The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Dr. Luke Isn't a Public Figure for Purposes of His Libel Lawsuit Against Ke$ha

So the New York intermediate appellate court held yesterday, by a 3-2 vote.

|

From the majority opinion, signed by Presiding Justice Rolando Acosta and Justices Tanya Kennedy and Manuel Mendez:

The … complaint alleges that in 2005, plaintiff [Lukasz Gottwald, known as Dr. Luke], an established music producer at the time—known for his music, business acumen and the artists he represents—[began to work] with Kesha who was then unknown…. The complaint further alleges that shortly after entering into the … agreement, Kesha was frustrated that her recording career was not progressing quickly…. The complaint alleges that in 2012 and 2013 Kesha and her agents ([her mother Pebe Sebert], nonparties Mark Geragos and Kenneth Meiselas—her then attorneys—and Sunshine Sachs, her newly retained public relations firm) sought to end her agreement with Gottwald so she could derive a larger share of profits from any future records….

[The complaint alleges that] Kesha's agents orchestrated a "press plan," that included a campaign of publishing "false and shocking" accusations against Gottwald in order to pressure him to release Kesha from the agreements and "blacklist" Gottwald from the music industry. The complaint cites several emails and letters published by Pebe and Kesha in 2013 and 2014 referring to Gottwald's abuse, which, plaintiffs allege were knowingly false. It is also alleged that they also forwarded false information to a social media blogger, Michael Eisele (with whom Kesha was in direct communication), who ran a campaign entitled "Free Kesha," to spread false allegations against Gottwald—insinuating he abused Kesha—across social media to garner support.

The complaint further alleges that on February 26, 2016, after this action was commenced, Kesha initiated a text message conversation with the recording artist professionally known as "Lady Gaga" in which Kesha falsely asserted that she had been raped by Gottwald and that another famous female recording artist (which Kesha named) "was raped by the same man." After the text message conversation, Lady Gaga also spread negative messages about Gottwald in the press. {That famous female recording artist testified unequivocally that Gottwald never raped her.}

The key issue on appeal was whether Dr. Luke is a public figure, so that he could "only recover for defamation if the statements asserting that he drugged, raped and sexually assaulted her were made" with knowledge that they were false or likely false. And the lead opinion said that Gottwald was not a public figure:

[W]hile Gottwald is an acclaimed and influential music producer, he does not occupy a position of "such pervasive fame or notoriety that he [has] become[ ] a public figure for all purposes and in all contexts" and that he did not "become[ ] a public figure for a limited range of issues" by "voluntarily inject[ing] himself" into the public debate about sexual assault, or abuse of artists in the entertainment industry.

A person can only be a general-purpose public figure if "he [or she] is a 'celebrity'; his [or her] name a 'household word' whose ideas and actions the public in fact follows with great interest "and 'invite[s] attention and comment.'"

"Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life." Contrary to the dissent, Gottwald's success in the music business is not enough to bring him into the realm of a general-purpose public figure, even if the music he produces is known to the general public or he is associated with famous or household word musicians, especially where he has used his efforts as a producer to obtain publicity not for himself, but for the artists that he represents.

Although he is an acclaimed music producer and well known in the entertainment industry, he is not a household name. {Gottwald was named one of a hundred most creative people in business but was not selected as a judge in American Idol and did not receive a star in Hollywood's walk of fame.} His success in a high-profile career, without more, does not warrant a finding that he is a general-purpose public figure.

A limited-purpose public figure, more commonly, is an individual who has voluntarily injected himself or is drawn into a particular public controversy with a view toward influencing it. "[T]he [individual becomes] a public figure by virtue of his purposeful activity amounting to a thrusting of his personality into the 'vortex' of an important public controversy." The individual must attempt to have, or can be expected to have, a major impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants. Here, contrary to the dissent's view, the specific public dispute as framed by Kesha is sexual assault and the abuse of artists in the entertainment industry….

To be considered a limited purpose public figure Gottwald must have: (1) successfully invited public attention to his views in an effort to influence others prior to the incident in question, (2) voluntarily injected himself into a public controversy related to the subject of the current litigation, (3) assumed a position of prominence in the public controversy, and (4) maintained a regular and continuing access to the media to influence the outcome of the public controversy.

Gottwald cannot be found to be a limited-purpose public figure because he has not done any of these things.

Although Gottwald has sought publicity for his label, his music and his artists—none of which are subject of the defamation here—he never injected himself into the public debate about sexual assault or abuse of artists in the entertainment industry. Gottwald has only spoken out once regarding this litigation, on Twitter in 2016, and has limited his involvement to what was necessary to defend himself.

The dissent argues that "[t]he definition of limited purpose public figure is not so cramped as to only include individuals and entities that purposefully speak about the specific, narrow topic (in this case a protégé's sexual assault) upon which the defamation action is based," but fails to acknowledge that a limited purpose public figure only holds that status with regards to the particular public controversy they thrust themselves into.

Gottwald, a successful music producer, has not attracted media attention for his relationship with his clients or his treatment of artists in the entertainment industry but for his work as a music producer on behalf of, and the fame of, the artists he represents. Unlike the cases cited by the dissent, where the plaintiffs sought publicity regarding the public controversies which were the subject of their litigation (Winklevoss v. Steinberg, 170 AD3d 618, 619 [1st Dept 2019], appeal dismissed 33 NY3d 1043 [2019] [the plaintiffs attracted public attention to themselves as investors in start-ups, voluntarily injected themselves into the world of investing through conferences, interviews and a radio broadcast, and sought to establish their reputation as authorities in the field]; Maule v. NYM Corp., 54 N.Y.2d 880, 883 [1981] [where the plaintiff's books, articles and personal appearances were designed to project his name and personality to establish his reputation as a leading authority on professional football, and actively sought publicity for his views and professional writings, which were the subject of the litigation]; Park v Capital Cities Communications, 181 A.D.2d 192, 197 [4th Dept 1992], appeal dismissed 80 N.Y.2d 1022 [1992], lv dismissed in part, denied in part 81 N.Y.2d 879 [1993] [where Dr. Park stepped outside the private realm of his practice, actively sought publicity regarding his performance of eye surgery by appearing on television shows, found to be a public figure for purposes of the "Park Probe," an expose on unnecessary eye surgery]), Gottwald has not.

Gottwald has appeared in articles in mainstream media for his contributions to pop music, his discovery and development of talent, his rise in the music industry and his talent as both a businessman and music producer. However, he has not injected himself into the debate about sexual assault or abuse of artists in the entertainment industry, which is the subject of the defamation. That fact distinguishes this case from those cited by the dissent.

Justice Saliann Scarpulla, joined by Justice Jeffrey Oing, dissented on this point:

The record here amply demonstrates that Dr. Luke was, at the relevant time, a "public figure" for purposes of reviewing Kesha's allegedly defamatory statements that he sexually assaulted her. Dr. Luke was (and is) a widely acclaimed and influential music producer who actively sought publicity for himself, his label, his music, and the artists that he represents.

Throughout his career, Dr. Luke has promoted and publicized his contributions to the success of the recording artists contractually attached to his label, and, in particular, up and coming female artists. Dr. Luke has co-written and/or co-produced numerous hit songs for various prominent female artists, for which he is also well known.

Dr. Luke has received numerous accolades: he was named one of the top music producers of the 2000's by Billboard; the American Society of Composers, Authors, and Publishers named him Producer of the Year from 2009–2011; he has been nominated for the Grammy award, Producer of the Year; and, in 2010, he was named # 33 in Fast Company's "100 Most Creative People in Business" list. In 2010, Dr. Luke was selected by the Grammy and Recording Academy, and participated in, in a congressional roundtable. In 2013, Dr. Luke was selected to be an American Idol judge, and in 2014, Dr. Luke was selected to receive a star on the Hollywood Walk of Fame.

Moreover, Dr. Luke has actively sought out publicity. He has hired public relations agents, and he has been interviewed, profiled, photographed, and mentioned by numerous periodicals, including the New Yorker, New York Magazine, The Guardian, Rolling Stone, and Billboard. He participated in interviews on prime-time television and on the red carpet at several awards shows. Dr. Luke has also been active on social media. For example, he has more than 200,000 followers on his verified Twitter account, which he uses to talk about his professional and personal life to his followers, including his relationships with the artists whom he represents.

In sum, over many years Dr. Luke has received broad and extensive press coverage as a music producer and, in particular, as a discoverer and developer of female music talent. He has pervasively sought out this publicity. Dr. Luke's protestations that he was not well known at the time of the alleged defamatory statements is thoroughly belied by the record. Under these circumstances, Dr. Luke must prove actual malice in order to prevail on his defamation and defamation-dependent claims.

The majority acknowledges that Dr. Luke is an acclaimed music producer but posits that he is not a general purpose public figure because he is not a "household name." Dr. Luke, however, has achieved a level of fame and notoriety sufficient to be considered a general purpose public figure. He is a household name to those that matter. For this reason, he should be considered a general purpose public figure in connection with analyzing the alleged defamatory statements at issue (see Winklevoss v. Steinberg, 170 AD3d 618, 619 [1st Dept 2019], appeal dismissed, 33 NY3d 1043 [2019] ["The individual plaintiffs are also general purpose public figures, famous by virtue of their participation in the Olympics, their portrayal in [a] film …, and routine coverage in popular media coverage in which they willingly participate"]). The majority's assertion—that Dr. Luke "used his efforts as a producer to obtain publicity not for himself, but for the artists that he represents"—is belied by the record….

Even assuming that Dr. Luke is not a general purpose public figure, at a minimum, Dr. Luke should be treated as a limited purpose public figure in connection with the dynamics of his relationship to the artists with whom he works and upon which he has built his well-known professional reputation. Limited purpose public figures are "those who 'have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.'"

Dr. Luke argues, and the majority accepts, that Dr. Luke is not a limited purpose public figure because he never sought out publicity or spoke publicity about Kesha's allegations of sexual assault or on the issue of sexual assault. That Dr. Luke has not spoken publicly about Kesha's allegations of sexual assault is not surprising, is not relevant, and does not preclude a finding that he is a limited purpose public figure. The definition of limited purpose public figure is not so cramped as to only include individuals and entities that purposefully speak about the specific, narrow topic (in this case a protégé's sexual assault) upon which the defamation claim is based.

The public controversy at issue here is a self-promoting, powerful music industry person's use of his financial leverage over a person whose career he controls to allegedly commit an unpunished sexual assault. Dr. Luke is a limited purpose public figure because he has purposefully and continuously publicized and promoted his business relationships with young, female music artists, like Kesha, to continue to attract publicity for himself and new talent for his label. The allegedly defamatory statements at issue—that Dr. Luke drugged and sexually assaulted Kesha when she was a teenage artist, who was signed to an exclusive contract with his record label—directly relate to Dr. Luke's self-publicized professional and personal relationships with his clients, his integrity in business practices, and in attracting new talent….

Note that, going forward in the case, Dr. Luke's status might be much less important, because a 2020 New York statute now apparently requires a showing of knowing or reckless falsehood in all public concern cases, whether or not the plaintiff is a public figure. Still, the decision will likely be cited as persuasive precedent in other cases outside New York.

My Amicus Brief Clinic students Rachel Levin, Avi Oved, and Aaron Schroeder and I—with the help of our local counsel Eileen Monaghan DeLucia (many thanks to her, and to Scott & Cyan Banister, for their continuing support of the Clinic)—filed an amicus brief in the case on behalf of the Reporters Committee for Freedom of the Press and various media organizations, arguing that Dr. Luke should be treated as a public figure (the position taken by the dissent).

NEXT: Why did Montgomery v. Louisiana even reference "a finding of fact regarding a child’s incorrigibility"?

Free Speech Libel

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

24 responses to “Dr. Luke Isn't a Public Figure for Purposes of His Libel Lawsuit Against Ke$ha

  1. Respectfully, I think you are wrong here — by the same logic, I could argue that any woman who alleges to have been raped immediately becomes a public figure and hence those who proceed to smear her character and reputation should be entitled to the same protections she seeks.

    She sought to drive him out of his profession via falsehoods — that alone should be enough and there not be any need for him to prove anything more than that.

    Whatever happened to the “absence of malice” test?
    She clearly had plenty of malice…

    1. That’s what the First Circuit held in McKee v. Cosby, another of my cases. I petitioned for cert in that one, but it was denied with Thomas noting a dissent.

      1. (To be clear, the First Circuit held that a sexual assault victim whose attacker was a celebrity, and who comes forward is a limited purpose public figure.)

        1. As reprehensible as the Duke case was, I make a distinction between someone who files charges with the cops and someone who tries her case in the court of public opinion. The latter has chosen to be a public figure…

      2. Actually Thomas concurred in denial of cert, but noting that he’d like to look at the issue with another case with a better case for that purpose. That is definitely something, I sympathize with getting a justice to agree with you on the law, but wanting the perfect case revisit it.

        “McKee asks us to review her classification as a limited purpose public figure. I agree with the Court’s decision
        not to take up that factbound question. I write to explain
        why, in an appropriate case, we should reconsider the
        precedents that require courts to ask it in the first place.”

        But I do wonder whether that made you rethink your view of Thomas, if I recall correctly you have been critical of him in the past for his lone dissents. This seems to be much the same, a lone concurrence in denial of cert, in a quixotic attempt to get the court to reverse a matter of settled law. But maybe my memory is faulty about your previous criticism of him, and your apparent approval of his lone opinions over a matter where he feels he has a principled opinion not shared by any the other 8 justices.

        1. I didn’t like his argument for overturning Sullivan. And like his other stuff, it was quixotic.

  2. Winklevoss v. Steinberg, the case both sides are arguing about the meaning of, was a case I worked on extensively. I still think the Appellate Division got that wrong- if you read US Supreme Court precedents on public figures, you have to be a “household name” (not a “household name to households that matter”) to be a general purpose public figure, and the majority is correct here (and the Winklevoss majority was wrong) that to be a limited purpose public figure, you have to have personally injected yourself into the specific controversy, not simply be generally notable in the field.

    If one thinks these principles are not correct, you need the US Supreme Court to overturn its limited purpose public figure caselaw.

    1. @ Dilan Esper: Well put. +1.

  3. “Reporters Committee for Freedom of the Press and various media organizations, arguing that Dr. Luke should be treated as a public figure (the position taken by the dissent.”

    I assume, because of your involvement, that there’s a public benefit to reporters feeling freer than at present to defame borderline celebrities but I’m not immediately conjuring the applicable fact pattern that would illustrate that need. Original base player for Iron Butterfly wants to sue for defamation, does his membership in a briefly popular band during the sixties bar him from the lower proof standard even if 1 in 200 people couldn’t pick him out of a lineup as I imagine would be the case for Dr. Luke?

    1. It’s not just that 1 in 200 people would recognize him, but where is his ability to clear his name?

      The argument was that Sullivan, as police commissioner or something, had the ability to hold a press conference and the media would show up and he hence had the ability to tell his side of the story. Where is Dr. Luke’s ability when no one even knows who he is?

  4. Isn’t anyone on the internet now a public figure?

    1. The case shows that allegations by people who know each other are always false, are for retaliation, for nastiness, for money.

      The plaintiff needs to sue the vile feminists who believed the allegations, along with their vile male feminist running dogs. They are the people who caused him the most damage.

      Watch the video of Kesha. She is a boozy tramp, with poor personal hygiene. The idea that this feminist is sexual attractive is ridiculous, and nauseating. Her allegations are implausible.

      1. Included in the list of defendants should be any publisher of the allegations, or any feminist repeater of the allegations. To deter.

  5. I have a difficult time seeing how this matters, even if you accept the general-public-figure framing if her claims are in fact false she would have to know they are false as she is claiming the acts were committed against herself.

    You accuse a particular someone of abusing you and you know that it either didn’t happen or that it wasn’t the named person I would have to think that meets the general-public-figure threshold of actual malice. Now, recovery against others could easily fit into the reckless disregard for the truth framework but not the original speaker.

    1. Chrystal Magnum still claims that the lacrosse players raped her…

      1. Ten words, only two of which were spelled completely wrong. That’s a remarkably good showing by Dr. Ed.

    2. I was about to say the same thing.

  6. It seems if you follow the line of reasoning, if any woman publicly accuses any man of sexual assault then they both become public figures making it more difficult for the accused to fight back against unfair allegations. That can’t be right.

    1. Under Canadian law, the trial judge has the power to order newspapers not to report on a trial — memory is that this extends beyond names to even testimony.

      It became an issue in the 1980s when the Bangor (ME) Daily News reported on a sensational trial then occurring in the Canadian province of New Brunswick. The reporter’s beat was both sides of the St. John Valley, i.e. Madawaska (ME), Van Buren (ME), Edmonton (NB), etc.

      See: https://www.nytimes.com/1982/03/04/us/maine-newspaper-tests-canadian-court-curb.html

      1. Again in the 1990s when Canadians were not allowed to discuss Karla Homolka and Paul Bernardo.

        1. Yes, and if Daivd ever wanted to make a case about feminazis run amuck….

  7. That’s among the most ridiculous and grasping dissents I’ve ever read. That’s a dissent by two judges who believe it’s their power to decide who’s a big enough big-shot to be worthy of their punishing by inflicting upon him a gigantically greater burden of proof than he’d ever have had to meet at common law, and it completely ignores, or else badly distorts, prior caselaw on limited-purpose public figures. Those two judges would make that term into a mockery of an exception which swallows its own rule.

  8. I hope, Prof. V, that the amicus brief from your clinic students didn’t include the “households who matter” argument.

    That is noxious, genuinely offensive.

  9. Well, professor, you’re sometimes masochistic enough to reply to comments, so let me ask:

    Why does your clinic defend NYT v. Sullivan at all, much less seek a broader application of it?

    Look at this:

    “In sum, over many years Dr. Luke has received broad and extensive press coverage as a music producer and, in particular, as a discoverer and developer of female music talent. He has pervasively sought out this publicity.”

    The shameless hussy!

    Just because he walks around in a short skirt doesn’t mean it should be easier to rape him in the media.

    Anyway, like people said above, either she knows he raped her or she knows he didn’t, so why she’d be able to use a defense of mistakenly believing he raped her? What am I missing?