Was Fluke a political activist prior to her testimony before Congresscritters? Was she the president of some women’s club on campus? I think she’s a public figure. And she’s not a physician. She’s not a scientist. She’s a political activist on a mission to force religious institutions to do something that she wants because she thinks it’s a good thing. If she or her list of victims want to attend a school that has insurance that covers birth control pills for birth control purposes, they are most likely going to qualify to attend other law schools. If money is a factor, then a cheaper law school can settle that problem. No need for federal government intervention. No one forces anyone to attend a very expensive university. Do I wanna keep my ovary or do I wanna attend Georgetown? Do I wanna have a cell phone or do I wanna keep my ovary? Do I wanna push this insurance company into providing the coverage that I am supposed to be receiving according to the policy? Do I wanna lose an ovary?
I'm not an expert in defamation law. Being president of a women's club is not going to make you a pubic figure by itself. Let's back up. In this context, "public figure" is a specific term that's used to decide what standard of care the press has to use in researching facts about you before they print them, under the progeny of Times v. Sullivan. "Public figure" doesn't just mean what you, or I, or the conservative on the street wants it to mean for the purpose of defamation law.
She is not a public figure. No way, no how. Pubic figures are pervasively in the media, like celebrities and politicians. She wasn't pervasively in the media before this.
The issue is whether she is a 'limited public figure,' after you do a 'particularized determination.'
Here - and after last night's reading, I'm changing my mind - I think she became a limited public figure under the Gertz text only when she appeared before Congress. Gertz says that people become limited pubic figures when they "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved," Gertz v. Robert Welch, Inc., 418 U.S. 323, 345.
However, there are cases after Gertz on points like (a) if appearing before a body, like Congress, you generally must do it voluntarily (which she did); and (b) you must avail yourself of the media (which she did, when appearing before the Democrats); and (c) you must actually get media coverage (which she did).
For people who become a limited public figure as a result of advocacy, they are are only a limited public figure with respect to the topic on which you advocate (there are cases saying the rest of their lives, and other topics, are not open).
Before speaking to the Democrats, Fluke doesn't appear to have been a limited public figure on contraception. She was an advocate for liberal women's causes, yes, but she was missing the media coverage component for contraception. At Cornell, she received media coverage when she protested a pro-choice display, and she protested in favor of abortion rights. My reading of the law is that the media coverage of her abortion rights activism would only made her a limited public figure on abortion rights, not contraception rights.
Does that make sense? Any First Amendment lawyers out there?