News & Developments

Lights Out on False Light in Florida

The Florida Supreme Court has rejected the false light tort in Florida because it is duplicative of defamation and likely to impede constitutionally protected free speech. Jews for Jesus, Inc. v. Rapp, SC06-2491 (Fla. Oct. 23, 2008); Anderson v. Gannett Co., Inc., SC06-2174 (Fla. Oct. 23, 2008). Five justices unanimously agreed to reject the tort. Two justices, new to the court since oral argument in the cases, did not participate in the decisions.

Prompted by the Fourth District Court of Appeal’s certified question in Jews for Jesus, which asked the court whether Florida recognizes the false light tort, the court surveyed false light law in Florida and other jurisdictions and stated that its research had not revealed a single case in which a false light claim standing alone had been upheld. The reason, explained the court, is that false light duplicates defamation. Both torts can be premised upon literally truthful statements that give rise to a false implication, and both torts allow for recovery of reputational and emotional distress injuries in Florida.

But the subjective “highly offensive” standard of the false light tort “runs the risk of chilling free speech because the type of conduct prohibited is not entirely clear,” the court explained. Moreover, the court noted that defamation by implication, as the tort is called when truthful statements give rise to a false and defamatory impression is constitutionally constrained by several privileges and defenses long applicable to defamation claims, including a short statute of limitations period, presuit notice in many cases, and several constitutionally-mandated privileges. The court was troubled that the same privileges and defenses might not apply to false light. Finding that the absence of a false light tort does not create any significant void in the law not already filled by defamation, and noting that a flood of recent false light claims might indicate an attempt to circumvent defamation law, the court declined to recognize a cause of action for false light invasion of privacy in Florida.

Turning to the cases at hand, the court quashed the Fourth District Court of Appeal’s decision in Jews for Jesus to the extent it had reinstated the plaintiff’s false light claim. The court also accepted the premise that a defamation claim can be predicated upon damage to reputation in the eyes of a “substantial and respectable minority of the community,” and quashed that portion of the appellate court decision that affirmed dismissal of Rapp’s defamation claim. The court did not otherwise consider the merits of the defamation claim, instead remanding the matter to the Fourth District Court of Appeals for further proceedings.

As to Anderson, the court held that its rejection of the false light tort in Jews for Jesus rendered its consideration of the statute of limitations issue presented in the Anderson case moot. Anderson argued that the court could not retroactively abolish a cause of action, so that his claim should stand. The tort, held the court, had not existed at common law and, therefore, Andersoncould not recover against Gannett on that basis. The court further disapproved of the 2001 appellate court decision in Heekin v. CBS Broadcasting, Inc. to the extent it had assumed the existence of the false light cause of action.

Both Anderson and Rapp may seek rehearing of the matter. Those motions must be presented to the court by early November. Review of these decisions by the United States Supreme Court should not be possible as they are related to issues of state law and not federal law.

SUBMITTED BY:

Deanna K. Shullman
Thomas & LoCicero PLP
Ft. Lauderdale, FL