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Erik Wemple
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Posted at 11:55 AM ET, 07/08/2011

DSK accuser not a public figure

The Internet is starting to host opinions that DSK’s accuser is somehow a “public figure.” The term is one of journowonkery and matters a great deal to the recently filed libel suit against the New York Post.

That suit, filed by attorneys for the DSK accuser, charges the New York Post with defaming her in a story that called her a “working girl,” among other slang terms for “prostitute.”

Following the suit comes a load of legal analysis, including some by the Erik Wemple blog. Central to any libel case is whether the person bringing the action — the plaintiff — is a public figure. Why? Because bona fide public figures, in the eyes of the law, have to deal with a searing level of public criticism. They ask for it, they get it.

And so any public figure has a higher burden of proof in order to prevail in a libel claim: He or she has got to show that the offending media outlet not only printed damaging falsehoods, but also that the offending media outlet printed them with “actual malice” — that is, either knowledge of the falsehoods or a reckless disregard for the factual integrity of the statements. That’s a tough thing to do.

Regular old people, by contrast, need only show that the outlet negligently published false and damaging things.

Is the DSK accuser a public figure or just a person? Here’s a snippet from the analysis of the Hollywood Reporter:

One possibly wrinkle: The woman has been in the press for several weeks and would therefore seem to be a “public figure,” which would mean that [she] would have to prove actual malice on the newspaper’s part.

And an excerpt from the Atlantic Wire on the same matter:

So the accuser ... will have to show she is not a public figure, and if she can’t make that case, she’ll have to prove the paper went after her with “actual malice.” That could be hard to do.

No, easy to do.

For the purposes of a libel proceeding, public figures are people whose professional choices put them directly in the public eye — meaning visible government leaders and celebrities. Which of those is the DSK accuser?

Then there’s the “limited purpose” public figure, which is perhaps the category to which the commentators above are referring. A “limited purpose” public figure applies to people who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” What judge will rule that accusing someone of rape meets this standard?

Another consideration: As the doctrine’s name implies, a “limited purpose” public figure is treated as such only for the purpose of allegations about his or her role in that particular controversy. The New York Post’s allegedly defamatory statements are not about the DSK incident — they’re about the accuser’s personal background. So just because someone gets ensnared in a public matter, there’s no “open season” for all kinds of nasty, baseless reporting about the person.

To close out the doctrine, there’s an “involuntary public figure” — someone who becomes prominent via unintentional association with a big event. In 1985, for example, a federal appeals court ruled that an air traffic controller on duty during a crash qualified as an involuntary public figure. Only in “exceedingly rare.” cases are courts to certify a plaintiff as an involuntary public figure.

Now let’s ditch the legal talk for a second and address fairness. And for the sake of clarity, let’s talk about a hypothetical case, not DSK. The facts are these: A woman alleges that a high-profile technology executive has raped her. The allegations touch off an immediate media storm, during which one publication reports that the woman had worked as a prostitute. A libel complaint zooms into the picture.

Is the accuser in this case a public figure? Atlantic Wire and the Hollywood Reporter apparently believe so.

It’s a chilling prospect. Why should someone who’s the alleged victim of such a brutal act have to clear more hurdles in court? And just because the media likes the story? Do we need yet another impediment to women using the court system in such cases? I know there’s a lot of sexism in this country; I just hope it’s not quite that entrenched.

By  |  11:55 AM ET, 07/08/2011

 
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