“Public Figure” Status in the Age of Social Media: A Second Supreme Court Justice Calls for Review of the New York Times v. Sullivan Actual Malice Standard

United States Supreme Court Justice Neil Gorsuch, dissenting from the denial of certiorari in Berisha v. Lawson, et al., joined fellow Justice Clarence Thomas in questioning the appropriateness of the “actual malice” standard, which, under New York Times Co. v. Sullivan and its progeny, requires public official and public figure plaintiffs to demonstrate by clear and convincing evidence that, in publishing material about the plaintiff, the defendant acted with knowledge of falsity or a reckless disregard for the truth.

In support of his position, Justice Gorsuch pointed to the change in our nation’s media landscape – from large media companies with legions of investigative reporters, editors, and fact-checkers on the payroll, to today’s “armchair journalists” who can, with the click of a button, publish essentially anything to a worldwide audience. He suggests that, given these changes, together with today’s monetization of information, whatever justifications may have existed for the actual malice standard are long gone. Indeed, in his view, continued availability of the actual malice defense may serve to perpetuate the spread of misinformation, in that it actually encourages an “ignorance is bliss” mentality where speakers are incentivized to publish without investigation, fact-checking, or editing.

Justice Gorsuch also raised the fact that in today’s world, private citizens can become public figures on social media overnight. He argued that this may lead to the reluctance of some to engage in public discourse – something the “actual malice” standard was meant to promote – out of fear that they may be publicly attacked with falsehoods and left with no redress as a public figure unless they can clearly and convincingly establish that those falsehoods were made with actual malice.

A reading of Justice Gorsuch’s dissent raises the question of whether the problem he perceives lies not with the New York Times Co. v. Sullivan actual malice standard itself but with the correct application of that standard in today’s world of social media. In other words, does public figure status (triggering the actual malice standard) “come with the territory” of having a social media presence? For example, is someone who publicly documents his or her life on social media, sharing personal views, thoughts, and opinions and posting information and photographs about daily activities and whereabouts, family, home, job, etc., fairly deemed a public figure? Does it matter how many people are looking? What about social media users whose purpose and goals are to gain followers, be noticed, go viral, and even develop an audience and “influencer” status? Is it appropriate to say that once you step into that cyber-world, you are no longer a private person and must now satisfy the actual malice standard when seeking redress for reputational harm? As Justice Gorsuch observed, not even all of the questions are clear.

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