THE LIMITED PURPOSE PUBLIC FIGURE AND YOU... OR, IS IT YOU?
First, a disclaimer. This article is intended as a conversation starter to engage community discourse. This is not professional legal advice, so please doN't strut confidently into a situation, article in hand, exclaiming “Gotcha!”.
Neighborhood Council Board members are elected and appointed City officials, and therefore full public figures, and stakeholders (individuals — whether it be residents, employees, business owners, etc. — who have a ”stake” in the community) are fully private figures. The law is clearcut on this, and therefore there is no debate. End of article.
As your peripheral vision will note, this is far from the end of the article, which means the above isn’t necessarily accurate. Within the gray area between public and private, there’s the “limited purpose public figure”. Take a look at your reflection. What you see might be an example of such a figure.
So, what IS a limited purpose public figure?
There are, in fact, two very similar definitions. Let’s work on the first one, since it better applies to a Neighborhood Council Board member.
Definition1: A limited purpose public figure is one who has gained prominence in a particular, limited field, but whose celebrity has not reached an all-encompassing level. 1
The first definition, clearly, applies to Neighborhood Council elected and appointed Board members. Though Board members appear to be public figures, the scope of their public outreach is limited to those with either experience or knowledge of the Neighborhood Council system. Beyond that range, however, they may be better known as the cashier at the local supermarket, or the barista at the corner cafe. Thus, their public figure status as a City official is rather narrow. They cannot be considered “private” figures, since they hold public office and conduct public business. However, comparing their public footprint to the Mayor of Los Angeles or the President of the City Council is also out of consideration. The middle ground is the limited purpose public figure (LPPF) — a person who’s “sort of” a public figure…. but not quite.
Taking the middle ground can, at times, be a disadvantage. Any tennis player or politician can tell you that. Here, however, it might hold a distinct advantage. As public figures in general hold very little defamation protection, and private figures possess a great deal of defamation protection, a limited purpose public figure has the ability to protect themselves with defamation law, but the burden of proof is considerably higher than that of a private figure. Defamation is a statement that injures a reputation. This “statement” can be in a form other than spoken or written word.
According to the Cornell Law School, to prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.2 It is widely accepted that defamation law can be buffered by the First Amendment, so it’s important for the Neighborhood Council Board member to understand the difference between a stakeholder expressing their right to free speech, and a stakeholder engaging in a campaign of untruths against an individual with the intent to harm their reputation OUTSIDE of the NC system. As a large portion of City communities are not yet tethered to their respective Neighborhood Council, any communicative assault against a Board member is thus compartmentalized to those engaged with said Neighborhood Council. It’s even more restricted if such a campaign is limited to emails to the Board.
Example 1: A Board member raises concerns about voting for, or votes against, a motion that is connected to local activists. The activist(s) embark on an email campaign against that Board member, copying the other Board members, various City figures, and several stakeholders who are aligned with the activists. These emails attack the Board member, going so far as to accuse them of taking money from developers, and stuffing that money in their back pocket. They also claim to have video evidence of that “fact”.
The above example might not fall under defamation law, since the email campaign, though considered communication, can be argued as confined to a restricted number of individuals. Of course, if one of these individuals decides to publish the words outside of the activists purview to a wider public audience, believing their words to be fact, then perhaps “negligence” may be in play. They key here is the appeal to the public regarding the possession of hard evidence, or the video. If it is found that the activist, in fact, does not hold such a video in their possession, then #1, #2, and #3 of the above definition applies. But one still must prove #4: Did the act cause some harm to their reputation?
Considering Neighborhood Council Board members volunteer their time for public service, and thus hold careers and perhaps very public jobs outside of the system (such as the before-mentioned barista), then one might argue #4 is in play if it can be proven, and proof is the tricky end of the business.
Example 2: [same as above, but with a twist] A Board member raises concerns about voting for, or votes against, a motion that is connected to local activists. The activist(s) embark on an email campaign against that Board member, copying the other Board members, various City figures, and several stakeholders who are aligned with the activists. These emails attack the Board member, going so far as to accuse them of taking money from developers, and stuffing that money in their back pocket. They also claim to have video evidence of that “fact”. But this time, they ALSO print out flyers at the local print shop stating the same, and distribute them at a community event.
That last act makes things interesting. First, #1, #2, and #3 of the definition of defamation is in play. If the statement cannot be proven, and has no evidence supporting it (if the possession of the video is a lie, which for this argument is the case), the open distribution of a flyer in a public, heavy foot traffic area extends the false message beyond the scope of those involved with NC business. The distributor also has direct control of the delivery system of the knowingly false message. In addition, the likelihood of such message reaching a potential client or customer the Board members does, has or may interact with outside of the system is much higher. In this instance, the case for a defamation pursuit favors the Board member. The Supreme Court ruled that: “[t]he constitutional guarantees [of freedom of speech and press] require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 3 The pivot term here is “malice”, or the intention or desire to do ill will. One can argue that the distribution of the flyers in a high-traffic public setting went beyond the reach of Neighborhood Council business and, by the very nature of the act, was designed to inflict damage to the person independent of their association with the Council.
Definition 2: A limited purpose public figure is a person who voluntarily and prominently participates in a public controversy for the purpose of influencing its outcome. 4
We’ve so far been focused on the LPPF as it pertains to the Neighborhood Council Board member and their access to defamation law protection. But, there’s a flip side to the conversation: the activist stakeholder, and that individual’s possible defamation restrictions. Doubling back to SCOTUS, a later ruling defined a limited purpose public figure as a person who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” 5
Let’s go back to that stakeholder. The question is, has that stakeholder voluntarily engaged in activities above and beyond which is reasonable, meaning what is just, rational, appropriate, ordinary, or usual in the circumstances? 6 With most stakeholders, voicing an option, even multiple times over many months regarding the same issue, is a right under law. But there’s an inflection point where communication turns to activism. When the individual becomes part of the message, rather than the supplier of it. When the message and the stakeholder become inseparable, there is an argument to be made that the stakeholder now has LESS defamation protection than that of a private citizen, since now it can be postulated that the stakeholder has stepped into the realm of a limited purpose public figure.
A stakeholders might verbally attack a Board member, but then fall back to their Constitutional Rights when a counterpoint is presented. Mind you, this is not an instant where the Board member “counter-attacks” the stakeholder, but instead respectfully calls out the untruth and corrects the record. The Board member has the right to set such record straight, so to speak, despite a City entity (in Los Angeles, the Department of Neighborhood Empowerment, or DONE) suggesting otherwise — the “otherwise” colloquially known as the “punching bag”. Unfortunately for the Board member, the right of the stakeholder for verbal assault is immutable IF it is their opinion. Even calling a Board member a “fascist” or a “socialist” or an “asshole” is well within the stakeholder’s rights. But remember that inflection point? What if that stakeholder utilizes the platform to constantly assault that Board member for a particular reason (a past vote, or a held opinion), waging a campaign of aggression which extends beyond public comments to emails, traditional social media, chat rooms, forums, or (as with above) printed material. Is that stakeholder “voluntarily and prominently” participating, perhaps even being the genesis of, the controversy?
If so, that stakeholder may now have less protection against public backlash. If another community member raises awareness of a deceitful campaign operated by the stakeholder, especially if that community member in question is a third party involved in the controversy, such as a developer or a corporation, then the stakeholder, as a limited purpose public figure, must submit to the same proof cycle as the Neighborhood Council Board member: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement. As stated in the first half of the article, the burden of proof for a defamation case is high. The stakeholder cannot simply exclaim: “You can’t do that to me!”.
Actually, they might, in the eyes of the law.
The author is not a legal professional, and nothing written within this article should be considered legal advice via neither the author nor Council Weekly . Please consult a legal professional to better understand your rights and protections.
3. New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1967)
5..Gertz v. Robert Welch, Inc., 418 U.S. 323, 361 (1974)