627 F.2d 1287 (D.C. Cir. 1980), 79-1407, Waldbaum v. Fairchild Publications, Inc.

Docket Nº:79-1407.
Citation:627 F.2d 1287
Case Date:March 31, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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627 F.2d 1287 (D.C. Cir. 1980)

Eric WALDBAUM, Appellant,



No. 79-1407.

United States Court of Appeals, District of Columbia Circuit

March 31, 1980

Argued Jan. 9, 1980.

Certiorari Denied Oct. 14, 1980.

See 101 S.Ct. 266.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 76-1810).

Lowell D. Turnbull, with whom Richard P. Shlakman, Washington, D. C., was on brief, for appellant.

Henry J. Formon, Jr., New York City, for appellee.

Before TAMM and MacKINNON, Circuit Judges, and HAROLD H. GREENE, [*] United States District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In this action we must determine when an individual not a public official has left the relatively safe harbor that the law of defamation provides for private persons and has become a public figure within the meaning of the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). After examining affidavits and exhibits submitted by the parties, Judge Howard F. Corcoran of the United States District Court for the District of Columbia concluded that the plaintiff was a limited public figure under Gertz. Because the plaintiff admitted that he could not prove "actual malice" on the part of the defendant, which Gertz requires public figures to do, Judge Corcoran entered summary judgment for the defendant. Having reviewed the facts in light of the criteria that govern the status of a defamation plaintiff, we agree with Judge Corcoran's decision and affirm.

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Although the parties in this case differ over how to classify the plaintiff, they fundamentally agree on the underlying facts. Eric Waldbaum, the plaintiff, became president and chief executive officer of Greenbelt Consumer Services, Inc. (Greenbelt) in January of 1971. Greenbelt is a diversified consumer cooperative that, during Waldbaum's tenure, ranked as the second largest cooperative in the country. 1

While serving as Greenbelt's president, Waldbaum played an active role not only in the management of the cooperative but also in setting policies and standards within the supermarket industry. He battled the traditional practices in the industry and fought particularly hard for the introduction of unit pricing and open dating in supermarkets. 2 He held several meetings, to which press and public were invited, on topics varying from supermarket practices to energy legislation and fuel allocation. He pursued a vigorous policy of consolidating Greenbelt's operations to eliminate unprofitable outlets. These actions generated considerable comment on both Greenbelt and Waldbaum in trade journals and general-interest publications. 3

On March 16, 1976, Greenbelt's board of directors dismissed Waldbaum as the cooperative's president and chief executive officer. Supermarket News, a trade publication owned by the defendant, Fairchild Publications, Inc. (Fairchild), 4 ran an item on Waldbaum's ouster on page 35 of its March 22 issue. The five-sentence article stated at one point that Greenbelt "has been losing money the last year and retrenching." Supplemental Appendix (Supp.App.) at 328. 5

On September 27, 1976, Waldbaum filed a libel action in the district court based upon this comment in the article. 6 He contended that in fact Greenbelt had not been losing money or retrenching and that this allegedly false report damaged his reputation as a businessman. Waldbaum sought actual and exemplary damages totalling $75,000.

After discovery, Fairchild moved for summary judgment. It argued that Waldbaum was a public figure and, because he had admitted the absence of "actual malice," he could not recover damages for defamation. Waldbaum countered that he was

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not a public figure and thus would have to prove only negligence on the part of Fairchild in researching and publishing the article. On February 15, 1979, Judge Corcoran granted Fairchild's motion. He concluded that although Waldbaum could not be considered a public figure for all purposes, he was a public figure for the limited range of issues concerning "Greenbelt's unique position within the supermarket industry and Waldbaum's efforts to advance that position." Waldbaum v. Greenbelt Consumer Services, Inc., Civ.No. 76-1810, at 15 (D.D.C. Feb. 15, 1979) (memorandum and order granting Fairchild's motion for summary judgment), reprinted in Appendix (App.) at 150, 164. Waldbaum now appeals. 7


In the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that certain rules of law historically applied in defamation cases impinge upon the first amendment's guarantee of freedom of the press. Specifically, the Court announced that a public official may not recover in a defamation action absent a showing "that the statement was made with 'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80, 84 S.Ct. at 726. Subsequently, the Court applied the same standard to public figures. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

These rulings balance the competing interests of the public, the press, and the individual. From its earliest days, the law of defamation made the individual's interest in his reputation supreme. Beginning with New York Times, however, the Court recognized the hard reality that society must afford a certain amount of "strategic protection" to defamatory statements to avoid chilling the dissemination of truth and opinions. Gertz v. Robert Welch, Inc., 418 U.S. at 342, 94 S.Ct. at 3008. Thus, these decisions do not insulate the defamer because of the value of his message as such. Rather, they give the media "breathing space" to ensure "that debate on public issues (is) uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. at 270, 272, 84 S.Ct. at 721, while accommodating the conflicting need of the individual to redress wrongful injury to his reputation. Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411 (1979); Gertz v. Robert Welch, Inc., 418 U.S. at 342, 94 S.Ct. at 3008.

In Gertz, decided in 1974, the Court focused on the public or private status of the plaintiff in determining how to protect simultaneously individual reputation, freedom of the press, and public debate. It found that a private individual has little means of redressing a defamatory statement except by legal action. See id. at 344, 94 S.Ct. at 3009. It therefore held that a state may allow a private person to recover for defamation under any standard, as long as that standard does not impose liability without fault. Id. at 347, 94 S.Ct. at 3010.

This balance shifts, however, when one turns from private persons to public officials or figures. First, those who enter the public spotlight have greater access to the media to correct misstatements about them, as shown by their preexisting media exposure. Id. at 344, 94 S.Ct. at 3009. 8 More important, in "assum(ing) special prominence in the resolution of public questions," id. at 351, 94 S.Ct. at 3013, public figures

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"invite attention and comment," id. at 345, 94 S.Ct. at 3009. They thus accept the risk that the press, in fulfilling its role of reporting, analyzing, and commenting on well-known persons and public controversies, will focus on them and, perhaps, cast them in an unfavorable light. See id. at 344-45, 94 S.Ct. at 3009. 9 Although these generalities may not fit every situation exactly, they draw a relatively clear line for the press to follow. See id. at 345, 94 S.Ct. at 3009. 10

In trying to define who is a public figure, the Court in Gertz created two subclassifications, persons who are public figures for all purposes and those who are public figures for particular public controversies. An individual may have attained a position "of such persuasive power and influence," id., and of "such pervasive fame or notoriety," id. at 351, 94 S.Ct. at 3013, that he has become a public figure in all situations. This test is a strict one. The Court stated flatly that "(a)bsent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life." Id. at 352, 94 S.Ct. at 3013. Accord, Wolston v. Reader's Digest Association, 443 U.S. 157, 165, 99 S.Ct. 2701, 2706, 61 L.Ed.2d 450 (1979).

The Court in Gertz acknowledged freely that under this definition the general public figure is a rare creature. More common are persons who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." 418 U.S. at 345, 94 S.Ct. at 3009. Put slightly differently, this limited-purpose public figure is "an individual (who) voluntarily injects himself or is drawn into a particular public controversy and therefore becomes a public figure for a limited range of issues." Id. at 351, 94 S.Ct. at 3013. The relevant examination turns on "the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Id. at 352, 94 S.Ct. at 3013.


Unfortunately, the Supreme Court has not yet fleshed out the skeletal descriptions of public figures and private persons enunciated in Gertz. The very purpose of the rule announced in New York Times, however, requires courts to articulate clear standards that can guide both the press and the public. From analyzing Gertz and more recent defamation cases, we believe that a person can be a general public figure only if he is a "celebrity" his name a "household word" whose ideas and actions the...

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