Tort Law and Journalism Ethics

Mike's post yesterday about the Peoria Star's publication of a picture of a high school athlete holding his two middle fingers up concerns a topic of my 2009 law review article in which I discuss at length how journalism ethics codes can and should be incorporated into tort law standards for defamation, false light, and public disclosure of private facts claims.


In essence, the tort of false light affords a remedy when the press oversteps its bounds by the careless or highly offensive manner in which facts are presented.  False light's resemblance to defamation has caused confusion in the courts as to the proper balance of the First Amendment.  The source for much of this confusion emanates from Time, Inc. v. Hill in which the Supreme Court held that the actual malice standard applies to false light claims involving false publication of matters of public interest.  The actual malice standard requires a showing that the defendant published a factually inaccurate report with knowledge of its falsity or in reckless disregard of the truth.  Indeed, the actual malice standard has preempted many false light claims in the courts.


However, the actual malice standard is capable of application only when the false light claim involves a publication that contains factual inaccuracies.  But false light is not limited to publications that contain factual inaccuracies; it also encompasses a publication that is literally or substantially true but which creates an erroneous or misleading impression that renders the publication susceptible to inferences casting the plaintiff in a "highly offensive" false light or making the plaintiff out to be something he or she is not.  In this latter context, the actual malice standard simply does not work because the standard is premised on the publication of false information (and there is none).


In my article, I recommend (1) further clarification by courts as to when the actual malice standard applies in false light claims and (2) consideration by courts of a publisher's motive in assessing the degree of "offensiveness" for purposes of false light claims.  Here is an excerpt, which I believe is squarely on point with the Peoria Star's publication:

From a First Amendment standpoint, courts should be cognizant of the material distinction between a critique, which is not actionable, and a misleading or an erroneous inference that makes the plaintiff out to be something he or she is not and thereby casts the plaintiff in a highly offensive false light.  The former is constitutionally privileged because it has social value and entails the legitimate motive or purpose of engaging in “uninhibited and robust debate.”  However, the First Amendment interest is weaker when the press acts with a motive or purpose of making the plaintiff out to seem pathetic or ridiculous, regardless of whether the plaintiff is a public person or private person. Perhaps the First Amendment interest is weaker in this context because journalism ethics are being compromised—the two have a tendency to go hand in hand.  Indeed, the motive of the press is certainly relevant from a journalism ethics standpoint.  Courts are sometimes hesitant to consider a publisher’s motive in finding actual malice, which is understandable when the focus of the inquiry pertains to the publisher’s knowledge of the falsity of the information.  But motive can and should be a relevant factor for the courts in assessing the degree of offensiveness in which the plaintiff is placed in a false light.