26 Pages Posted: 6 Dec 2009
Date Written: June 2009
The defamation tort is the common law’s established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation claims. Allowing such claims conflicts with two important legal principles: (1) the common law principle disfavoring novel causes of action that duplicate established torts; and (2) the constitutional rule of Hustler Magazine v. Falwell. These important legal principles require that courts reject false light claims that challenge defamatory speech but fail to meet defamation law’s standards.
Keywords: false light, privacy, defamation, First Amendment, free speech, torts, single-action rule, Hustler v. Falwell
JEL Classification: K10, K13, 19, K39
Suggested Citation: Suggested Citation
Lake, James B., Restraining False Light: Constitutional and Common Law Limits on a 'Troublesome Tort' (June 2009). Federal Communications Law Journal, Vol. 61, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1518320