Until last week, the state of Florida had never clearly decided whether to recognize a cause of action called “false light invasion of privacy.” For potential defendants like newspapers, false light had become a stalking horse of sorts, a threat that hummed in the background, far less well-defined than defamation, which is a separate cause of action that has been refined and re-refined through hundreds of years to balance a person’s right not to be publicly misrepresented against the fine points of the First Amendment.
In most cases, the two actions overlap. A person who has a valid claim of false light will also have a valid defamation claim. But for plaintiffs, false light has three possible advantages. First, precisely because it hasn’t been developed as carefully as defamation — indeed, in many states, it doesn’t even exist — there aren’t as many rules restricting recovery. Second, it isn’t clear whether a statement that casts a person in a false light has to actually be false, whereas it’s often said that in a defamation case, truth is an absolute defense. Third, false light may have a different statute of limitations than defamation, meaning that a cause of action that might have expired when viewed as a defamation lawsuit might remain alive as false light.
As an example, in one of the two cases the Florida Supreme Court considered in deciding whether to recognize false light, a man sued a Florida newspaper for mentioning, during an article about a paving business, that he “shot and killed” his wife. Not until later in the article did it mention that the shooting was part of a hunting accident. He argued that while the statement was strictly true, the lack of context left the impression that he had killed her intentionally. It cast him in a false light, he claimed, even if it wasn’t strictly false.
In deciding not to recognize the tort of false light invasion of privacy, the Florida Supreme Court relied on a few factors. First, it concluded that false light was almost entirely duplicative of defamation. To the argument that defamation might leave a gap where a statement that was literally true created a false impression, the Court noted that defamation is actually not limited to literally false statements; it includes a subcategory of “defamation by implication.” Defamation by implication covers situations like, to use one of the Court’s examples, a newspaper including a person’s picture in an article about a certain category of criminals, even without explicitly stating that the person was a criminal himself.
Second, the Court was uncomfortable with the relatively weak history of false light jurisprudence as compared to defamation. In other words, defamation generally has been the tort of choice for those who feel that their reputations have been damaged, so courts have had more time to develop it and place limitations on it. Allowing one person to sue another for the content of speech creates massive constitutional challenges; it’s not surprising that the Court would rather take a more carefully manicured path over a trail it would have to blaze on its own.
Third, the Court considered the fact that a defamation plaintiff generally has to prove that his reputation in the community was damaged, while a false light plaintiff has to prove that the publicity would be “highly offensive to a reasonable person.” In other words, defamation relies on how it affects the way other people see you; false light — which is, after all, an offshoot of invasion of privacy — relies on how it affects you. The Court concluded, however, that in practice, there would be no difference. The likelihood that something that was said about you would deeply offend you but not affect your reputation is remote, as is the likelihood that something that caused people to lose respect for you wouldn’t be offensive to you.
In the end, the Court decided to abandon the idea of a separate cause of action for “false light,” relying on defamation, including the possibility of “defamation by implication.”
At first, the rejoicing by the Florida press seems perhaps overblown. Their gains are not as great as their editorials suggest. Some papers seem to be interpreting the disappearance of “false light” as the disappearance of the possibility that a strictly true story might be defamatory. Media attorneys have suggested that false light has made stories impossible to vet because the only thing a paper can truly investigate is whether a story is true, and they have argued that their obligation should stop there.
Clearly, there is still more to the journalistic obligation under these Florida decisions than literal truth. As long as defamation by implication exists, journalists still must consider not only whether reported stories are literally true but also if the way facts are presented is suggestive of something defamatory. To the degree that media defendants may have hoped that literal truth would be a complete defense to every possible iteration of a defamation lawsuit, they will be disappointed after a careful reading of the decision.
Still, the Court’s decision to put to rest a tort that remained largely undefined was wise. Defamation is a relatively coherent legal idea that media organizations, whether or not they always remain on the right side of it, have learned to navigate. There’s little reason to open another avenue that’s far foggier simply to address a nearly identical problem.
Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.