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University of Miami Law Review

Abstract

Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media.

In reality, however, the current state of limited purpose public figure jurisprudence is not so grim. This Article will explain how an extensive review of published opinions issued over the last fifteen years demonstrates that the limited purpose public figure category has not provided a refuge for large numbers of social media fraudsters as Justice Gorsuch suggests. To the contrary, it has been rare for courts to find that an otherwise private figure has become a limited purpose public figure by posting on social media alone. This is not the result of some new or modified social media/online test for the limited purpose public figure, but rather largely due to a commitment to the original (and fundamental) role of legitimate news organizations in the analysis.

The Supreme Court cases that established the limited purpose public figure category indicated that the key decision which transforms a person from private figure to limited purpose public figure is engagement with the news media. It is that signature action which demonstrates that such person has “thrust” herself “to the forefront” of the public controversy in order to actually “influence the resolution of the issues involved.” This Article will: (1) survey the fundamental role that the news media engagement principle played in the limited purpose public figure framework established by the Supreme Court; (2) provide an extensive review of modern case law which demonstrates how courts have prevented an overextension of the limited purpose public figure category through a commitment to the news media engagement principle; and (3) argue why courts should maintain application of the actual malice privilege to statements about limited purpose public figures (even amidst social media’s continued rise) to preserve free speech and free press rights for news and debate about non-governmental persons with influence over important public issues.

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