In my torts class, we discuss the often uncertain line between ordinary citizens and public figures. The latter classification places a person under a higher standard to prove defamation. This week, the South Carolina Supreme Court handed down a major ruling in Cruce v. Berkeley County School Dist. that sharply curtailed the definition of a public official and a public figure in a case involving a high school football coach.
Jeffrey L. Cruce, the head football coach and athletic director for Berkeley High School, triggered some controversy in 2015 when he implemented a “no punt” strategy for the football team, a change that became increasingly unpopular as the team racked up heavy losses. In December 2015, Cruce was sent a letter advising him he was being relieved as coach and athletic director. He was reassigned to a position as a middle school guidance counselor. The legal problem arose when, on January 7, 2016, Berkeley High athletic trainer Chris Stevens sent an email to forty-five people, including administrators, athletic department employees, and volunteer coaches that suggested that Cruce had left liability issues for the district over his concerns with his file maintenance and integrity. Cruce sued for $200,000.
The district made predictable claims that Cruce was a public official and, if not, a full or limited public figure.
In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.
The standard was later extended to public figures. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
In creating this higher burden, the Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. Public figures are viewed as having an enhanced ability to defend themselves and engaging in “self-help” in the face of criticism. The Court also viewed these figures as thrusting themselves into the public eye, voluntarily assuming the risk of heightened criticism. I have previously written about the continuing questions over the inclusion of the public figures with public officials in tort actions.
The first question is whether the public official label is appropriate for low-hanging fruit among paid public employees. The South Carolina Supreme Court said that it is not:
The precedent dealing with the definition of “public official” is imprecise, but “it cannot be thought to include all public employees.” The lead decision on the issue holds that the public official category applies “at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs.” To qualify as a public official, the plaintiff must occupy a position that “would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in the controversy.” Put another way, the position must be one that attracts public scrutiny above and beyond that of the rank and file government job, such that “the public has an independent interest in the qualifications and performance of the person” holding the position.
In deciding whether someone is a public official in the defamation context, it is helpful to keep in mind the reason behind the classification: to apply the actual malice standard only where society’s strong interest in free and open public debate about public issues outweighs the individual’s important interest in protecting his reputation. The right to protect one’s reputation, a vital strand of our national history, “reflects no more than our basic concept of the essential dignity and worth of every human being–a concept at the root of any decent system of ordered liberty.” …
We understand Cruce was a public employee and enjoyed media attention akin to that of many sports figures. But that does not transform him into a public official, a classification that would strip him of his right to protect his name from being defamed to the same extent as a private citizen. No matter how intense the public gaze may be upon sports figures, they do not have any official influence or decision-making authority about serious issues of public policy or core government functions, such as defense, public health and safety, budgeting, infrastructure, taxation, or law and order. It is these public issues and functions that the First Amendment recognizes as so essential to democracy that public debate about them and their policymakers should be unchecked, except where the speech is knowingly false or uttered with reckless disregard of its truth or falsity, i.e. the “actual malice” standard of New York Times v. Sullivan.
As New York Times v. Sullivan explained, the actual malice rule protects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Fielding a football team or devising an offensive strategy is not the type of public issue envisioned by the Framers of the First Amendment. Baseball may be the national pastime, but it and other sports are just that: pastimes. They are not forums for civic concerns, and sports figures—regardless of how far and wide their fame may spread—are not public officials….
The court then said that Cruce is also not a public figure — full or limited:
Curtis Pub. Co. v. Butts (1967) … held that the head football coach at the University of Georgia (who was privately paid and not a public employee) was a “public figure” in a defamation case involving allegations of bribery. Cruce could not be an all-purpose “public figure” as that term of art from Butts was later clarified as limited to those who “have assumed roles of especial prominence in the affairs of society … [or] occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” Gertz v. Robert Welch, Inc. (1974). Nor is he that unicorn of defamation law, the “involuntary public figure,” a species Gertz described as “exceedingly rare,” and some now believe to be extinct….
[Cruce is also not] a limited public figure, … one who “voluntarily injects himself or is drawn into a particular controversy and thereby becomes a public figure for a limited range of issues.” The rationale for requiring limited public figures to prove actual malice is that such persons have not only assumed the risk by voluntarily entering the forefront of a public controversy where it is essential that speech be unbridled, but they also have superior access to media outlets to defend themselves and express counter speech….
We believe a [good] test for determining whether one is a limited public figure considers three things: (1) whether the plaintiff voluntarily injected herself into and played a prominent role in a public controversy, defined as a controversy whose resolution affects a substantial segment of the public; (2) whether the defamation occurred after the plaintiff voluntarily entered the controversy but while still embroiled in it; and (3) whether the defamation was related to the controversy….
We conclude Cruce is not a limited public figure under this test …. First, no public controversy was present. The merit of Cruce’s coaching strategy was not a controversy that affected large segments of society. Second, even if a public controversy existed over Cruce’s coaching strategy, Stevens’ defamatory comments related to Cruce’s paperwork skills, not his gridiron acumen….
The ruling on the public figure element could prove the most controversial. In many areas of the country, high school and college football coaches are better known and more influential than most public officials. They are often quoted in the media and attend public events. Some of us continue to have misgivings about the inclusion of public figures under the actual malice standard, but (if such inclusion is accepted) it is hard not to see sporting figures as public figures on the local level. Indeed, Wally Butts (the defendant in Curtis Pub. Co. v. Butts) was arguably the most famous individual in Georgia as the coach for the Georgia Bulldogs. Obviously a local high school coach does not come close to such fame, but on the local level they are the focus of similar debate and distinction.
This is an interesting case in seeking to limited these terms and one that is likely to be cited in other jurisdictions as persuasive authority.