V

Since New York Times v. Sullivan, 16 376 US 254, 11 L Ed 2d 686, 84 S Ct 710, 95 ALR2d 1412 (1964), this Court has sought to define the accommodation required to assure the vigorous debate on public issues that the First Amendment was designed to protect while at the same time affording protection to the reputations of individuals. E.g., Time, Inc. v. Firestone, 424 US 448, 47 L Ed 2d 154, 96 S Ct 958 (1976); Gertz v. Robert Welch, Inc., 418 US 323, 41 L Ed 2d 789, 94 S Ct 2997 (1974); Rosenbloom v. Metromedia, Inc., 403 US 29, 29 L Ed 2d 296, 91 S Ct 1811 (1971); St. Amant v. Thompson, 390 US 727, 20 L Ed 2d 262, 88 S Ct 1323 (1968); Curtis Publishing Co. v. Butts, 388 US 130, 18 L Ed 2d 1094, 87 S Ct 1975 (1976); Rosenblatt v. Baer, 383 US 75, 15 L Ed 2d 597, 86 S Ct 669 (1966). In Gertz v. Robert Welch, Inc., the Court offered a general definition of "public figures":

For the most part those who attain this status [of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. 418 US, at 345, 41 L Ed 2d 789, 94 S Ct 2997.

[13] It is not contended that Hutchinson attained such prominence that he is a public figure for all purposes. Instead, respondents have argued that the District Court and the Court of Appeals were correct in holding

16 Neither the District Court nor the Court of Appeals considered whether the New York Times standard can apply to an individual defendant rather than to a media defendant. At oral argument, counsel for Hutchinson stated that he had not conceded that the New York Times standard applied. Tr of Oral Arg 18. This Court has never decided the question; our conclusion that Hutchinson is not a public figure makes it unnecessary to do so in this

case.

that Hutchinson is a public figure for the limited purpose of comment on his receipt of federal funds for research projects. That conclusion was based upon two factors: first, Hutchinson's successful application for federal funds and the reports in local newspapers of the federal grants; second, Hutchinson's access to the media, as demonstrated by the fact that some newspapers and wire services reported his response to the announcement of the Golden Fleece Award. Neither of those factors demonstrates that Hutchinson was a public figure prior to the controversy engendered by the Golden Fleece Award; his access, such as it was, came after the alleged libel.

[14] On this record Hutchinson's activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy it was a consequence of the Golden Fleece Award. Clearly those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Wolston v. Reader's Digest, Inc., (1979).

US, at, 61 L Ed 2d 450, 99 S Ct

Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures. But that concern is shared by most and relates to most public expenditures; it is not sufficient to make Hutchinson a public figure. If it were, everyone who received or benefited from the myriad public grants for research could be classified as a public figure-a conclusion that our previous opinions have rejected. The "use of such subject-matter classifications to determine the extent of constitutional protection af forded defamatory falsehoods may too often result in an improper balance between the competing interests in this area." Time, Inc. v. Firestone, supra, at 456, 47 L Ed 2d 154, 96 S Ct 958.

Moreover, Hutchinson at no time assumed any role of public prominence in the broad question of concern

about expenditures. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. The petitioner in Gertz v. Robert Welch, Inc., had published books and articles on legal issues; he had been active in local community affairs. Nevertheless, the Court concluded that his activities did not make him a public figure.

Finally, we cannot agree that Hutchinson had such access to the media that he should be classified as a public figure. Hutchinson's access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure.

We therefore reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion. Reversed and remanded.

MR. JUSTICE STEWART joins in all but footnote 10 of the Court's opinion. He cannot agree that the question whether a communication by a Congressman or a member of his staff with a federal agency is entitled to Speech or Debate Clause immunity depends upon whether the communication is defamatory. Because telephone calls to federal agency officials are a routine and essential part of the congressional oversight function, he believes such activity is protected by the Speech or Debate Clause.

SEPARATE OPINION

MR. JUSTICE BRENNAN, dissenting.

I disagree with the Court's conclusion that Senator Proxmire's newsletters and press releases fall outside the protection of the speech or debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States, 408 US 606, 648, 33 L Ed 2d 583, 92 S Ct 2614 (1972) (Brennan, J., dissenting).

-US-, 60 L Ed 2d 846, 99 S Ct

[No. 78-5072]

SHIRLEY DAVIS, Petitioner,

V.

OTTO E. PASSMAN

Argued February 27, 1979. Decided June 5, 1979. Decision: Woman discharged from employment by U.S. Congressman, held to have right of action, arising directly under Fifth Amendment due process clause, to recover damages for Congressman's alleged sex discrimination.

SUMMARY

A woman who had been hired by a United States. Congressman as a deputy administrative assistant, but who had subsequently been terminated by the Congressman for the express reason that the Congressman had concluded that "it was essential" that his Administrative assistant's understudy "be a man," brought an action in the United States District Court for the Western District of Louisiana, alleging that the Congressman's conduct discriminated against her "on the basis of sex in violation of the United States Constitution and the Fifth Amendment." The woman sought damages in the form of backpay and predicated jurisdiction on 28 USCS § 1331(a), granting the District Courts jurisdiction over civil actions involving controversies of $10,000 or more which arise "under the Constitution . . . of the United States." The District Court dismissed the complaint on the Congressman's motion to dismiss for failure to state a claim upon which relief can be granted, ruling that the woman had no private right of action. A panel of the United States Court of Appeals for the Fifth Circuit reversed, ruling that a cause of action for