First Amendment Implications of False Light Invasion of Privacy: In itself a false light

Transcription

1 Cher Phillips MMC 5206 Discussion/Reaction Paper #2 November 16, 2009 First Amendment Implications of False Light Invasion of Privacy: In itself a false light

2 First Amendment Implications of False Light Invasion of Privacy: In itself a false light Some legal experts believe that invasion of privacy tort is one of the most serious current threats to freedom of the press. David L. Hudson from the First Amendment Center writes that perhaps the greatest clash involving freedom speech has been the continuing collision between freedom of the press and the right to privacy. 1 The threat privacy holds over a free press comes in many forms, from how the press gathers news including challenges derived from technology and recording devices such public use of mini video recorders to the protection of sources and even how and what press can print. 2 Hudson said Americans may guard their privacy rights as much or even more than their First Amendment rights. Given ever-increasing technological advances, many believe that privacy rights need to be protected even more. 3 While the privacy interests of a victim of sexual assault involving a public figure does seems to be a very clear threat to free speech, privacy laws do pose a threat to press freedom. The specific threat addressed in this paper is false light invasion of privacy. The threat that false light tort law presents is connected to how closely the law mirrors defamation. Experts argue that defamation laws have stood the test of time. They ve been shaped and litigated to a 1 David L. Hudson, Privacy and Newsgathering, (2009) The First Amendment Center, at 2 Clay Calvert, Victories for privacy and losses for journalism? Five privacy controversies form 2004 and their policy implications for the future of reportage. 13 Journal of Law and Policy 649, (2005). 3 David L. Hudson, Privacy and Newsgathering, (2009) The First Amendment Center, at

3 point there the natural tension between the First Amendment and the law of libel and defamation that guarantees personal protection while still remaining constitutional. 4 The challenge for false light invasion of privacy tort laws are that they have to balance the right to be let alone with First Amendment free expression and free press rights. As many states are finding out, there is not yet a natural tension between these rights as there is where defamation and free speech is concerned. False light treads on the tenuous ground of implication. The law deals with the implication of falsity, which can lead us down a treacherous path where truth statements can imply a falsehood. In one Florida case we will examine, the plaintiff was initially awarded $18 million from a newspaper for printing material that was true. States face whether or not to recognize these laws, how to shape them and if these laws are even necessary. Some claim they are simply not needed. In 1992, J. Clark Kelso wrote with over six hundred cases now on the books, the dust created by the scholars has settled somewhat, and the merits of false light may be tested by a complete examination of those cases. What becomes clear upon this examination is that there is no practical need for false light cause of action. 5 Others claim these laws are dangerous. Diane Zimmerman wrote the tort of false light invasion of privacy is unsalvageable as currently conceived and probably should be stricken from the common law as a cognizable cause of action. 6 What they all agree on is that the tort is untested and lacking. Gary Schwartz suggests that the tort should be reworked. Schwartz wrote, In its current form the false light tort is sloppy and overgrown, and hence vulnerable to challenge. In response to that challenge, the false light tort should withdraw from those cases in 4 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1116 (2008) 5 J. Kelso, False light privacy: a requiem. 32 Santa Clara L. R., 783, 786 (1992). 6 Diane Zimmerman, False light invasion of privacy: the light that failed. 64 N.Y.U. L.R., 364, 370 (1989).

4 which it essentially overlaps with defamation. 7 We will examine cases from Florida and Missouri and see how these states deal with the untested and lacking nature of false light. Jews for Jesus v. Rapp Edith Rapp sued Jews for Jesus, Inc. for false light when the organization published a story about her accepting the tenets of Christianity in an online newsletter. Edith was married to Marty Rapp, whose son Bruce was an employee of Jews for Jesus. Bruce wrote an account published in the Jews for Jesus newsletter after visiting his father, who had been suffering an extended illness. Bruce wrote that his stepmother, Edith, cried when he told her a Christian story. The newsletter said that when Bruce asked if she wanted to ask G-d [sic] for forgiveness of her sins and receive Y Shua, 8 she said yes and repeated the sinner s prayer with him. Rapp s complaint was that Jews for Jesus falsely suggested that she joined Jews for Jesus and /or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus. 9 Rapp sued for false light invasion of privacy, defamation and intentional infliction of emotional distress. This complaint and two others filed after it were all dismissed in favor of Jews for Jesus. In the third dismissal, the judge cited the First Amendment prohibiting the courts from excessive entanglements in matters of religion. The Fourth District Court of Appeals affirmed the dismissal of Edith s other complaints, but rejected the First Amendment as a cause for dismissal. Ironically, this was not the primary First Amendment concern that false light cases generally bring to bear. 7 Gary Schwartz, Explaining and justifying a limited tort of false light invasion of privacy. 41, Case Western Reserve L. R., 885, 919, (1991). 8 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1101 (2008) 9 Id.

5 When appealed to the Florida Supreme Court, the certified question considered was if Florida should recognize the false light invasion of privacy tort. Their two concerns were the standard concern that false light s similarity to defamation held some threat to chill freedom of expression. Of the four causes for invasion of privacy, false light is most similar to defamation. The elements of false light are publicity, falsity, actor must act with knowledge or reckless disregard as to the falsity, actual damages, publicity must be highly offensive to a reasonable person, and publicity must be about the plaintiff. 10 The elements of defamation are publication, falsity, actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person, actual damages, and statement must be defamatory. 11 The main difference between the two is the nature of the publicity. To meet false light, the publicity has to be highly offensive and defamation calls for the publicity to be defamatory. 12 Another key difference between defamation and false light is that false light allows recovery for true statements that create a false impression. 13 Florida has had several false light cases involving true facts presented in a manner that gave a false impression. In Heekin v. CBS Broadcasting, Inc., Heekin sued CBS for false light because he said that a report on spousal and family abuse included an interview by his spouse alongside other stories of women abused by their domestic partners. 14 While the facts in the story were true, Heekin s complaint was that 10 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1106 (2008) 11 Id. 12 Id. 13 Id. at Heekin v. CBS Broadcasting, 789 So. 2d 357 (2001)

6 those facts alongside the other stories of abuse gave the impression that he abused his wife and children. A separate case before the Court at the time they were considering Jews for Jesus v. Rapp dealt with true statements that give a false impression. Joe Anderson sued the Pensacola News Journal for a story in which the paper wrote that he shot and killed his wife in a hunting accident, which was true. Anderson sued because he felt the story implied that he murdered his wife. Initially, the trial court awarded him $18 million. 15 The damages alone in the Anderson v. Gannett Company, Inc. case were enough to chill free speech. Even so, the Court found that true statements that give a false impression could be constitutional per the Florida Constitution. The Florida Constitution has a section that covers defamation: Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated. 16 However, the court pointed out when the cause is defamation by implication, it is the context of the defamatory matter and not the truthfulness of the matter itself that is in question. Therefore, the Court allowed room for true statements that can give a false impression. The Court addressed the nature of interests to be protected. Defamation protects the objective reputation be it economic, political or personal. Privacy cases protect the subjective 15 Lucy Morgan, A True Story Could Cost Newspaper $18-Million, St. Petersburg Times, March 7, 2008 at 5B. 16 FLA. CONST. Art. 1, Section 4

7 one of injury to the inner person. 17 Injuries that fall under defamation also can be covered by false light. However, the court pointed out that subjectivity of false light makes it harder to defend against. Defamation has a body of tested law to support it and lend clarity, while false light does not. When deciding Jews for Jesus v Rapp, the Court s recognized the threat to free speech in its argument. We have carefully considered the risk of constitutional infringement of free speech by imposing liability for publication of a true statement. 18 Among the First Amendment implications of the case, the Court noted that the United States Supreme Court has established a balance between libel law and free expression. The Court reasoned that recognizing false light would have the same impact on free debate that libel has, quoting NY Times v. Sullivan, Whatever is added to the field of libel is taken from the field of free debate. 19 Defamation has safeguards built into it from years of litigation to balance free speech and individual freedoms from defamation. In addition to the privileges afforded to libel, Florida law requires additional protections for defamation, including five days advance notice from the plaintiff to any media defendant. Damages are limited when statements are published in good faith, the statements were face due to the honest mistake of the facts, there were reasonable grounds for believing the statements were true; and a full and fair correction, apology, or retraction was published or broadcast within a specific time period. 20 Since false light doesn t have these kinds of protection, the court was concerned that recognizing a false light tort would offer a shortcut around the protections and privileges that go with defamation. 17 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1109 (2008) 18 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1108 (2008) 19 Id. at Id. at 1112

8 Since the Court s review of false light cases determined most of the cases duplicated defamation cases, they argued that recognizing the tort would not result in more claims. Since none of the appellate courts upheld false light, the court argued that the absence of a recognized tort would not create a void in the law. The need for the law outside what defamation provides is very specialized and limited and is outweighed by the dangers to impeding free speech. 21 The Court reasoned that the district courts had a history of recognizing defamation by implication rather than false light invasion of privacy law. The Court held that defamation by implication had a longstanding history in defamation law, making false light essentially unnecessary. The court declined to recognize false light tort. However, in almost a contradiction of reasoning, they implemented the community standard to the state s defamation laws. The Court adopted comment e of the Restatement (Second) of Torts and applied the community standard for analyzing a defamation claim to defamation of implication. We caution that the substantial and respectable minority standard is tempered with the statement that defamation of the existence of some individual or individuals with views sufficiently peculiar to regard as derogatory what the vast majority of persons regard as innocent. 22 The dissenting argument written by Justice Wells used the same argument against the community standard that the court used in deciding not to recognize false light: it is not necessary and puts free speech up to greater risks Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1113 (2008) 22 Id. at Id. at 1116

9 Meyerkord v. The Zipatoni Co. Greg Mekerkord sued The Zipatoni Co. for false light invasion of privacy. When Mekerkord worked for Zipatoni, he registered the company s websites with Register.com. During his employment his name was listed as the registrant for the company. However, his employment with Zipatoni ended in Three years later, Zipatoni registered a website in Mekerford s name through Register.com. Mekerkord had left the company and had nothing to do with the website, which was a viral marketing campaign initiated by Sony to sell their Play Station Portables. 24 Eric Goldman called the campaign an astroturfing viral campaign 25 in his Technology and Law blog. According to Urbandictionary, astroturfing is a form of propaganda whose techniques usually consist of a few people attempting to give the impression that mass numbers of enthusiasts advocate some specific cause. This is often done by conjuring up a phony organization(s) that never existed. 26 Gamers and other The Internet response from bloggers, consumers and consumer activist groups responded to the with suspicion and negative comments about Mekerkord on the Internet. Mekerkord sued for false light invasion of privacy because he claimed Zipatoni was negligent in removing his name from the registration for the Website. He claimed his privacy was invaded, his reputation and standing in the community had been 24 Mekerkord v. The Zipatoni Company, 276 S.W. 3d 321 (Ct. App. Mo., Eastern Dist. 2008) 25 Eric Goldman, Outdated Whois Information Might Lead to False Light Tort--Meyerkord v. Zipatoni, Technology & Marketing Law Blog at 26 Urbandictionary, Definition of Astroturfing, at (2009)

10 injured and he has suffered shame, embarrassment, humiliation, harassment, and mental anguish 27 and requested a $25,000 in rewards. The trial court granted Zipatoni a dismissal on the basis that no Missouri court had recognized false light as an action without defamation attached to it. Mekerkord had not filed a defamation complaint, only a false light claim. Mekerkord appealed stating that his case was a classic example of the Missouri Supreme Court and the Restatement (Second) of Torts. The Missouri Supreme Court did not at that time recognize a false light cause of action without defamation. In a past case Sullivan v. Pulitzer Broadcasting Co., the Court held that there was a possibility that future courts could recognize the false light invasion of privacy tort if the case met very specific terms. The court described a classic case as one that attributed a harmful opinion or utterance to a plaintiff or claiming the plaintiff produced a work such as a poem or book that the plaintiff did not write. 28 The Missouri Court found that Mekerkord s case did meet the criteria of a classic case but that the claims did not meet up with what was needed for a false light claim. The Court argued that the main concerns in recognizing false light was that the law was seen to duplicate defamation, threaten the First Amendment and it could make courts consider two claims for the same issue, muddying litigation. The Missouri Court argued that false light and defamation were dissimilar when protection was considered. Defamation protects reputation and false light protects the right to be let alone. The Court also reasoned that the Restatement (Second) of Torts required actual malice or recklessness for false light. The Court held that if the state adhered to actual malice for all 27 Mekerkord v. The Zipatoni Company, 276 S.W. 3d 322 (Ct. App. Mo., Eastern Dist. 2008) 28 Mekerkord v. The Zipatoni Company, 276 S.W. 3d 323 (Ct. App. Mo., Eastern Dist. 2008)

11 types of cases, the First Amendment would be protected sufficiently, as well as help separate the multiple claim issue. 29 Zipatoni argued even if Missouri Court decided to recognize the false light cause of action that Mekerkord s case was not classic. The company argued that they did not give publicity to the matter, as required by the tort. Although, the entire purpose of the Website in question was to generate publicity. The company also claimed the case was not a major misrepresentation that a reasonable person would find highly offensive. The third reason Zipatoni argued the case should be dismissed was that Mekerkord claimed they were negligent. He did not claim what false light required, actual malice or reckless disregard. 30 The court agreed Mekerkord on the first two points. But they sided with Zipatoni on the third count. The court held that they would recognize false light with an actual malice standard and remanded the case to the lower courts to allow Mekerkord to correct his claim with the proper standard. 31 KEY POINTS: Court Concerns Both courts are consistent with what the general concerns are in recognizing the false light invasion of privacy. They agree that false light is closely related to defamation and that there is a potential risk to the First Amendment. The Missouri court argued that there were three primary arguments against adopting a false light invasion of privacy tort. The first was that the protections from false light were duplicated by defamation. The second is that it would add recovery beyond that of libel or slander and 29 Id. at Mekerkord v. The Zipatoni Company, 276 S.W. 3d 325 (Ct. App. Mo., Eastern Dist. 2008) 31 Id. at 326

12 weaken the First Amendment. The third reason is that courts have to consider two claims for the same issue. 32 The Florida Court argued that the main reasons court reject false light is that it is duplicative of defamation and has the potential to chill free speech. 33 Duplicative Nature Both state courts agree the nature of false light and defamation laws are similar. Missouri, however, tends to view the false light law more favorably than Florida on the whole. The most glaring indicator that Florida s Court thought the two laws were similar can be seen in the Court s argument that the law was unnecessary. False light did not serve any purpose that defamation could not serve. Granted, the Court recognized that the protections from false light and defamation were different. Defamation protects the objective reputation and false light protects from subjective injuries to the inner self. Not all subjective injuries would be protected by defamation. True facts could be used to make false impressions. For this reason, Florida s solution was to apply the community standard of the substantial and respectable minority to defamation thereby narrowing the implication of defamation, which the Court claimed was an established application of defamation. One reason Missouri may have viewed defamation and false light separately is because when false light had been a cause of action in the past, it was paired with defamation. Mekerkord v, Zipatoni was the first time false light was used without defamation. Another reason Missouri may seem to view false light more favorably is because these cases compare an appellate court ruling and a Supreme Court ruling. The Missouri Supreme Court would have more to say about false light. 32 Id. at Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1106 (2008)

13 The Missouri Court makes the same observation that the Florida Court did, in that the purpose of false light and defamation is finely separated. The Court argues that the difference between false light and defamation was that the latter protects one s interest in his or her reputation, while the former protects one s interest in the right to be let alone. 34 The Missouri Court s solution of applying actual malice is similar to Florida s application of the community standard to defamation. It seems that both courts are trying to find a way to squeeze the right to be let alone and protection from subjective injuries from false light. The First Amendment Again, both courts say they recognize the threat to free speech from false light. It seems Florida makes a gesture of seeming more serious about preserving free speech by rejecting false light. The case that false light would weaken free speech is strongly based on how grounded and solidly defined defamation was in the state of Florida. However, by adopting the substantial and respectable minority standard and applying it to defamation, the Court essentially created the same scenario they would have by recognizing false light. Now, the courts have the unknown factor of defining a substantial and respectable minority. Missouri s solution for protecting free speech was to apply the standard of actual malice to all false light claims. The Court suggested this would serve to protect First Amendment rights. The question not answered in the Missouri Court s argument is whether actual malice would protect true statements that create a false impression. 34 Mekerkord v. The Zipatoni Company, 276 S.W. 3d 323 (Ct. App. Mo., Eastern Dist. 2008)

14 OPINION: I would not suggest that other states recognize the false light invasion of privacy tort as it currently stands. For as long as it has been around, I have to agree with the Florida Court and note that it seems unnecessary. Most of what false light law does can be accomplished by defamation, if it needs to be done at all. I also agree with Gary Schwartz who writes that the tort is overgrown and probably needs to be challenged. The Florida Court s argument noted that defamation is measured by its results; whereas false light invasion is measured by perception. 35 The problem I have with this is that try as you may, you cannot control others perceptions. Further, I don t feel it is the primary concern of a news organization to accommodate the perceptions of the majority or minority. That seems to me to be a recipe for subjectivity rather than objectivity. On the other hand, I recognize there is a desire to protect privacy and to guard against personal injuries; especially given the world we live in where information is more than readily attainable. I would want an avenue of recourse if I was put in the position of Mekerkord, I think. Zipatoni was negligent at best and definitely showed reckless disregard. Given Zipatoni s association with Sony, I wondered why Mekerkord only asked for $25,000. I also think that this could as easily have been a defamation case. The Zipatoni case was clearly a propaganda site and Mekerkord could have made a case that this damaged his reputation in online marketing. This is the trap that the Florida Court fell into, and possible Missouri, too. I look at this and think that I would want to offer a fair solution that accommodates the Mekerkords and Edith Rapps (maybe not the Joe Anderson, Jr. s) of the world. I would want to strike some middle 35 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1110 (2008)

15 ground that doesn t weaken the First Amendment but also covers this slice of plaintiffs that have been somehow personally injured in a way that defamation can t fully correct. But when it comes down to it, I think that the Florida Supreme Court had a chance to make some solid progress when they rejected false light but they turned around and muddied the waters by adopting a substantial and respectable minority standard for the implication of defamation. The courts are going to have to sort out what makes a minority and complicate cases that didn t need to be that complicated. I think when it comes down to ultimately what is best for free speech, it might not seem fair to everyone and it might seem like a hard line, but I would suggest other states reject false light and not try to temper their defamation to cater to it. I think this is where both states fell flat, despite their best intentions.