Restraining False Light: Constitutional and Common Law Limits on a "Troublesome Tort"

I. 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. II. 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. …