Ethical Complexities in Defamation and False Light Claims

• Author: Rodney Smolla
• Position: President, Vermont Law and Graduate School
• Pages: 1009-1032

CIVIL LIABILITY, CIVILITY, AND

NORMS

Ethical Complexities in Defamation and False

Light Claims

RODNEY SMOLLA*

ABSTRACT

Richard Simmons was for decades a well-known American celebrity, health

and fitness guru, motivational life-coach, comedian, and actor. In early 2014,

Simmons left the public spotlight. In 2016, the National Enquirer claimed in a

front-page article that Simmons had transitioned from male to female. Simmons

sued the Enquirer for defamation and false light invasion of privacy. The author

of this article represented him. The case vividly illustrated a long-standing co-

nundrum over what should or should not be deemed defamatory. The realistic

position, which can be traced to opinions by the jurists Oliver Wendell Holmes

and Learned Hand, asks only whether, viewed realistically, the falsehoods

would damage the reputation of the plaintiff within a substantial segment of the

community, without regard to whether the views of that segment of the commu-

nity were “right-thinking.” In contrast, the idealistic position requires that the

segment of the community in which the reputation of the plaintiff would be

diminished be “right-thinking,” in the sense that their views reflect the higher

or more progressive moral sensibilities of society. Simmons lost, because the

court adopted the idealistic view, reasoning that right-thinking persons would

not think less of Simmons for having transitioned. The article explores the ten-

sions between these opposing positions and argues in addition that whether or

not defamation is an appropriate legal response to the falsehoods Simmons

alleged, the tort of false light, properly understood, should still be available,

because it was designed to provide a remedy for falsehoods that, while arguably

not defamatory, would nonetheless be highly offensive to a reasonable person.

TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010

II. THE DEFAMATION CONUNDRUM. . . . . . . . . . . . . . . . . . . . . . . . . . . 1012

A. Posing the Conundrum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012

* President, Vermont Law and Graduate School. © 2022, Rodney Smolla.

1009

B. The Holmes–Hand Pedigree of the Legal Realist Position . . . 1012

C. The Pedigree of the Idealistic Position. . . . . . . . . . . . . . . . . . 1013

D. The Restatement Straddle. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014

E. Comparison to the 2020 Election Theft Lie. . . . . . . . . . . . . . . 1014

F. The Race Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016

G. Sexual Orientation Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018

H. Simmons and Transgender Status. . . . . . . . . . . . . . . . . . . . . . 1019

III. THE FALSE LIGHT CONUNDRUM . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021

A. The Insult to Human Dignity . . . . . . . . . . . . . . . . . . . . . . . . . 1021

B. False Light Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022

C. First Amendment Considerations. . . . . . . . . . . . . . . . . . . . . . 1024

1. Alvarez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024

2. Emotional Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024

3. Distinguishing False Light . . . . . . . . . . . . . . . . . . . . . . . 1025

D. Returning to the Conundrum . . . . . . . . . . . . . . . . . . . . . . . . . 1028

E. The Normative Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030

I. INTRODUCTION

This essay is written by a cross-over artist, an academic who has maintained an

active role as a litigator. I have written scores of briefs and presented scores of

oral arguments in state and federal courts across the nation on First Amendment

issues, including briefing and argument in the United States Supreme Court. This

role itself constantly places me in positions of ethical, moral, and intellectual

complexity. I often sense that the conflicts presented to an advocate-scholar are

more complex than the conflicts of either the pure advocate or the pure scholar.

In this essay, I tell the story of one case in which I was an advocate. The story

is told for the moral and ethical complexities it illuminates regarding the core

defining element of tort claims for defamation and false light invasion of privacy.

I describe the intriguing issues posed as the “defamation conundrum” and the

“false light conundrum.”

Richard Simmons was for decades a well-known American celebrity, health

and fitness guru, motivational life-coach, comedian, and actor. Through his own

programs and constant appearances on talk shows, he held a pervasive presence

in American pop culture.

1010 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:1009