When Spreading Falsities Goes Too Far: False Light Explained

False light is the widespread sharing of highly offensive, false material about someone with the knowledge that it is false or with reckless disregard for its truth or falsity. It often applies to photo or video content that may be real, but gives people a false, inflammatory impression because of how it’s used.

Some states have specific laws or court rulings that define false light. 

Why would false light be unprotected by the First Amendment?

The First Amendment is designed to protect public discourse about issues of concern to society. It includes strong protections for even offensive or false speech, especially about public figures, in many cases. For example, it protects satire, which exaggerates the truth for purposes of critique.

But many courts and legal scholars recognize limits to sharing false information that harms private people who are just trying to go about their business or that intrudes into someone’s private affairs that aren’t of public concern.

The U.S. Supreme Court has suggested in two cases that false light can be one way speech can lose First Amendment protection. 

In Time, Inc. v. Hill (1967) the court reviewed a New York false light invasion of privacy law.

After a family had been held hostage in their home by escaped convicts, Life magazine ran a story about a play inspired in part by the family’s story. In the article, Life, then owned by Time Inc., specifically called out the family’s experience and said that people could now see the story reenacted. The article included photos of the play’s actors at the actual house where the real incident occurred. The family sued for false light because their actual experiences were not really like the much more dramatic play, as the article implied.

The court said that the case should be decided in a new trial under the high “actual malice” standard applied in cases of defamation of public figures. The case did not go to a new trial, as Life and the Hill family came to a private agreement outside of court to end the case.

In Cantrell v. Forest City Publishing Co. (1974), the court affirmed this high standard for false light cases. 

In that case, the Cleveland Plain Dealer interviewed children whose father had died in a bridge collapse disaster. It published a story that the children’s mother felt cast them in a humiliating light, misrepresenting their living conditions for dramatic effect and implying the mother was present during the interview when she wasn’t.

The Supreme Court ruled for the family, saying the newspaper knew or should have known its reporting was misleading. 

What is the difference between false light and defamation? 

Defamation is making materially or substantially false statements about someone that harm their reputation and doing so with negligence or reckless disregard, depending on who is defamed.

False light is similar to defamation but with some key differences.

Defamation applies to false assertions of fact while false light can apply when something false is strongly implied but not necessarily explicitly stated. But the false or misleading implication must be something offensive to a reasonable person in order for a false light claim to be successful.

Defamation requires showing damages, such as losing business, while false light focuses more on emotional and reputational harm – infringing on someone’s right not to be perceived. In this way, false light is more similar to public disclosure of private facts – when information is revealed that is true but is not of public concern and can be damaging.

Finally, false statements about someone need only be made to a single person other than the subject of the statement to potentially qualify as defamation. Showing false light requires misleading information to be shared in a widespread way, like publication in a newspaper, magazine, or on social media, or broadcast on television or radio.

False light can also apply when a false label of someone isn’t inherently bad but shapes how people see them in a way that isn’t what the person wants. 

Is false light recognized in all states?

In some states, you can sue for defamation and false light in the same lawsuit. Some states say you can only sue for false light if you also sue for defamation. Other states do not allow suing for both at the same time and require you to pick one or the other. In North Carolina, Colorado, Florida, Texas and Virginia, courts do not recognize false light and instead consider cases under defamation law or a different applicable privacy law.

In Florida, for example, the state supreme court heard the 2008 case of a woman who sued claiming she was falsely portrayed in a newsletter. The court rejected a false light claim, saying that such cases should be considered under existing defamation law.

What are some examples of false light?

After the National Enquirer published a photo of an actress and a producer together and stated that the two were dating, the producer asked for the article to be retracted because it was false. He’d been at dinner with the actress, but he was not dating her; his wife was also there but not pictured. The Enquirer would not retract the article, and the producer sued the tabloid in 1982 for libel, false light and other causes. A court initially dismissed the false light claim as redundant to libel. But the California Supreme Court later said he could sue on both grounds – but that, like with libel, there must be a high bar to finding false light in order to protect freedom of speech and the press (Fellows v. National Enquirer Inc., 1986).

Showing a picture or video of a real person while sharing information about a sexually transmitted disease, which strongly implies that person has the disease, can be false light. This occurred in 1982 when a woman’s image was shown on a TV broadcast about genital herpes. While a jury said that this was not defamation, it awarded the woman $750 for false light in 1984 (Duncan v. WJLA TV).

In 1990, The Sun, a tabloid, published a story about a supposedly pregnant 101-year-old woman, accompanied by a photo of a real 96-year-old woman whose story was similar — except for the pregnancy. When she sued, a jury found that it was not defamation, but it was false light invasion of privacy. On appeal, the Sun said it assumed she was dead when it used her image and that the story was obviously fiction. The appeals court said that the Sun “undoubtedly has the Constitutional right to publish ‘newspaper stories,’ ‘literature,’ ‘fiction’ … but when it does and damages others by doing so, our system literally demands that the injured person be adequately compensated in an attempt to make them whole.” It ruled for the elderly woman.

A 1998 article described how a man “shot and killed” his wife. The article went on to say that the shooting death was ruled an accident. Three years later, the man mentioned in the article sued for false light, claiming that the article falsely implied that it was murder and that he’d gotten away with it (Anderson v. Pensacola News Journal). He won at trial, though an $18 million award was overturned in 2006 because the case had been filed after a two-year statute of limitations had passed.

What’s next in law for false light?

In some states, false light is not allowed as a reason to sue someone for misrepresenting you; you’d have to sue for defamation, another claim that is difficult to prove.

Legal scholars and courts continue to debate whether false light is necessary to help people protect their privacy or if allowing such suits could infringe on free speech and press rights.

One area likely to be ripe for discussion around false light: deepfakes – computer-generated images that could feature real people in situations that never happened.

This report is compiled based on previously published Freedom Forum content and with the input of Freedom Forum experts including First Amendment Specialist Kevin Goldberg. The editor is Karen Hansen. Email.