The Florida Supreme Court declined to recognize the tort of false light invasion of privacy on Oct. 23, 2008 in a unanimous opinion that held the tort’s chilling effect on protected speech outweighed its potential to create a new remedy for a narrow class of wrongs.
The high court’s opinion in Jews for Jesus, Inc. v. Rapp, 33 Fla. L. Weekly S849 (Fla. 2008), also ended a second false light case, Anderson v. Gannett Co., 33 Fla. L. Weekly S856 (Fla. 2008), in which a Florida jury had awarded the plaintiff more than $18 million in damages on his false light claim.
Although many states recognize false light invasion of privacy claims, several state high courts, including Minnesota, Colorado, and now Florida, have explicitly declined to recognize the cause of action. (See “Ohio Supreme Court Recognizes False Light Claim” in the Fall 2007 issue of the Silha Bulletin and “Colorado Rejects False Light Invasion Of Privacy Tort” in the Fall 2002 Bulletin.)
In Rapp, Edith Rapp sued Jews for Jesus after her stepson, Bruce Rapp, published an account of an alleged exchange he had with his stepmother in the organization’s newsletter and on the Internet. In the account, Bruce Rapp, who was also an employee of Jews for Jesus, relates that he asked his stepmother, who is Jewish, “if she would like to ask [God] for forgiveness for her sins and receive [Jesus]” and she responded “yes!” the court’s opinion said.
Edith Rapp’s suit alleged claims for defamation, intentional infliction of emotional distress, and false light invasion of privacy. According to her complaint, her stepson’s account falsely implied Rapp had joined Jews for Jesus and believed in its tenets. The trial court dismissed Rapp’s complaint for failure to state a claim, and the mid-level appellate court affirmed as to the first two claims, but certified a question to the state’s high court to decide whether to recognize the false light tort.
The court began with a review of the history of false light invasion of privacy, focusing on “two primary concerns” expressed by other courts and academics. First, false light largely duplicates the existing and well-established cause of action for defamation. Second, it lacks the procedural and substantive safeguards present in defamation law and designed to protect First Amendment concerns and therefore has the potential to chill protected expression.
Writing for the unanimous court, Justice Barbara J. Pariente analyzed two potential differences between false light and defamation. In some jurisdictions, false light addresses statements that are “literally true” but create a “false impression.” But Pariente dismissed that distinction because Florida has recognized claims for defamation by implication in those situations.
Defamation by implication covers cases where the story or article is not defamatory because of what it says, but because of what it implies, Pariente explained. Although the state Supreme Court acknowledged that it had never explicitly endorsed the concept, the opinion makes clear that defamation by implication is a valid cause of action in Florida.
Additionally, false light makes actionable false statements that are “highly offensive to a reasonable person” even if they are not objectively defamatory. The distinction is the interest each cause of action seeks to protect. “[I]n defamation cases the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world. In privacy cases the interest affected is the subjective one of injury to [the] inner person,” Pariente wrote, quoting Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007).
But Pariente dismissed the “theoretical” distinction, noting that in actual practice most statements that cause objective harm to reputation will also be subjectively offensive and most subjectively offensive statements will also be objectively harmful to reputation.
More importantly, Pariente argued, adopting the subjective test would make actionable statements that are more difficult for authors and publishers to identify. “[T]he ‘highly offensive to a reasonable person’ standard runs the risk of chilling free speech because the type of conduct prohibited is not entirely clear … .”
Next, the Court considered procedural and substantive safeguards in defamation law designed to protect First Amendment interests in free expression. In Florida, those safeguards include statutory notice requirements and limits on damages if the actionable statements were published in good faith. Case law in other jurisdictions does not adequately address whether such protections also apply in false light cases, Pariente wrote.
The court acknowledged that it could address the problem by extending the First Amendment protections that are part of defamation law to false light actions, but held that such a course of action would be better suited to the legislative branch. The Florida Legislature has studied the possibility of adopting a statutory false light cause of action, but has not taken any action on the issue.
In conclusion, the court held that the advantages of adopting the new tort were overshadowed by its potential chilling effect on speech. “[B]ecause the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy,” Pariente wrote.
The court did, however, expand Florida defamation law to cover statements that could be considered objectively defamatory by a “substantial and respectable minority” of the community, even if the public as a whole would not view the statements as harmful to the plaintiff’s reputation. Therefore, in Rapp’s case, even if the whole community would find nothing objectionable about her “receiving” Jesus, such a statement still presents an actionable defamation claim if it diminishes her reputation among a “substantial and respectable” minority of the community.
Although all the justices participating in the case agreed that the court should decline to adopt the false light invasion of privacy tort, a single justice dissented on the applicable community standard in defamation law.
According to Justice Charles Talley Wells, the new standard was too vague to be fairly applied. “There is no way to know how many it takes to constitute a ‘substantial’ number or what constitutes a ‘respectable minority,’” he wrote.
The court’s decision to decline to adopt false light invasion of privacy as a new tort also ended proceedings in Anderson v. Gannett Co., which had reached the Court on a statute of limitations question. (See “Florida Court Extends Defamation Statute of Limitations to False Light Suits” in the Fall 2006 issue of the Silha Bulletin.)
Privacy torts have a four-year limitations period and defamation actions have a two-year limitations period. Therefore, had Joe Anderson Jr., the plaintiff, brought his claim as a defamation action it would have been time-barred. The mid-level appellate court reversed a jury award of more than $18 million, holding the defamation statute of limitations applies to false light cases.
In an opinion issued the same day as Rapp, the Florida Supreme Court held that the issue of which statute of limitations applies to a false light action was moot because false light never existed as a valid cause of action in Florida. The Court affirmed reversal of the jury verdict on those grounds.
Anderson arose when the Pensacola News Journal ran a story about a construction business owner, Anderson, who accidentally killed his wife. Anderson claimed in his lawsuit that the News Journal story, although literally true, implied the accident was actually a murder.
In an October 24 Associated Press (AP) story, News Journal Publisher Kevin Doyle said the “landmark” decision was a “great victory” for the news media and the state of Florida.
But Anderson said the decision would disqualify plaintiffs like him who have been harmed by published statements that are literally true, but misleading.
“The [C]ourt shut the courthouse door to every Floridian who is falsely accused by a newspaper when they publish words that are literally true but carefully crafted to included [sic] thinly veiled accusations of wrongful conduct,” the AP reported that Anderson said in a statement.
A claim like Anderson’s could still be brought in Florida as a defamation by implication action. However, when Anderson filed his suit in 2001, it would have been time-barred by the two-year statute of limitations.
– Michael Schoepf