In Jews for Jesus v. Rapp, No. SC06-2491, 2008 WL 4659374 (Fla. Oct. 23, 2008), the Florida Supreme Court appears to do the First Amendment a great service by declining to recognize the false light invasion of privacy tort. However, this is a case of the ghost of William Rehnquist haunting Florida after stealing William Brennan's robes.
After protecting the First Amendment with a few pages of the opinion, the Court polluted most of the ground it gave by strengthening the tort of "defamation by implication," and by adopting a standard for defamation cases that does away with the reasonable person test and replacing it with a "substantial and respectable minority" standard. What should have been a sweeping victory for First Amendment rights is likely to result in a serious chilling effect, more costly defamation litigation, and a new paradigm for defamation law that will substantially disfavor minority groups while creating a completely unworkable standard.
The case arises from Edith Rapp's dispute with her stepson, Bruce Rapp. While Bruce was working for Jews for Jesus, he published an account in the Jews for Jesus newsletter that claimed that his stepmother, a Jew, "began to cry" when Bruce related the christian tale that an almighty creator sent his son (Y'shua) to earth to be killed in order to atone for the sins of mankind. Bruce also wrote "I asked [Edith] 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 was not amused.
She filed suit because the account stated that she had "joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus." (Op. at 3). Edith Rapp's complaint alleged: (1) false light invasion of privacy; (2) defamation; and (3) intentional infliction of emotional distress. The trial court dismissed the claim and the Fourth District Court of Appeal affirmed the dismissal of Edith Rapp's defamation, false light and intentional infliction of emotional distress claims. Rapp v. Jews for Jesus, Inc., 944 So.2d 460 (Fla.Dist.Ct.App. 2006).
The Court Giveth -- No False Light in Florida. The Court Taketh Away -- Defamation by Implication
On appeal, the question in this case was whether the tort of false light exists in Florida. The Florida Supreme Court recognized that Florida law provides common law protections for individuals' privacy rights, and that "false light" is a part of most scholars' discussions of the right to privacy. However, there are no statutory protections from false light invasions of privacy and no court case in Florida explicitly recognized the right (while some may have seemed to imply its existence). Accordingly, the Fla. Sup. Ct. focused on the policy implications of recognizing this tort in Florida. The first exercise was to compare the false light tort with existing and recognized torts.
[O]ne argument often advanced to support the recognition of false light is that, unlike defamation, it allows recovery for literally true statements that create a false impression. (Op. at 14)However, the Court reinforced that Florida allows recovery for "defamation by implication," in situations where literally true statements are defamatory if they create a false and negative impression of the plaintiff. While appellate courts in Florida previously recognized this tort, the Florida Supreme Court had not yet approved of any of these decisions. The court recognized that one one hand, a story that contains cherry-picked falsehoods will not be defamatory if the gist of the story is true, the law also recognizes the converse.
[W]hile defamation law shields publishers from liability for minor factual inaccuracies, “it also works in reverse, to impose liability upon the defendant who has the details right but the ‘gist’ wrong.” Simply put, “if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.” (Op. at 18-19)The court concluded that there was no justification for the recognition of false light as a separate tort since defamation by implication is both widely recognized in Florida, and false light addresses the same concerns that a defamation plaintiff may have. The real difference is in the legal standard applied to the two torts. "A false light plaintiff must prove that the publicity would be “highly offensive to a reasonable person,” whereas a defamation plaintiff must prove injury to his or her reputation in the community." (Op. at 20-21) Essentially, defamation compensates a plaintiff for damage to her reputation, while false light provides compensation for mere hurt feelings.
[T]he very fact that false light is defined in subjective terms is one of the main causes for concern because the type of conduct prohibited is difficult to define. Unlike defamation, which has a defined body of case law and applicable restrictions that objectively proscribe conduct with “relative clarity and certainty,” false light and its subjective standard create a moving target whose definition depends on the specific locale in which the conduct occurs or the particular sensitivities of the day. (Op. at 23)Finally, the Florida Supreme Court makes some glorious statements with respect to how First Amendment rights would be negatively affected by a recognition of the false light tort.
As noted by the United States Supreme Court, “[o]ur profound national commitment to the free exchange of ideas, as enshrined in the First Amendment, demands that the law of libel carve out an area of ‘breathing space’ so that protected speech is not discouraged.” Harte-Hanks Commc’ns., Inc. v. Connaughton, 491 U.S. 657, 686 (1989) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974)). “Whatever is added to the field of libel is taken from the field of free debate.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 272 (1964). The same can also be said for the tort of false light invasion of privacy. (Op. at 24)The "highly offensive to a reasonable person" standard in the false light test runs a high risk of chilling debate, since the standard is so unclear. Giving a nod to the Colorado and Texas Supreme Courts, the Florida Supreme Court noted that Colorado previously determined that false light is far too amorphous of a claim to support when considering the chilling effect that the tort is likely to cause.
The Court discusses how defamation has a well-developed body of law surrounding it that provides safeguards to protect First Amendment concerns. For example, the actual malice standard that requires that, in order to prevail in a defamation claim, a public figure or public official must show that the defamatory falsehood was published with knowledge of the falsity or with reckless disregard for the truth. Other safeguards include qualified privilege, when there is a good faith reason or duty to publish the alleged falsehood and it was done without an intent to harm, or privilege extending to statements made in judicial proceedings. None of these protections are in place for false light claims. Some states, like Tennessee, have simply extended the restraints on defamation claims to false light claims. The Florida Supreme Court determined that it was "more prudent to address these issues by statute, such as the application of privileges, the prerequisites to suit, and the governing statute of limitations." (Op. at 28).
Based upon our review of the law in Florida and in many other jurisdictions, we simply cannot ignore the significant and substantial overlap between false light and defamation. Although we acknowledge that a majority of the states have recognized the false light cause of action, we are struck by the fact that our review of these decisions has revealed no case, nor has one been pointed out to us, in which a judgment based solely on a false light cause of action was upheld. In fact, as exemplified by the Texas Supreme Court’s decision in Cain, many of the decisions reveal that the cause of action could have been brought as, or was included as an alternative to, a claim for defamation. See 878 S.W.2d at 581 (noting that all of the false light claims brought in Texas “could have been brought . . . under another legal theory,” and refusing to recognize false light “when recovery for that tort is substantially duplicated by torts [such as defamation] already established in [Texas]”). As one commentator concluded, after reviewing six hundred false light cases through the country, false light most often duplicates defamation and “there is not even a single good case in which false light can be clearly identified as adding anything distinctive to the law.” J. Clark Kelso, False Light Privacy: A Requiem, 32 Santa Clara L. Rev. 783, 785 (1992). Our own review of cases in Florida reveals a similar conclusion. (Op. at 29-30)The Florida Supreme Court Opens the Defamation Door a bit Wider
To sustain a cause of action for defamation, there must be damage to the plaintiff's reputation. Saying (or implying) that someone accepts Jesus is not, objectively, defamatory. Most Americans would find that to be a positive thing. However, what may be positive or neutral to one's reputation at large may be negative within one's smaller social circle. In Edith Rapp's case, if a story got around in Florida's sizable evangelical christian community that Ms. Rapp had accepted Jesus Christ, she likely would find her reputation to have gained some stock. On the other hand, such a story wouldn't do much for her at the canasta table at the Del Boca Vista Phase IV clubhouse.
Although the Fourth District found that the statements about Rapp being a convert to Jews for Jesus could be “highly offensive to a reasonable person,” the court also concluded that these statements could not be defamatory because the “common mind” reading the newsletter would not have found Edith to be an object of “hatred, distrust, ridicule, contempt or disgrace.” Rapp, 944 So. 2d at 464, 467. In so doing, the Fourth District failed to embrace the standard that a communication is defamatory if it prejudices the plaintiff in the eyes of a “substantial and respectable minority of the community.” (Op. at 32)The Florida Supreme Court held that a defamation claim should not be dismissed if the plaintiff's case is based upon whether the common person would find the statement to be defamatory, but rather the statement must be evaluated from the standpoint of a “substantial and respectable minority of the community." This standard is adopted from The Restatement (Second) of Torts § 559 cmt. e:
A communication to be defamatory need not tend to prejudice the other in the eyes of everyone in the community or of all of his associates, nor even in the eyes of a majority of them. It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of them, and that it is made to one or more of them or in a manner that makes it proper to assume that it will reach them. (Op. at 33 quoting Restatement)Although the Court did not specifically hold that a "substantial and respectable" minority of the community would consider that a Jew who accepted Jesus would be the object of "hatred, distrust, ridicule, contempt, or disgrace," it remanded the case for the lower court to figure that out.
Conclusion and commentary
The Florida Supreme Court concluded that false light largely duplicates existing torts, but "without the attendant protections of the First Amendment." Accordingly, the Court declined to recognize the tort of false light. This is a positive for the First Amendment. The Court correctly determined that false light was little more than an adjunct claim to defamation actions, and it lacks the statutory and common law safeguards that have grown to keep free speech flowing, while providing compensation for reputational harms.
On the other hand, the recognition of "defamation by implication" is a negative. This will result in less defamation claims being resolved at summary judgment, since now Florida courts must determine not only if the language of the allegedly defamatory publication is capable of a defamatory meaning, but also whether it is capable of a defamatory implication. The Court did further damage by changing the standard of the perspective from which an allegedly defamatory publication should be analyzed. This new standard of a "substantial and respectable minority," will allow yet another class of defamation cases to survive that should be resolved without a full trial. What is a "substantial and respectable minority?" For example, would an atheist, the least trusted minority in America, have the same reputational rights as christians? Are muslims or communists likely to have the same access to justice as evangelical republicans? It is nothing new for Florida to stack the deck against disfavored groups, but this decision does so in the guise of protecting First Amendment rights.
The wisest words in this opinion come from the dissent by Justice Wells:
I dissent from the majority’s decision to quash the district court’s dismissal of the defamation claim. I would not adopt section 559, comment e of the Restatement (Second) of Torts (1977). Our defamation law has long been stable. We have standard jury instructions which set out our law and which have not been challenged. No need has been demonstrated to change this settled law.(This is cross posted at the Legal Satyricon.)
It has been over ninety-nine years since the United States Supreme Court decided Peck v. Tribune Co., 214 U.S. 185, 188 (1909). For this entire period we have found no need to adopt the language from Peck or the Restatement of Torts comment e, which apparently has its origin in Peck. I believe that there is a sound reason for not doing so. The standard of a “substantial and respectable minority” is plainly too vague to be a fairly applied standard. There is no way to know how many it takes to constitute a “substantial” number or what constitutes a “respectable minority.” What does “respectable” mean in this context?
There is a natural tension between the law of libel and defamation and the First Amendment. Because of the essential and vital role of the First Amendment’s freedom of speech guarantee in our country and state, I believe that the vague standard of comment e is too burdensome to that freedom to be adopted. (Op. at 36)