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January 14, 1986

DIANE NELSON, Plaintiff,

The opinion of the court was delivered by: GOETTEL


This diversity action for defamation and violation of Sections 50 and 51 of the New York Civil Rights Law, N.Y. Civ. Rights Law §§ 50 and 51 (McKinney 1976), arises out of an article in the April 24, 1984, GLOBE magazine ("GLOBE") entitled "The Marshmallow Diet" ("the article"). The article outlined a weight-loss program incorporating marshmallows, discussed some of its ancillary benefits, quoted several nutritionists, and included the diet itself. *fn1" The subject of this lawsuit is a one-sentence paragraph in the article concerning Diane Nelson ("Nelson"), the plaintiff in this lawsuit. That sentence reads, "Diane Nelson, of the Bureau of Nutrition, in New York, was instrumental in preparing this marshmallow-based diet to help GLOBE readers lose up to a pound a day." Nelson Affidavit, Exhibit B. Nelson claims that she was both shocked and horrified to learn that she had been named in the article as being instrumental in preparing the Marshmallow Diet. She commenced this action in the Supreme Court of the State of New York on June 5, 1984. GLOBE removed the action to this Court on July 3, 1984, where it was assigned to Judge Sofaer. It has since been reassigned to me.

Defendants Globe Communications Corp. and Globe International, Inc. now move for summary judgment on the plaintiff's claims for defamation and invasion of privacy. *fn2" For the reasons stated below, their motion is granted.


 Defendant Globe International, Inc. publishes GLOBE, a weekly periodical sold at newsstands and supermarkets. *fn3" In January 1984, various senior editors of GLOBE met for a story conference, where they discussed possible topics for articles. At the conference, Robert Taylor, an associate editor, suggested basing an article on a weight-loss program incorporating marshmallows. GLOBE's assignment editor contacted Carlson Wade ("Wade") about writing the article and suggested several ideas for it.

 Wade, an experienced writer in the field of diet and health, had previously written numerous magazine articles on topics relating to health, diet, and nutrition. He had been an editor of Popular Medicine, a diet-related magazine, and a medical editor and columnist for Pageant magazine. In addition, Wade had authored books on nutrition and diet-related topics. Wade had previously written 15 articles for GLOBE, the veracity or accuracy of which had never been challenged. (Wade has since written ten more articles for GLOBE.) GLOBE's editors suggested topics for many of Wade's articles. Wade conceived others himself. Wade is not named as a defendant in this action.

 After receiving a topic suggestion from GLOBE's editors, Wade researches the topic to determine its viability. Thus, after receiving the call from GLOBE's assignment editor, Wade researched his suggestion. Wade decided that marshmallows could be substituted for other carbohydrates in a diet, and that such a diet could still permit significant weight loss. Wade decided to work with a diet in his files entitled "Eat to Lose Weight!" The New York City Department of Health, Bureau of Nutrition ("Bureau of Nutrition") had originally prepared this diet. However, since 1981, the Bureau of Nutrition has neither distributed nor endorsed this diet. Another diet of the same name has been substituted for it. Wade modified the "Eat to Lose Weight!" diet by deleting certain carbohydrates and substituting marshmallow snacks.

 He states that he then began to contact nutritionists to see whether they would confirm his findings that the modified "Eat to Lose Weight!" diet could bring about a loss of weight while suppressing the urge to overeat. He says he spoke to Dr. Elizabeth Whelan, a public health professional; Professor Evangelos Gizis, an adjunct professor in the Department of Home Economics and Nutrition at New York University; and Mildred Levine and Diane Nelson, staff nutritionists at the Bureau of Nutrition. Wade says that he incorporated the comments of Whelan and Gizis into his article. He also maintains that Nelson gave him permission to use her name in connection with the article. Whelan, Gizis, Levine, and Nelson uniformly deny ever having spoken to Wade or to anyone else from GLOBE about the diet. The first three named have not sued.

 Following the alleged conversations, Wade typed his article. His sole reference to Nelson was a statement that "[t]ogether with Diane Nelson, a nutritionist with the Bureau of Nutrition, the following diet was prepared." Nelson Affidavit, Exhibit C. Wade submitted his typed draft to GLOBE's assignment editor. Shortly thereafter, Wade was contacted by a GLOBE editor who requested and received the names, titles, and telephone numbers of the individuals Wade had spoken to and the dates of the various conversations. After receiving Wade's piece, the assignment editor forwarded it to Robert Taylor, the associate editor in charge of rewriting. The copy was first edited by Derek Clontz, a rewrite editor, who edited it for style and clarity. Clontz substantially shortened the article and many of the quotations therein. Taylor reviewed the original copy and Clontz's rewrite, made further changes, and submitted the edited copy to Cliff Barr, GLOBE's editor. Barr looked at it and approved it for publication. GLOBE did not verify the contents of the article or the nutritional validity of the diet.

 In its final form, the article contained the following sentence: "Diane Nelson, of the Bureau of Nutrition in New York, was instrumental in preparing this marshmallow-based diet to help GLOBE readers lose up to a pound a day." Prior to publication, the entire April 24 issue, including the article in question, was submitted to GLOBE's outside counsel for libel review. Since the Marshmallow Diet article did not appear defamatory, counsel did not discuss it with GLOBE's editors.

 Nelson learned of the article and its reference to her shortly after its publication. At that time, she was one of eight staff nutritionists employed by the Bureau of Nutrition. (She is now on maternity leave.) She had several responsibilities. From time to time, she reviewed nutrition books in order to determine their reliability and credibility. She also answered inquiries from the press and public on matters relating to nutrition. Finally, Nelson was responsible for nutrition education in two areas of Brooklyn. In that capacity, she gave talks concerning general nutrition to various community groups. Nelson based those talks on materials supplied by the Bureau of Nutrition.

 II. Discussion

 A. The Defamation Claim

 In the landmark case of New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), the Supreme Court held for the first time that "the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct." Id. at 283. A public official may not recover "damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967), the Court extended the protections of New York Times v. Sullivan to "public figures." There are two types of public figures.

 In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.

 Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). "[T]he states ... retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of an individual who is neither a public official nor a public figure." Id. at 345-46. "So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Id. at 347.

 The defendants contend that the plaintiff is both a public official and a limited purpose public figure. As discussed at length below, we find no merit in either contention. Consequently, New York's law with respect to defamation applies. That law, in turn, also shields the defendant from liability in this case.

 1. Diane Nelson: A Public Official?

 The Supreme Court has consistently sidestepped opportunities to precisely define the term public official. See Hutchinson v. Proxmire, 443 U.S. 111, 119, 61 L. Ed. 2d 411, 99 S. Ct. 2675 n.8 (1979) ("The Court has not provided precise boundaries for the category of 'public official....'"); Rosenblatt v. Baer, 383 U.S. 75, 85, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1967) ("No precise lines need be drawn for the purposes of this case."); New York Times v. Sullivan, supra, 376 U.S. at 283 n.23 ("We have no occasion here to determine how far down into the lower ranks of government employees the 'public official' designation would extend ..., or otherwise to specify categories of persons who would or would not be included."). On the other hand, despite expanding the category of "public officials" to include, among others, a recreation supervisor, Rosenblatt v. Baer, supra, a county clerk, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 19 L. Ed. 2d 248, 88 S. Ct. 197 (1967), and a deputy sheriff, St. Amant v. Thompson, 390 U.S. 727, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968), the Court has consistently stated that "the category of 'public official' ... cannot be thought to include all public employees...." Hutchinson v. Proxmire, supra, 443 U.S. at 119 n.8; see also Rosenblatt v. Baer, 383 U.S. 75, 86-87, 15 L. Ed. 2d 597, 86 S. Ct. 669 n.13 (statement would not warrant New York Times v. Sullivan protection "merely because a statement defamatory of some person in government employ catches the public interest."). A large number of courts have disregarded the latter admonition and deemed countless individuals at the lowest echelons of government service to be "public officials." See D. Elder, Defamation, Public Officialdom and the Rosenblatt v. Baer Criteria -- A Proposal for Revivification: Two Decades After New York Times Co. v. Sullivan, 33 Buff. L. Rev. 579, 634-640 (1984) (listing over 40 examples). *fn4" The defendants rely on a number of these cases to support their argument that the plaintiff is a public official. The Court, however, lacks confidence in this authority, which plainly ignores the admonitions of the Supreme Court. Instead, we take our cue from the language and policies that the Court has relied upon in justifying the protections it provides to those who criticize public officials.

 Co. v. Sullivan, 33 Buff. L. Rev. 579, 640-43 (1984) (Listing governmental agents or employees deemed not to have relinquished their private status).

 Two policies underly the protections afforded such criticism. First, protecting speech about "public officials" should encourage debate about an issue of the highest importance in any democratic society, the operation of ...

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