Freedom to Criticize Public Officials

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The First Amendment provides for freedom of speech and of the press and helps form the foundation of our democratic society, which is predicated upon the free exchange of ideas whether spoken or written. Perhaps in no instance can this be more important than the ability to level criticism against the government and its elected and appointed officials. While concern for being sued for libel can inhibit the expression of statements critical of public officials, it was not until 1964 that the matter was finally resolved by the United States Supreme Court.

In New York Times Co. v. Sullivan, the United States Supreme Court held that under the First and Fourteenth Amendments, a state cannot award damages to a public official regarding a defamatory statement concerning his official conduct even if it is false and libelous unless it can be proven that the statement was made with “actual malice.” The Court went on to require that unlike libel claims asserted by private individuals, public officials have the burden of proving the statement to be false and maliciously made.

What is “actual malice?”

As defined by the majority opinion written by Justice Brennan in New York Times Co. v. Sullivan, the term actual malicemeans that the statement was made with the knowledge it was false or with reckless disregard to whether it was true or not.

Public or Private Persons

Public officials are not difficult to identify since they are persons who are substantially involved in government. Some of the more obvious categories are:

Candidates for an elective office

People who hold a position in government

Law enforcement officials

Public school teachers and coaches

Public employees who have policy-making authority

The more complicated matter concerns the identity of “public figures” upon whom the Supreme Court in subsequent cases extended the New York Times Co. v. Sullivanrequirement that “actual malice” must be proven to sustain a libel action. The Supreme Court reasoned that when someone voluntarily places themselves in the public arena, they must be prepared to accept public criticism.

There are two types of public figures. The “all purpose public figure” is a person who is well known to the public, such as professional athletes and celebrities. The “limited purpose public figure” is someone who is not easily recognized but because he has thrust himself into the forefront of a specific public debate, he would be considered a public figure for purposes of that issue only.

A person does not automatically become a “limited purpose public figure” just because she finds herself in the middle of a public controversy and placed in the public eye. It is necessary that the person voluntarily put herself in that position and sought the attention.

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