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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2376 <br> <br>                         TONEY PENDLETON, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                    CITY OF HAVERHILL, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>        [Hon. George A. O'Toole, Jr., U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>                                 <br>                     Selya, Circuit Judge, <br>                                 <br>             and Schwarzer,* Senior District Judge. <br>                                 <br>                                 <br> <br> <br>     Thomas J. Gleason for appellant. <br>     Stephen C. Pfaff, with whom Douglas I. Louison and Merrick and <br>Louison were on brief, for appellees. <br> <br> <br> <br> <br> <br>September 1, 1998 <br> <br> <br> <br>                                 <br>                                 <br>_______________ <br>*Of the Northern District of California, sitting by designation.

  SELYA, Circuit Judge.  This appeal presents a problematic <br>First Amendment question as to whether the plaintiff was a <br>"limited-purpose public figure" required to prove actual malice in <br>order to recover for defamation.  After careful consideration of <br>this, and other, issues, we reject the plaintiff's appeal. <br>I.  THE PREDICATE FACTS <br>  Plaintiff-appellant Toney Pendleton, an African American <br>in his mid-forties, hails from Haverhill, Massachusetts.  He is <br>well known in the community both because of his family ties and <br>because of his exploits as a high-school athlete. <br>                       A.  The Job Market. <br>  Starting in the late 1980s, Pendleton tried to land a <br>full-time teaching position in the Haverhill public school system.  <br>Although he worked as a substitute teacher from time to time, he <br>progressed no further.  In August 1993, he vented his frustration <br>to a reporter, Anita Perkins, who found considerable irony in <br>Pendleton's inability to secure a permanent teaching position  <br>notwithstanding a student-led outcry for a more diverse public <br>school faculty.  She wrote an article to that effect in the <br>Lawrence Eagle-Tribune, a newspaper serving the Haverhill area.  <br>See Anita Perkins, Black Teacher Has Grown Impatient Awaiting A <br>Chance, Eagle-Trib., Aug. 17, 1993, at 13. <br>  Perkins's article profiled Pendleton and described his <br>family, educational background, career aspirations, temporary <br>teaching assignments, and his trepidation that school officials <br>were not giving appropriate priority to minority hires.  Reflecting <br>on his experience as an African-American student in the Haverhill <br>schools, Pendleton was quoted as saying:  "Twenty years later <br>things are still the same."  He also was quoted as asking, <br>rhetorically:  "How can you expect a black child who is called a <br>'n_ _ _ _ _' to go to a white counselor and teacher with his <br>feelings?"  The article commented on the dearth of minority <br>teachers in the Haverhill schools, described some of the steps that <br>Haverhill had taken to increase minority representation within the <br>school system, and concluded with Pendleton's plaintive comment:  <br>"I'm tired of substitute teaching.  I just want a chance to show my <br>qualifications." <br>  That fall, Pendleton accepted a Haverhill-based position <br>as a vocational counselor with Jobs For Bay State Graduates, Inc. <br>(JBSG), a private, nonprofit organization.  JBSG counselors advise <br>public school students who do not plan to attend college about <br>career opportunities.  Pendleton held this job at the time of his <br>arrest. <br>                   B.  Arrest and Prosecution. <br>  On the evening of May 27, 1994, Pendleton parked his car <br>on a busy, well-lit street in his home town, ran some errands, and <br>then repaired to a local tavern.  At some point, Arnaldo Pagan, a <br>boyhood friend, asked Pendleton to give him a ride home.  After <br>Pagan grew increasingly insistent, Pendleton acquiesced.  The two <br>men then proceeded to Pendleton's automobile.  The vehicle was <br>still parked when two Haverhill policemen on routine neighborhood <br>patrol shined a flashlight into it.  The officers, John Arahovites <br>and Lawrence Newman, claimed that "two heads popped up" from behind <br>the dashboard and that they noticed a powdery substance on <br>Pendleton's face.  Upon further investigation, the officers <br>observed powder on Pagan's lap and throughout the car's interior.  <br>They also saw a small bag containing what appeared to be cocaine on <br>the floor of the vehicle.  Based on these observations, the <br>gendarmes promptly arrested Pendleton and Pagan. <br>  Pendleton's arrest made front-page news in both the <br>Eagle-Tribune and a competing newspaper, the Haverhill Gazette.  <br>The stories revealed that charges of cocaine possession and <br>conspiracy to violate the drug laws had been brought against <br>Pendleton in the state district court.  The articles described <br>Pendleton as a "school jobs counselor" and a "high school advisor" <br>who worked in a classroom five days a week with 30 to 40 high- <br>school seniors. <br>  Pendleton entered a not guilty plea.  At a court hearing <br>on July 12, 1994, he asserted that when Pagan, after entering his <br>vehicle, produced a small plastic bag, he (Pendleton) suspected the <br>bag contained drugs and slapped it out of Pagan's hand.  In turn, <br>this act caused the contents to spill onto Pagan's lap and scatter <br>throughout the car.  In responding to an unrelated inquiry from the <br>court, the prosecutor admitted that, due to a mix-up, the powder <br>seized from Pendleton's car had not been tested.  The judge <br>obviously did not like what he had heard.  He declared Pendleton <br>not guilty and dismissed the charges. <br>                      C.  Subsequent Events. <br>  A flurry of media reports followed the case's <br>termination.  In them, the district attorney's office accused the <br>police of bungling the investigation and the police chief responded <br>that delays in laboratory testing are sometimes an inevitable <br>concomitant of the evidence-gathering process.  As part of this <br>coverage, a local reporter interviewed Pendleton and his attorney.  <br>The lawyer theorized that Pendleton had been in the wrong place at <br>the wrong time, and that he now could "get back to doing . . . <br>positive things in the community," such as "helping kids."  Bill <br>Burke, Pendleton Tells His Side:  But Did Police Drop The Ball?, <br>Haverhill Gazette, July 14, 1994, at A1. Pendleton asserted that he <br>was "the happiest guy in America that my innocence has been borne <br>out."  Id. <br>  On July 18, the arresting officers responded to a call <br>from the Eagle-Tribune.  At the newspaper's offices, Arahovites and <br>Newman voiced indignation over the disposition of the charges, <br>emphasizing that they had not been notified about the July 12 <br>proceeding and expressing disappointment that the judge had refused <br>to order Pendleton to undergo drug rehabilitation.  See Bill <br>Cantwell & Eileen Pendleton, Judge's Release Of Suspect Outrages <br>Police, Eagle-Trib., July 18, 1994, at 1.  The article quoted <br>Arahovites as saying that the police were "not trying to crucify <br>Pendleton," but "[t]hat guy should be in rehab right now."  Id.  <br>When arrested, Arahovites said, Pendleton "had coke all over his <br>face, from the tip of his chin to his eyebrows," unlike "[a] first- <br>time user [who] would not have had it all over his face." <br>  The same article reported Arahovites's claims that he had <br>"never made an arrest where there was this much cocaine on a <br>person's face," and that he had found "a big bag of cocaine at <br>[Pendleton's] feet."  Id.  Finally, the journalists noted <br>Arahovites's protest that the officers should not be held <br>accountable for Pendleton's predicament.  In Arahovites's words, <br>"[t]hese guys [Pendleton and Pagan] were doing cocaine and they got <br>caught.  Period."  Id.  Thus, despite the fact that Pendleton "was <br>fighting for a school department job" and "outside forces [were] <br>fighting for him to become a teacher," he had only himself to blame <br>if the negative publicity hampered his bid.  Id. <br>  On August 18, 1994, JBSG terminated Pendleton's <br>employment. <br>II.  THE PROCEEDINGS BELOW <br>  On December 19, 1995, Pendleton sued the city of <br>Haverhill, Arahovites, and Newman in the federal district court.  <br>In pertinent part, his complaint invoked 42 U.S.C.  1983 (1994) <br>and claimed that the officers' post-acquittal statements to the <br>press violated his constitutional rights.  The complaint also <br>alleged various state-law claims, including counts for defamation, <br>infliction of emotional distress, invasion of privacy, negligence, <br>negligent supervision, and malicious interference with employment <br>relations. <br>     After protracted pretrial discovery, the defendants moved <br>for summary judgment.  The district court, ruling from the bench, <br>granted brevis disposition (i) in Newman's favor on all claims, <br>(ii) in Arahovites's and the city's favor with respect to the <br>section 1983 claims, and (iii) exercising supplemental <br>jurisdiction, see 28 U.S.C.  1367(c), in the defendants' favor on <br>all other causes of action save for the defamation claim against <br>Arahovites. <br>     Trial on the surviving count commenced on October 27, <br>1997.  At the conclusion of the evidence, the court entertained <br>arguments as to whether Pendleton should be deemed a public figure, <br>and if so, to what extent.  Noting the nature of Pendleton's work <br>in the public schools, his stature in the Haverhill community, the <br>fact that charges against him were a matter of public interest, and <br>his willingness to "engage[] in th[e] process of communication in <br>the form of a newspaper interview, just as the defendant did," the <br>court concluded that Pendleton was a limited-purpose public figure <br>and instructed the jury accordingly.  The jurors returned a take- <br>nothing verdict.  This appeal followed. <br>     Pendleton now assigns error to the pretrial entry of <br>partial summary judgment, three evidentiary rulings that occurred <br>at trial, and the public figure status determination.  We address <br>his asseverations in accordance with these groupings. <br>III.  THE PRETRIAL RULINGS <br>     The district court granted summary judgment on seven of <br>the enumerated counts lodged in Pendleton's complaint.  Pendleton <br>does not challenge any of them as they pertain to Newman, but he <br>does challenge four of the rulings as they pertain to Arahovites <br>and Haverhill.  We review these determinations de novo, taking the <br>facts as they appeared in the summary judgment record in the light <br>most hospitable to Pendleton.  See Elliot v. S.D. Warren Co., 134 <br>F.3d 1, 9 (1st Cir. 1998). <br>                   A.  The Section 1983 Claims. <br>     Section 1983 "provides a cause of action when an <br>individual, acting under color of state law, deprives a person of <br>federally assured rights."  Camilo-Robles v. Hoyos, ___ F.3d ___, <br>___ (1st Cir. 1998) [No. 97-2260, slip op. at 7].  Pendleton's <br>section 1983 claims hypothesize that Arahovites's scurrilous <br>statements to the press led JBSG to discharge Pendleton, thereby <br>depriving him of a liberty interest protected by the Due Process <br>Clause of the Fourteenth Amendment. <br>     The Supreme Court has determined authoritatively that <br>defamation, even from the lips of a government actor, does not in <br>and of itself transgress constitutionally assured rights.  See Paulv. Davis, 424 U.S. 693, 700-01 (1976) (establishing that although <br>state law may provide a remedy for defamatory statements uttered by <br>a government official, no cognizable constitutional harm ordinarily <br>occurs).  In an effort to avoid this holding and to state an <br>actionable section 1983 claim grounded upon defamation, Pendleton <br>strives to fit his case into the narrow category of situations that <br>involve more than simple stigmatization.  These precedents discern <br>a deprivation of a constitutionally protected liberty interest <br>when, in addition to mere reputational injury, words spoken by a <br>government actor adversely impact a right or status previously <br>enjoyed under state law.  See id. at 708-09; Rodriguez de Quinonezv. Perez, 596 F.2d 486, 489 (1st Cir. 1979); Dennis v. S & S <br>Consol. Rural High Sch. Dist., 577 F.2d 338, 341 (5th Cir. 1978).  <br>Because his case juxtaposes slanderous language and loss of <br>employment, Pendleton posits that it comes within this "stigma <br>plus" rubric.  The district court did not agree.  Nor do we. <br>     In the first place, to achieve a sufficient "plus" in a <br>loss-of-job context, words spoken must be "uttered incident to the <br>termination."  Siegert v. Gilley, 500 U.S. 226, 234 (1991).  Here, <br>however, the alleged defamation and the decision to cashier <br>Pendleton came from two separate, unrelated sources, and the former <br>cannot plausibly be said to have occurred "incident to" the latter.  <br>As such, the allegedly defamatory remarks cannot be viewed as <br>working a denial of a previously recognized right or status. <br>     In the second place, a violation of constitutional <br>proportions under a "stigma plus" theory exists only if, and to the <br>extent that, the opportunities lost are government benefices denied <br>as a result of governmental action.  See Paul, 424 U.S. at 708-09; <br>Rodriguez de Quinonez, 596 F.2d at 489.  Pendleton's claim founders <br>on these shoals:  he worked for a non-governmental employer and <br>lost a private (not a public) position.  Although JBSG receives <br>some financial assistance from the Commonwealth of Massachusetts <br>and operates within the public school system, it is not an arm of <br>the state.  See Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982). <br>     To the extent that Pendleton asserts section 1983 claims <br>apart from his claim that Arahovites deprived him of a liberty <br>interest, we dismiss them out of hand.  Some of these claims (e.g., <br>his allegations that the officers falsified their reports and acted <br>out of racial animus) are simply unsupported by the evidence.  <br>Others (e.g., Pendleton's assertion that his federal civil rights <br>were violated because Arahovites spoke out in contravention of <br>departmental rules) are legally impuissant.  See, e.g., Snowden v. <br>Hughes, 321 U.S. 1, 11 (1944); Colon v. Schneider, 899 F.2d 660, <br>672 (7th Cir. 1990).  Finally, in the absence of individual <br>liability on any officer's part, Pendleton's counterpart section <br>1983 claims against Haverhill, as the officers' municipal employer, <br>cannot succeed.  See Pembaur v. City of Cincinnati, 475 U.S. 469, <br>480 (1986); Evans v. Avery, 100 F.3d 1033, 1039 (1st Cir. 1996), <br>cert. denied, 117 S. Ct. 1693 (1997). <br>                       B.  The Tort Claims. <br>     On appeal, Pendleton concedes the propriety of summary <br>judgment on many of his state-law tort claims, but challenges the <br>rejection of his claims for negligence, invasion of privacy, and <br>malicious interference with employment relations.  The subject <br>warrants scant comment. <br>     To prevail on a negligence claim under Massachusetts law, <br>a plaintiff must show (1) that the defendant owed him a duty, (2) <br>that the defendant breached the duty, and (3) that the breach <br>caused the plaintiff's injuries.  See Cannon v. Sears, Roebuck & <br>Co., 374 N.E.2d 582, 584 (Mass. 1978).  In this case, Pendleton <br>conclusorily attributed the loss of his employment to Arahovites's <br>remarks, but he did not produce evidence at the summary judgment <br>stage sufficient to permit a finding that these remarks prompted <br>JBSG to fire him.  Absent such evidence, his claim is untenable.  <br>See, e.g., Poskus v. Lombardo's of Randolph, Inc., 670 N.E.2d 383, <br>385-86 (Mass. 1996). <br>     Pendleton's malicious interference claim suffers from the <br>same defect.  And, moreover, Pendleton failed to proffer any <br>evidence related to another essential element of this claim; the <br>summary judgment record contains no proof that Arahovites knowingly <br>attempted to induce JBSG to act.  See G.S. Enters., Inc. v. <br>Falmouth Marine, Inc., 571 N.E.2d 1363, 1369 (Mass. 1991). <br>     The privacy claim is no more substantial.  Pendleton <br>never identified the specific statements that supposedly intrude <br>upon his privacy, nor can we glean the essentials of an actionable <br>claim from the summary judgment record.  Massachusetts law <br>prohibits unreasonable public disclosure of private information.  <br>See Mass. Gen. Laws. ch. 214,  1B; see also Bratt v. International <br>Bus. Mach. Corp., 467 N.E.2d 126, 134 (Mass. 1984).  But this does <br>not profit Pendleton because neither Arahovites's descriptions nor <br>perceptions of Pendleton's conduct in a public place constitute <br>private information.  See generally United States v. Dionisio, 410 <br>U.S. 1, 14 (1973) (concluding that there is no reasonable <br>expectation of privacy in one's appearance); Brown v. Hearst Corp., <br>862 F. Supp. 622, 631 (D. Mass. 1994) (explaining that there can be <br>no expectation of privacy vis--vis information that has already <br>filtered into the public domain), aff'd, 54 F.3d 21 (1st Cir. <br>1995); Whirty v. Lynch, 539 N.E.2d 1064, 1065 (Mass. App. Ct. 1989) <br>(sanctioning release of information pertaining to plaintiff's <br>criminal background).  The cases upon which Pendleton relies in his <br>struggle to reach a contrary result are plainly distinguishable <br>because they deal with quintessentially private information.  See, <br>e.g., Pressman v. Brigham Med. Group Found., Inc., 919 F. Supp. <br>516, 524 (D. Mass. 1996) (medical information); Gauthier v. Police <br>Comm'r, 557 N.E.2d 1374, 1376 (Mass. 1990) (toxicology results). <br>IV.  THE EVIDENTIARY RULINGS <br>     Pendleton challenges three evidentiary rulings.  Two of <br>these relate to the exclusion of evidence and the third relates to <br>the admission of evidence.  In each instance, we review the <br>district court's determination for abuse of discretion.  SeeWilliams v. Drake, ___ F.3d ___, ___ (1st Cir. 1998) [No. 98-1014, <br>slip op. at 5]; Blinzler v. Marriot Int'l, Inc., 81 F.3d 1148, 1158 <br>(1st Cir. 1996). <br>                 A.  Negative Drug Test Results. <br>     At trial, Pendleton sought to introduce evidence that he <br>tested negative for drugs on the Tuesday following his Friday night <br>arrest.  Arahovites objected on relevancy grounds.  Judge O'Toole <br>called counsel to the bench and asked Pendleton's lawyer what the <br>jury could conclude from this evidence.  Counsel replied that the <br>evidence tended to show that "he [Pendleton] doesn't have a drug <br>problem."  The judge then asked the lawyer:  "Is it evidence that <br>[Pendleton] did not ingest any amount of cocaine on Friday night?"  <br>The lawyer responded in the negative.  After a further colloquy, <br>the judge ruled that Pendleton could show "the fact of the test" <br>and that he voluntarily arranged for it, but not the results. <br>     We discern no misuse of discretion in the trial court's <br>exclusion of the test results.  Relevant evidence is "evidence <br>having any tendency to make the existence of any fact that is of <br>consequence to the determination of the action more or less <br>probable than it would be without the evidence."  Fed. R. Evid. <br>401.  Since   as Pendleton readily admits   a negative test result <br>on Tuesday lacks probative value as to whether Pendleton was using <br>cocaine on the previous Friday, the court did not abuse its <br>discretion in ruling that the test results were irrelevant to <br>Arahovites's statements about Pendleton's cocaine use on the night <br>of the arrest.  See, e.g., United States v. Levy-Cordero, 67 F.3d <br>1002, 1016 (1st Cir. 1995), cert. denied, 116 S. Ct. 1558 (1996); <br>United States v. Brandon, 17 F.3d 409, 444 (1st Cir. 1994); seealso Fed. R. Evid. 402.  <br>     In this venue, Pendleton embroiders his argument, <br>contending that he should have been allowed to introduce the <br>negative test results as evidence tending to disprove Arahovites's <br>general suggestion that Pendleton had a drug problem.  We disagree.  <br>Even if the officer's opinion could be construed as defamatory   a <br>matter on which we take no view, see Fudge v. Penthouse Int'l, <br>Ltd., 840 F.2d 1012, 1016 (1st Cir. 1988) ("If the challenged <br>statement is one of opinion rather than fact, then under the First <br>Amendment, it generally cannot give rise to a defamation claim.") <br>  the proffered evidence does not prove or disprove whether <br>Pendleton regularly used drugs.  At most, it establishes that <br>Pendleton had no drugs in his bloodstream at the time the test was <br>administered (and, perhaps, that he had not used drugs immediately <br>prior thereto).  These are topics that Arahovites did not broach in <br>his allegedly defamatory comments. <br>           B.  Police Department Rules and Regulations. <br>     Pendleton next challenges the trial court's decision to <br>exclude the testimony of Deputy Chief Shea, who Pendleton sought to <br>question about the Haverhill police department's rules regarding <br>dissemination of information to the press.  Pendleton offered <br>Shea's testimony to assist in establishing malice.  Specifically, <br>Pendleton's counsel told the court that this testimony would show <br>"how deeply [Arahovites] felt about [speaking out], how much he <br>wanted to do it, that he would violate all of these rules" against <br>talking to the press. <br>     This iteration of relevancy misapprehends the concept of <br>"actual malice" in defamation law.  In the defamation context, <br>"malice" does not relate to the defendant's motive for speaking, or <br>even to whether the defendant made the challenged statement out of <br>ill-will.  Rather, "malice" for this purpose requires proof that <br>the speaker published the statement with knowledge of its falsity <br>or with reckless disregard as to whether it was false.  See St. <br>Amant v. Thompson, 390 U.S. 727, 731 (1968); Milgroom v. News Group <br>Boston, Inc., 586 N.E.2d 985, 987 (Mass. 1992).  Pendleton did not <br>offer Shea's testimony for any purpose bearing on these issues, <br>but, rather, according to his offer of proof, in an endeavor to <br>link evidence of rule violations to Arahovites's motive for having <br>made the allegedly defamatory statements.  Motive, however, is not <br>an element of a defamation claim under Massachusetts law.  SeeMcAvoy v. Shufrin, 518 N.E.2d 513, 517 (Mass. 1988).  Hence, the <br>trial court properly sustained Arahovites's objection. <br>                  C.  The Second Bag of Cocaine. <br>     During Arahovites's direct examination, the following <br>snippet of testimony emerged: <br>     DEFENSE COUNSEL:  Do you know what evidence <br>     was obtained at the time of the arrest of Mr. <br>     Pendleton by you or Officer Newman? <br> <br>     ARAHOVITES:  Yes. <br> <br>     DEFENSE COUNSEL:  What was it? <br> <br>     ARAHOVITES:  The bag of cocaine   there was <br>     one bag of cocaine that was found in the car <br>     that was charged to Mr. Pendleton, and there <br>     was another bag of cocaine that was found in <br>     the back seat of our police cruiser. . . .  <br>     There was another bag of cocaine that came <br>     from Mr. Pagan that was in the back seat of <br>     our cruiser. <br> <br>Pendleton objected to this testimony on relevancy grounds and <br>argues here that evidence regarding the second bag of cocaine was <br>both irrelevant and prejudicial.  He is half-right:  the evidence <br>was irrelevant and the objection should have been sustained. <br>     Pendleton is also half-wrong:  the error was benign.  The <br>second bag of cocaine was mentioned to the jury only once.  In <br>that passage, quoted above, Arahovites made it crystal clear that <br>the second bag belonged to Pagan, not Pendleton.  This fact <br>dovetailed with   and arguably bolstered   Pendleton's assertion <br>that Pagan was the drug user and that he (Pendleton) was merely an <br>innocent bystander.  Under the circumstances, we conclude that the <br>error in permitting Arahovites's statement to stand was harmless <br>and does not warrant a new trial.  See United States v. Ladd, 885 <br>F.2d 954, 957 (1st Cir. 1989); see also Fed. R. Civ. P. 61. <br>V.  THE STATUS DETERMINATION <br>     The principal issue on appeal concerns the correctness of <br>the lower court's determination that Pendleton was a limited- <br>purpose public figure.  Pendleton challenges both the judge's <br>authority to make this determination (rather than submit the <br>question to the jury) and the substance of the determination <br>itself.  We subdivide our analysis into three segments, plotting <br>the legal landscape and tackling Pendleton's procedural point <br>before grappling with the merits. <br>                     A.  The Legal Landscape. <br>     In an effort to strike a balance between First Amendment <br>freedoms and state defamation laws, our jurisprudence accords <br>decretory significance to the status of each individual plaintiff.  <br>Under the taxonomy developed by the Supreme Court, private <br>plaintiffs can succeed in defamation actions on a state-set <br>standard of proof (typically, negligence), whereas the Constitution <br>imposes a higher hurdle for public figures and requires them to <br>prove actual malice.  See Gertz v. Robert Welch, Inc., 418 U.S. <br>323, 342-48 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, <br>283 (1964); Kassel v. Gannett Co., 875 F.2d 935, 938 (1st Cir. <br>1989); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, <br>586-88 (1st Cir. 1980).  We briefly summarize the evolution of the <br>law in this area. <br>     In 1964, the Court considered for the first time the <br>issue of "the extent to which the constitutional protections for <br>speech and press limit a State's power to award damages in a libel <br>action brought by a public official against critics of his official <br>conduct."  New York Times, 376 U.S. at 256.  Due in large part to <br>the "profound national commitment to the principle that debate on <br>public issues should be uninhibited, robust, and wide-open," id. at <br>270, the Court concluded that even falsehoods are entitled to some <br>constitutional protection when directed at public officials, seeid. at 282-83 & n.21.  Thus, the Constitution does not allow a <br>public official to recover damages for defamation unless he <br>establishes with "convincing clarity" that the defamatory <br>statements were published with "actual malice."  Id. at 285-86. <br>     Two years later, the Court found occasion to consider who <br>qualified as a "public official" for the purpose of applying the <br>New York Times rule.  In Rosenblatt v. Baer, 383 U.S. 75, 85 <br>(1966), the Justices held that "the 'public official' designation <br>applies at the very least to those among the hierarchy of <br>government employees who have, or appear to the public to have, <br>substantial responsibility for or control over the conduct of <br>governmental affairs."  At base, the designation covers those <br>government employees in positions that "would invite public <br>scrutiny and discussion of the person holding [them], entirely <br>apart from the scrutiny and discussion occasioned by [any] <br>particular charges in controversy."  Id. at 86 n.13. <br>     During its next term, the Court extended the New York <br>Times rule to defamation cases in which the plaintiff, though not <br>a government official, was a "public figure."  Curtis Pub. Co. v. <br>Butts, 388 U.S. 130, 155 (1967).  The Justices considered public <br>figures to be those who "commanded sufficient public interest and <br>had sufficient access to the means of counterargument to be able to <br>expose through discussion the falsehood and fallacies of the <br>defamatory statements."  Id. (citation and internal quotation marks <br>omitted). <br>     After some short-lived experimentation, see, e.g., <br>Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43-44 (1971), the <br>Court settled on a defamation model that ties the constitutionally <br>required showing in a defamation action to the plaintiff's status.  <br>It contemplated that "public figure" status usually would arise in <br>one of two ways:  (1) when persons "assume[] roles of especial <br>prominence in the affairs of society," perhaps by occupying <br>positions of "persuasive power and influence," or (2) when persons <br>"thrust themselves to the forefront of particular public <br>controversies in order to influence the resolution of the issues <br>involved."  Gertz, 418 U.S. at 345.  The Court noted, however, <br>that not all public figures are equal:  an individual who achieves <br>"pervasive fame or notoriety," or otherwise comes within the first <br>category, is deemed a public figure for all purposes, whereas an <br>individual who dives headfirst into troubled waters, or otherwise <br>comes within the second category, "becomes a public figure only for <br>a limited range of issues."  Id. at 351.  That range is identified <br>"by looking to the nature and extent of an individual's <br>participation in the particular controversy giving rise to the <br>defamation."  Id. at 352. <br>                        B.  Judge or Jury. <br>     Turning from the general to the particular, we first mull <br>Pendleton's claim that Judge O'Toole usurped the jury's province by <br>making the public figure determination himself.  In addressing this <br>issue, we do not write on a pristine page.  The Rosenblatt Court <br>declared that "it is for the trial judge in the first instance to <br>determine whether the proofs show [the plaintiff] to be a 'public <br>official,'" 383 U.S. at 88, and it explained that ceding this <br>responsibility to the bench reduced the chance that jurors might <br>"use the cloak of a general verdict to punish unpopular ideas or <br>speakers," id. at 88 n.15.  Extrapolating from this pronouncement, <br>a number of federal courts (including this one) have treated First <br>Amendment status determinations as grist for the court's   not the <br>jury's   mill.  See, e.g., Lundell Mfg. Co. v. American Broad. <br>Cos., 98 F.3d 351, 362 (8th Cir. 1996), cert. denied, 117 S. Ct. <br>1470 (1997); Reuber v. Food Chem. News, Inc., 925 F.2d 703, 708 <br>(4th Cir. 1991); Marcone v. Penthouse Int'l Mag. for Men, 754 F.2d <br>1072, 1081 n.4 (3d Cir. 1985); Rebozo v. Washington Post Co., 637 <br>F.2d 375, 379 (5th Cir. 1981); Waldbaum v. Fairchild Publs., Inc., <br>627 F.2d 1287, 1293 n.12 (D.C. Cir. 1980); see also Penobscot <br>Indian Nation v. Key Bank, 112 F.3d 538, 561 (1st Cir.) (describing <br>"public figure status" as presenting "a question of law," <br>notwithstanding that it "necessitates a detailed fact-sensitive <br>determination"), cert. denied, 118 S. Ct. 297 (1997). <br>     Ignoring these authorities, Pendleton exhorts us to adopt <br>the more particularized interpretation of the Rosenblatt rule <br>explicated in Stone v. Essex County Newspapers, Inc., 330 N.E.2d <br>161 (Mass. 1975).  Using Stone as a talisman, he insists that a <br>court may make the public figure determination only if the facts <br>bearing thereon are uncontroverted.  Building on this foundation, <br>Pendleton then asserts that the public figure question in this case <br>should have been submitted to the jury because the parties <br>disagreed as to whether Pendleton injected himself into a public <br>controversy to such an extent that he became a limited-purpose <br>public figure. <br>     We reject Pendleton's importuning.  The principal problem <br>with his argument is that it assumes (wrongly, we believe) that the <br>question of whether a person is sufficiently entangled in a public <br>controversy to qualify him as a limited-purpose public figure is <br>for the jury.  That question is of constitutional dimension and, <br>thus, federal law controls.  Consistent with the federal precedents <br>assembled above, which illustrate that the status issue is treated <br>in federal defamation jurisprudence as a question of law, we hold <br>that the question of whether a defamation plaintiff is a public <br>figure is properly resolved by the court, not by the jury, <br>regardless of the contestability of the predicate facts. <br>     In this case, moreover, all roads lead to Rome.  The <br>record reveals complete accord as to who Pendleton was and what he <br>did and said both before and after the events of May 27, 1994.  <br>There is no conflict as to any material fact; the issue is whether <br>the discerned facts suffice to establish that Pendleton acted in a <br>way sufficient to make him a public figure for the purpose of this <br>defamation action (say, by previously achieving pervasive fame and <br>notoriety, or by injecting himself into a public controversy).  We <br>have no doubt that this archetypical legal question is exactly the <br>sort of inquiry that the Rosenblatt Court intended the judge to <br>handle.  Hence, the trial court did not err in ruling directly on <br>the public figure question. <br>                     C.  Pendleton's Status. <br>     We turn now to the efficacy of Judge O'Toole's <br>determination that Pendleton, although not a public official, was <br>a limited-purpose public figure.  As with other questions of law, <br>we afford plenary review to this determination.  See McCarthy v. <br>Azure, 22 F.3d 351, 354 (1st Cir. 1994). <br>     Some of the arguments advanced in support of the <br>proposition that Pendleton was a limited-purpose public figure are <br>canards.  It is by now apodictic that an individual's involvement <br>in a criminal proceeding   even one that attracts substantial <br>notoriety   is not enough, in itself, to ingeminate public figure <br>status.  See Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 168 <br>(1979).  By like token, one does not become a public figure merely <br>by defending oneself publicly against accusations.  See Time, Inc.v. Firestone, 424 U.S. 448, 454 n.3 (1976); Foretich v. Capital <br>Cities/ABC, Inc., 37 F.3d 1541, 1558 (4th Cir. 1994).  Finally, <br>Arahovites's claim that Pendleton achieved pervasive fame as a <br>sports star at Haverhill High School two decades ago and retains <br>that celebrity to this day elevates hope over reason.  The passage <br>of time obviously diluted whatever fame the now forty-something- <br>year-old Pendleton had acquired during his adolescent heyday. <br>     These false starts notwithstanding, we glean from the <br>appellees' briefs and the trial court's bench decision several <br>other suggested bases on which the court's decision arguably might <br>rest.  Rather than canvassing the universe of possibilities, we <br>proceed directly to the strongest argument in support of this <br>determination, mindful that an appellate court possesses the power <br>to affirm a lower court's rulings of law on any independent ground <br>made manifest by the record.  See Polyplastics, Inc. v. Transconex, <br>Inc., 827 F.2d 859, 860-61 (1st Cir. 1987). <br>     In mid-1993, Pendleton effectively announced his <br>candidacy to become a permanent teacher within the Haverhill school <br>system.  He proclaimed as much in a newspaper story (entitled <br>"Black Teacher Has Grown Impatient Awaiting A Chance") that <br>featured him and his aspiration.  Although the record is bereft of <br>information regarding the genesis of this published profile, the <br>article speaks eloquently for itself. <br>     Its author, Anita Perkins, describes a school system <br>employing 480 full-time teachers, only 15 of whom are minorities, <br>to instruct 7,500 pupils, approximately 1,050 of whom are <br>minorities.  Perkins reports Pendleton's avowal that the Haverhill <br>school system, in which minorities account for 14% of the student <br>body but only 3% of the faculty, is not taking appropriate steps to <br>increase the number of minority instructors.  In Pendleton's <br>opinion, "school officials are not making minority hirings a <br>priority,"    a failing that he says leaves minority students <br>without suitable role models. <br>     The gist of the article is that Pendleton, a Haverhill <br>native with a degree from the University of Massachusetts and ample <br>experience working with Haverhill youths, should be given a <br>teaching opportunity.  Perkins discusses Pendleton's "lifelong <br>dream of teaching in the schools that gave him and his family so <br>much," and explains that, despite completing two years as a <br>substitute teacher in a Haverhill school, "three attempts to land <br>a really permanent position in the city schools failed."  The <br>article concludes with Pendleton's poignant lament:  "I am tired of <br>substitute teaching.  I just want a chance to show my <br>qualifications." <br>     In addition to conveying Pendleton's views, Perkins <br>reported that, following a recent spate of racially tinged <br>incidents at Haverhill High School, students of all hues "called <br>for more minority teachers, a recommendation school officials said <br>they would heed."  This, and similar statements in the article, <br>make it transparently clear that the racial attributes of the <br>teacher-pupil mix by then had become a matter of public concern.  <br>This circumstance possesses great significance for a First <br>Amendment analysis:  by granting an interview to Perkins and <br>lobbying for a permanent teaching post at a time when the racial <br>composition of the public school faculty had become a matter of <br>intense interest in the community, Pendleton invited public <br>scrutiny of the qualities that equipped him to teach in the <br>Haverhill school system.  Accordingly, he became a public figure <br>for that limited purpose. <br>     We base this conclusion, in part, on the case law <br>concerning candidates for public office.  Monitor Patriot Co. v. <br>Roy, 401 U.S. 265 (1971), involved a claim that a newspaper was <br>liable for erroneously reporting that a senatorial candidate was a <br>"former small-time bootlegger."  Id. at 266.  The candidate sued, <br>maintaining that he need not prove actual malice because he had <br>never held a public office.  The Court demurred, holding that <br>"publications concerning candidates must be accorded at least as <br>much protection under the First and Fourteenth Amendments as those <br>concerning occupants of public office."  Id. at 271.  In a <br>companion case decided the same day, the Court reiterated its <br>conclusion that candidates for public office   there, a candidate <br>for a position as a county tax assessor   fall within the purview <br>of the New York Times rule.  See Ocala Star-Mirror Co. v. Damron, <br>401 U.S. 295, 299 (1971). <br>     We believe that, by analogy, these holdings are <br>instructive in respect to the circumstances at bar.  Of course, <br>unlike the candidates in Monitor Patriot and Ocala Star-Mirror, <br>Pendleton was not running for an elected political office   but it <br>is at least arguable that if a person holds (or aspires to hold) <br>any public post which entails control over matters of substantial <br>public concern, then his qualifications for serving in that <br>capacity are likely to engender the type of public debate and <br>discussion that the First Amendment protects.  See Rosenblatt, 383 <br>U.S. at 85-86.  After all, the Court's defamation jurisprudence <br>makes no distinction between government officials who are selected <br>by the voters and those who are selected in other ways, and logic <br>suggests that it is the status of the official, not the manner in <br>which he attains (or hopes to attain) the office, that is the key <br>determinant of the extent to which state defamation law can be <br>allowed to curb free discussion. <br>     Here, however, we need not rely solely on this rationale.  <br>The Perkins article leaves no doubt that an independent public <br>controversy existed within Haverhill regarding the need to increase <br>minority faculty representation and the adequacy of the measures <br>employed by school officials to that end.  Pendleton voluntarily <br>injected himself into this preexisting controversy in at least <br>three ways:  by making (and authorizing the publication of) <br>statements bearing on the issue; by airing his qualifications in a <br>manner calculated to suggest that hiring him would ameliorate the <br>problem; and by seeking to influence public opinion not only on the <br>desirability of more minority hires, but also on the virtues of his <br>own candidacy for such employment.  In short, when Pendleton <br>stated, "I just want a chance to show my qualifications," he <br>invited public debate both on the general issue of minority <br>representation and on the specific characteristics that made him <br>suitable (or not) for a teaching position. <br>     We think that this conclusion comports comfortably with <br>the teachings of Gertz.  Pendleton had "access to the channels of <br>effective communication," 418 U.S. at 344, as evidenced by the fact <br>that his arrest on cocaine charges made the front page of both the <br>Gazette and the Eagle-Tribune well prior to the uproar over his <br>exoneration.  Similarly, the Gertz Court's statement that "[a]n <br>individual who decides to seek governmental office must accept <br>certain necessary consequences of that involvement in public <br>affairs," among them, "the risk of closer public scrutiny than <br>might otherwise be the case," 418 U.S. at 344, informs our <br>assessment. <br>     To be sure, there may be a temporal dimension to any <br>"limited-purpose public figure" analysis.  Intuitively, one should <br>not become fair game for eternity merely by injecting oneself into <br>the debate of the moment.  Cf. Rosenblatt, 383 U.S. at 87 n.14 <br>(hypothesizing that "there may be cases where a person is so far <br>removed from a former position of authority that comment on the <br>manner in which he performed his responsibilities no longer has the <br>interest necessary to justify [applying] the New York Times rule").  <br>The case law, however, tends to contradict this intuition.  SeeAlan Kaminsky, Note, Defamation Law:  Once A Public Figure Always <br>A Public Figure?, 10 Hofstra L. Rev. 803, 812-13 (1982) (collecting <br>cases).  Yet, we need not probe this point, for the temporal link <br>in this instance is more than adequate.  Perkins's article <br>espousing Pendleton's qualifications appeared in August 1993, less <br>than a year before the utterances that are the subject of this <br>suit.  There is no evidence that, in the interim, the controversy <br>about minority faculty representation had subsided or that <br>Pendleton had abandoned his quest for a permanent teaching <br>position. <br>     Under the circumstances, Pendleton became a limited- <br>purpose public figure whose alleged peccadilloes, even if falsely <br>portrayed, were fair game in the absence of actual malice.  <br>Consequently, those with information bearing on Pendleton's <br>qualifications for a teaching position should not be punished for <br>speaking out, absent evidence that they knowingly or recklessly <br>disseminated falsehoods.  It follows that, because Arahovites's <br>allegedly defamatory statements relate directly to Pendleton's <br>qualifications for the public position to which he aspired and by <br>extension to the controversy which swirled around that position    <br>a controversy into which Pendleton had thrust himself   the <br>district court correctly applied the New York Times rule.  Cf.Monitor Patriot, 401 U.S. at 277 (holding "as a matter of <br>constitutional law that a charge of criminal conduct . . . can <br>never be irrelevant to an official's or candidate's fitness for <br>office"). <br>     Let us be perfectly clear.  Our conclusion here, as in <br>most public figure cases, is factbound and restricted to the <br>specific circumstances revealed in the record.  See Bruno & <br>Stillman, 633 F.2d at 589 (explaining that "particularized <br>determinations of public figure status are the rule").  We are <br>aware of the scholarly debate surrounding teacher status in the <br>defamation context, see generally Eugene C. Bjorklun, Are Teachers <br>Public Officials For Defamation Purposes?, 80 West Ed. L. Rep. 527 <br>(1993); Richard E. Johnson, No More Teachers' Dirty Looks   Now <br>They Sue:  An Analysis Of Plaintiff Status Determinations In <br>Defamation Actions By Public Educators, 17 Fla. St. U. L. Rev. 761 <br>(1990); Peter S. Cane, Note, Defamation Of Teachers:  Behind The <br>Times?, 56 Fordham L. Rev. 1191 (1988), and we leave that ramified <br>inquiry for another day.  To resolve the case at hand, it is <br>unnecessary for us to hold that teachers are public figures for all <br>purposes or that each and every applicant for a teaching post is to <br>be deemed a public figure.  What we do hold is that when an <br>individual freely comments on a community controversy that he views <br>as precluding his ascension to a government office (such as that of <br>public school teacher) and puts his qualifications into the public <br>realm in a manner that suggests that he is trying to influence <br>public opinion, he becomes a public figure for the purpose of <br>discussions regarding his fitness for the office. <br>     We need go no further.  Pendleton made himself a public <br>figure by voluntarily stepping into the midst of an ongoing <br>controversy and inviting the citizenry to judge his bid to become <br>a teacher.  Having extended that invitation, he assumed the risk <br>that the ensuing discourse might contain errors of fact   errors <br>for which the speakers, in the absence of a showing of actual <br>malice, could not be held liable.  Hence, the court below did not <br>err in requiring Pendleton to prove actual malice as an element of <br>his defamation action. <br> <br>Affirmed.</pre>

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