NEWS MEDIA UPDATE · FIRST CIRCUIT · Libel · Aug. 8, 2006
Libel verdict overturned based on public figure finding
Aug. 8, 2006 · A nearly $1 million libel verdict against The Boston Phoenix was overturned Wednesday by the U.S. Court of Appeals in Boston (1st Cir.), which ordered a new trial because the lower court erred in too hastily determining that the plaintiff was not a public figure.
A three-judge panel ruled that the court should have delayed making that key determination about plaintiff Marc Mandel until all the facts were in place.
The district court “should have demanded more detailed factual development (even if that meant deferring the status determination to the time of trial),” Judge Bruce M. Selya wrote for the unanimous panel.
At issue was whether an assistant state’s attorney who sued the Phoenix is a public official, said Kimberley Keyes, one of the media attorneys on the appeal.
“That is a question that was first raised on summary judgment,” she said. “The First Circuit obviously decided that the trial judge was premature in deciding that issue on the record that existed at the time of summary judgment. Basically the trial judge didn’t have a sufficiently developed record to make the decision that he did.”
Mandel’s status as a public figure for the purposes of the trial is important to his defamation claim. If he is a public figure, then he would have to show that the paper ran the article he claims defamed him with actual malice — knowledge of or reckless disregard for the article’s truth.
If he was found to be a private figure, then he needed to show only that the newspaper was negligent in running the article. Before trial, the court granted Mandel’s motion to be labeled a private figure for the purposes of the case.
“Reasoning that Mandel was only 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, the court concluded that he was not a public official within the purview of libel laws,” Selya wrote.
Keyes said the ruling clarifies what courts should look for in determining who is a public figure.
“We read the First Circuit opinion as emphasizing that that kind of decision needs to be made based on the inherent attributes of a public official as opposed to the personal qualities or characteristics that an individual may have at that particular job,” she said. “In other words, the focus is on the actual position, not on the person who carries out the duties.”
Mandel sued the Phoenix over an article by Kristen Lombardi, “Children at Risk: Losing custody to a child molester,” which ran in the Jan. 10-16, 2003, issue and reported that Mandel had molested a child from a previous marriage. After ruling that Mandel was a private figure, the court held a trial and a jury awarded Mandel $950,000 in 2004.
The First Circuit, ruling that the district court did not have enough evidence to label him a private figure, laid out a three-prong test that should have been used to determine whether a Mandel, as a state prosecutor, should have been considered a public or private figure.
The test requires looking at whether the inherent attributes of the position give it influence over issues of public importance and at the position’s access to the media as well as the risk of diminished privacy assumed by taking that position.
“We think that going forward it would be best for media defendants to really make sure that there is enough information on the summary judgment record — of course on all three prongs — but definitely on that inherent attributes prong,” Keyes said.
In applying that test to Mandel, the First Circuit found there was not enough evidence on the record to determine his status as a public or nonpublic figure. Since that status played such an important role in the outcome of the trial, the appellate court said it had no choice but to vacate the verdict and order a retrial.
(Mandel v. Boston Phoenix Inc., Media Counsel: Robert A. Bertsche, Paige Scott Reed, Kimberley Keyes, Prince, Lobel, Glovsky & Tye, Boston for Lombardi; Dan Gleason, Rebecca Shuffain, Nutter McClennen & Fish for the Phoenix) — CM