Document Type

Article

Publication Date

2015

Abstract

This Article embraces neither the narrow nor broad conceptualization of a public official employed currently by state and lower federal courts but instead suggests revisiting the Rosenblatt formulation and the one clear limitation set forth by Hutchinson that whatever the scope of public officialdom may be “it cannot be thought to include all public employees.” Though not all speech about government employees should be deemed to be related to their official capacity, all government employees should be considered public officials, and speech related to their official conduct should be safeguarded by the actual malice standard. To explain and support this contention, this Article in Part II delineates the Supreme Court’s constitutional framework for categorizing plaintiffs in defamation cases. In Parts III and IV of the Article, the three principal arguments for not applying the actual malice standard to lower-level government employees and why those arguments are ultimately unavailing are explored. More precisely, Part III of the Article addresses the contention that speech about lower-level government employees is unimportant to democratic self-governance. In responding to this argument, Part III seeks to demonstrate that speech about the actions of lower-level government employees who are acting in their official capacity is political speech that is critical to democratic self-governance. The Article in Part IV sets forth the opposing argument that the actual malice standard should not be applied to lower-level government employees because of their lack of access to media for purposes of self-help and because they have not voluntarily submitted to such scrutiny. These rationales for not protecting speech relating to the official conduct of lower-level government employees arise from the Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc. Part IV delves into the manner in which four decades of societal and technological change since Gertz have significantly diminished the persuasiveness of the lack of access to media rationale. Part IV also examines how the jurisprudential transformation in the concept of voluntariness in the years after Gertz has rendered the voluntariness rationale unavailing as a basis for not applying the actual malice standard to lower-level government employees. The Article in Part V explores the First Amendment jurisprudential dissonance created by failure to afford greater protection to speech about the official conduct of lower-level government employees. Ultimately, the Article seeks to explain, in contradistinction with Rosenblatt and Hutchison, why all government employees should be deemed public officials, and why speech related to their actions within their official capacity should be protected by the actual malice standard.

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