In the Future, Will We All Be Limited-Purpose Public Figures?

Vol. 30 No. 2

By

Ashley Messenger is associate general counsel for National Public Radio and adjunct faculty at the University of Michigan Law School. Kevin Delaney is a JD/MA candidate at the University of North Carolina School of Law and School of Journalism and Mass Communication.

Andy Warhol said, “In the future, everybody will be world-famous for 15 minutes.”1 Warhol’s comment, made decades ago, appears to be truer than ever. With the rise of social networking and viral video, it’s easier to achieve notoriety than ever before. But for libel lawyers, the question is whether being “Internet famous” is famous enough to be deemed a public figure.2

In a libel lawsuit, the court will be asked to classify the plaintiff as a public official, an all-purpose public figure, a limited-purpose public figure, or a private figure. Defendants have greater constitutional protection when the plaintiff is a public official or public figure of some sort than when the plaintiff is deemed a private figure.3 Access to the media and the ability to inject oneself into a controversy has been a factor in determining whether a plaintiff is a public or private figure. Naturally, this raises the question of whether the use of Facebook or Twitter or other social media—especially if material has “gone viral”—will turn otherwise private plaintiffs into public figures.

This article will evaluate the circumstances under which Internet users can become limited-purpose public figures. In other words, although we all may be world famous someday, we seek to clarify whether we will all be limited-purpose public figures.

Defining a Limited-Purpose Public Figure

In a libel suit, a plaintiff deemed by a court to be a public figure must prove that the defendant published defamatory content with “actual malice.”4 To prove actual malice, the plaintiff must show that the defendant published with knowledge of falsity or with reckless disregard for whether the content was false or not.5 Private plaintiffs, in contrast, typically have to prove the far less rigorous standard of negligence.6 Negligence is usually defined as “[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.”7

In Gertz v. Robert Welch, Inc.,8 the U.S. Supreme Court identified two categories of public figures. The first category constitutes individuals defined as all-purpose public figures. All-purpose public figures are individuals who “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.”9 Johnny Carson,10 Carol Burnett,11 and William Buckley, Jr.12 have been deemed all-purpose public figures by the courts. The second category constitutes individuals classified as limited-purpose public figures. The Court wrote in Gertz, “[T]hose classed as [limited-purpose] public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. . . . [T]hey invite attention and comment.”13 Accordingly, to be a limited-purpose public figure, a court must determine “whether the plaintiff voluntarily assumed a prominent role in a public controversy and the attendant risk of enhanced public scrutiny that accompanies it.”14 Limited-purpose public figures are public figures only for defamation related to the controversies they have entered.15

As stated in Gertz, the existence of a public controversy is necessary for a plaintiff to be classified as a limited-purpose public figure. However, the courts have struggled to determine what constitutes a public controversy. As one commenter has observed, some courts are reluctant to act as editors and have held that “courts have no business evaluating what issues are and are not of legitimate public interest. These courts have concluded that a public controversy is present merely if the events in question have generated widespread public interest.”16 On the other hand, some courts “have held that newsworthiness alone is insufficient to establish a public controversy. These courts hold that a public controversy is a real dispute which affects members of the public other than the litigants in the instant case.”17

Access to effective channels of communication serves as an additional characteristic of both all-purpose and limited-purpose public figures. In Curtis Publishing Co. v. Butts,18 Chief Justice Warren specifically mentioned access to the media as a justification for requiring public figures to prove actual malice in libel cases. He observed that those classed as “‘public figures’ have as ready access as ‘public officials’ to mass media of communication, both to influence policy and to counter criticism of their views and activities.”19

With access to effective channels of communication, a plaintiff can engage in self-help and restore some of the harm caused to his reputation. In Gertz, the Court wrote:

The first remedy of any victim of defamation is self-help—using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.20

Engaging in self-help is preferable to turning to the court system for relief, according to the court in Reuber v. Food Chemical News, Inc.: “The inquiry into access to channels of communication proceeds on the assumption that public controversy can be aired without the need for litigation and that rebuttal of offending speech is preferable to recourse to the courts.”21 In other words, there is no need for the court system to compensate a plaintiff for harm caused by libel if he can repair the damage on his own, and libel protections are only necessary if the aggrieved is unable to remedy the harm independently:

According to Justice Lewis Powell, writing for the majority [in Gertz], the preferred response to a defamation problem is to fix it yourself. But since private individuals supposedly don’t have the kind of access to mass media it takes to correct the record, the First Amendment allows the states to use libel law to level the playing field, making it easier for private individuals to counter the damage done to their reputations by mass media.22

In spite of Supreme Court precedent, many lower courts do not evaluate the access requirement when determining who is a limited-purpose public figure. It is common to see courts apply a version of the three-part test dictated in Waldbaum v. Fairchild Publications Inc.,23 which does not evaluate whether the plaintiff had access to effective channels of communication. Step one of the Waldbaum test requires the court to isolate the public controversy.24 Step two requires the court to analyze the plaintiff’s role in the controversy.25 The court wrote, “The language of Gertz is clear that plaintiffs must have ‘thrust themselves to the forefront’ of the controversies so as to become factors in their ultimate resolution.”26 Step three requires the court to determine whether the alleged defamation was “germane to the plaintiff’s participation in the controversy.”27

Despite the fact that Waldbaum does not explicitly consider access to media, it does evaluate the plaintiff’s role in the controversy, and the use of media to promote a message would surely be a factor in evaluating that aspect of the Waldbaum test. Moreover, it is important to remember that Gertz and Waldbaum were decided decades ago when there was a limited number of media outlets. Prominence in a controversy would, in many cases, have meant that the person involved had effective access to the limited media available. Today’s media landscape is different, however. Plaintiffs now have access to an almost endless amount of media sources, many of which lack effectiveness (for example, a webpage that is read by only a small number of people). Consequently, it is possible that lower courts will adapt their analysis to evaluate the access requirement with greater frequency.28

Thus, reflecting on Gertz, a court must make two determinations before it can label a plaintiff a limited-purpose public figure. First, the court must determine that the plaintiff had sufficient access to effective channels of communication to counteract defamatory statements. Second, the court must determine that the plaintiff voluntarily thrust himself to the forefront of a public controversy in order to influence the outcome. The court must make both determinations in order to deem a plaintiff a limited-purpose public figure.

Question One: Do Social Media Platforms Provide Plaintiffs with Access to Effective Channels of Communication?

To answer this question, one must first determine how the courts have interpreted the phrase access to the channels of effective communication. The Court in Gertz failed to provide a precise definition. For example, access to the New York Times would most likely constitute an effective channel of communication. But how about access to a newspaper that reaches a regional audience? How about one that reaches a small, rural audience? How about a blog post that is read by an average of twenty-five individuals per week? These questions have not been answered definitively. Nevertheless, over the years, the Supreme Court, lower courts, and legal scholars have given hints as to the meaning behind access to the channels of effective communication.

Relevant Case Law and Scholarly Opinions

Evaluating precedent, we know that there are two characteristics of the access requirement. First, to have access to an effective channel of communication, the channel must afford the plaintiff with a “realistic opportunity to counteract false statements.”29 Most likely, it must be one that enables the plaintiff to reach a similar audience to the one that originally heard the defamation. And, second, it must be one in which the plaintiff has some sort of continuous access.

In Gertz, the Court envisioned that plaintiffs would have a “realistic opportunity to counteract false statements.”30 In order to have this opportunity, it is logical to assume that an effective channel of communication would reach an audience of similar composition to the one that originally heard the defamation. One commenter has observed:

The test imagined by the Court in Gertz . . . would seem to construe the access to media element of the test by using a relatively narrow definition of access to media: not one that encompasses any and all opportunities to be heard by all varieties of audiences, but rather the opportunity to defend oneself to the audience that initially received the damaging information.31

If a plaintiff were to reach a different audience than the one that originally heard the defamatory statement (a substantially smaller audience, for example), it is difficult to see how he would have a realistic opportunity to counteract false statements.

In Hutchinson v. Proxmire,32 the Court considered the continuing nature of the access. In that case, a U.S. senator allegedly defamed a research scientist, Ronald Hutchinson, by giving him the “Golden Fleece Award” for wasteful government spending.33 Before the defamation occurred, Hutchinson had received public funds for his research and published numerous entries in professional journals.34 His response to the defamatory statement was reported in “some newspapers and wire services.”35 In the subsequent libel suit, however, the Supreme Court deemed Hutchinson a private individual. The Court wrote:

We cannot agree that Hutchinson had such access to the media that he should be classified as a public figure. Hutchinson’s access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure.36

Both the composition of the audience and the continuing nature of the access were evident in Hibdon v. Grabowski,37 one of the few cases to address the access requirement in the context of the Internet. Hibdon involved a plaintiff, Kerry Hibdon, who modified jet skis to travel at record-setting speeds (upwards of seventy miles per hour).38 He publicized his work in the online newsgroup rec.sport.jetski, and his work was profiled in Splash Magazine.39 But with attention came criticism. After the article appeared in Splash Magazine, numerous individuals “questioned the authenticity of the speed Hibdon’s modified jet skis had achieved” and “criticized Hibdon’s skills as a jet ski mechanic. . . .”40 The comments were posted on rec.sport.jetski and on one of the defendant’s business websites.41

In his subsequent libel suit, Hibdon was deemed a limited-purpose public figure. The Tennessee Court of Appeals wrote, “Hibdon had access to and used effective means of communication, both through the news group and through Splash Magazine, in order to counteract the Defendant’s statements.”42 Hibdon had used these avenues to communicate in the past (that is, he had continuous interaction with them); and, through them, he could defend his reputation in front of the audience that originally heard the defamation.43

Applying the Law to Social Media Platforms

Facebook and Twitter (and virtually all social media sites) undoubtedly provide users with regular and continuing access to the media. Making a post on either site costs no money and can be visible, within a matter of seconds, to your friends (if using Facebook), your followers (if using Twitter), or the general public (if using either). However, unlike traditional media sources, courts may find that Facebook and Twitter may not provide plaintiffs with a realistic opportunity to counteract false statements.

The average Facebook user has roughly 245 friends,44 and 16 percent of those friends, on average, will see a post that he shares.45 If the average hypothetical Facebook user is defamed by another user on his page, Hibdon could serve as persuasive precedent for a court to conclude that the Facebook user had access to effective channels of communication because, as in Hibdon, the user’s response would reach an audience similar to the one that originally heard the defamation. One commenter noted:

[T]he comparative openness of the Net means that more people who feel they’ve had their reputations besmirched have access to self-help. If some bozo writes 100 lines of false statement and innuendo about your sex life or personal habits, you can write 500 lines of point-by-point refutation. It’s a “day in court” that comes cheap.46

Nevertheless, it is just as easy to imagine a scenario in which Facebook and Twitter are not viewed as sufficient to provide access to effective channels of communication. Let’s presume that the profile of a hypothetical Facebook user is visible to the public; after making a post, the user is subsequently defamed by the New York Times. Because the New York Times has a circulation of 1.8 million readers, it is unlikely that the hypothetical Facebook user, who can reach at the absolute most a couple of hundred other users, would have a realistic opportunity to counteract false statements, at least if the only consideration is the number of readers in the direct audience.

As a counterargument, however, one question may be whether the relevant audience sees the rebuttal. The average Facebook user has a greater opportunity to reach the people he actually knows, as opposed to the many random strangers who may read the New York Times. Moreover, given the widespread use of search engines, the most important factor may be whether Facebook or the New York Times appears higher in a particular person’s search results. Another factor might be whether the user has such a strong Internet presence (Facebook, Twitter, Tumblr, and other accounts combined) that the overall effect gives ample reach to various relevant audiences. But even if a plaintiff is not sufficiently prominent to be deemed a limited-purpose public figure, such an analysis may nevertheless be relevant in assessing damages.

In sum, the courts will most likely make the decision as to whether social media platforms provide plaintiffs with access to effective channels of communication on a case-by-case basis after balancing several factors. Those factors may include where the defamation occurred (e.g., in traditional media or social media or other outlets) and the size of the audience that the plaintiff can reach through social media use.

Question Two: Do Social Media Platforms Enable a Plaintiff to Voluntarily Thrust Himself to the Forefront of a Public Controversy?

Many courts have evaluated whether a plaintiff, through Internet use, can voluntarily thrust himself to the forefront of a public controversy in order to influence the outcome. In these cases, the answer has been a resounding yes. However, an open question remains as to what, exactly, would be required for a plaintiff to thrust himself to the forefront of that controversy via social media use.

Relevant Case Law

Backlund v. Stone,47 an unpublished opinion from the Court of Appeal of California, is an example of a case in which a court found that the plaintiff thrust himself to the forefront of a public controversy through Internet use. Christopher Stone, the plaintiff, “operated a website for teenagers on which he posted lewd photographs and other scandalous and salacious material.”48 Stone posted at least one image of a minor female on the site.49 In addition to operating the website, Stone regularly appeared in mass media (e.g., Fox News, CNN, and the New York Times) to discuss “sextortion,” which the court described as “the use of compromising nude photographs to blackmail the people in the photo.”50 Despite Stone’s stance against “sextortion,” in February 2010, he threatened a nineteen-year-old female by stating that he would spam a seminude photo of her throughout the Internet.51 After Gawker.com interviewed the girl, Stone sued her for defamation.52

The court deemed Stone a limited-purpose public figure. The court wrote, “Stone voluntarily thrust himself into a public controversy concerning the publication of lewd or compromising photographs of teenagers on the Internet.”53 It added, “Stone became a limited public figure by operating a publicly accessible website that published lewd photos of minors, and by seeking the public eye when he appeared on television and in print media to discuss the topic of sextortion.”54

The court reached a similar conclusion in Sinclair v. TubeSockTedD.55 In Sinclair, the plaintiff sued three anonymous defendants for defamation. The defendants had criticized Sinclair after “he [Sinclair] posted a YouTube.com video alleging that in November 1999, while visiting Chicago, he met then-state senator Barack Obama and then purchased cocaine from, used cocaine with, and performed a sex act on Mr. Obama.”56 In dismissing the complaint, the court wrote, “Arguably, Sinclair is a limited-purpose public figure concerning the controversy that he sought to generate relating to candidate Obama and the 2008 presidential election . . . and hence he must show actual malice.”57 Sinclair is important because it shows how a plaintiff using only the Internet can voluntarily thrust himself to the forefront of a public controversy in an attempt to impact its outcome.

Hibdon, a case referenced earlier, is another relevant example. In Hibdon, the court found that a public controversy existed “over the purported success of Hibdon’s jet ski modifications.”58 The controversy was public because it impacted an “identifiable segment of the public” and because the forums on which the controversy played out (rec.sport.jetski and Splash Magazine) could be reached by national and international audiences.59 Moreover, Hibdon thrust himself to the forefront of the controversy by posting on rec.sport.jetski and by agreeing to be profiled in Splash Magazine.60 The court wrote, “[A]s the figure at the center of the controversy, Hibdon’s role was extensive.”61

But not all courts have deemed individuals who simply post information on the Internet to be limited-purpose public figures. Franklin Prescriptions, Inc. v. New York Times Co.62 arose after the New York Times ran a story about online pharmacies that operated “outside the law” by selling drugs without a prescription.63 Despite the fact that the Times’s story featured an image of the plaintiff’s website, the plaintiff Franklin Prescriptions did not sell drugs online and never sold drugs without a prescription.64 In the subsequent libel suit, the court rejected the Times’s argument that the plaintiff was a limited-purpose public figure because of its Internet presence.

Important to the court’s decision was the fact that the plaintiff operated an informational website through which orders could not be placed. The court wrote:

Franklin did not inject itself into any controversy. Franklin merely provided an information only Website on the Internet and did not invite public attention, comment or criticism regarding the controversy of making drugs available via the Internet. Again, Franklin does not take or fill prescription orders online and does not allow for communication between the pharmacy and Internet users.65

The court added, “Franklin is a neutral party playing no part in the controversy of ‘online’ pharmacies as it only posted a Website for information similar to an advertisement in a phone directory.”66 The court concluded that Franklin never entered a public controversy. However, even if it had, it is not likely that Franklin (by operating a static website) would have been found to thrust itself to the forefront of that controversy.

When determining whether use of the Internet or social media enables a plaintiff to thrust himself to the forefront of a public controversy, cases evaluating libel claims in other mediums may prove influential. Sewell v. Trib Publications, Inc.67 involved a teacher who criticized American military activities in Iraq in a college classroom.68 Although not stated in the case, Sewell’s audience was likely small (probably similar in size to the audiences most Facebook and Twitter users reach). In finding Sewell to be a private figure, the court wrote, “[B]y discussing the controversy in his classroom, Sewell in no way thrust himself to the forefront of the controversy in any public forum.”69 Sewell made no comments to traditional media, did not appear on television, and “certainly was not an actor in the events giving rise to the public controversy.”70 In other words, Sewell did not have a large enough audience to thrust himself to the forefront of the public controversy involving the war in Iraq.

Nevertheless, it is important to note that some courts have held that plaintiffs do not need to achieve a prominent role in a public controversy to qualify as a limited-purpose public figure. The court in Copp v. Paxton wrote, “The ‘courts should look for evidence of affirmative actions by which purported “public figures” have thrust themselves into the forefront of particular public controversies.’”71 It added, “It is not necessary to show that a plaintiff actually achieves prominence in the public debate; it is sufficient that ‘[a plaintiff] attempts to thrust himself into the public eye’72 or to influence a public decision.”73

Applying the Law to Social Media Platforms

Backlund, Sinclair, and Hibdon show that plaintiffs can be classified as limited-purpose public figures without using traditional media. These cases also show that, under the right circumstances, a plaintiff can voluntarily thrust himself to the forefront of a public controversy through Internet use. However, it seems clear that thrusting oneself to the forefront of a public controversy requires more than simple, ordinary Internet use.

If the average Facebook user makes posts on a matter of national public concern, that fact alone—even if the posts are made public and even if he desired to impact the outcome of a controversy—would most likely be insufficient to deem the user a limited purpose public figure. A court would likely follow the reasoning of Sewell and find that access to the average of 245 friends is insufficient to thrust a person to the forefront of a controversy.

If the posts were to go viral, however, there is a better argument that the Facebook user—even if otherwise “average” in terms of reach and audience—has now taken a place at the forefront of the controversy. But viral posts create an interesting question themselves. In many cases, the speaker has no control over whether a post goes viral. Experience has shown that controversies have arisen over posts that were intended to be private, which raises a question about whether the user was trying to thrust himself to the forefront of a controversy. In many cases, the user may not have intended such a result. The question then becomes whether that should matter in light of the inherently public nature of the Internet.

Courts may be more inclined to deem a social media user a limited-purpose public figure if he enters a more contained public controversy. For example, if a public controversy erupted on social media over a video game that has a small but loyal following, Hibdon would likely serve as persuasive precedent, and a court could deem that the user has thrust himself to the forefront of that controversy because the relevant audience is smaller and the use may have greater influence in the relevant arena.

Thus, here again, the courts will most likely decide on a case-by-case basis whether a plaintiff has voluntarily thrust himself to the forefront of a public controversy in order to influence the outcome. Factors to be balanced by the courts when reaching this determination include: (1) the size of the audience that the plaintiff can reach through social media, (2) the scope of the public controversy, and (3) the plaintiff’s intent in affecting the outcome of the controversy.

Conclusion

It is unlikely that all users of social media will be deemed limited-purpose public figures. Rather, the courts will most likely continue to struggle with the distinction between private plaintiffs and limited-purpose public figures.74

Under the correct circumstances, courts should have no problem deeming plaintiffs who use social media to be limited-purpose public figures. There is no reason why the facts from Hibdon, which involved a controversy that was limited in scope, cannot play out on sites like Facebook or Twitter. Under such circumstances, social media should provide a plaintiff with access to effective channels of communication and should enable a plaintiff to thrust himself to the forefront of a public controversy. The situation becomes less clear when an individual (or entity) with a large audience defames a plaintiff who can reach only a limited audience through social media. Under that scenario, social media may not provide access to effective channels of communication and may not enable a plaintiff to thrust himself to the forefront of a public controversy, unless there are unanticipated extenuating factors, such as content going viral. Nevertheless, even if the plaintiff is not deemed a limited-purpose public figure, the ability of a plaintiff to reach a sizable audience via social media may be a factor in assessing damages and may help to mitigate damages.75

If Andy Warhol is correct, in the future, everybody will be world famous for fifteen minutes—but everybody won’t necessarily be a limited-purpose public figure.

Endnotes

1. Katherine Dorsett Bennett, Andy Warhol’s “15 Minutes” of Fame Are Not Up Yet, CNN (Sept. 5, 2012), http://www.cnn.com/2012/09/05/living/campbell-soup-company-andy-warhol.

2. Internet famous is a term coined to refer to people who achieve notoriety almost exclusively through the Internet, by using social media, appearing in a viral video, keeping a popular blog or website, or otherwise making a name for oneself online.

3. See N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, 418 U.S. 323 (1974).

4. See Sullivan, 376 U.S. 254; Gertz, 418 U.S. 323.

5. Sullivan, 376 U.S. at 280.

6. Kent R. Middleton & William E. Lee, The Law of Public Communication 143 (8th ed. 2013).

7. Black’s Law Dictionary (9th ed. 2009).

8. 418 U.S. 323 (1974).

9. Id. at 345.

10. Middleton & Lee, supra note 6, at 131 (citing Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976)).

11. Id. at 132 (citing Burnett v. Nat’l Enquirer, Inc., 144 Cal. App. 3d 991 (Cal. Ct. App. 1983)).

12. Id. at 131 (citing Buckley v. Littell, 539 F 2d. 882 (2d Cir. 1976), cert. denied, 429 U.S. 1062).

13. Gertz, 418 U.S. at 345.

14. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 Duke L.J. 855, 909 (2000) (citing Gertz, 418 U.S. at 344–45).

15. Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1577 (Cal. App. 1st Dist. 2005) (“The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues.”).

16. Erik Walker, Defamation Law: Public Figures—Who Are They?, 45 Baylor L. Rev. 955, 969 (1993).

17. Id. at 970.

18. Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967).

19. Id. at 164.

20. Gertz v. Robert Welch, 418 U.S. 323, 344 (1974).

21. 925 F.2d 703, 708–09 (Md. 4th Cir. 1991) (citing Gertz, 418 U.S. at 344).

22. Mike Godwin, Libel Law: Let It Die, Wired, Mar. 1996, available at http://www.wired.com/wired/archive/4.03/let itdie.html._pr.html.

23. 627 F.2d 1287 (D.C. Cir. 1980).

24. Id. at 1296.

25. Id. at 1297.

26. Id. (quoting Gertz v. Robert Welch, 418 U.S. 323, 345 (1974)).

27. Id. at 1298.

28. Moreover, failure of a court to consider the access requirement, which derives from Supreme Court precedent, could be an issue raised on appeal.

29. Gertz, 418 U.S. at 344.

30. Id.

31. Ann E. O’Connor, Note, 63 Fed. Comm. L.J. 507, 531 (2011).

32. 443 U.S. 111 (U.S. 1979).

33. Id. at 114.

34. Id. at 135.

35. Id. at 134.

36. Id. at 136.

37. 195 S.W.3d 48 (Tenn. Ct. App. 2005).

38. Id. at 53.

39. Id.

40. Id. at 54.

41. Id. at 54–55.

42. Id. at 62.

43. See also Thomas v. Patton, No. 162005CA003777XXXXMA, 2005 WL 3048033 (Fla. Cir. Ct. Oct. 21, 2005), aff’d and remanded, 939 So. 2d 139 (Fla. Dist. Ct. App. 2006); Stepnes v. Ritschel, 771 F. Supp. 2d 1019, 1030 (D. Minn. 2011), aff’d, 663 F.3d 952 (8th Cir. 2011). In both cases, plaintiffs who had access to media sources on the Internet were deemed limited-purpose public figures. However, because both plaintiffs also had access to traditional media sources, it is unclear whether their Internet access alone would have been sufficient to deem them limited-purpose public figures.

44. Hayley Tsukayama, Your Facebook Friends Have More Friends than You, Wash. Post (Feb. 3, 2012), http://www.washingtonpost.com/business/technology/your-facebook-friends-have-more-friends-than-you/2012/02/03/gIQAuNUlmQ_story.html.

45. Bianca Bosker, Facebook Explains How Often Your Posts Actually Get Seen, Huffington Post (Feb. 29, 2012), http://www.huffingtonpost.com/2012/02/29/face book-posts_n_1311330.html.

46. Godwin, supra note 22.

47. No. B235179, LEXIS 6467 (Cal. App. 2d Dist. Sept. 4, 2012).

48. Id. at *1.

49. Id. at *2.

50. Id. at *5.

51. Id. at *14.

52. Id.

53. Id. at *17–18.

54. Id. at *18.

55. 596 F. Supp. 2d 128 (D.D.C. 2009).

56. Id. at 130 (citing Complaint at 8.).

57. Id. at 133–34 (citing Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1296–97 (D.C. Cir. 1980)).

58. Hibdon v. Grabowski, 195 S.W.3d 48, 62 (Tenn. Ct. App. 2005).

59. Id. at 60.

60. Id. at 62.

61. Id. See also Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569 (Cal. App. 1st Dist. 2005); Eagle Broadband, Inc. v. Mould, Unpub. LEXIS 10116 (Cal. App. 6th Dist. Dec. 14, 2007). In both cases, corporations were deemed to have thrust themselves into public controversies through Internet use and press releases.

62. 267 F. Supp. 2d 425 (E.D. Pa. 2003).

63. Id. at 434.

64. Id. at 429.

65. Id. at 441.

66. Id. at 437.

67. 622 S.E.2d 919, 923–24 (2005).

68. Id. at 923.

69. Id.

70. Id. at 924.

71. 45 Cal. App. 4th 829, 845–46, 52 Cal. Rptr. 2d 831, 844 (1996) (quoting Reader’s Digest Ass’n v. Superior Court, 37 Cal. 3d 244, 254–255, 208 Cal. Rptr. 137, 690 P.2d 610 (1984)).

72. Id. at 845–46, 52 Cal. Rptr. 2d at 844 (quoting Rudnick v. McMillan, 25 Cal. App. 4th 1183, 1190, 31 Cal. Rptr. 2d 193 (1994)).

73. Id. (citing Okun v. Superior Court, 629 P.2d 1369 (1981)).

74. This should be nothing new. In Rosanova v. Playboy Enterprises, Inc., 411 F. Supp. 440, 443 (S.D. Ga. 1976), aff’d, 580 F.2d 859 (5th Cir. 1978), the court famously wrote, “Defining public figures is much like trying to nail a jellyfish to the wall.”

75. See Franklin Prescriptions, Inc. v. N.Y. Times Co., 267 F. Supp. 2d 425 (E.D. Pa. 2003) (damages).

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