False Light: A New Weapon in the SLAPP Arsenal?
Barr, Lisa J., Communications and the Law
The false light theory of the privacy tort is a relatively new legal concept. (1) In many ways, it is similar to a defamation claim. (2) The actual malice requirement imposed by Sullivan (3) and progeny made libel a less attractive avenue for plaintiffs with public status to pursue against journalists. False light, however, addresses many of the same concerns. Would courts apply the actual malice test given similar language in the definition of false light? Scholars from the fields of law and mass media worried that false light could prove an effective end-run around defamation protections for news coverage of public figures and public officials. (4)
With defamation, the focus concerned whether the subject of a news report was a public figure for purposes of the actual malice test. With false light, the questions concern how far into a public player's life a journalist can go without exposure to false light litigation--and whether false light provides less protection than the actual malice test of a libel claim. The concurrence in Rosenblatt summed up the risk facing journalists who report on possibly private aspects of "public" people's lives, in saying that "[t]he protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." (5)
NEED FOR STUDY
An examination of four mass media law texts and their indexes found that false light privacy rarely received significant and consistent attention. At various times it was listed under privacy or libel, and coverage ranged from one to fourteen pages. (6) Perhaps that is because only two-thirds of the states expressly recognize false light. (7) However, false light actions appended to defamation cases against news media defendants increased from seven (7) cases before 1980 to fifty-three (53) in the next twelve years. (8) That same period prompted great debates about changes in media ownership. (9)
Given the surge in cases and the great controversy about the use of this tort against the news media, study of the nature and success of such cases seemed necessary. This study also sought any evidence of either judicial reaction to a changing news media, or changing public perceptions about news media performance. The latter concern is important because constitutional protections for the news media are undergirded by attitudes that the press is acting in the public interest. (10)
METHODOLOGY AND RESEARCH QUESTIONS
Decennial digests provided the names of 600 false light cases. After the exclusion of many cases involving former lovers and employers, a 120-case sample of news media cases emerged. The fact patterns of the media cases selected Often are as lively as the ones excluded. For that reason, certain case fact patterns are discussed along with the tallies of variables used to answer three research questions:
1. Are false light cases against media entities changing in number, nature, or success?
2. Do such cases reflect expectations of a "watchdog" or public service role for the media as exemplified by Sullivan and progeny?
3. Do these decisions reflect judicial recognition of the increased concentration of media ownership?
Simple tallies and percentages are used provide brief numeric explanation to the research questions, based upon a coding sheet (included at the end of this article). The reader is spared discussion of coding, unless the answer is not self-explanatory. Relevant examples and explanations from the case law examined provide the bulk of analysis. Discussion of findings related to each research question are preceded by relevant graphs.
FINDINGS AND DISCUSSION, RESEARCH QUESTION 1: ARE FALSE LIGHT CASES AGAINST MEDIA ENTITIES CHANGING IN NUMBER, NATURE, OR SUCCESS? …