The question is an important one in defamation law
In Colorado, if a would-be plaintiff is a public figure, it is much more difficult to bring a lawsuit for defamation. This is because the plaintiff must show that, when the defendant libeled or slandered the plaintiff, that the defendant acted with “actual malice.” And the plaintiff must prove, by clear and convincing evidence, that the defendant knew that the defamatory statement was false or that the defendant made the statement with reckless disregard of the truth.
“Clear and convincing evidence” means you find it to be highly probable and you have no serious or substantial doubt.
Public Figure versus Limited Public Figure
Historically, the courts have found that a person can become a public figure in one of two ways:
“Public Figure.” This is usually a person that assumes a role of special prominence in society. Think politician, pro sports player, Hollywood star.
These are people who have acquired such a prominent status in society that they enjoy significant access to the channels of communication to rebut defamatory falsehoods, and have broadly exposed themselves to the increased risk of defamatory falsehoods through their attainment of public prominence. These persons are almost always deemed “public figures” for purposes of defamation law.
“Limited Public Figure.” The more common “limited public figure” is usually meant to describe persons that have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
Think about a pastor who decries abortion to his congregation. (S)he would be a limited- public figure because (s)he thrust him/herself to the forefront of a particular controversy in order to influence the resolution of the issue.
The law considers these people limited public figures because they are “generally . . . capable of effectively countering criticism and exposing the falsity of defamatory statements concerning them.”
The Court Makes the Determination
Whether a person is a public figure or limited public figure is based on the individual facts of each case. Ultimately, the judge determines whether a person is a “public figure” for purposes of litigation. The jury does not get to decide this particular question.
It’s important to note that a media outlet that publishes defamatory falsehoods about an individual who is not a public figure is not entitled to claim that the First Amendment protection and can be sued under the normal negligence standard in a defamation suit. Therefore, when journalists are reporting on private citizens, they must be extra cautious to fact-check their reporting.
What You Have to Prove as a Plaintiff if You’re Deemed a “Public Figure”
If the court determines you are a public figure, you have to show the following in a defamation per quod case (not defamation per se which is slightly different):
First the plaintiff must prove to the jury that, more likely than not:
1. The defendant published X statement;
2. That one or more persons who read said statement understood it to be defamatory; and
3. The publication of the statement caused special (financial) damages to the plaintiff.
But it doesn’t stop there. If the jury finds that the foregoing 3 elements were proven more likely than not, then the plaintiff must show, by clear and convincing evidence that:
4. The defamatory statement was about the plaintiff;
5. The substance or gist of the statement was false at the time it was published; and
6. At the time of publication, the defendant knew that the statement was false OR the defendant made the statement(s) with reckless disregard as to whether it was false or not.
Only after a plaintiff proves all 6 of the foregoing elements can (s)he recover. Then, the plaintiff has to prove his or her damages to the jury.
Defamation law is super-tricky. If you or a loved one has been defamed by another person, contact defamation attorneys Jeffry Dougan or Malissa Williams at Marathon Law today to schedule your confidential case evaluation. 303-704-1222.