The Volokh Conspiracy
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Recent Political Candidate Is Public Figure for Libel Law Purposes
The allegedly libelous claims about the candidate were made three months after he lost the election; a Magistrate Judge had held the candidate was no longer a public figure, but the District Court disagreed.
From Tallman v. Miller, decided yesterday by Judge Michael Simon (D. Or.):
Tallman … lives in the city of Boardman, Oregon, in Morrow County. He owns and operates a coffee shop in Boardman called, "The Farmer's Cup." In November 2020, Tallman ran for election for the office of Mayor of Boardman but did not win. In May 2021, Tallman ran for election for a seat on the Port of Morrow Board of Commissioners but did not win. In November 2022, Tallman ran for election for a seat on the Boardman City Council but did not win. In May 2023, Tallman again ran for election for a seat on the Port of Morrow Board of Commissioners but did not win.
Miller … grew up in Boardman. In approximately April 2019, she began working at The Farmer's Cup, as a server. She was 16 years old. Tallman hired Miller and was her supervisor. Shortly after she began working for Tallman, Miller "experienced what [she] now know[s] to be highly inappropriate behaviors from a 40-year-old man toward a 16-year-old girl." [Note that these are just the plaintiff's allegations at this point, which the court is taking to be true solely for dealing with defendant's motion to dismiss. -EV] She describes that behavior in detail in her declaration.
She adds that "Tallman would only engage in these behaviors when there wasn't another adult present" and that she "did not feel safe working with Tallman." She also witnessed a friend and co-worker experience similar behavior from Tallman. In August 2019, Miller and her friend were at sports practice. They discussed Tallman's behavior and were overheard by their coach, who was a mandatory reporter under Oregon law. The coach reported what he had heard to the Boardman Police Department. Shortly thereafter, Miller, accompanied by her parents, was interviewed by the Boardman Police, who prepared a report. No charges were ever brought against Tallman. In 2022, Miller left Boardman and moved to Washington.
Another local resident (Nuñez) "either posted or shared the police report on Facebook" in August 2023, and Miller in turn reposted the material. Tallman sued for libel, and the Magistrate Judge recommended that the Court deny Miller's anti-SLAPP motion (which sought to promptly dismiss the case): Tallman, the Magistrate Judge concluded, wasn't a public official or a public figure at the time Miller wrote her Facebook post, so Tallman only had to allege that Miller's speech was negligently false, which he had sufficiently done.
But the District Court disagreed as to the public figure question. The court noted that the U.S. Supreme Court has treated candidates for office as "public figures," who must show that the speaker's statements were knowingly or recklessly false; and that this extended to recent candidates as well as current candidates:
Between November 2020 and May 2023, Tallman ran for local office four times, literally once every year in the four years that immediately preceded Miller's posting. Further, there is no evidence to suggest that but for Miller's posting in August 2023, Tallman's repeated practice of running for office every year would not have continued. Thus, in August of 2023, Tallman was still a public figure, as a recent and perennial candidate for public office, and anything that might reasonably bear on his fitness for public office, including Miller's allegations, are protected under the rule established in New York Times v. Sullivan.
The situation might be different for someone who last ran unsuccessfully for public office several decades ago and then, several decades later, was the subject of allegedly defamatory statements. Whether that person would still be a public figure raises a closer question, but it is one that the Court need not answer here. Under the undisputed facts presented, Tallman was a "general purpose" public figure in August 2023 simply by virtue of his running for various public offices in November 2020, May 2021, November 2022, and May 2023.
Because Tallman was a "general purpose" public figure in August 2023, the next question relevant to Miller's motion to strike is whether Tallman has presented sufficient evidence of "actual malice" [i.e., knowing or reckless falsehood -EV] on the part of Miller …. Because Judge Hallman did not reach that question, the Court remands this case back to Judge Hallman for consideration of that issue and anything else that may be relevant to the pending motion….
To be sure, in this instance the public figure/private figure distinction might not matter much: Its main function in such cases is to require a showing of knowing or reckless falsehood rather than negligence before the plaintiff can recover proven compensatory damages, and here it seems likely that either Miller was telling the truth (in which case she'd win regardless of whether Tallman is a public figure) or lying (in which case she'd lose regardless of whether Tallman is a public figure). To quote the Magistrate Judge,
Miller made statements of objective fact that she was sexually assaulted by Tallman, which Tallman now asserts were provably false and that Miller knew they were false. Based on this evidence, there are only two plausible inferences that can be drawn from the allegations in the complaint: Miller is lying about the alleged abuse, or she is not. If she is lying, she will have exhibited actual malice, a standard higher than negligence.
Still, the question whether plaintiff is a public or a private figure is highly relevant when the defendant is passing along others' assertions—for instance, as newspaper reporters often do—where there is a substantial chance of unreasonable but honest error on the defendant's part. And the District Court's holding that recent candidates are public figures will therefore be potentially quite important for those cases, even if it may prove less important in this one.
