymous source hands me a scandalous career-ending scoop about a politician I despise, I look at it and I know deep down that if I make three phone calls, the story will probably fall apart. So I purposely choose not to make any phone calls. I don't check any public records. I just keep my head in the sand, type up the story, and hit publish.

SPEAKER_00 41:55

You avoid the truth.

SPEAKER_01 41:56

Exactly. If I just close my eyes and actively refuse to check my facts, I can sit on the witness stand and honestly say, I didn't entertain any serious doubts. I believe it was true.

SPEAKER_00 42:05

Because you never looked for the truth.

SPEAKER_01 42:07

I didn't let any doubt enter my mind because I aggressively refused to look for it. Under a purely subjective test, technically I win the lawsuit.

SPEAKER_00 42:14

You have just described the ostrich defense.

SPEAKER_01 42:17

The ostrich defense. I love that.

SPEAKER_00 42:18

And you are absolutely right. It was a massive vulnerability in this subjective standard. If ignorance is bliss, then willful ignorance becomes an impenetrable legal shield.

SPEAKER_01 42:29

So did they fix it?

SPEAKER_00 42:30

Yes. The Supreme Court eventually recognized this exact loophole and stepped in to close it because it was incentivizing terrible journalism.

SPEAKER_01 42:39

How did they fix it?

SPEAKER_00 42:40

In a 1989 case called Hart Hanks Communications Inc. vs. Conanton, the court revisited this constitutional minimum for reckless disregard.

SPEAKER_01 42:49

Did they throw out the subjective test and just use the objective one?

SPEAKER_00 42:52

No, they didn't throw it out. They refined the subjective one to account for bad faith. Okay, how so? They ruled that the purposeful avoidance of the truth is sufficient to meet the constitutional standard of recklessness.

SPEAKER_01 43:04

Purposeful avoidance.

SPEAKER_00 43:05

Yes. If a publisher deliberately ignores obvious sources of information or actively intentionally avoids confirming facts because they are afraid of what they might find, that purposeful avoidance acts as a legal substitute for having serious doubts.

SPEAKER_01 43:20

You can't put your head in the sand and then claim you didn't see the danger.

SPEAKER_00 43:23

Exactly. There is another fascinating case from the sources that highlights this Moore versus Zlosky.

SPEAKER_01 43:28

What happened there?

SPEAKER_00 43:29

In that case, a jury was allowed to find actual malice because the defendant admitted she made incredibly damaging defamatory statements without having any evidence of wrongdoing whatsoever.

SPEAKER_01 43:39

None at all.

SPEAKER_00 43:40

None. She just made it up based on a hunch. Oh wow. The courts made it clear you cannot just invent facts out of thin air or purposefully avoid verifying explosive claims and then try to hide behind the First Amendment shield. Purposeful avoidance is recklessness.

SPEAKER_01 43:57

So we have established this massive incredible. Incredibly complex fortress protecting the press when they are talking about public figures.

SPEAKER_00 44:04

It is a fortress.

SPEAKER_01 44:04

We have the actual malice standard, we have the subjective and objective tests, and we have the purposeful avoidance loophole closer. It is a precarious high wire act designed to protect vigorous public debate.

SPEAKER_00 44:17

But there's another piece to the puzzle.

SPEAKER_01 44:19

Right. Let's bring this back down to Earth. Back to the listener. What happens if the media or an angry neighbor on Facebook defames a totally private, everyday person? What is the standard there, since we know it isn't the nearly insurmountable actual malice standard?

SPEAKER_00 44:36

The baseline for private citizens was established back in our catalyst case, Gertz.

SPEAKER_01 44:42

Okay, remind us.

SPEAKER_00 44:43

The Supreme Court ruled that while states have latitude to protect private citizens, they absolutely cannot use strict liability.

SPEAKER_01 44:50

Strict liability meaning liability without fault.

SPEAKER_00 44:53

Yes, meaning if you published a false statement that harmed someone, you are liable to pay them, period, regardless of how careful you were or how honest your mistake was.

SPEAKER_01 45:02

So that's not allowed.

SPEAKER_00 45:03

No. The Constitution forbids strict liability and defamation, even for private citizens.

SPEAKER_01 45:08

Okay, so what is the standard?

SPEAKER_00 45:10

To protect that breathing space, a private plaintiff must prove at least negligence.

SPEAKER_01 45:15

And negligence in plain English just means someone failed to act with reasonable care.

SPEAKER_00 45:20

Right.

SPEAKER_01 45:20

They were sloppy, they didn't do what a reasonably prudent person would do in that situation. So a private citizen doesn't have to prove the journalist was evil or knew it was a lie or purposefully avoided the truth. They just have to prove the journalist was professionally sloppy.

SPEAKER_00 45:35

It is a much, much lower bar than actual malice.

SPEAKER_01 45:38

But it still requires proving that the publisher was at fault in some way.

SPEAKER_00 45:42

Exactly. It's the difference between proving someone intentionally ran you off the road, which is actual malice, versus proving they accidentally rear-ended you because they were looking at their phone, which is negligence.

SPEAKER_01 45:53

It makes a lot of sense.

SPEAKER_00 45:54

But of course, the law is never that simple. Right.

SPEAKER_01 45:56

There's always a complication.

SPEAKER_00 45:57

When you have to introduce a major complication because the level of protection a person gets doesn't just depend on who is involved in the lawsuit, it also depends heavily on what the speech is actually about.

SPEAKER_01 46:09

This is a crucial pivot in the architecture. The Supreme Court introduced a distinction based on the content of the speech itself. Yes. They ask, is the speech pertaining to a matter of public concern, or is it a matter of purely private significance?

SPEAKER_00 46:27

Aaron Powell And that changes everything.

SPEAKER_01 46:28

Because speech on matters of public concern, political debates, social issues, government actions is at the very heart of the First Amendment's protection.

SPEAKER_00 46:37

Aaron Ross Powell Whereas protections are often far less rigorous for matters of purely private significance, like a neighborhood dispute over a property line.

SPEAKER_01 46:45

Aaron Powell And to illustrate how gut-wrenching and ethically complicated this distinction between public concern and private concern can be, we have to look at an incredibly difficult Supreme Court case from the sources.

SPEAKER_00 46:57

Snyder vs. Phelps from 2011.

SPEAKER_01 46:59

This case pushes the boundaries of the First Amendment to its absolute most painful limits. It requires us to look at speech that is deeply offensive, intentionally inflammatory, and profoundly painful to a private family.

SPEAKER_00 47:12

And analyze it purely through the cold clinical lens of legal categorization.

SPEAKER_01 47:17

The facts of this case are tough to hear. It involves the Westboro Baptist Church, which was led by Fred Phelps.

SPEAKER_00 47:23

Yes.

SPEAKER_01 47:23

They staged a protest at the funeral of an American military service member, Marine Lance Corporal Matthew Snyder, who was tragically killed in Iraq.

SPEAKER_00 47:31

Matthew's grieving father, Albert Snyder, sued the protesters.

SPEAKER_01 47:35

But he didn't sue them for defamation because they weren't spreading lies about Matthew.

SPEAKER_00 47:39

Right. He sued them for the intentional infliction of emotional distress.

SPEAKER_01 47:43

Now, to understand the legal debate, we have to state the specific beliefs of the Westboro Baptist Church that they were broadcasting on their signs outside this funeral.

SPEAKER_00 47:52

Based strictly on the facts of the case, the church members believe that God is punishing the United States for its tolerant attitudes toward homosexuality.

SPEAKER_01 48:01

And that God executes this punishment by permitting American soldiers to be killed in combat.

SPEAKER_00 48:07

Yes. That is the message they were holding on large signs near this private funeral.

SPEAKER_01 48:12

And this horrific scenario presented the Supreme Court with an agonizing choice about how to categorize that speech. Is it public or private?

SPEAKER_00 48:21

There are two distinct ways to view it legally.

SPEAKER_01 48:23

What's the first way?

SPEAKER_00 48:24

The first way is to categorize it as a protest designed to draw public attention to broad public policies. Specifically, the policies regarding homosexuality in the military and the moral direction of the United States.

SPEAKER_01 48:37

Aaron Powell If viewed purely through that lens, the speech is a matter of public concern.

SPEAKER_00 48:41

Aaron Powell Exactly. It is touching on political and social issues and is therefore highly protected by the First Amendment, absolutely, regardless of how offensive or vile the majority of society finds it.

SPEAKER_01 48:52

Aaron Powell But the second way to view it, and this is how any normal human being would intuitively view it, is to categorize the protest as a targeted, vicious intrusion on the profound solitude and grief of a private family at a private funeral. Right. If viewed through that lens, it is a matter of private concern directed at a private family in their darkest possible moment, and it should be entitled to far less constitutional protection. Trevor Burrus, Jr.

SPEAKER_00 49:17

It is a direct clash between the right to offensive public debate and the right to private human grief. Trevor Burrus, Jr.

SPEAKER_01 49:22

How did the Supreme Court vote?

SPEAKER_00 49:24

Ultimately, the Supreme Court majority, in an 8-1 decision, chose to emphasize the public aspects of the speech. Wow. They noted that the protesters appeared in a public place on public property. They carried signs with broad societal messages about the nation and the military.

SPEAKER_01 49:39

And they deliberately chose a military funeral specifically as a platform to increase the visibility of their protest regarding national policy.

SPEAKER_00 49:47

Because the court deemed the overall context and content to be a matter of public concern, they ruled that the First Amendment precluded the father from suing for emotional distress.

SPEAKER_01 49:57

The speech, no matter how hurtful or outrageous, was protected because it touched on public issues.

SPEAKER_00 50:03

But that decision was not unanimous.

SPEAKER_01 50:05

Right. Justice Samuel Alito was the lone dissenter in the case. And I think his dissent resonates with a lot of people who read this case.

SPEAKER_00 50:12

Yes. Justice Alito looked at the exact same set of facts, the exact same signs, and reached the total opposite legal conclusion. How did he frame it? He characterized the protester's speech not as a broad, protected debate on public policy, but as a vicious, targeted verbal attack relating to a purely private matter, the burial of a private citizen's son.

SPEAKER_01 50:35

He argued that this purely private infliction of emotional distress was not entitled to the high shield of First Amendment protection.

SPEAKER_00 50:41

It perfectly illustrates how subjective and fraught the line between public and private concern can be.

SPEAKER_01 50:46

And how incredibly high the stakes are when nine justices have to draw that line.

SPEAKER_00 50:51

And those stakes aren't just about emotional distress, they are deeply intimately tied to money.

SPEAKER_01 50:58

Specifically, the types of financial damages a plaintiff can win in a civil lawsuit. Let's talk about the financial mechanics of defamation. Okay. Because this is how the First Amendment actually enforces its will. If you win a defamation suit, you typically get what are called compensatory damages. These are designed to literally compensate you for your actual injuries. If a lie gets you fired, compensatory damages cover your lost wages.

SPEAKER_00 51:22

If it ruins your business, it covers lost profits.

SPEAKER_01 51:25

It can also cover the cost of therapy for mental anguish.

SPEAKER_00 51:28

But then there's a second category called punitive damages.

SPEAKER_01 51:31

Yes. These are not designed to compensate the victim. They are designed purely to punish the defamer and deter them from ever doing it again. How does the public versus private concern issue affect punitive damages?

SPEAKER_00 51:44

Aaron Powell Well, the Supreme Court is incredibly wary of punitive damages in defamation cases involving the press.

SPEAKER_01 51:50

Why is that?

SPEAKER_00 51:51

The reality of the legal system is that juries often assess punitive damages in completely unpredictable, massive amounts that bear absolutely no relation to the actual financial harm caused to the victim.

SPEAKER_01 52:05

So a jury might award $10,000 for lost wages, but $50 million in punitive damages just because they are angry.

SPEAKER_00 52:12

Exactly. Worse, the court feared that juries could use punitive damages selectively to punish publishers for expressing unpopular views.

SPEAKER_01 52:20

They essentially act as private, devastating fines levied by civil juries against the press.

SPEAKER_00 52:26

Because this threat of massive, unpredictable, company-destroying fines exacerbates the danger of media self-censorship.

SPEAKER_01 52:36

So looking at how the court ruled, it seems like they put a massive roadblock in front of punitive damages.

SPEAKER_00 52:41

He did.

SPEAKER_01 52:42

Basically, they ruled that to get punitive damages, even if you are a totally private citizen, you have to prove actual malice. Is that correct? You have to prove the publisher knew it was false or was reckless just to stop juries from bankrupting people over simple negligence.

SPEAKER_00 52:56

That is exactly right. If the speech involves a matter of public concern, say a local newspaper negligently publishing a false story about a private citizen's involvement in a zoning dispute.

SPEAKER_01 53:07

The citizen can wing compensatory damages just by proving negligence.

SPEAKER_00 53:11

But if they want those massive punishing punitive damages, they must vault the high hurdle and prove actual malice.

SPEAKER_01 53:19

The only major exception to this rule comes from a fascinating case called Dunn and Bradstreet.

SPEAKER_00 53:24

Ah, yes.

SPEAKER_01 53:25

In that case, the court held that presumed and punitive damages can be awarded without showing actual malice, but only if two conditions are met.

SPEAKER_00 53:33

The plaintiff must be a private figure, and the speech must involve matters of purely private concern.

SPEAKER_01 53:39

Aaron Powell The example in the Dunn and Bradstreet case is a credit report. If a credit reporting agency negligently and falsely reports to a bank that you filed for bankruptcy, that isn't a public debate.

SPEAKER_00 53:49

No, not at all.

SPEAKER_01 53:50

That isn't a political policy issue. It is a purely private commercial transaction that ruined your private ability to get a mortgage.

SPEAKER_00 53:57

In that highly narrow scenario of purely private concern, the First Amendment doesn't care as much. You don't need to prove actual malice to hit the credit agency with punitive damages for their screw up.

SPEAKER_01 54:08

Correct. So the entire architecture of defamation relies on these intersecting axes, public versus private figure on one axis, and public versus private concern on the other.

SPEAKER_00 54:19

Where you land on that complex grid determines your burden of proof, your legal shield, and the type of money you can win.

SPEAKER_01 54:27

Okay, so we've spent this entire time talking about false statements of fact.

SPEAKER_00 54:31

Yes. Facts.

SPEAKER_01 54:32

We've talked about deliberate lies, reckless disregard, failing to verify sources, and the difference between public and private citizens. But as I'm thinking about this, surely there has to be a hack here for publishers. Uh-huh. Can't a publisher or a journalist or a podcaster just slap the magical words, in my opinion, in front of a terrible, destructive lie to escape all liability.

SPEAKER_00 54:53

People certainly tried.

SPEAKER_01 54:54

If the Supreme Court said in Gertz that there is no such thing as a false idea, doesn't that mean opinions are completely constitutionally immune from defamation lawsuits?

SPEAKER_00 55:04

That is the exact, clever argument that many high-priced defense attorneys tried to make in the years immediately following the Gertz decision.

SPEAKER_01 55:12

They tried to create a massive loophole.

SPEAKER_00 55:14

They argued for a blanket, separate constitutional privilege for anything labeled an opinion, and the Supreme Court finally had to address this head on and shut it down.

SPEAKER_01 55:24

When did they shut it down?

SPEAKER_00 55:25

In a 1990 case called Milkovich versus Lorraine Journal Co.

SPEAKER_01 55:29

Let's look at the facts of Milkovich because it's a great example of how slippery language can be.

SPEAKER_00 55:34

The facts involve a high school wrestling coach in Ohio named Milkovich. There was a huge physical altercation at a wrestling match, a brawl, and there was a subsequent official judicial hearing to figure out what happened.

SPEAKER_01 55:47

After the hearing, a sports columnist wrote an article in the local newspaper that essentially accused the coach of committing perjury of lying under oath at that hearing.

SPEAKER_00 55:56

The column specifically said, anyone who attended the meet knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.

SPEAKER_01 56:06

So the coach sues the newspaper for defamation. He is being publicly accused of a felony crime perjury.

SPEAKER_00 56:13

And the newspaper's defense was entirely reliant on the idea that this column was just an opinion piece.

SPEAKER_01 56:19

They cited that famous Goethe's dictum about no such thing as a false idea.

SPEAKER_00 56:24

Exactly. And they argued to the court that the First Amendment mandated a strict inquiry into whether a statement is an opinion or a fact, and that only pure facts could be actionable in a lawsuit.

SPEAKER_01 56:36

They argued that because this was the writer's opinion of what happened, it was constitutionally protected.

SPEAKER_00 56:42

But wait, I want to play devil's advocate and push back on this on behalf of the newspaper because context matters, right?

SPEAKER_01 56:47

I mean, yeah.

SPEAKER_00 56:48

This article wasn't on the front page news section. It was on the sports page. The source material specifically calls the sports page a traditional haven for cajoling, invective, and hyperbole.

SPEAKER_01 56:59

I mean, sports columnists exaggerate and yell and call referees blind all the time. It's part of the entertainment.

SPEAKER_00 57:05

Doesn't that context prove it was just an opinion?

SPEAKER_01 57:07

You're making the exact argument that won at the state level. The Ohio Supreme Court actually agreed with that logic initially. They used a totality of the circumstances test, looked at the sports page context, and concluded it was a constitutionally protected opinion.

SPEAKER_00 57:23

But the United States Supreme Court stepped in, granted Sir Diorari, and completely unanimously rejected that reasoning.

SPEAKER_01 57:31

They issued a massive smackdown on the idea of creating a separate blanket constitutional privilege for anything labeled an opinion.

SPEAKER_00 57:38

Why? How did they explain the flaw in that logic? Because on its face, it seems like a valid defense.

SPEAKER_01 57:44

The court explained that simple grammar and semantics do not magically erase factual implications. They gave a very clear, easy to understand example.

SPEAKER_00 57:53

What was the example?

SPEAKER_01 57:54

If a speaker says, in my opinion, John Jones is a liar, that statement might be phrased as an opinion, but it still implies that the speaker has concrete knowledge of underlying unstated facts that lead to the conclusion that Jones told an untruth.

SPEAKER_00 58:07

Simply couching a factual, damaging accusation in terms of opinion does not dispel the implication of false facts. You are still damaging the person's reputation based on a factual premise.

SPEAKER_01 58:20

Right, because if I go on television and say, I think John stole my wallet, I'm still accusing John of a very specific factual crime theft.

SPEAKER_00 58:27

The words I think at the beginning don't make the accusation any less damaging to his reputation in the community. People are still going to think he's a thief.

SPEAKER_01 58:36

The court quoted a judge who pointed out that it would be entirely destructive of the law of libel if a writer could escape liability for terrible accusations simply by using explicitly or implicitly the magical words, I think, or in my opinion.

SPEAKER_00 58:51

It would make defamation law completely toothless.

SPEAKER_01 58:54

Exactly. The Supreme Court in Milcomich decided that, looking closely at the specific sentences in that sports column, a reasonable fact-finder or jury could easily conclude that the statements implied a direct factual assertion that the coach committed perjury.

SPEAKER_00 59:08

The language wasn't loose, figurative, or hyperbolic enough to negate that impression. It sounded like a factual accusation.

SPEAKER_01 59:14

And crucially, the court noted that they didn't need to invent a brand new constitutional rule to protect legitimate opinions, because traditional existing port law was already doing a fine job of balancing this.

SPEAKER_00 59:29

When you say traditional tort law, what mechanism was already in place to protect actual opinions?

SPEAKER_01 59:35

It's called the common law privilege of fair comment. Under traditional law, long before Gertz, you were afforded legal immunity for the honest expression of opinion on matters of legitimate public interest. BUT, and this is the key only when that opinion was based upon a true or privileged statement of fact.

SPEAKER_00 59:53

For example, you could state completely true facts about a politician's voting record, and then offer a scathing vitriolic opinion about those facts, calling them incompetent. That is fair comment.

SPEAKER_01 1:00:04

But the privilege never extended to false statements of fact, whether they were expressly stated or just implied through a sneaky opinion.

SPEAKER_00 1:00:11

The Supreme Court said this traditional balance was perfectly adequate.

SPEAKER_01 1:00:14

The breathing space for free expression is secure without creating an artificial constitutional dichotomy between fact and opinion. Tort Law is doing well enough on its own without needing a new First Amendment loophole.

SPEAKER_00 1:00:27

So what does this all mean for you, the listener?

SPEAKER_01 1:00:29

We have journeyed through an incredibly dense, layered, and frankly fascinating legal architecture today.

SPEAKER_00 1:00:35

We really have.

SPEAKER_01 1:00:36

We started with Elmer Gertz, the private lawyer, and the realization that not all reputations are protected equally in the eyes of the law.

SPEAKER_00 1:00:44

We explored the incredibly heavy, sometimes insurmountable burden of actual malice designed to protect the press when they scrutinize public officials and powerful corporate executives.

SPEAKER_01 1:00:55

We tried to nail the elusive, limited public figure jellyfish to the wall, looking at who steps into the ring and who gets dragged in.

SPEAKER_00 1:01:03

We analyzed the psychology of reckless disregard, digging into subjective doubts and purposeful avoidance.

SPEAKER_01 1:01:09

We explored the agonizing, heartbreaking line between matters of public concern and private grief in the Westboro Baptist Church case.

SPEAKER_00 1:01:16

And finally, we saw that you can't just hide a destructive lie behind the phrase, in my opinion.

SPEAKER_01 1:01:21

The overarching synthesis of everything we've discussed today is that the law of defamation is a constantly shifting, perilous, high wire act.

SPEAKER_00 1:01:30

On one side, as a society, we tolerate a certain inevitable amount of factual error and the real human pain that comes with it.

SPEAKER_01 1:01:38

We tolerate it to ensure our press isn't paralyzed by the constant fear of bankruptcy. We desperately need them to have the breathing space to investigate power and inform the public.

SPEAKER_00 1:01:48

But on the other side, we still draw hard lines. Complex as they are, we draw lines to protect the essential dignity of the individual.

SPEAKER_01 1:01:55

We refuse to abandon the fundamental idea that a person's good name has inherent, irreplaceable value.

SPEAKER_00 1:02:01

It is a profound and delicate balance.

SPEAKER_01 1:02:03

And the immediate takeaway for you as you navigate the modern chaotic information ecosystem is to think about these invisible legal standards the next time you read the news or scroll through your feed.

SPEAKER_00 1:02:15

When you see a scandalous, unverified, explosive headline about a prominent politician or a billionaire CEO, understand that the publisher knows they are protected by an incredibly high legal shield.

SPEAKER_01 1:02:26

They know they can probably get away with being a little sloppy.

SPEAKER_00 1:02:29

But when you see a hit piece targeting a local private business owner or a private citizen who just happened to go viral, recognize that the legal protections and the burdens of proof are entirely different.

SPEAKER_01 1:02:42

The law actively evaluates the power dynamics of the people involved.

SPEAKER_00 1:02:46

And that leads to a final, I think, highly provocative thought for everyone to mull over.

SPEAKER_01 1:02:51

Let's hear it.

SPEAKER_00 1:02:52

It's a concept that legal scholars are debating right now regarding the role of bloggers, citizen journalism, and social media. This entire legal framework, the public figures, the private citizens, the actual malice standard was built in an era of traditional newspapers, broadcast television, and very clear boundaries between the public and the private?

SPEAKER_01 1:03:12

Right, before the internet changed everything.

SPEAKER_00 1:03:14

But with the exponential rise of the internet, ubiquitous smartphones, and digital footprints, we have to ask a terrifying question. Does the distinction between a public figure and a private individual even exist in a meaningful way anymore? Oh. If every single one of us is constantly broadcasting our lives, our opinions, and our controversies to a global public via social platforms, are we all slowly, accidentally becoming limited public figures?

SPEAKER_01 1:03:42

And if that happens, if the law decides we all stepped into the digital ring, do we all eventually lose our right to easily defend our own reputations when the digital mob decides to print a lie?

SPEAKER_00 1:03:52

It is a question the courts will be wrestling with for the next century.

SPEAKER_01 1:03:55

It is a terrifying thought to leave on. Because at the end of the day, going back to where we started, when a car is stolen, you can always just buy another car.

SPEAKER_00 1:04:02

But when your reputation is stolen in the digital age, under this complex, shifting web of First Amendment protections and massive burdens of proof, you might never ever get it back.

SPEAKER_01 1:04:14

Thank you for joining us for this deep dive into the invisible laws that govern our words. Stay curious, and we will see you next time.