Opinion
Case No. CIV-98-1628-F
November 15, 2002
MEMORANDUM OPINION
On August 29, 2002, this court entered an order denying the motion of the defendants, Conde Nast Publications, Inc., Advance Magazine Publishers, Inc. and Mary A. Fischer ("defendants"), for partial summary judgment. The court now states the reasons for its denial of the motion for partial summary judgment.
In their motion, the defendants sought a determination that the plaintiff is a public figure, as a matter of law, for purposes of his defamation case. Public officials are required to prove "actual malice" in order to prevail in a defamation case. See, New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). The defendants contend that the plaintiff, who was a correctional officer at the time relevant to this action, is a public official as a matter of law. In their moving papers, the defendants correctly point out that law enforcement officers generally and correctional officers specifically have been held by some courts to be public officials. Defendants cite various defamation cases involving both law enforcement officers and correctional officers. In one case relied upon by defendants, Stewart v. The Sun Sentinel Co., 695 So.2d 360 (Fla.App. 4th Dist. 1997), rev. denied, 697 So.2d 512 (Fla. 1997), the court concluded that jailers were public officials. The court, in so doing, rejected the jailers' argument that they could not be equated with police officers. The defendants also point to Sweeney v. Legal Servs. of N.Y., 146 A.D.2d 1, 538 N.Y.S.2d 370 (3d Dept. 1989), rev'd on other grounds, 84 N.Y.2d 786 (1995), where the court similarly concluded that the plaintiffs position as a corrections officer was indistinguishable from that of a police officer. Further, the defendants cite Lyons v. State, 1993 Tenn App. LEXIS 668, 1993 WL 414840 (1993), where the court held that "while plaintiff Lyons [a correctional officer] was fairly low in the government pecking order, `he is nonetheless a public official.'"
In footnote 1 of their motion, the defendants indicate that the term "public figure" encompasses all types of public persons, including public officials. Accordingly, for the most part, defendants' discussion uses the "public figure" terminology. As relevant to this case, the more natural and descriptive term is "public official." The court will use that terminology to include both public figures and public officials. Defendants do not assert that plaintiff is a public figure as distinguished from a public official.
In response, the plaintiff points out that the burden of establishing plaintiffs status rests with the defendants and asserts that there is no genuine issue of fact material to a determination of that issue. The plaintiff asserts that the defendants have failed to satisfy their burden. The plaintiff contends that cases which have considered each of the factors deemed relevant by the Supreme Court in Rosenblatt v. Baer, 383 U.S. 75 (1966). and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), to a determination of public official status have concluded that an entry level government employee guarding inmates is not a public official. The plaintiff specifically cites Smith v. Copley Press, 140 Ill. App.3d 613 (1986), and Penland v. Long, 922 F. Supp. 1085 (W.D.N.C. 1996) rev'd on other grounds, 102 F.3d 722 (4th Cir. 1996). The plaintiff contends that similar rulings have been made with respect to law enforcement personnel, citing McCusker v. Valley News, 121 N.H. 258, 428 A.2d 493 (1981)' cert. denied, 454 U.S. 1017 (1981) and Himango v. Prime Time Broadcasting, Inc., 37 Wash. App. 259 (1984). The plaintiff argues that defendants have failed to establish that the plaintiffs position as a correctional officer is of such importance that the public has an interest in the position which is beyond its generalized interest in the qualifications and performance of all government employees. On the contrary, the plaintiff contends that there is evidence, by way of his affidavit, that his position was (and is) entry level, he served a probationary period when hired (after which he progressed from the GS-6 to the GS-7 pay grade), he did not supervise any other employees, his position required him to carry out orders of several superior ranks, and he had no responsibility for management of any aspect of the Federal Transfer Center. According to the plaintiff, the evidence shows that he was simply one of numerous correctional officers who guarded inmates in the prison. Moreover, the plaintiff contends that the defendants have offered no evidence to show that he had the ability to defend himself publicly or that he "assumed the risk" of defamatory falsehoods. Furthermore, the plaintiff asserts that the case law cited by the defendants is distinguishable. Plaintiff argues that the case law does not provide a substitute for evidence necessary to discharge the defendants' burden on the public official defense and it does not offer a reasoned basis for a conclusion, applying the Supreme Court criteria for public official determinations, that the plaintiff is a public official as a matter of law.
The defendants, in reply, assert that the plaintiff has failed to address many of the federal cases that support the conclusion that a federal officer employed in the criminal justice system is a public official as a matter of law. In addition, the defendants contend that the controlling law of this Circuit, Gray v. Udevitz, 656 F.2d 588 (10th Cir. 1981), is that even low-level law enforcement officers qualify as public officials under the Rosenblatt test for public official status. The defendants contend that the plaintiffs attempt to distinguish between police officers and federal correctional officers is misguided and contrary to Supreme Court precedent which recognizes that conditions in jails and prisons are matters of public importance. The defendants contend that the importance of corrections officers and the public's interest in their performance and qualifications is obvious. Defendants point out that plaintiff admits in his affidavit that he is responsible for the care and custody of federal inmates, that he may be required by superiors to carry weapons when he encounters a hostile or life-threatening situation such as a riot, assault or escape and that he is responsible for determining whether inmates are complying with or violating laws, rules or regulations. The defendants contend that under the Rosenblatt and Udevitz tests, the plaintiff is a public official. The defendants argue that whether or not the plaintiff enjoys access to channels of communication in order to counter the allegedly actionable statements at issue in this case is irrelevant to the question of whether he is a public official. Finally, the defendants argue that the cases cited by the plaintiff for the proposition that police officers and corrections officers are not public officials run contrary to the overwhelming authority that such persons are public officials.
In this respect, the court relies upon plaintiffs affidavit rather than on defendants' aggressive interpretation of that affidavit. Compare plaintiffs affidavit, ¶ 4, with defendants' reply brief, at 5.
In New York Times, the Supreme Court established the rule that a public official must provide clear and convincing proof of "actual malice" to recover damages for a defamatory falsehood relating to his official conduct. However, the Supreme Court did not define the boundaries of the official conduct concept. New York Times, 376 U.S. at 283 n. 23. The Court remarked, "[w]e have no occasion here to determine how far down into the lower ranks of government employees the `public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included." Id. However, in Rosenblatt, the Supreme Court provided some guidance for determining who is a public official under the New York Times rule, stating that "the `public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to have substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt, 383 U.S. at 85. The Court also stated that "[w]here a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, . . . the New York Times malice standards apply." Id. at 86. The Court noted "[t]he employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy." Id. at 86, n. 13.
Having carefully considered the parties' submissions, and having undertaken its own independent research and review of the record, the court concludes that the defendants have not established as a matter of law that the plaintiff, a low-level correctional officer, is a public figure or public official. The evidentiary materials before the court do not establish that the plaintiff had substantial responsibility for or control over the conduct of governmental affairs. Indeed, plaintiff's entry level job entailed no managerial responsibilities. Although plaintiffs discharge of his duties inevitably involved some element of judgment and discretion, most menial government employees must also apply some judgment in order to carry out their duties.
The court concludes that the decision of the Court of Appeals in Gray v. Udevitz, while certainly relevant to this analysis, is ultimately unavailing to the defendants. The duties of the plaintiff are decidedly different than the duties of the street level policeman or "[t]he cop on the beat" found to be a public official. The plaintiff is not "a member of the department who is most visible to the public" and does not "possess both the authority and ability to use force" in dealings with the public. Id. at 592. The plaintiff has very little contact with the public. Moreover, he does not normally carry a weapon. In the event of a hostile or life-threatening situation, the plaintiff may be ordered by a superior officer to take possession of various types of weapons and use them under the supervision of the superior officer. Plaintiff' s Affidavit, ¶ 4. Therefore, unlike the law enforcement officer, the plaintiff is not visible to the general public and possesses limited authority in exercising force. Plaintiff clearly works in a physically and legally confined setting in which — unlike Officer Gray in Gray v. Udevitz — the activities of the correctional officer are regimented almost as much as the activities of his charges. While the court acknowledges that an abuse of the plaintiff's position may affect public interest, the abuse by any governmental employee of his or her position may also affect public interest. The court, however, cannot conclude, from the evidence before it, that the plaintiff's position had such apparent importance that the public would have an independent interest in the qualifications and performance of the plaintiff, beyond the general public interest in the qualifications and performance of all government employees.
Subsequent to the filing of the briefs now before the court, the Tenth Circuit has again addressed the status of law enforcement officials as public officials in Revell v. Hoffman, ___ F.3d ___ 2002 WL 31424860 (10th Cir. October 30, 2002). The Tenth Circuit, in deciding that the plaintiff was a public official, cited the holding in Gray that law-enforcement officials are public officials for First Amendment purposes. However, the facts of Revell have no resemblance to the facts of the case at bar. The plaintiff held positions in "the high echelons of the FBI where he had an influential role in fundamental issues of this country's national and foreign policy." id. at *3 (quoting the District Court). The plaintiff, in the instant case, was merely a low-level correctional officer. The Tenth Circuit was not called upon to decide whether a low-level correctional officer, such as the plaintiff, is a public official for First Amendment purposes.
The defendants have cited several cases which have concluded otherwise as to correctional officers. See, e.g. Beeton v. District of Columbia, 779 A.2d 918 (D.C. 2001); Stewart, 695 So.2d at 361; Lyons, 1993 WL 414840 *2; Murphy v. Battle, 21 Med.L.Rptr. (N.Y.Sup.Ct. 1993);Sweeney, 146 A.D.2d at 6. The court finds the cases unpersuasive. Several of the cases rely upon the Appellate Division's decision in Sweeney, a decision which gives little analysis for its holding. The court cannot agree with the Sweeney court or the Stewart court that the position of corrections officer is "indistinguishable" from that of a police officer. The cases also cite the Supreme Court's decision in St. Amant v. Thompson, 390 U.S. 720 (1968). However, the Supreme Court, in that case, noted "for purposes of this case we accept the determinations of the Louisiana courts . . . that Thompson was a public official." Id. at 730. In Lyons, the Tennessee Court of Appeals quotes Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn. 1978), where the Tennessee Supreme Court stated:
Any position of employment which carries with it duties and responsibilities affecting the lives, liberty, money or property of a citizen, or that may enhance or disrupt his enjoyment of life, his peace and tranquility, or that of his family, is a public office within the meaning of the constitutional privilege.
This formulation is so broad as to virtually eliminate the possibility that any government employee could escape public official status. Even the lowest functionary has duties and responsibilities that affect citizens' lives, liberty, money or property or that may enhance or disrupt enjoyment of life. For the purpose of evaluating plaintiffs status as a putative public official, the court rejects the Tennessee formulation as hopelessly overbroad.
The court's determination of whether plaintiff must, as a matter of law, be treated as a public official is also influenced by the fact that the regulations which govern the plaintiff's performance of his duties clearly demonstrate both his low station and his lack of authority of the kind usually exercised by those who are classified as public officials. Detailed regulations control virtually every aspect of a correctional officer's contacts with inmates, visitors and others. See, generally, 28 C.F.R. Part 500. Specific regulations govern searches of inmates, searches of visitors, supervision of visits and visitors, inmate discipline, use of force, handling of inmate personal property, and numerous kindred matters 28 C.F.R. § 511.10, 540.51, 541.2, 552.10, 552.20 and 553.10. The contrast between the discretion accorded a correctional officer and that wielded by a "beat cop" is stark: "The police are among the most important policymakers of our entire society. And they make far more discretionary determinations in individual cases than any other class of administrators; I know of no close second." Davis, Discretionary Justice: A Preliminary Inquiry, Baton Rouge, LA: Louisiana State University Press, 1969, at 166 (as cited in Kelling, " Broken Windows" and Police Discretion, U.S. Department of Justice, Office of Justice Programs (National Institute of Justice), 1999, at 23 (available at www.ncjrs.org/pdffilesl/nij/17829/pdf). The discretion, and the resultant control over the lives of ordinary citizens, which is inherently characteristic of the work of the police officer has no corresponding place in the life of the correctional officer within the walls of the correctional institution.
To the extent that it is relevant in determining the status of a public official, the court also finds that the plaintiff was not in a position in which he, by virtue of his employment, had "significantly greater access to the channels of effective communication" to counter defamatory falsehoods than private individuals. Likewise, the court finds that there is nothing inherent in the plaintiff's job which would suggest that, by seeking and accepting employment as a correctional officer, the plaintiff assumed the risk of defamatory harm to his reputation.
The category of public official "cannot be thought to include all public employees," Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8 (1979). Thus, if it may be admitted that the New York Times malice standard does not entirely vitiate society's "pervasive and strong interest in preventing and redressing attacks upon reputation," Rosenblatt, at 86, it inexorably follows that there is a level below which a government employee is entitled to assume that he will have the right to defend his reputation on the same footing as any other citizen. Defendants have not shown that plaintiff, a correctional officer who went to work, put in his hours, made his rounds and then went home, is at or above the level at which the First Amendment exacts its price for public service. The court accordingly has concluded that the defendants have not established that the plaintiff must, as a matter of law, be treated as a public official.
For the foregoing reasons, the defendants' Motion for Partial Summary Judgment filed on May 24, 2002 (docket entry no. 144) was denied by the court's August 29, 2002 order.