Legal Resource Center

Defamation—Public Official vs. Private Person

The distinction between the rights of a private person and the privacy rights of a public person is significant when Is there a difference between a public official and private defamation?considering a defamation claim. People who remove themselves from the private arena by becoming a public official or public figure do not give up all rights to privacy. However, there are specific restrictions applied to defamation claims with regard to someone who holds public office or chooses to be in the public eye.

The Public Arena                               

            According to many courts, a public official is a government employee who has, or appears to the public to have, a significant role in the business of government and public affairs. Such people are considered to be held in a position that would draw or even demand public scrutiny. They also are considered to have significant ability to defend themselves regarding such public scrutiny and therefore cannot claim defamation unless the statement is not only proven to be false, but the defamer is proven to have shown reckless disregard for that falsity. New York Times Co. v. Sullivan, 376 U.S. 254.

            This rule also applies to public figures. Not all courts have not specifically defined “public figure,” but they do identify candidates for public office and people who have achieved pervasive fame or notoriety as fitting this description. Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). A public figure could also be someone who voluntarily enters the public eye because of a particular public issue or controversy.

            Courts have upheld this rule based on the U.S. belief that the public should be able to freely discuss national issues without fear of repercussions. If a public official or public figure believes that he or she has been defamed, he or she must prove with convincing evidence that the statement is false. The public official also must prove that the defamer showed reckless disregard for that falsity, either because the defamer knew the statement was false or should have known. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).

            It is important to note that while Court decisions regarding this rule have primarily addressed issues related to freedom of the press, the rule applies to any statement, whether made in a newspaper or to an acquaintance on the street. Hutchinson v. Proxmire, 443 U.S. 111, 133 n. 16, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411 (1979).

The Private Arena

            Private individuals who believe they have been defamed must prove that the defamer showed negligence in considering or confirming that a statement is false prior to publication, rather than the more stringent reckless disregard. This rule applies also to public officials or public figures relative to personal or private matters.

            A claim must also show fault on the part of the defamer, although the specific standard can vary from state to state. Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323. The question of fault is considered in the following contexts:

  1. The statement is published or conveyed in some way to a third party;
  2. The material is false, although the publisher may have believed it to be true;
  3. The material in the statement may be construed as defamatory based on other extrinsic facts;
  4. The actual statement may be an error, or may have used a word with more than one meaning; and
  5. The defamed person may not be named specifically, but is described.

In any of these instances, the issue of liability is based on whether, in the individual situation, a reasonable person would believe that the defamer should have known that the statement would be seen by a third party, that the content was false, or that the described person was easily identifiable. If a reasonable person would take the time to research the truth or falsity of a statement or believe that a statement should be confirmed before publishing, the defamer will be held to the negligence standard.

Negligence: Conduct that creates an unreasonable risk of harm based on behavior of a reasonable person in like circumstances.

Showing negligence as opposed to reckless disregard is the key difference between a defamation action relative to a public official/figure and a private person or matter. The burden of proof remains on the plaintiff.


As in any defamation matter, truth is an absolute defense when it comes to an injury claim. The rules relative to public and private individuals, however, are complex and can vary from state to state. The law firm of Meyers Roman Friedberg & Lewis, LPA can help you determine how these rules apply to your claim. Call them at (216) 831-0042.

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