INTRODUCTION :: Edith and Marty Rapp, a Jewish Florida couple, were married until Marty’s death in 2003. Bruce Rapp, Marty’s son and Edith’s stepson, worked for Jews for Jesus. Prior to Marty’s death, Bruce included the following account in a Jews for Jesus newsletter:
I had a chance to visit with my father . . . [who] has been ill for sometime . . . [O]ne morning Edi[th] began to ask me questions about Jesus. I explained how G-d [sic] gave us Y’Shua (Jesus) as the final sacrifice for our atonement . . . She 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!
Jews for Jesus published the newsletter on the Internet, where one of Edith’s relatives saw it.
Alleging that Jews for Jesus falsely, and without her permission, stated she had joined the organization and become a believer in its tenets, Edith Rapp sued the group for false light invasion of privacy, defamation, intentional infliction of emotional distress, negligent training and supervision, and negligent infliction of emotional distress. On appeal, the Florida Fourth District Court of Appeal affirmed the dismissal of the defamation claim, but, “because of uncertainty in this area of the law,” certified to the Florida Supreme Court the question of whether Florida recognizes the tort of false light. The Florida Supreme Court held that Florida does not recognize a cause of action for false light invasion of privacy but does recognize defamation by implication. The court further held that a communication can be defamatory if it prejudices the plaintiff in the eyes of a substantial and respectable minority of the community.
Boston lawyers Samuel D. Warren and Louis D. Brandeis first articulated the common law tort of invasion of privacy in 1890. Dean William Prosser, a leading tort law scholar, conceptualized false light invasion of privacy in 1960 when he argued that invasion of privacy consists of four separate torts: intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; public disclosure of embarrassing private facts about the plaintiff; publicity which places the plaintiff in a false light in the public eye; and appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. In 1977, the Restatement (Second) of Torts codified Dean Prosser’s description of the four categories of invasion of privacy and defined false light as follows:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
The United States Supreme Court first addressed false light invasion of privacy in 1967 in Time, Inc. v. Hill. Building on New York Times Co. v. Sullivan, the seminal defamation case decided three years earlier, the Hill Court held that a false light plaintiff must prove actual malice against a media defendant. Seven years later, in Cantrell v. Forest City Publishing Co., the Court ruled that a newspaper and its reporter placed the Cantrell family in a false light when the paper knowingly or recklessly published inaccuracies and falsehoods about the widow of a man who died when a bridge collapsed. The Court has not addressed false light in over a quarter of a century, helping render the tort “the least-recognized and most controversial aspect of invasion of privacy.”
January 2015, Vol. 67, No. 1
Reid Kress Weisbord, Trust Term Extension