Another Appellate Bench Asks Florida Supreme Court to Decide Viability of False Light Invasion of Privacy
A second Florida appeals court has expressed skepticism about the viability of the false light cause of action and has asked the state supreme court to definitively decide if the Sunshine State will recognize that claim.
In the latest decision, Rapp v. Jews for Jesus, Inc., the Florida Fourth District Court of Appeal said that “[w]ere we writing on a blank slate, we would be inclined to side with those courts rejecting the false light cause of action.” The court nonetheless held that, in light of precedent in that appellate district, it was bound to permit a false light plaintiff’s claim to move forward.
As with the earlier decision of another appellate district in Florida that reversed a large verdict against a newspaper, the court in Rapp certified a question to the Florida Supreme Court as one of “great public importance.” The intermediate appeals court framed the question: “Does Florida recognize the tort of false light invasion of privacy, and if so, are the elements of the tort set forth in section 652E of Restatement (Second) of Torts?” The state supreme court may now accept or decline to exercise jurisdiction and hear the case.
Rapp v. Jews for Jesus, Inc. arose out of statements published on the Web site and in the newsletter of the Jews for Jesus organization. Plaintiff Edith Rapp is the stepmother of an employee of the organization. In an article about visiting his father before that man’s death, Rapp’s stepson wrote:
On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d gave us Y’Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me – praise G-d! Pray for Edie’s faith to grow and be strengthened. And please pray for my father Marty’s salvation.
Edith Rapp denied the events described in the article. Her lawsuit, brought under claims of false light, defamation and intentional infliction of emotional distress, alleged that Jews for Jesus falsely portrayed her as a convert from Judaism. The trial court in Palm Beach County dismissed the complaint for failure to state a cause of action.
On appeal, the court upheld the dismissal with respect to defamation and intentional infliction of emotional distress. The article was not defamatory, the court held, because the intended audience – Jews for Jesus members – “would have viewed the information in a positive light” and the message therefore was “neither derogatory nor hateful.” The emotional distress claims likewise failed because, the appeals court found, the statement “occurred in a praise report primarily intended for the eyes of like-minded individuals who would view the subject matter in a positive light.”
The Fourth District, however, reversed the trial and reinstated the plaintiff’s false light invasion of privacy claim. Noting that the Florida Supreme Court “has never expressly held that a cause of action for false light invasion of privacy is cognizable in Florida courts[,]” the Fourth District held that both the state supreme court and its own prior decisions have “tacitly recognized this cause of action.”
The appeals court noted the “scholarly review” given by another Florida intermediate appeals court that overturned an $18 million false light verdict against Gannett’s Pensacola News Journal. That court concluded the plaintiff’s false light claim was no different from a libel action, applied Florida’s two-year libel statute of limitations and held the false light claim was time-barred. The First District also expressed doubts about the existence of a cause of action for invasion of privacy based on a false light theory, and – as with its sister court’s decision in Rapp – certified the question to the Florida Supreme Court.
Finding that it was bound by precedent, the Fourth District applied the traditional false light elements to Rapp’s claim, noting that a false light claim may be premised on a statement that is not defamatory. The court recited an illustration in the Restatement that suggests misrepresenting another person as a Republican where they are a Democrat would present a viable false light claim. The court concluded: “Difference of religion causes at least as many quarrels than difference of politics; therefore public misrepresentation of a person’s religious beliefs, involving conduct more extreme [than misrepresenting political affiliation] falls within the … definition of the tort.” The court remanded the Rapp v. Jews for Jesus false light claim.
In light of two appellate courts asking the Florida Supreme Court to review these issues – and a third decision, in 2001 in Florida’s Second District Court of Appeal, that allowed a false light claim against CBS’s “60 Minutes” show after expiration of the defamation statute of limitations – it would seem likely that the Florida Supreme Court will take up the certified questions sometime next year.