When libel law conflicts with the First Amendment, the United States Supreme Court has held that the measure of protection received by the press depends primarily on whether the plaintiff is a public or private person. This article questions whether this “public figure doctrine” is, or should become, part of the constitutional test applied to tort actions for invasion of privacy. This inquiry is made more urgent by the willingness of at least two members of the current Supreme Court, in Bartnicki v. Vopper, to incorporate the public figure doctrine into constitutional privacy law. Part II of this article briefly describes the rise of the public figure doctrine in constitutional libel law. Part III examines the limited use of the public figure doctrine in privacy law prior to the Court’s decision in Bartnicki. The Court repeatedly seemed to reject a plaintiff’s public/private status as part of the constitutional analysis in privacy cases. However, Part III notes that the common law of privacy has always embraced the public/private figure distinction and that the Court has used the doctrine in a related area—the individual’s right of informational privacy against the government. It was against this background that the Court decided Bartnicki. Part IV sets out the conflicting views of the justices in the 2001 decision and explores Justice Breyer’s view that a plaintiff’s status (as a public or private person) is a core component of the test for constitutional protection in privacy cases. This article argues that Justice Breyer’s approach is a multifactored, ad hoc, balancing analysis that is dramatically different, and in many ways, inferior, to its libel law cousin. Part V questions the future of the public figure doctrine after Bartnicki and predicts that a person’s status will become part of constitutional privacy law. However, this article suggests that, if the Court is going to transplant a public figure doctrine into constitutional privacy law, it should adopt a doctrine based on definitional balancing, akin to that currently in libel law, and reject Justice Breyer’s ad hoc approach.
Susan M. Gilles,
Public Plaintiffs and Private Facts: Should the "Public Figure" Doctrine Be Transplanted into Privacy Law?,
83 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol83/iss4/6