Re: 5/10/02 - Law.com: Jewell Asks U.S. Supreme Court to Take Libel Case
Jewell Asks U.S. Supreme Court to Take Libel Case
Jonathan Ringel
Fulton County Daily Report
May 10, 2002
It was probably inevitable, once a backpack exploded in Atlanta's Centennial Olympic Park nearly six years ago, that a piece of litigation related to that act of terrorism would land before the U.S. Supreme Court.
That happened May 2, in the form of a petition for certiorari for Richard Jewell, the private security guard hailed as a hero for discovering the bomb, only to be subjected to withering scrutiny by the media when authorities initially focused their investigation on him. The Justice Department eventually cleared Jewell of any involvement in the bombing.
Now Jewell has implored the justices to review last year's ruling by the Georgia Court of Appeals that holds him to be a public figure for the purposes of his libel suit against The Atlanta Journal-Constitution. Public figures have higher burdens of proof in libel cases than do private figures, making that a heavily fought point.
Citing 10 interviews and one photo shoot Jewell granted to the media doing stories in the days immediately after the bombing, the appeals court said Jewell was a public figure in this matter, if not voluntarily then involuntarily.
BECOMING PUBLIC
Whether someone can become an involuntarily public figure has been debated since 1974, when the U.S. Supreme Court decided Gertz v. Welch, 418 U.S. 323. In the case, Justice Lewis Powell wrote that people who seek attention are public figures. "Hypothetically," he added, "it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare."
Since then, the Court has touched on that question but not decided it outright, said Rodney A. Smola, a University of Richmond law professor who has written a textbook on defamation law.
"It would do a service to the First Amendment and media law to have this resolved," Smola said.
Whether the Jewell case will be the vehicle for that is another matter. "The Supreme Court is often reluctant to take a case that doesn't pose a question cleanly," said Smola. The Jewell case presents "a bit of a messy fact pattern."
Indeed, the interviews Jewell gave to news outlets such as CNN and NBC in the days after the bombing have hurt the argument that he's a private figure.
At the appeals court, Presiding Judge Edward H. Johnson, joined by Judges John H. Ruffin Jr. and John J. Ellington, wrote, "While no magical number of media appearances is required to render a citizen a public figure, Jewell's participation in the public discussion of the bombing exceeds what has been deemed sufficient to render other citizens public figures." Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808 (2001).
Jewell's lawyer L. Lin Wood Jr. maintained his client didn't attempt to influence public debate on park safety -- a factor cited by the appeals court in deeming him a public figure -- but only answered the media's questions. "Richard Jewell never gave an interview to influence anybody about anything," said Wood.
With regard to Jewell's status as an involuntary public figure, Wood, joined by of counsel D. Brandon Hornsby, wrote in the cert petition that the appeals court established an improper "happened to be" test in deciding whether a private person drawn into a controversy is a public figure. Johnson wrote that Jewell unquestionably, but possibly involuntarily, played a role in the controversy over park safety because "Jewell happened to be the security guard on duty at the time of the bombing, happened to be the security guard who found the bomb, happened to be involved in the evacuation of the public from the area where the bomb was located."
Under that standard, Wood and Hornsby wrote in a footnote, "all private individuals who happened to be involved or associated with the tragic circumstances of the September 11 terrorists' attacks would be involuntary public figures."
Among other things, Jewell claims the newspaper libeled him when it reported -- in breaking the news that authorities suspected him of planting the bomb -- that he "fits the profile of the lone bomber."
WORTH CERT?
The Journal-Constitution has stood by its stories and denied it libeled Jewell and is expected to file a response to Jewell's cert petition soon. The newspaper's lawyer, Peter C. Canfield of the Atlanta office of Dow, Lohnes & Albertson, said the appeals court decision does not present any "cert-worthy" issue. Noting that the Constitution encourages and protects scrutiny of public figures, Canfield added that Jewell became a voluntary public figure as a result of his interviews, "in which he trumpeted his law enforcement credentials, the adequacy of his security training and his belief in the safety of the park."
"Those interviews aside, he became an involuntary public figure ... because he was the man at the very epicenter of an event of huge, local, national and international concern," said Canfield.
So far The Journal-Constitution has won the public-figure argument before a Fulton State Court judge and the appeals court. The Georgia Supreme Court in February voted 6-1 against reviewing the appeals court decision, leaving the marble building across the street from the U.S. Capitol as Jewell's last hope for the lower burden of proof.
The Georgia high court accepts a case when a majority of justices -- four -- votes to grant certiorari. At the U.S. Supreme Court, the magic number is only four of the nine justices, but it hardly makes life easier for petitioners. Statistics show that the U.S. high court grants certiorari in about 1 percent of the roughly 8,000 requests it gets every year.
Ronald K.L. Collins, a scholar who analyzes the Supreme Court for the Arlington, Va.-based First Amendment Center, noted that so far this term, the justices have granted certiorari in nine First Amendment cases and denied cert in 29 cases. An unknown number of other First Amendment cases are waiting for action. However, Collins noted that the last time the high court took up a defamation case was in 1991, when it decided Masson v. New Yorker Magazine, 501 U.S. 496. Speaking of the Jewell matter, Collins suggested, "It's an issue some of the justices might find intriguing."
How many is another question, added Collins, who noted the historic danger in speculating on the high court: "Anybody who looks into his crystal ball and makes a prediction better be prepared to eat broken glass."
Urged by a reporter to ignore that advice, Collins suggested Supreme Court Justices Anthony M. Kennedy and David H. Souter are the most likely supporters of a newspaper's libel protections under the First Amendment, with Justices John Paul Stevens and Ruth Bader Ginsburg not far away.
On the other end of the spectrum, said Collins, are Chief Justice William H. Rehnquist and Justice Antonin Scalia.
Justice Clarence Thomas is often allied with Scalia, but Collins noted that Thomas cuts his own path when it comes to free-speech matters. Indeed, while Rehnquist and Scalia dissented, Thomas last month voted with the majority when the court struck down a child pornography law as overbroad and unconstitutional.
Thomas is, however, a critic of the news media, and Collins said Thomas and Justices Stephen G. Breyer and Sandra Day O'Connor could provide the third and fourth votes for a Jewell cert grant.
But Collins offered caution there, too, pointing out that supporters of taking Jewell's case still might vote against granting certiorari if they thought their philosophical side would lose once the case were argued. "They'd need five votes to win," said Collins.
law.com |
