Business Law - Limited Purpose Public Figures

OFFICE MEMORANDUM 3

Question Presented

Under California defamation law, does a business owner become a limited-purpose public figure for the purpose of a defamation claim when the business owner has contributed to an organization headed by a gubernatorial candidate, published two one-page articles supporting the candidate in a business newsletter and Web site, and anonymously supported the candidate in an Internet chat-room debate?

Brief Answer

No. Under California defamation law, an individual does not become a limited-purpose public figure for the purpose of a defamation claim unless there is a public controversy, the individual has voluntarily attempted to enter the forefront of the controversy to influence its resolution, the defamation is significantly related to the individual’s participation in the public controversy, and the individual has sufficient access to media with which to contradict the defamatory statement

Based on similar California cases, even if there is a public controversy, a judge would not likely find that a business owner’s contribution to an organization headed by a gubernatorial candidate, publication of two one-page articles supporting the candidate, and anonymous support of the candidate in an Internet chat-room debate is a voluntary attempt to enter the forefront of the controversy in order to influence its resolution. The business owner’s company newsletter and Web site are not sufficient media access to contradict a defamatory claim.

Facts

Paul Kanun (“Kanun”), the client, wants to file a defamation claim against California Online (“COL”) based on an article published on COL’s Web site alleging Kanun’s involvement in Scott Wright’s (“Wright”) gubernatorial campaign.

On May 11, 2007, COL sponsored a chat-room debate addressing Wright’s gubernatorial campaign. Wright has publicly announced that he is a homosexual, and he has announced that, if elected, he would like to have homosexual cabinet members. Wright has also expressed support of the legalization of marijuana, and he heads the Foundation for Medical Uses of Marijuana.

Kanun is a member of COL, and, with twenty-four other members, he participated in the debate about Wright’s campaign. Kanun participated anonymously under his screen name, MaryJane. During the debate, the moderator became increasingly one-sided against Wright. Up to that point, Kanun had been silent, but then decided to defend Wright in the debate. The moderator then confronted Kanun with the following comment: “MaryJane, I’ve just consulted inside sources who indicate that you’re in line to be Wright’s agricultural homosexual appointee. How much are you “contributing” to be one of the gay elite? Why can't you just be happy with your pot business?” After reading the comment, Kanun logged out of the chat room.

The next day, COL posted an article on its Web site entitled, “Gay Elite Invade Campaign Chat” which quoted the moderator’s comment to Kanun. COL’s Web site reportedly received 100,000 hits each day that the article was posted. In response to the article, Kanun received eighty-seven derogatory emails and thirty phone calls asking about his sexual orientation and political future with Wright’s campaign. Two major investors have expressed concern about investing in Kanun’s company, Hemp for Life, based on the article’s contention that Kanun would join Wright’s cabinet.

Kanun admits interest in the legalization of marijuana, but only participated in a public demonstration for the legalization of marijuana as a college student. Kanun and some friends participated in a demonstration in front of the White House and were arrested. The story was covered by television news and some popular newspapers.

Kanun has owned his company, Hemp for Life, since the early 1980s. Hemp for Life sells products made from hemp which is closely related to marijuana. The legalization of marijuana would significantly improve Kanun’s hemp business, and Kanun has recently made a donation of $200,000 to the Foundation for Medical Uses of Marijuana, headed by Wright. Kanun has also published two, one-page articles promoting Wright’s campaign in the Hemp for Life newsletter and on the Hemp for Life Web site. Hemp for Life’s monthly newsletter has a circulation of 10,000 and its Web site receives 8,000 hits per month.

Kanun has approached the firm to inquire about a possible defamation claim against COL based on the potentially defamatory article posted on its Web site.

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