from the United States Court of Appeals for the Fifth Circuit.
Texas Supreme Court is asked to decide two issues: 1) whether Texas
recognizes the tort of false light
invasion of privacy, and 2) if Texas recognizes this tort, which
statute of limitations governs
Because false light substantially
duplicates the tort of defamation while lacking many of its
procedural limitations, we answer the first question
in the negative, thereby
dispensing with the need to answer the second
Clyde Cain is a prison inmate in the Texas Department of Corrections
serving a life sentence for murder.
He sued the Hearst Corporation, the Houston Chronicle Publishing
Company, claiming that a newspaper article invaded his privacy by
placing him in a false light.
The article, which appeared in the Chronicle on June 30, 1991, referred
to Cain as a burglar, thief, pimp, and killer.
Cain's sole complaint is that the article said he was a
member of the "Dixie Mafia" and
that he had killed as many as eight
people. Cain asserted that these statements
put him in a false light with the
public. Suit was filed in state court one and one-half years
after the article was published.
Genesis of Invasion of Privacy
Does not embrace the fourth type of invasion of privacy.
False Light Elements [Restatement (Second) of Torts, Section 652E]
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 his privacy, if
(a) the false light in which the other was placed would be
highly offensive to a reasonable person,
(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.
It remains the least-recognized and most controversial aspect of
invasion of privacy.
Courts Thoughts On False Light
We reject the false light invasion of privacy tort for two reasons:
largely duplicates other rights of
lacks many of the procedural
limitations that accompany
actions for defamation,
Thus unacceptably increasing the tension that already exists
between free speech constitutional guarantees and tort law.
Duplication of Other Causes of Action (Analysis)
The false light action permits recovery for injuries caused by
publicity that unreasonably places the plaintiff in a false light before
Although not explicitly required by the Restatement definition, most
jurisdictions, including the lower Texas courts that have recognized the
action, require that a statement be false
if it is to be cognizable under the false light doctrine.
If we were to recognize a false light tort in Texas, it would
largely duplicate defamation.
Recovery for defamation requires the communication of a false
The damage elements are similar.
False Light Damage Elements
The principal element of actual damages for false light claims is
typically mental anguish, but
physical illness and harm to the
plaintiff's commercial interests have
also been recognized.
Freedom of Speech Considerations
Defamation and false
light differ for two reason
Defamation actions are subject to a number of procedural
requirements to which invasion of privacy actions are not subject,
Certain publications not
actionable under a defamation theory might
be actionable under false light.
Adopting a false light tort in this State
would unacceptably derogate
constitutional free speech rights under both the Texas and
the United States Constitution.
Actions for defamation in Texas are subject to numerous procedural and
substantive hurdles. For example, accounts of governmental proceedings,
public meetings dealing with a public purpose, or any "reasonable and
fair comment on or criticism of an official act" are privileged under
Texas Civil Practice & Remedies
Broadcasters are generally not liable in defamation for broadcasts made
by third parties.
Damages may be mitigated by factors of public apology, correction, or
In theory, the false light action may
provide a remedy for certain non-defamatory speech
against which there may be no other remedy in tort law.
It is questionable whether a remedy for non-defamatory speech should
exist at all.
Defamation is restricted to speech is only restricted if it defames.
False Light may be bought against any untruth to which the subject of
the speech takes umbrage [offense].
Defamation alert to facts that diminish.
False Light any innocuous fact may be the basis for liability.
Highly Offensive is not associated with defamation
Falls to draw a line between lawful and unlawful conduct.
Not knowing what speech may subject the speaker or writer to liability
would have an unacceptable chilling effect on freedom of speech.
Incongruent with high priority of the freedom of speech.
recognize the tort of false light.
The torts are designed to protect two different interests.
There are communications which, based on their content, are not
defamatory but may be false light violations of privacy because they are
Defamation preserves individuals' reputation interests
False light invasion of privacy safeguards individuals' sensitivities
about what people know and believe about them.
Both torts allow mental anguish damages.
Level of Publicity
False light requires significantly broader publication than does
Defamation only requires publication to a single individual
False light requires widespread dissemination.