–    Yes, but in a different way than it was in Sullivan.  In
establishing the standard in Gertz, the Court employed a balancing
test:  the free speech interests of D had to be balanced against the
competing legitimate state interests in compensating individuals for
the harm they suffer from defamatory falsehood (once again, the
Sullivan balancing test).  The Gertz Court then came up with the
following test:  “So long as they [the states] do not impose
liability without fault, the states may define for themselves the
appropriate standard of liability for a publisher or broadcaster of
defamatory falsehood injuries to a private individual.”  Thus, in
libel actions brought by private citizens, the First Am. does not
forbid use of a simple negligence standard.  The states are free to
decide whether they wish to establish negligence, recklessness or
knowing falsity as the standard (but they may not impose strict
b.    The test in this case is not as strict as in Sullivan for
primarily two reasons.  First, “public officials and public figures
usually enjoy significantly greater access to the channels of
effective communication and hence have a more realistic opportunity
to counteract false statement than private individuals [as the P in
Gertz] normally enjoy.”  Secondly, public officials, by virtue of
being in the public, run “the risk of close public scrutiny,” while
private citizens have not relinquished their interest in protecting
their reputations.
c.    In terms of damages, if a private citizen shows only
negligence on the part of D, rather than recklessness or knowing
falsity, then he may not recover presumed or punitive damages,
although he can recover actual damages.  Presumed dams are awarded
where there is no proof of actual harm, but the jury believes that
dams would ordinarily result from such a libelous statement.
Punitive damages are damages to deter future conduct.  Actual damages
include “impairment, personal humiliation, and mental anguish and
suffering,” not just actual “out of pocket” expenses.
1.    Dave says it is crucial to keep in mind that this rule re
dams only applies in a case where P is a private figure and the
speech addresses a matter of “public concern.”  If the speech does
not address a matter of public concern, then this rule does not apply
and Dun & Bradstreet case applies.  Dave adds that it is sometimes
very difficult to tell the difference between public and private
concern, and he cites as an example Bill Clinton’s affairs with women
before he became President.
d.    Justice Powell sets forth two alternative bases for labeling
a person a public figure (as opposed to a private citizen).  “In some
instances an individual may achieve such pervasive fame or notoriety
that he becomes a public figure for all purposes and in all contexts”
OR “more commonly, an individual injects himself or is drawn into a
particular public controversy and thereby becomes a public figure for
a limited range of issues.”  In holding that Gertz was a private
figure, the Court said that, even though Gertz agreed to take a case
which he knew would attract substantial publicity, had neither
achieved “general fame or notoriety in the community” (so that he was
not a public figure for all purposes) nor become a public figure for
the limited purposes of the case he took because he had only played a
“minimal role” in it.
1.  If it were found that Gertz was a public figure, then the
Sullivan standard would apply.