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.

Deception, caught on film... defamation?

In the very recently decided case of Damon v. Moore, 2008 U.S. App. LEXIS 5905 (1st Cir. 2008), the First Circuit upheld the dismissal of a defamation claim by a double amputee from the Iraq War who was quoted in Michael Moore's documentary, Fahrenheit 9/11.

The Court framed the alleged defamation as follows:

• Moore: While Bush was busy taking care of his base and professing his love for our troops, he proposed cutting combat soldiers' pay by 33% and assistance to their families by 60%. He opposed giving veterans a billion dollars more in health care benefits, and he supported closing veterans hospitals. He tried to double the prescription drug costs for veterans and opposed full benefits for part-time reservists. And when Staff Sargent Brett Petriken from Flint was killed in Iraq on May 26th, the Army sent his last paycheck to his family, but they docked him for the last five days of the month that he didn't work because he was dead.
• Rep. McDermott: They say they're not gonna leave any veteran behind, but they're leaving all kinds of veterans behind.
• * * *
• (Video of Walter Reed Hospital)
• Veteran: To say that we're forgotten - I know we're (in wheelchair) not forgotten. But missed? Yes. Yes, you know there's a lot of soldiers that have been missed, you know, they've been skipped over. Um, that didn't get the proper coverage that they deserve.
• Veteran: They have the death toll but they're not showing the amount of people that have been injured and been amputated because of the injuries, you know.
• Subtitle: (Nearly 5,000 soldiers wounded in the first 13 months of the war.)
• Damon: Like I still feel like I have hands.
• Voice: Yeah.
• Damon: And the pain is like my hands are being crushed in a vice. But they do a lot to help it. And they take a lot of the edge off of it. And it makes - makes it a lot more tolerable.

Damon contended that he was not told that the interview in which he made that comment would go into Moore's film, a film which Damon (quite correctly) characterized as:

• an attack upon the integrity of the Commander-in-Chief and the war effort, and it denounced the United States' military action in Iraq by, among other things, "attacking the credibility of the Commander in Chief of the United States Armed Forces about the justification for the war, its cost and consequences . . . ."

Damon alleged that he was defamed by his "unwitting appearance" in Moore's film because it "falsely portrays him - and has been interpreted by members of the military and veteran communities - as sharing, adopting and endorsing Moore's attack on the President and the war effort." The Court undertook two examinations of Damon's appearance, one from the point of view of the "reasonable person," the other from the point of view of the "Reasonable Military Viewer," the subset of the community from which Damon would receive the most harsh attention from a perceived agreement with the film.

With respect to the first analysis, the Court concluded that the movie in which the interview was wrapped "does not propel his otherwise benign interview into one reasonably susceptible of defamatory meaning." With respect to the second analysis, the Court logically notes that it would be unfair to let a defamer off the hook if the defamation would only be understood by a specialized community, quoting a case exhorting courts to take a closer look at members of professions which "have a standard of judgment of their colleagues which is peculiar to their profession which differs sharply from the appraisal of the uninitiated." Nevertheless, the Court concluded that no defamation followed from even that narrow font of examination:

• Taking the documentary as a whole, no reasonable member of the military or veteran community could possibly view Damon's appearance in the documentary as being disloyal to the United States. As explained above, Damon makes no statements in opposition to the war effort, nor was his interview manipulated in such a way to imply that he was "attacking the war aims of the United States." In fact, as pointed out by the district court, the documentary's portrayal of Damon shows an individual who is discussing with great dignity and obvious pain what his participation in the conflict in Iraq has meant and not in any way suggesting that he thinks that his service was demeaned, but rather expressing his opinion that the medical treatment that he received has been something that helps to make his pain more livable and that Damon's appearance "transcends the alternative views that others present there with . . . considerable dignity and no suggestion of disloyalty."

This case is not all that unusual. There has been a trend of late for documentary filmmakers to portray unknowing interviewees in a light starkly different from what the interviewee expected. Other examples occur in Fahrenheit 9/11, for example with Raymond Plouhar, a recruiter who was later killed in Iraq, who was led to believe he was being interviewed for a politically neutral documentary on military recruitment.

Richard Dawkins, a well known proponent of atheism, wrote of his similar experience in being interviewed for a film favoring Intelligent Design. The film was titled Expelled, but Dawkins (and several colleagues) were told that they were being interviewed for a documentary called Crossroads. Asked to give an example of a scientifically plausible version of intelligent design, Dawkins hypothesized about the unlikely possibility of aliens seeding life on Earth. And in the film, this was mischaracterized as Dawkins actual belief - a far more likely candidate for a cause of action, although more clearly a false light claim than outright defamation.

However, so long as these tactics abound, it is only a matter of time before a filmmaker pushes the envelope beyond the legal limit. And then we'll have some really interesting case law to talk about.

Images posted on this blog originate from Wikimedia Commons.