First Circuit Holds Trial Court Prematurely Rejected Public Figure Argument, Overturns Libel Verdict
 
October 2, 2006
 
Damon M. Seligson- Boston

The U.S. First Circuit Court of Appeals recently overturned a $950,000 libel verdict awarded against The Boston Phoenix, a weekly newspaper, on the ground that the trial court had insufficient evidence upon which to find that the plaintiff was not a public official. In a unanimous decision, the three-judge appellate panel ruled that the lower court’s determination of the public official issue was hasty because the underlying record had not been thoroughly developed.

The plaintiff, former Maryland assistant state’s attorney Marc Mandel, sued The Phoenix over a story, “Children at Risk: Losing custody to a child molester.” In the story, reporter Kristen Lombardi wrote that Mandel had molested a child from a previous marriage.

Mandel filed a defamation action in the U.S. District Court for the District of Massachusetts against The Phoenix and Lombardi. He alleged that the article sparked negative performance evaluations from his employer, such that he was essentially forced to leave his post as a state prosecutor for private self-employment.

Prior to trial, both Mandel and The Phoenix moved for summary judgment on the public official issue. This determination was crucial because Mandel’s status as a public official would be key to the success of his defamation claim at trial. If he was determined to be a public official, then he would be required to satisfy the higher burden of actual malice; that is, that The Phoenix ran the story with knowledge of falsity and/or reckless disregard for the story’s truth. By contrast, a determination that he was a private figure would mean that Mandel would need to show only that The Phoenix was negligent in its reporting and editing.

Following the summary judgment hearing, the trial court ruled that Mandel was not a public official. As support for its determination, the trial court concluded that Mandel was a low-level prosecutor who “did ordinary legal work,” did not interact with the press and did not assume a risk of diminished privacy through his employment. As a result of the lower court’s summary judgment ruling, at trial, Mandel needed only to establish that the newspaper was negligent.

At the conclusion of a 10-day trial, the jury, siding with Mandel, found two statements in the article actionable and awarded Mandel $950,000 in damages. The Phoenix appealed to the First Circuit.

The primary issue on appeal was whether the trial court prematurely decided Mandel was a private figure without the benefit of a full trial record.. Writing for the First Circuit, Judge Bruce M. Selya explained that the public official/private figure determination in libel litigation is a question of law for the court. This distinction, he wrote, “has potentially profound consequences in a defamation case,” including determining what the plaintiff must prove in order to recover damages. However, because such determinations are “heavily dependent” on the underlying factual record, and the record at issue was “disturbingly thin,” the lower court “should have demanded a more detailed factual development (even if that meant deferring the status determination to the time of trial).”

The First Circuit set forth a three-prong test that the lower court should have used to determine whether Mandel, a state prosecutor, should have been labeled a private figure or public official: (i) the inherent attributes of the position to influence issues of public importance; (ii) the position’s special access to the media; and (iii) the risk of diminished privacy assumed by taking the position.

The First Circuit remanded the case for a new trial, despite the fact that it agreed with the jury’s findings as to the falsity of the statements contained in the article. Thus, the lower court’s hasty determination of the public official issue tainted the litigation.

It is reasonable to expect that in the aftermath of Mandel, lower courts faced with the public official/private figure determination will wait until the underlying factual record is sufficiently developed, even if this requires a trial.

For more information, e-mail Damon M. Seligson at damon.seligson@hklaw.com or call toll free, 1-888-688-8500.