Lawyers in the Vortex: When Attorneys Become Public Figures

There was substantial media coverage of the defense verdict in the recent "twibel" (i.e., libel via Twitter) case against singer Courtney Love. Although the case attracted attention for the medium in which the allegedly defamatory statements were made, the dispositive issue was a long-standing element of libel law that did not depend on Love's use of Twitter.  Specifically, the jury found that plaintiff Rhonda Holmes, a lawyer who briefly represented Love in disputes stemming from the estate of Love's husband Kurt Cobain, had not proved the degree of fault on Love's part necessary for Holmes to win the case.

Curiously, the level of fault that the court required Holmes to prove was "actual malice," i.e., knowledge on Love's part that the statement was untrue, or reckless disregard by Love for whether it was true or not. Under U.S. Supreme Court precedent, the actual malice standard is applied when the plaintiff is a public figure.

There are two types of public figure plaintiffs: "general purpose public figures," who are so prominent and well known that they are public figures for all purposes; and "limited purpose" or "vortex" public figures, who become -- usually voluntarily -- involved in a particular public issue to the extent that they become public figures for statements regarding that public issue, but not for other matters. If a plaintiff is neither of these types of public figure, then s/he is considered a private figure, who does not have to meet the stringent standard of actual malice. (Private figure plaintiffs must still demonstrate fault on the part of the defendant in order to win a defamation case, but the specific level of fault that a private figure plaintiff must show varies from state to state.)

Meanwhile, the District of Columbia's Court of Appeals is facing a similar issue in another case involving a lawyer as defamation plaintiff. In that case, the court is considering the attorney's status in connection with a decision as to whether her suit against anonymous Wikipedia editors should be blocked under the District's anti-SLAPP statute.

We are used to the idea of celebrities and government officials being treated as public figures, but should their attorneys fall into that category as well? As it turns out, courts have long struggled with the question of when an attorney's involvement in a prominent case or controversy makes him or her a public figure in the defamation context; this post examines some of these decisions.

U.S. Supreme Court

The U.S. Supreme Court has considered three cases in which a lawyer's involvement in a prominent case led to questions about the lawyer's status as a defamation plaintiff. In all three cases, the Court held that the lawyer was not a public figure.

In Time, Inc. v. Firestone, 424 U.S. 448 (1976), the Court held that a lawyer who was a prominent member of local society did not become a public figure due to his divorce by a court in Palm Beach, Florida. The Court found that the plaintiff did not voluntarily choose to make aspects of his life public by electing "dissolution of a marriage through judicial proceedings," since the court procedure was required for the divorce, and that the divorce itself was not a public controversy which made the plaintiff a public figure.

Similarly, the Court held in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) that a lawyer who represented a convicted criminal on appeal was not a public figure. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that the lawyer for a family involved in controversial civil litigation was not a public figure.

But since determinations of public or private figure status are highly fact-specific, these decisions are not necessarily determinative in subsequent cases. So state courts and lower federal courts have issued a variety of rulings on the public or private figure status of lawyers who are plaintiffs in defamation cases.

Involvement in Prominent Litigation

Despite the U.S. Supreme Court rulings in Rosenbloom and Gertz, other courts have held that an attorney's representation of a party in a prominent case can, under certain circumstances, justify a finding that the lawyer was a public figure.

• In Della-Donna v. Gore Newspaper Co.,