Access to Media All A-Twitter: Revisiting Gertz and the Access to Media Test in the Age of Social Networking

I. INTRODUCTION II. THE PUBLIC-PRIVATE DISTINCTION IN DEFAMATION LAW A. New York Times Co. v. Sullivan B. Gertz and the Origins of the Access to Media Test III. THE ACCESS TO MEDIA TEST IN ACTION A. The Role of the Test in Categorizing Plaintiffs B. Departure from the Access to Media Test C. The Test as Imagined by the Gertz and Hutchinson Courts IV. DEVELOPMENTS IN MEDIA, SHIFTS IN THE MAINSTREAM CURRENT A. New Definitions, New Media B. "New" Media and the Impact on Defamation Law V. ACCESS, ACCESS EVERYWHERE A. Constant Contact Between Private Individuals B. Gertz in the Age of Social Networking VI. CONCLUSION "[T]he individual's right to the protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty." (1) I. INTRODUCTION Since the introduction of the actual malice requirement for public figures in defamation cases, (2) the test employed by courts to distinguish those public figures from private individuals has frequently included an inquiry as to the level of access to media the plaintiff enjoys. This determination has been one part of a multifactor test used to establish whether the plaintiff is in fact a public figure who then must prove actual malice in order to be successful with a defamation claim. Once the plaintiff is found to be a public figure by way of this test, the burden on the plaintiff is significantly higher--making the likelihood of success much lower. Because of the resulting difficulty for the public figure plaintiff, it is important that the test in place appropriately measures the plaintiff's role within the controversy and in the public eye. The definition of what comprises the media has changed in recent years--blogs are no longer at the periphery of the media world, but have found a place within mainstream media as a source and as a tool. The line has further blurred with more widely accessible and user-friendly services that allow users to share with an Internet audience at large; with the advent of such social networking tools as Facebook, YouTube, and Twitter, it has grown easier for anyone and everyone to access the media in one way or another. With the current media landscape such as it is--political candidates announcing their plans to run for office via Twitter and Facebook, (3) widely followed print columnists employing blogs in their daily research, corporate America using YouTube videos to reach a wider advertising audience (4)--it is time to reconsider what exactly "access to media" means. Without such a reconsideration, the access to media factor in the public figure test in defamation law is outdated; furthermore, without appropriate reconsideration in the context of technological advances, this test may lead to inaccurate conclusions as to who is a public figure, based on judicial confusion as to what access means. This Note will present the history of the public-private distinction, beginning in Part II with the Supreme Court's decision in New York Times Co. v. Sullivan, where the Court announced the test applicable for public officials in defamation law--requiring a heightened burden to prove a defamation case when a public official alleges defamation. This case began a series of decisions by the Court in which the test was further refined, and the class of people who were required to meet the "actual malice" standard of proof was both clarified and expanded--by the time the Court decided Gertz v. Robert Welch, Inc., those who must prove actual malice included public figures. With Gertz, the Court attempted to set forth explicitly the appropriate test for determining whether or not a person alleging defamation is in fact a public figure and must therefore prove actual malice. Because of the added--and not insignificant--burden placed on plaintiffs who are found to be public figures, the Court established a test by which public figures may be proven as such. …