What makes politicians "fair game"?

Question

People say and write things about politicians they would never dream of saying about celebrities or corporate tycoons. They accuse them of lying, corruption, and racism and create political cartoons featuring derogatory caricatures. If I'm not mistaken, political figures are unlikely to enforce their publicity rights as well.

Aside from the fact that elected (and appointed) officials are "public personages," or whatever the legal term is, what is it that makes politicians so vulnerable to defamation, or borderline defamation? Is there some specific legal principle involved, or is just tradition?

Answer 1

united-states

Reduced protection from defamatory statements for public officials and public figures is largely U.S. specific and is traceable to the strong protections afforded to the right to freedom of speech in the First Amendment to the United States Constitution.

The higher standard in defamation cases for public officials was adopted by the U.S. Supreme Court as a matter of constitutional law in the case New York Times v. Sullivan, 376 U.S. 254 (1964), and reflects the fact that one of the core purposes of the First Amendment was to encourage political speech without government interference.

The U.S. Supreme Court clarified this ruling to expand it to public figures, even if they weren't public officials, in the case Gertz v. Welch, 418 U.S. 323 (1974). As the Public Broadcasting System Media Law 101 page explains:

A public figure is someone who, although not a government official, still has power and influence over society. There are two types of public figures: all-purpose public figures and limited-purpose public figures.

All-purpose public figures "occupy positions of such pervasive power and influence that they are deemed public figures for all purposes." Gertz v. Welch, 418 U.S. 323 (1974). Typically, these are individuals with widespread fame, such as celebrities and professional athletes. Like public officials, plaintiffs classified as all-purpose public figures must show that the defendant acted with actual malice in publishing the defamatory statement.

Limited-purpose public figures "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Welch. Typically, these are individuals who have gained prominence in a particular field or in connection with a particular controversy. Plaintiffs classified as limited-purpose public figures must prove actual malice only for defamatory statements that relate to matters in which they are considered public figures.

Businesses also can be classified as public figures. Courts evaluate factors such as whether the business is well-known by the average person in the area where the defamatory statement was circulated; whether the business is regulated by the government; and whether the business has been intensely scrutinized by the media.

Answer 2

united-states

In the United States, public officials cannot recover damages in a defamation action unless the defendant made the statement with "actual malice"—"that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (New York Times Co. v. Sullivan, 376 U.S. 254, 279��83 (1964)).

The justification was that:

[a] rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtuall unlimited in amount—leads to a comparable "self-censorship."

The Court was of the opinion that libel law would only be consistent with the First and Fourteeth Amendments if a public official were required to prove actual malice. The Court also noted this goes hand-in-hand with the absolute privilege that a public official enjoys when they are sued for libel by a private citizen for utterances made "within the outer perimeter" of the official's duties (p. 282).

See ohwilleke's answer explaining how this standard has been extended to public figures more generally.

canada

Canada has rejected the "actual malice" standard (Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, para. 137). Instead, it relies on flexible defences of fair comment, qualified privilege, and responsible communication on matters of public interest, as well as anti-SLAPP legislation in several provincial jurisdictions. All of these give heightened protection to communication on matters of "public interest."

Paragraphs 127–36 of Hill present critique of the rule in Sullivan from American authors and judges, and from courts and law reform commissions in England and Australia. Another brief comparison was made by the Supreme Court in Grant v. Torstar Corp., 2009 SCC 61, para. 68 (citations removed):

Commonwealth courts have rejected the precise balance struck in Sullivan between free expression and protection of reputation. However, the law has begun to shift in favour of broader defences for press defendants, most prominently in England, but also in Australia.

Answer 3

They aren’t

united-states excepted.

Ignoring those parts of the world where criticising a politician gets you a bullet in the temple and the USA where the 1st amendment requires actual malice, politicians are protected by laws against defamation just like everybody else.

That said, in most western nations, politicians tend to suck it up as a corollary of the job. Except in australia.

Answer 4

finland

From Criminal Law chapter 24, clause 9, concerning defamation:

Edellä 1 momentin 2 kohdassa tarkoitettuna kunnianloukkauksena ei pidetä arvostelua, joka kohdistuu toisen menettelyyn politiikassa, elinkeinoelämässä, julkisessa virassa tai tehtävässä, tieteessä, taiteessa taikka näihin rinnastettavassa julkisessa toiminnassa ja joka ei selvästi ylitä sitä, mitä voidaan pitää hyväksyttävänä.

Kunnianloukkauksena ei myöskään pidetä yleiseltä kannalta merkittävän asian käsittelemiseksi esitettyä ilmaisua, jos sen esittäminen, huomioon ottaen sen sisältö, toisten oikeudet ja muut olosuhteet, ei selvästi ylitä sitä, mitä voidaan pitää hyväksyttävänä.

which translated is:

Defamation as referred to in subsection 1, point 2 above does not apply to criticism directed at another person's conduct in politics, business, public office or task, science, art or similar public activities and which does not clearly exceed what can be considered acceptable.

An expression presented to discuss a matter of public importance is also not considered defamation, if its presentation, taking into account its content, the rights of others and other circumstances, does not clearly exceed what can be considered acceptable.

So even gross accusations related to politicians' public conduct are allowed. But for their private lives, same protections apply as other citizens.

It's worth noting that same criteria applies to business and art, so celebrities and corporate tycoons would be just as much "fair game" in Finland. It is just cultural habit to judge politicians harder than celebrities.

Answer 5

The principal function of politicians is literally to tell everyone else how to live; to make the law, and decide how long you might spend in gaol for breaking it.

Shouldn't the corollary of that power be that any transgression is somehow multiplied by that power?

To take an old-fashioned example, are politicians who make laws against adultery or divorce and then are caught having fun with people other than their partners not 'fair game'?