No False Light in Florida!

With Halloween upon us, the Florida Supreme Court has ruled just this past week that there is no such thing as a "false light" action in Florida. "False light" is a close cousin on defamation said to arise from the right to privacy - the elements are usually set forth as (1) the public use of a person's name or image (2) in a context that creates a false impression of that person, (3) such impression being one which would be offensive to the reasonable person, and (4) this was done with intent or at least with reckless disregard for the truth, and for the rights of the aggreived party.

The case in which the Florida Supreme Court took this question up was Rapp v. Jews for Jesus, Inc., and the claim was that the defendant religious organization had put out a newsletter which falsely characterized plaintiff, a Jewish woman, of having "joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus." The newsletter had told a stepson's story of how Rapp had "began to ask me questions about Jesus," and after a good talking-to on the subject:

...began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me-praise G-d!

Whether this describes an adoption of or conversion to another faith, well that would have been a question for the jury. However, the trial dismissed Rapp's defamation claim (because "the 'common mind' reading the newsletter would not have found Edith to be an object of 'hatred, distrust, ridicule, contempt or disgrace'") and sent the false light claim up to the Fourth Circuit Court of Appeals to review (from which it was sent right on up to the state Supremes).

The Florida Supreme Court then found that there was too much overlap between the false light cause of action and the pre-existing defamation cause of action for both actions to be required. Although false light has often been posited as being available as a means to counter "literally true statements that create a false impression," the Court noted that defamation will allow recovery in those circumstances as well. The Court also found that a false light cause of action runs into First Amendment problems that have been long settled with respect to defamation claims.

However, the ruling was not all bad news for Rapp. With false light off the table, the Court found that her other claim, the defamation claim, had been improperly dismissed. Even though an alleged conversion to another religion would not have held her up to contempt to society at large, the trial court should have considered whether Rapp's reputation was injured with a "substantial and respectable minority of the community." So this case gets sent back down to the intermediate appellate court, with an invitation to determine whether Rapp's initial complaint supports a finding that she was defamed in the eyes of a respectable minority of the community.

Even if she loses, Rapp has had an additional measure of revenge through the lawsuit, however. Her Complaint contained a number of assertions which, although stricken by the court, were mentioned (albeit in a footnote) in the Supreme Court's decision. She complained, for example that:

Jews for Jesus attempts to convince Jews that they can accept concepts which are alien and contrary to Jewish beliefs yet remain Jewish in order to fraudulently induce them to join their movement.

And that:

A further motive for fabrication was to help advance the erroneous concept that many Jews have adopted the beliefs of Jews for Jesus. In order to promote its false teachings, Jews for Jesus attempts to inflate the number of its converts."

Whether or not Rapp's own claims about Jews for Jesus are true, she is doubly immunized from any liability for making them, first because neither defamation nor any related tort recognizes a cause of action for defamation of an entire group (rather than names individuals) and secondly because the allegations were made in a format - the complaint filed in a legal proceeding - in which the claimant can make just about any statement with impunity.

My final word on this is that the Florida Supreme Court made a great deal of sense. False light has always been a sort of odd lesser form of defamation claim, but defamation is itself a flexible enough doctrine to capture all kinds of falsehoods, even those dressed innocuously. Some attorneys may grumble at having a sword permanently sheathed from the arsenal of causes of action, but they would be better admonished to polish and weild wisely the powerful weapons that remain.

Unfair credit report? Fair game for defamation!

Here's a decision that is timely enough to warm some hearts: Roybal v. Equifax, 2008 U.S. Dist. LEXIS 79789 (E.D. Cal. 2008)

In this case, the Plaintiffs were husband and wife Daniel and Vida Roybal. They sought to refinance their mortgage, only to learn that "approximately 100 inaccurate, derogatory entries were being reported on Mr. Roybal's credit report by Rickenbacker Industries ("Rickenbacker"), a collection agency." The couple went through a variety of steps, documented in the opinion of the court, to have these false entries removed from their credit history - but the inaccuracies kept showing up, until the couple finally had to hire a lawyer to get their credit history cleared.

Mr. and Mrs. Roybal didn't take things lying down. They sued, for a number of counts including (well, look what blog you're reading, after all) defamation. Now, in complete candor, the motion that this decision addresses is just a motion for summary judgment. That is, the defendants asked the court to throw the case out before it even got to a jury, claiming that even if everything the plaintiffs are saying is true, those facts do not support the claims for relief. The court will deny a motion for summary judgment if there is a "genuine issue of material fact" - that is, if the facts might indeed support the claims, and there is some dispute about what the facts are.

The Roybal's main claim was not defamation, but defendants' alleged violation of the "Fair Credit Reporting Act," a federal statute which requires the folks who provide credit histories to do so accurately, and to double-check if inaccuracies are brought to their attention. The Roybal's other claims were state law causes of action, including a number of negligence-based theories, as well as defamation, invasion of privacy, and false light.

The defendants argued pre-emption - that the plaintiffs could not bring those state law causes of action because the federal law prohibited negligence and defamation actions over incorrect information provided to the consumer - but the court disagreed, because here the incorrect information was provided to the bank that the consumers were trying to get a loan from.
The court also found that no privilege was invoked simply because the Roybals, in seeking a loan, had authorized the bank to get the credit report. In order to escape this privilege, the Roybals had to show malice, and this they could do:

Defendants do not dispute that inaccuracies appeared on Mr. Roybal's credit report during 2004, nor do they dispute that copies of Mr. Roybal's credit report were provided to lenders in 2004. Defendants instead argue that they are entitled to protection... because Plaintiffs have not shown that Defendants acted with "malice."

However, since Plaintiffs claim to have provided notice of the inaccuracies in Mr. Roybal's credit file to Defendants on multiple occasions beginning in 2004, Plaintiffs have sufficiently shown, for purposes of the current Motions, that Defendants had knowledge of the falsity of the information contained in Mr. Roybal's credit report.

The Court gives little specific discussion to the defamation claim, because little is needed: "Defendants argue that Plaintiffs' Defamation cause of action must fail because Plaintiffs cannot produce any evidence of "malice"... The Court addressed this argument in detail above." End of discussion. The false light claim is similarly treated, along with the comment that there's no reason plaintiff's can not bring both a defamation and a false light claim.

As a practical matter, the Court denying summary judgment means that these questions will go before a jury, and under the current economic situation a jury is not likely to be kindly disposed to a credit agency that reports false information, thus harming a couple's ability to get credit. In these trying times, things are bad enough without having negative falsehoods piled into credit reports, and it is good to know that a Court is letting folks who have suffered such an indignation have a shot at convincing a jury that a remedy is due.

However, as I said, a jury is not likely to be too friendly to the credit agency, and there's no point in these defendants - wealthy companies though they may be - to pay a lot of attorney's fees on the way to losing a big verdict. I would expect to see a settlement in this case favorable to Mr. and Mrs. Roybal, before a juror is ever seated.

Oprah defamation suit, arising in Africa, filed in Philadelphia

Oprah Winfrey is the subject of a defamation lawsuit filed in a Philadelphia court - the alleged defamation being that "Winfrey suggested that [plaintiff] Nomvuyo Mzamane, 39, of Philadelphia, knew about alleged abuse by a dorm matron [in a Winfrey-sponsored South Africa girls' school] and tried to cover it up." Mzamane, ex-headmistress of the school, claims that she can't get work in the field because of Oprah's allegations, but the litigation strategy may be risky. Is Mzamane an involuntary public figure, or perhaps a limited-purpose public figure in her role as (former) headmistress of a school sponsored by one of the world's most famous people?

It is likely that a court will find that there is at least a compelling public interest in the behavior of a school official with respect to the alleged abuse of students by a person under the official's control. Although Mzamane may not have intently thrust herself into the controversy, she may well be regarded as a public figure for purposes of discussing this controversy, in which case she would have to demonstrate actual malice on Oprah's part to carry a suit forward. And actual malice will be hard to prove given that Mzamane herself, in a previous interview, had suggested that Oprah "may have been guided with bad information" and described Oprah as possibly having been "ill-advised." Absent a specific statement by Oprah specifying wrongdoing on Mzamane's part, and evidence that Oprah knew the truth to be otherwise, this lawsuit likely does not survive a motion for summary judgment.

Interestingly enough, this is not the first time the talk show diva has been sued for defamation. In 1998, Texas cattle ranchers sued--and lost--over a show in which Oprah discussed mad cow disease, and the practice of cattle being fed "protein supplements produced from the wastes of slaughtered cattle" (ewww!) resulting in "Winfrey's disgusted vow that she would never eat another hamburger." The plaintiff's claimed that even though Oprah "never touched specifically on Texas cattle or named the plaintiffs," she seriously harmed their market, causing prices to plummet. Now that's market power.

Oprah moved her show to Texas for the duration of that trial. So, will she be setting up in Philly for this one? Time will tell, but this case just might be a bigger boon to Oprah's ratings than a hit to Oprah's pocketbook.

Here comes the pun: stay tuned!

Unless otherwise indicated, all images on this blog are from the Wikimedia Commons.