A Ray of Hope to Eliminate False Light
In the past half-century, First Amendment lawyers have successfully convinced courts and state legislatures to make it more difficult for plaintiffs to bring defamation lawsuits. These changes have helped preserve the public debate that is vital to our democracy, particularly as the Internet has expanded platforms for free speech and enabled every individual to publish their opinions and stories.
Unfortunately, privacy law has long provided plaintiffs with an end-run around the First Amendment. Rather than filing a defamation lawsuit, plaintiffs bring claims under a privacy tort known as “false light.” In some states, it is easier to bring claims under false light than under defamation law.
But there is good news: recently, many federal and state courts have made it more difficult to bring false light claims. Although many states still allow false light claims, a number of courts have dismissed false light lawsuits, indicating that it will be more difficult for plaintiffs to file false light claims.
Defamation and false light lawsuits are very similar, but there are a few important differences:
- Defamation claims focus on the injury to the plaintiff’s reputation, while false light claims generally involve the harm to an individual’s dignity or emotional well-being.
- Some courts have set a lower bar for false light claims. In defamation cases, the plaintiff must demonstrate that the defendant’s statement was false. But plaintiffs in false light privacy lawsuits in some states need only demonstrate that the statement portrayed the defendant in a false light.
- Some states limit damages for defamation claims, but these limits don’t apply to false light.
In other words, in some states, a plaintiff could bring a false light claim even if the defendant’s statement was arguably true and did not damage the plaintiff’s reputation. It is unclear why such a tort is necessary, as it largely overlaps with defamation law.
For this reason, courts in some states, such as New York, Virginia, Texas, and Florida, have refused to recognize the false light tort. As the Florida Supreme Court wrote in 2008, false light “allows the plaintiff to circumvent the strict requirements that have been adopted by statute and developed by case law to ensure the right to freedom of expression.” But the majority of states, including California, continue to allow false light claims.
Fortunately, a number of recent court opinions have indicated that false light plaintiffs must meet a high standard:
- Last week, the U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s dismissal of false light and defamation claims against TripAdvisor for its “2011 Dirtiest Hotels” list.
- Also last week, the Supreme Court of Missouri refused to reverse its earlier decisions and recognize the false light tort.
- A week earlier, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of former basketball star Scottie Pippen’s defamation and false light claims against news organizations that falsely reported that he filed for bankruptcy.
- On August 23, the Supreme Court of Iowa held that the University of Iowa is immune from a false light claim brought by a former dean.
These opinions, and many others in the past year, indicate that courts are generally holding false light plaintiffs to a high standard.
Although these decisions are a step in the right direction, they are not enough. Courts or legislatures must finally eliminate this unnecessary cause of action. False light is an outdated and unnecessary privacy tort that enables plaintiffs to avoid the First Amendment protections that courts and legislatures have carefully crafted over the years.
About the Author
Jeff Kosseff, CIPP/US, is a privacy and communications associate in the Washington, D.C. office of Covington & Burling, LLP. He clerked for Judge Milan D. Smith, Jr. of the U.S. Court of Appeals for the Ninth Circuit and Judge Leonie M. Brinkema of the U.S. Court of Appeals for the Eastern District of Virginia. Before becoming a lawyer, he was a journalist for The Oregonian and was a finalist for the Pulitzer Prize and recipient of the George Polk Award for national reporting. He can be reached at firstname.lastname@example.org.