Florida High Court Rejects 'False Light' As a Cause of Action

Edith Rapp, a Jewish resident of Palm Beach County, Fla., was angry when her stepson, an employee of Jews for Jesus Inc., wrote a newsletter article claiming Rapp had prayed with him and agreed to receive Jesus as her savior.

Rapp sued Jews for Jesus in 2003, saying the story falsely implied that she had accepted the organization's teachings, in contradiction with her Jewish faith. She sued for defamation and false light invasion of privacy, asserting the article embarrassed her in the eyes of the Jewish community. She requested a retraction by the organization and an unspecified damage award.

Claims made under the false light category of privacy torts assert that information published about an individual was false or, if true, was distorted to create a false impression that would be offensive to a reasonable person. In late October, the Florida Supreme Court ruled 4-1 that false light isn't a legitimate cause of action.

"Without many of the First Amendment protections attendant to defamation, [false light] has the potential to chill speech without any appreciable benefit to society," the court held in Rapp v. Jews for Jesus Inc. The court noted that such claims are the least recognized and most controversial aspect of privacy law because of this concern. In addition, the court found false light to be unnecessary because it duplicates defamation torts.

For those reasons, the court declined to recognize the false light claim. The same day, the court dismissed a similar case, Anderson v. Gannett Co. Inc., voiding an $18.3 million false light award against a Pensacola newspaper (see "Hunting for Damages").

"It's a significant win for the media," says Elizabeth Spainhour, a media attorney at Brooks Pierce. She notes that the existence of false light as a viable state-law claim has been hotly debated. "The Rapp decision may be persuasive authority for courts in other jurisdictions that are presented with an opportunity to determine whether false light claims should be recognized in their states."

Protecting Free Speech

Justice Barbara Pariente, who wrote the majority opinion in Rapp, said the false light invasion of privacy tort was unnecessary because defamation by implication addresses the same issue. She noted that defamation has built-in First Amendment protections that false light lacks. For example, truth is an absolute defense against defamation claims, but not against false light claims.

"The benefit of recognizing the [false light] tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech," she wrote.

Media companies had weighed in on the question of threat to free expression in amicus briefs. The false light claim opens the possibility that if you look bad or your feelings are hurt, you have a claim, says Gregg D. Thomas, partner at Thomas and Locicero. Thomas represented the amici media organizations, including The New York Times Co., the Orlando (Fla.) Sentinel Communications Co., ESPN and ABC Inc.

The state supreme court agreed, noting that false light runs the risk of stifling free speech "because the type of conduct prohibited is not entirely clear."

While defamation cases measure harm through the more objective standard of damage to reputation rather than the subjective standard in false light cases of being "highly offensive to a reasonable person," the supreme court found this may be a "distinction without a difference in practice."

"Conduct that defames will often be highly offensive to a reasonable person, just as conduct that is highly offensive will often result in injury to one's reputation," the court said.

Remedy Remains

Although the high court dismissed false light as a viable cause of action, it remanded Rapp's defamation claim back to the 4th District Court, directing the court to use the reaction of a "substantial and respectable minority" of the community as a standard to measure the harm the article caused Rapp. The sole dissenter, Justice Charles Wells, objected to this language, arguing that the standard of a "substantial and respectable minority" is 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.

Barry Silver, Rapp's Boca Raton, Fla.-based attorney, is satisfied with the court's decision. "We will have our day in court," he says. Silver says false light isn't a necessary option for plaintiffs because defamation by implication covers the possibility of true statements being presented to create a false impression. "There is still a remedy for someone whose reputation is harmed," he says.

Judith Crown

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