The U.S. Supreme Court has recognized that the First Amendment needs breathing space to be fully realized. The idea is that for a free society to flourish we have to accept a certain amount of irresponsible speech in order to accommodate bold ideas, opinions and reporting. If the law clamps down too fast or too harshly on unintended messages, missteps or mistakes, a free press would be seriously constrained.
That is why the tort of "false light" is so dangerous to our traditions of freedom of speech and press. This is a common law cause of action that allows people to bring a lawsuit when true statements tend to cast them in an embarrassing light. Publications can face huge damage awards even when everything reported is true, simply because a story could be read to include an unstated and embarrassing implication.
The Florida Supreme Court now has two cases on false light before it. We hope the high court closes the courthouse door to these types of cases in the future. Florida news organizations are watching to see what happens.
In Joe Anderson, Jr. vs. Gannett Co., Inc., a jury in 2003 awarded Joe Anderson, a Florida highway contractor, more than $18-million in damages for a story that appeared in the Pensacola News Journal in 1998. The false light claim emanated from a few paragraphs in a piece about environmental issues and Anderson's paving company. The story stated that years earlier Anderson had shot and killed his wife in what was officially deemed a hunting accident. The story also noted that Anderson had filed for divorce just days before the shooting.
Anderson claimed that the story implied that he had murdered his wife even though there was no such allegation.
The second case involved a Palm Beach County woman who sued the Jews for Jesus organization for publicizing in its newsletter that she had prayed in a Christian manner with her stepson, who is active in the group. The question in her case is whether Florida allows false light invasion of privacy claims at all.
During oral arguments on Thursday, most of the seven Florida Supreme Court justices seemed concerned over the vagueness of the false light standard. One concern was that an editor of a publication would have to guess whether an entirely factual story might nonetheless be subject to a false light claim. "If you can sue somebody for making a true statement," said Justice Charles T. Wells, "it seems that would be a great impediment to free speech and freedom of the press."
The false light tort is unnecessary because Florida law already protects people from libel, slander and defamation, with some lower courts recognizing defamation by implication. These statutes also include significant protections for the First Amendment, while the false light tort does not.
The reason Anderson is suing under a false light legal theory and not libel is that he missed the two-year statute of limitations for libel actions. A false light claim allows four years to file suit.
A lower appellate court has already overturned Anderson's verdict because it said his case was not filed in time to assert traditional libel, the appropriate cause of action.
As the high courts of Texas and Colorado have done, the Florida Supreme Court needs to reassure editors and publishers that the vague false light tort isn't sitting in wait to snag them for millions of dollars in damages whenever someone feels particularly aggrieved by their portrayal in a factually accurate story. Florida's free speech needs more breathing space than that.