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February 7, 2014 | EntertainmentFrom the blogNew YorkNews

The Foibles of Fame: How Celebrity Status Can Limit Recovery for Defamation

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Domenic Romano

Founder & Managing Partner

On February 5, 2014, acclaimed screenwriter David Bar Katz sued the National Enquirer for $50 million.  The tabloid claimed Katz, who discovered the body of close friend and recently deceased Philip Seymour Hoffman in the actor’s Manhattan apartment, told reporters in an exclusive interview that he had a sexual relationship with Hoffman and had witnessed the Oscar winner use cocaine and heroin.  Katz is accusing the Enquirer of libel, claiming the story was a “complete fabrication” and that he never conducted an interview with the newspaper at all.

Though most would consider themselves lucky to achieve the Emmy-nominated Katz’ level of success, the writer’s notoriety could actually work against him in this lawsuit.

Defamation in New York

Libel is a form of defamation that is printed or recorded.  In New York, defamation consists of the following elements:

1)      a false statement;

2)      published by a third party without authorization;

3)      amounting to at least negligence;

4)      that either causes special harm or constitutes per se defamation.

For the third element, the average private New Yorker alleging defamation would need to show that “the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.”  For borderline celebrities like Katz, however, the hurdle could be higher.

T­­­­o protect their freedom of speech under the First Amendment, Americans are allowed to discuss celebrities, politicians and the like openly with fewer fears of repercussion.   Under federal law, public figures must prove actual malice to succeed in any defamation claim—“knowledge that it was false or with reckless disregard of whether it was false or not.”  Actual knowledge or reckless disregard is a significantly greater burden for the plaintiff to bear than gross irresponsibility.

Where does Katz fall?

New York recognizes both “all-purpose” and “limited-purpose” public figures.  All-purpose public figures include those who enjoy “general fame and notoriety,” and who are “pervasively involved in the affairs of society” to some degree, including prominent actors, musicians and athletes.  Those who’ve become household names like Philip Seymour Hoffman would undoubtedly fall within this category, but it is unlikely that such a distinction would apply to Katz.

Katz might, however, be considered a limited-purpose public figure.  This group includes those who have taken affirmative steps to attract public attention and “individuals who have distinguished themselves in a particular field.”  The best news for Katz, however, is that even if he is deemed a limited-purpose figure given his success as a writer, “the actual malice standard extends only as far as defamatory statements involve matters relating to the topic about which [the individual is] considered [a] public figure.”  If Katz is a public figure at all, it’s due to his screenwriting ability, not his relationship with Philip Seymour Hoffman.  Showing that Katz was a limited-purpose public figure might be difficult for the Enquirer.

Gay is not “per se”

Katz’ lawyers may also try to argue that their client was subjected to “per se” defamation.  If the National Enquirer’s publication was considered defamatory per se, Katz would not have to prove the exact harm he suffered.  Unfortunately, Katz’s claim would likely fall short: per se violations are reserved for statements that connote a high degree of shame, contempt, ridicule, degradation or disgrace.  In 2009, a New York District Court held that falsely alleging a gay relationship was not defamatory per se.  Radio personality Howard Stern sued Anna Nicole Smith’s biographer for (among other things) writing that Stern was in a gay relationship.  The court found, however, that evolving attitudes meant the relevant statements did not carry the same negative connotations typical of per se defamation.

While Katz will, at the very least, have to show that the Enquirer behaved in a “grossly irresponsible manner,” there might be a plus side after all to not winning that Emmy in 1999.  Great fame comes with great responsibility when proving defamation.

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