E.  False Light Award Overturned

for Failing To Prove Actual Malice

 

      In June 2000, in a lawsuit brought by a businessman against a former New York Times reporter, a jury in New Hampshire awarded $480,000 in compensatory damages for false light invasion of privacy, while rejecting a defamation claim.  The false light award was ultimately overturned by a federal court of appeals in 2002.

 

Background

      The case resulted from a story that appeared in the Times business section in October 1994.  Reporter Susan Antilla made reference to a rumor in circulation that Robert Howard, the founder and chairman of a controversial company called Presstek, Inc., was actually a convicted felon named Howard Finkelstein.  After the story appeared, the Times received information pointing to the likelihood that the rumor was false.  The Times published a correction the following day, along with a front page business section article stating it found “no credible evidence” to support the rumor and expressing regret over its publication.

      Almost three years later, Mr. Howard brought suit for both defamation and false light invasion of privacy, naming Ms. Antilla but not the Times.  A federal district court issued two pre-trial rulings favorable to Ms. Antilla, one denying the plaintiff’s motion to compel the reporter to reveal her sources, and the other holding Mr. Howard to be a limited public figure.  The latter ruling imposed a heavy burden of proof for the defamation claim, including a showing of actual malice.  Mr. Howard was not able to prove an actionable defamation. 

      However, the district court held that the more nebulous charge of  “false light” required a less burdensome showing: The article need only imply that Mr. Howard and Mr. Finkelstein “might have been” the same person – not that he actually was the same person.  Attempting to reconcile the jury’s seemingly inconsistent findings (in favor of Mr. Howard’s false light claim but against his closely related defamation claim), the district court held that “the jury could reasonably have concluded that while not precisely defamatory, the article held Howard out in a false light.”  Howard v. Antilla, 160 F. Supp. 2d 169 (D.N.H. 2001).  The appellate court would later characterize the district court ruling as based on “an entirely novel and untried theory of liability.”

 

First Circuit Denies “False Light” Claim  

      Ms. Antilla appealed the case to the U.S. Court of Appeals for the First Circuit.  On June 28, 2002, the appellate court unanimously rejected the trial court’s findings and reversed the damages award.  Howard v. Antilla, 294 F.3d 244 (1st Cir. 2002).  “Where a false light invasion of privacy action involves a public figure plaintiff and a media defendant, the federal constitution imposes the same requirements that would apply to an analogous claim for defamation under New York Times Co. v. Sullivan … and its progeny,” the court noted. 

      The First Circuit concluded that the plaintiff had failed to show that the offending false statement was made with actual malice.  “[R]ead as a whole, the article points out flaws in both sides of the story and never places the author in a position of evaluating the truth or falsity of any party’s account,” the opinion stated.  “[E]ven if Antilla’s article was capable of communicating the accusation that Howard is a convicted felon, such a false accusation was not shown to be either intentional or treated with reckless disregard,” the court concluded.

      The false light charge does not require that a statement be defamatory -- or even, in some states, false.  As a result, it has become an increasingly popular tactic of plaintiffs who want to do an end-run around the stringent constitutional safeguards erected in defamation actions against media defendants.  In light of this fact, the First Circuit ruling was particularly welcome.

 

--Judith Platt