When a public figure alleges defamation, he must demonstrate by clear and convincing evidence that the speaker made the defamatory statement with actual malice. Judge Henry E. Hudson of the Eastern District of Virginia confirmed this heightened standard when he dismissed the complaint brought by Wayne Besen, the Executive Director of Truth Wins Out (“TWO”), a non-profit organization that addresses anti-gay behavior.
Besen filed a claim for defamation per se against the non-profit organization Parents and Friends of Ex-Gays, Inc. (“PFOX”) and Gregory Quinlan, the President and CEO of the organization, after Quinlan made comments about Besen on local television and the organization’s blog. Specifically, Quinlan asserted that Besen once stated that someone should run Quinlan over with a bus or inject him with AIDS. On the PFOX blog, Quinlan also suggested that Besen had been fired from the Human Rights Campaign. Quinlan refused to retract either statement, even after Besen approached him about the comments.
Under Virginia law, defamation per se can be found where there are “words that impute to a person the commission of a crime of moral turpitude or which prejudice a person in his profession or trade.” If the plaintiff is a public figure, he must prove that the defendant published a false and defamatory statement with actual malice, meaning that it was made with knowledge of its falsity or with reckless disregard for the truth. Plaintiffs can be public figures for all purposes and in all contexts, or may be “limited public figures” with respect only to a limited range of issues.
The district court found that Besen was a limited-purpose public figure because he used his access to channels of communication to influence a public controversy in which he had voluntarily assumed a role of special prominence. First, the issue of gay rights and equality is clearly a public controversy and Besen had a special role within this controversy as a result of his position in TWO. Moreover, the court found that even though most individuals on the street in the Washington, D.C. metropolitan area would not recognize Besen, he had enough “publications, media appearances, and self-acclaimed ability to impair the opposing campaign,” to be treated as a public figure, at least when limited to the gay rights controversy.
Because Besen is a public figure, the district court dismissed his claim because he failed to demonstrate how Quinlan made his statements with actual malice. No facts were alleged sufficient to show a plausible claim that Quinlan knew or should have known that his statements were false.