Restraining false light: constitutional and common law limits on a "troublesome tort".

• Author: Lake, James B.

1. INTRODUCTION II. JUDICIAL AND LEGISLATIVE LIMITS ON DEFAMATION A. Elements and Presumptions at Common Law B. The End of Common Law Strict Liability in Defamation C. The End of Presumed Damages D. The Burden of Truth Lifted E. Legislative and Judicial Limits on Defamation III. THE GROWTH OF FALSE LIGHT AS AN ALTERNATIVE TO DEFAMATION IV. REDRESSING THE UNCERTAINTY A. The Common Law's Restraint on Alternative Torts 1. The Single Action Rule 2. Other Rules Rejecting Alternative Torts 3. Rejecting False Light Claims as Evasive Devices B. Constitutional Limits on Alternative Torts V. PROCEDURE FOR CHALLENGING FALSE LIGHT CLAIMS VI. CONCLUSION I. INTRODUCTION

   Defamation law in the United States consists of complex rules that have evolved over decades as courts and legislatures have sought to accommodate the varied interests of speakers, recipients of information, and persons discussed. Intricate statutory and judge-made rules seek to foster the constitutional right to speak freely, the interest of readers and viewers in obtaining knowledge, and the reputational and emotional interests of the subjects of discussion. This complex balancing of interests has created a system of tort law that, though imperfect, reflects the considered judgment of appellate courts and legislatures regarding how best to serve those competing interests.

   Dissatisfaction with the rules and remedies of defamation law has led some litigants to pursue alternative causes of action in seeking redress for defamatory speech. Most notably, since Dean Prosser's recognition of the false light form of invasion of privacy in 1960, (1) the false light tort has become increasingly popular as a means of seeking redress for defamatory falsehoods. Courts faced with such claims have, at times, indicated that false light litigants need not satisfy the requirements of defamation law. (2) As a result, false light has provided, in many cases, a means of evading defamation's well-established requirements.

   The evasion of defamation rules conflicts with well-established common law and First Amendment principles. The common law typically recognizes that novel causes of action are disfavored insofar as they duplicate more established torts. (3) In jurisdictions that recognize this principle disfavoring newer, duplicative torts, false light claims based upon defamatory speech ought to be dismissed at the pleading stage without prejudice to the assertion of defamation claims. In the alternative, jurisdictions that allow false light claims to proceed as alternatives to defamation should--as a matter of constitutional law and common law--impose, in those cases, the essential requirements of defamation law. Otherwise, litigants will be able to evade defamation law's constitutional, statutory, and judge-made requirements by the simple expedient of relabeling a defamation claim as one for false light.

   This Article begins with an analysis of the traditional common law elements of defamation and then discusses the numerous constitutional, statutory, and judge-made limits on the defamation tort. The Article then analyzes why courts ought to apply those limits to alternative torts, such as false light, insofar as they involve defamatory falsehoods. The Article concludes with a discussion of procedures for invoking defamation law in false light cases.

2. JUDICIAL AND LEGISLATIVE LIMITS ON DEFAMATION

   Defamation law in the United States has evolved considerably from its common law origins. Many common law presumptions in favor of defamation plaintiffs are no longer recognized. Consequently, defamation plaintiffs today bear heavier pleading and proof burdens than did their predecessors. In addition, plaintiffs today must satisfy other requirements that courts and legislatures have added to their burdens at common law. As a result, the legal limitations upon defamation claims today are considerable.

   1. Elements and Presumptions at Common Law

      A traditional common law defamation claim alleged (1) publication (4) (2) of a statement tending to harm the reputation (5) (3) of the plaintiff (6) and (4) thereby causing harm. (7) To say that these were the traditional elements of a plaintiff's case, however, does not mean that a common law plaintiff was required to prove all four to a jury's satisfaction. As illustrated by the initial success of Montgomery City Commissioner L. B. Sullivan in his common law libel action against The New York Times, (8) the common law lightened the plaintiff's burden by allowing key presumptions in his favor.

      In the spring of 1960, Sullivan was one of three elected commissioners of the municipal government of Montgomery, Alabama. (9) His duties included supervision of Montgomery's police department. (10) On March 29, 1960, The New York Times published a full-page advertisement titled "Heed Their Rising Voices" concerning civil rights protests in Alabama. (11) The advertisement described a demonstration on the grounds of the state capitol. (12) After the demonstration, its leaders were expelled from Alabama State College. (13) When students protested the expulsion, police "ringed" the college's campus, according to the advertisement, and the school's "dining hall was padlocked." (14) In response to peaceful protests by the Rev. Dr. Martin Luther King Jr., the advertisement alleged, "Southern violators" had "bombed his home," "assaulted his person," and "arrested him seven times." (15) Citing this advertisement, Sullivan brought an action for common law libel in state court in Alabama. (16)

      Alabama common law provided that a libel case consisted of the customary four elements: a defamatory meaning, (17) identification of the plaintiff, (18) publication, (19) and damages. (20) Sullivan, however, had to prove only two of those elements at trial. The defamatory meaning element was satisfied, the trial court instructed the jury, because the advertisement was "libelous per se," in that (as the Alabama Supreme Court later explained) the advertisement's printed words would "tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tends to bring the individual into public contempt." (21) In other words, notwithstanding the common law burden on plaintiffs to prove defamatory meaning, the court decided this issue in Sullivan's favor before submitting the case to the jury. The damages element was satisfied, the trial court found, for the same reason. Because the ad was "libelous per se," the law inferred "legal injury from the bare fact of publication itself," and general damages did not need to "be alleged or proved but [were] presumed." (22)

      So instructed, the Sullivan jury considered only whether the defendants published the advertisement and whether the statements actually concerned Sullivan. (23) Truth, although recognized as a defense to common law defamation generally, was not viable in Sullivan's case because portions of the advertisement were inaccurate. (24) The New York Times Company also had no basis for contesting the element of publication, even though the newspaper did not write any of the words at issue. An advertising agency submitted the advertisement on behalf of the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. (25) An advertising manager at the newspaper approved the copy "because he knew nothing to cause him to believe that anything in it was false, and because it bore the endorsement of 'a number of people who are well known and whose reputation' he 'had no reason to question.'" (26) Neither the advertising manager nor anyone else at the newspaper sought to confirm the accuracy of the advertisement or to check whether the copy's claims comported with information reported in the newspaper's news columns. (27) Despite the newspaper's limited role in preparing the advertisement, the publication element was satisfied because, at common law, "one who repeats or otherwise republishes defamatory matter [was] liable to the same extent as though he had originally published it." (28) For purposes of the publication element, then, the fact that the advertisement was not the newspaper's own work was irrelevant.

      So, of the common law's traditional elements, only one--identification--was a genuine issue for the Sullivan jury, and on that point the jurors returned a verdict for Sullivan. (29) The trial court awarded damages of $500,000--the full amount that Sullivan requested (30)--and the Alabama Supreme Court affirmed that award. (31)

      As Sullivan's success in the Alabama courts illustrates, the burdens on a common law defamation plaintiff were minimal. The burden of proving the fundamental element of defamatory meaning, for example, was effectively lifted from the libel plaintiff's shoulders by the common law's sweeping definition of libel per se--i.e., words that on their face seemed likely to cause reputational injury. (32) Although in some states a jury in a libel per se case would still have to decide whether a reader would in fact understand the words to have the defamatory meaning that the court identified, (33) whereas in many states a finding of libel per se resolved the issue definitively. (34) In either event, a jury hearing the court's instruction that a statement was "libel per se" would seem unlikely to find that the statement ought to be read otherwise.

      The court's finding of libel per se also reduced the plaintiff's burden of proving damages. In fact, in cases of written defamation, the common law presumed some damage from the defamatory statement. (35) Thus, in the words of the Restatement's commentary:

      The publication of any libel is actionable per se, that is irrespective of whether any special harm has been caused to the plaintiff's reputation or otherwise. Such a publication is itself an injury ... and therefore a sufficient ground for recovery of at least nominal damages. Although actual harm to the reputation is not...