Arsenic And Old Lace, Ctd.Posted: January 14, 2015
During oral argument today in an interesting Freedom of Information Act case involving historical records about Amy Archer Gilligan, the long-deceased murderer who inspired the play and movie “Arsenic and Old Lace,” Justice Andrew McDonald asked an interesting question about how a person becomes a public figure.
According to Hugh McQuaid’s story in ctnewsjunkie, Justice McDonald questioned the notion that a person can become a public figure (as that term is understood in the invasion of privacy exception to the FOIA) by having that status thrust upon them and whether that status, once acquired, can fade with the passage of time. He seemed skeptical of the first notion and supportive of the second.
In fact, the law defining who is a public figure for the purpose of tort liability (e.g., defamation and invasion of privacy)–which law the Supreme Court essentially incorporated into the FOIA in its 1992 decision in Perkins v. FOIC–is pretty darn clear that a person can have public figure status thrust upon him and that such status sticks with him notwithstanding the passage of time.
Sidis v. FR Pub. Corp., a famous case the Second Circuit decided decades ago, is still frequently cited as one of the leading cases on public figures. As the court of appeals explained, the plaintiff, William James Sidis,
was a famous child prodigy in 1910. His name and prowess were well known to newspaper readers of the period. At the age of eleven, he lectured to distinguished mathematicians on the subject of Four-Dimensional Bodies. When he was sixteen, he was graduated from Harvard College, amid considerable public attention. Since then, his name has appeared in the press only sporadically, and he has sought to live as unobtrusively as possible. Until the articles objected to appeared in The New Yorker, he had apparently succeeded in his endeavor to avoid the public gaze.
Decades later, the New Yorker magazine wrote a less-than-flattering article about him, which prompted him to sue for invasion of privacy. The court of appeals rejected his claim:
[W]e are not yet disposed to afford to all of the intimate details of private life an absolute immunity from the prying of the press. Everyone will agree that at some point the public interest in obtaining information becomes dominant over the individual’s desire for privacy. Warren and Brandeis were willing to lift the veil somewhat in the case of public officers. We would go further, though we are not yet prepared to say how far. At least we would permit limited scrutiny of the “private” life of any person who has achieved, or has had thrust upon him, the questionable and indefinable status of a “public figure.“
Although decades had passed between the time of Sidis’s youthful fame and the New Yorker article, Sidis retained his public figure status. In fact, the case is generally understood to hold, “once a public figure, always a public figure.”
Under the law defining “public figures” for the purpose of defamation and invasion of privacy torts, there is no serious question that Amy Archer Gilligan is a public figure. As I noted, the Supreme Court effectively incorporated that law into the FOIA in Perkins v. FOIC. However, if the court ultimately concludes that Gilligan is not a public figure for the purpose of the FOIA privacy exemption, it needs to be absolutely clear in its decision that the definition of a “public figure” under the FOIA is no longer tied to the well established definition under tort law. Otherwise it will introduce great confusion into Connecticut defamation and invasion of privacy law.