Who Is a Public Official?

"Debate on public issues should be uninhibited, robust and wide-open," said the Supreme Court in 1964. In that famous decision (New York Times Co. v. Sullivan), the court ruled that a public official cannot collect libel damages even for false criticism of his official conduct unless he proves "actual malice." But who is a public official? The court did not say. As a result, lower courts have since extended the Times doctrine to reach "officials" ranging from a candidate for Congress to the law partner of a mayoral candidate.

The latest such case involves Thomas R. Gilligan, the New York City police lieutenant who was off duty when he shot and killed a 15-year-old Negro in 1964, thus triggering six nights of rioting in Harlem and Brooklyn. Gilligan became the symbol of Negro demands that New York disarm off-duty cops and set up a civilian review board to curb police "brutality." Civil rights groups plastered Harlem with his picture under the heading WANTED FOR MURDER.

Gilligan was later exonerated in both grand jury and departmental investigations, which held that he killed in self-defense after being attacked with a knife. As a result, last May he filed a $5,250,000 libel suit alleging that he had been falsely accused of murder by a flock of civil rights leaders, including Martin Luther King. Predictably, the defendants moved for dismissal on the ground that the Times doctrine stripped Gilligan of any cause for action. Predictably, Gilligan's lawyer, Roy M. Cohn, countered by claiming that the doctrine does not apply to a minor, nonelected government employee--that Gilligan was entitled to sue on the ground of falsehood without bearing the heavy burden of proving actual malice.

Justice Nathaniel T. Helman of the New York State Supreme Court has just given the back of his hand to both sides. By virtue of his prominence in the hassle over police brutality, ruled Helman, Gilligan qualifies as a public official who must prove actual malice. Precisely because that malice must be proved, Helman continued, the defendant civil rights leaders must face trial. Meanwhile, Helman's precedent suggests that the Times doctrine may soon apply to any American in any capacity who becomes a figure in "public debate."

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