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Eleventh Circuit rules that son of former Prime Minister of Albania was a “limited public figure” who could only prevail in defamation action against book publisher and author by demonstrating that the defendants acted with actual malice against him

On September 2, 2020, in Berisha v. Lawson, et al., No. 19-10315, the Eleventh Circuit Court of Appeals affirmed the summary judgment entered in favor of the defendants in a defamation action filed by the son of the former Prime Minister of Albania. The defendants are the author, publisher and one of the titular subjects of a book titled Arms and the Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History. There are scattered references in the book to the former Prime Minister’s son, Shkelzen Berisha, purportedly associating with “Mafia” figures in Albania. For the purposes of the summary judgment ruling, the district court determined that Berisha was a “limited public figure” and that he therefore could prevail only by demonstrating that the defendants acted with actual malice against him. See Silvester v. Am. Broad. Cos., 839 F.2d 1491, 1493 (11th Cir. 1988); see generally N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270–83 (1964). The district court concluded that the evidence was insufficient to allow a reasonable jury to conclude that defamation had occurred. The Eleventh Circuit agreed that Berisha was a limited public figure, noting that an individual may qualify as a public figure for limited purposes where the individual has thrust himself into a particular public controversy and thus must prove actual malice in regard to certain issues. Quoting Turner v. Wells, 879 F.3d 1254, 1273 (11th Cir. 2018), the Court articulated a two-part test to determine whether someone is a limited public figure: “[f]irst, [we] must determine whether the individual played a central role in the controversy. Second, [we] must determine whether the alleged defamation was germane to the individual’s role in the controversy.” Even though the above criteria suggest that the individual’s insertion into the public sphere must have been voluntary, the Eleventh Circuit noted that “federal courts have long made clear that one may occasionally become a public figure even if ‘one doesn’t choose to be,’” quoting from Rosanova v. Playboy Enters., Inc., 580 F.2d 859, 861 (5th Cir. 1978). The defendant cited authority for the proposition that a finding of an “involuntary” public figure must be “exceedingly rare,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974), and that “the class of involuntary public figures must be a narrow one,” Wells v. Liddy, 186 F.3d 505, 539 (4th Cir. 1999). However, the Eleventh Circuit concluded that “Berisha’s is exactly the rare case in which courts recognize involuntary public-figure status.” Regarding whether there was actual malice, the Eleventh Circuit noted that though factors like those Berisha identified might undermine a source’s credibility, they did not show that a publisher necessarily acted with malice by relying on the source. The Eleventh Circuit also decided a discovery issue involving the defendant’s allegation that the district court abused its discretion in denying the defendant’s motion to compel production of certain communications between the book’s author and the publisher’s attorneys. The Eleventh Circuit concluded that that author, although not employed by the publisher, was covered by attorney-client privilege under the “employee equivalent” doctrine articulated by the Eighth Circuit Court of Appeals in In re Bieter Co., 16 F.3d 929, 937 (8th Cir. 1994).