1. The First Amendment and False Light
The constitutional defense to damage actions is a
comparatively recent event in First Amendment law. In 1964, the
Supreme Court ruled in New
York Times v. Sullivan,
376 U.S. 54 (1964) that a public
official may not recover damages for a defamatory falsehood
relating to his official conduct unless he proves with convincing
clarity that the statement is made with actual malice. The Court
defined actual malice as the knowledge that the statement is false,
or the "reckless disregard" of its truth or falsity.
Later decisions expanded the defense to include libel actions
brought by "public figures." Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Associated Press v. Walker, 388 U.S.
130 (1967). A plurality of the Court in 1971 appeared to extend the
First Amendment protection to any article or broadcast of public
interest or concern, regardless of the public figure status of the
plaintiff. Rosenbloom v.
Metromedia, Inc., 403 U.S. 29
(1971). However, the expansion of First Amendment protection was
short-lived. In 1974, a majority of the Court rejected Rosenbloom and held once again that the
constitutional privilege applies only to cases involving defamation
of public officials or public figures. Gertz v. Robert Welch, Inc., 418 U.S. 323
The Supreme Court first applied the constitutional defense to
a privacy action in Time,
Inc. v. Hill, 385 U.S. 374
(1967). James Hill filed a lawsuit against Life magazine
for reporting that the Broadway play, "The Desperate
Hours," was a factual presentation of an incident involving
the Hill family. The Hills had been held captive in their home by
three escaped convicts. The play sensationalized the incident and
added physical violence that had not occurred. While the article
did not ridicule the family and thus was not defamatory, the
article's suggestion that the play was factual arguably placed the
Hills in a false light before the public inasmuch as all of the
incidents in the play did not take place.
A jury awarded Hill $75,000 in damages. The sum later was
reduced to $30,000, and the Supreme Court reversed that judgment in
its entirety upon the ground that the First Amendment provided a
2. Negligence Is Not Enough.
at 389-90. Accord, Matthews
v. Wozencraft, 15 F.3d 432
(5th Cir. 1994) (rejecting false light claim of convicted former
undercover narcotics agent against his former spouse/colleague's
account in the book and movie "Rush"). See also
Lamonaco v. CBS,
Inc., 21 Media L. Rep. (BNA)
2193 (D.N.J. 1993), aff'd,
27 F. 3d 557 (3d Cir. 1994)
(false light claim cannot be raised by family members).
against either innocent or negligent misstatement would represent a
grave hazard of discouraging the press from exercising the
' ' '
But the constitutional guarantees can tolerate sanctions
against calculated falsehood without significant impairment of
their essential function. We held in New York Times
that calculated falsehood enjoyed no immunity in the case of
alleged defamation of a public official concerning his official
We find applicable here the standard of knowing or reckless
falsehood, not through blind application of New York Times Co. v.
Sullivan, relating solely to
libel actions by public officials, but only upon consideration of
the factors which arise in the particular context of the
application of the New York statute in cases involving private
The courts have held that "a plaintiff may not avoid the
strictures of the burdens of proof associated with defamation by
resorting to a claim of false light invasion." Moldea v. New York Times, 22 F.3d 310 (D.C. Cir. 1994); accord
Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46 (1988).
And in some respects, the First Amendment protections against
invasion of privacy claims are greater than against defamation
Simple negligence or carelessness on the part of the writer
will not be sufficient to hold the publication liable. Unless there
is proof of reckless or knowing falsity, the publication cannot be
held liable for false light invasion of privacy where the subject
matter of the article is one of public interest. To this extent,
therefore, the news media have more protection in a false light
invasion of privacy case than they do in a defamation action. The
First Amendment serves as a defense in defamation cases where the
plaintiff is a public official or public figure. Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974). Yet, the defense applies in privacy actions in all
cases involving matters of public interest whether the plaintiff is
a private or a public person.
Inasmuch as the Supreme Court recently has narrowed the
category of persons considered public figures, it may be well for
news media lawyers to attempt to characterize lawsuits as false
light privacy cases, rather than libel lawsuits, when that is
possible. Two decisions released the same day in 1979 by the
Supreme Court appear to require that a person "thrust himself
or his views into public controversy to influence others . .
." in order to be considered a public figure. In
Proxmire, 443 U.S. 111
(1979), a research scientist who was well-known in his field, but
was not known generally, was considered to be a private person for
purposes of his libel suit against a U.S. senator. Likewise,
Wolston v. Readers Digest
Association, 443 U.S. 157
(1979) determined that a person involved in an espionage probe and
convicted of contempt of court was not a public figure. He had not
"engaged the attention of the public in an attempt to
influence the resolution of the issues involved."
Id. at 168.
Once the constitutional privilege is found to apply, the news
media defendant generally will win the case, whether for libel or
invasion of privacy. A plaintiff faces an extraordinary task in
proving with "convincing clarity" that the writer either
knew the falsity of his statements, or recklessly disregarded the
truth. While it is difficult to prove actual malice,
i.e., knowing or reckless
falsity, it is not impossible. The surest path to trouble in either
a libel or privacy case is for a wrier to invent details and
events. When a reporter described the appearance of a woman he had
never seen and misrepresented her family's poverty and the
conditions of her home, the Supreme Court determined that false
light invasion of privacy was proven with actual malice.
See Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974). The Court reasoned
that the writer must have known of the falsity of his account
because he fabricated much of the account. Id. at
3. Confusion in Florida Courts
The enduring problem with the
false light publicity claim is that it duplicates a defamation
claim. Not surprisingly, a number of states -- Georgia,
Mississippi, North Carolina, and Texas to name a few -- have
renounced false light as a viable theory of recovery.
Although the debate continues, Florida courts have
been guided by the Supreme Court's recognition of the tort in
Florida Publishing Co. v.
Fletcher, 340 So. 2d 914
(Fla. 1976). In the decision, the Supreme Court addressed a false
light claim, and held that falsity is the lynchpin of the claim.
Still, considerable confusion has been spawned by Florida courts
wrestling with a claim aimed at an unflattering message and cast as
false light publicity or false light invasion of
Most recently, in December 2003, a
Pensacola circuit court jury returned an $ 18 million compensatory
damages verdict against Pensacola's News-Journal (Anderson v. Gannett Co., Inc.) in what the plaintiff argues is false
light invasion of privacy by the newspaper. Although the newspaper
article at issue is a true rendition of events, the trial judge
allowed the case to be decided by a jury through a ruling that
falsity need not be proved as an element of a false light claim.
The judge relied upon the Second District Court of Appeal's 2001
decision in Heekin v.
CBS, 789 So.2d 355. In
starting a veritable chain reaction of incorrect rulings on the
proof requirements for false light claims, the Second District in
Heekin misread Cason v.
Baskin, 155 Fla. 198 (1944),
a "private facts" invasion of privacy case, in concluding
that truth is not a defense to a false light claim. The Pensacola
paper plans to appeal the false light liability and damages verdict
to ensure that plaintiffs targeting publication on a false light
theory do not evade the applicable common law and constitutional
rules protecting the press in these cases.