February/March 2009

Florida Supreme Court Rejects False Light Claim

Holland & Knight Newsletter
Timothy J. Conner

In a resounding victory for the media, the Florida Supreme Court has rejected false light invasion of privacy as a viable claim. Concluding that false light is duplicative of other more well defined torts subject to First Amendment limitations, the Court in Jews for Jesus, Inc. v. Rapp ruled definitively that no such claim exists in Florida. In a companion case, Anderson v. Gannett Company, Inc., the Court held that since it had refused to recognize the tort, there was no need to address what statute of limitations might apply, and it therefore let stand a lower court decision throwing out a substantial false light verdict against Gannett’s Pensacola News-Journal.

Jews for Jesus arose out of statements published on its Web site and in its newsletter regarding Edith Rapp, the stepmother of a Jews for Jesus employee. In an article about visiting his father before his father’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 these events, and brought suit for false light invasion of privacy, defamation and intentional infliction of emotional distress, alleging that Jews for Jesus falsely portrayed her as a convert from Judaism. The trial court dismissed the claims. The appellate court, however, while upholding dismissal of the defamation and intentional infliction claims, ruled that the false light claim could stand. At the same time, it requested that the state Supreme Court answer whether Florida even recognized false light as a viable tort claim.

After reviewing the historical context of the false light theory as a basis for a tort claim, the Supreme Court expressed two primary concerns: (1) that false light is largely duplicative of defamation and defamation by implication, two causes of action that are already well established in the common law; and (2) the chill on speech that would occur because of the clash with First Amendment principles.

The Court rejected the argument that false light provides a needed remedy in Florida. “Although proponents often argue that allowing recovery for these types of true statements justifies the necessity of false light, defamation already recognizes the concept that literally true statements can be defamatory where they create a false impression. This variation is known as defamation by implication and has a longstanding history in defamation law.” Defamation by implication may provide a remedy where the impression created by the juxtaposition of facts, or omission of facts, is false and defamatory. As the Court noted, however, the substantial protections of the First Amendment that are afforded as defenses to a claim for defamation extend to defamation by implication. The same could not be said for false light.
In addition, the very difficulty in defining what conduct the claim of false light redresses caused the Court concern. False light is defined in subjective terms and thus presents a moving target for those attempting to comply their conduct with the law. This contrasts with defamation law, which the Court found to have “relative clarity and certainty” with an established body of case law and well defined restrictions that objectively set forth the standard for conduct.

The Court was also struck by the fact that its review of the case law revealed not a single case where a judgment based solely on false light had ever been upheld. That led the Court to determine that the absence of false light as a remedy would not create any significant void in the law.

The Court concluded that “because 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.”

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