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Protecting the Media's First Amendment Rights in Florida: Making False Light Plaintiffs Play by Defamation Rules

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Protecting the Media's First Amendment Rights in Florida: Making False Light Plaintiffs Play by Defamation Rules File: Avidan.351.GALLEY(g).doc Created on: 1/4/2006 3:45:00 PM Last Printed: 1/25/2008 2:21:00 PM PROTECTING THE MEDIA’S FIRST AMENDMENT RIGHTS IN FLORIDA: MAKING FALSE LIGHT PLAINTIFFS PLAY BY DEFAMATION RULES Patricia Avidan∗ I. INTRODUCTION In December 2003, a Pensacola, Florida jury awarded Joe A. Anderson Jr. $18.28 million because it found that an article in a local newspaper portrayed Anderson in a false light.1 The claim stemmed from a Pensacola News Journal article focusing on Anderson’s road-paving business and the political influence it wielded.2 The article also disclosed that, in 1988, Anderson shot and killed his wife.3 According to Anderson, the facts in the article ∗ © 2005, Patricia Avidan. All rights reserved. Executive Editor, Stetson Law Re- view. B.F.A., University of Utah; M.S. (Journalism), Columbia University; J.D., magna cum laude, Stetson University College of Law. Ms. Avidan is currently a law clerk to the Honorable Michael G. Williamson, United States Bankruptcy Judge, United States Bank- ruptcy Court, Middle District of Florida. This Comment is dedicated to my partner in every adventure, my husband Alan. Thanks to Professor James Lake, Professor Ann Piccard, my Notes & Comments Edi- tor, Cindy Betancourt, and Articles Editor, Amy Carstensen, for their helpful com- ments and guidance during the writing of this article. 1. Anderson Columbia Co., Inc. v. Gannett Co., Inc., No. 2001 CA 001728 (Fla. Cir. Ct. 1st Dist. filed Aug. 28, 2001); see also $18.28-Million Awarded in Suit against Newspa- per, St. Petersburg Times 5B (Dec. 13, 2003) (reporting about the jury verdict in the Anderson case); Ginny Graybiel, Anderson Wins Suit against News Journal, Pensacola News J. 1C (Dec. 13, 2003) (available at 2003 WLNR 12968616) (same). The multi-million dollar award was for compensatory damages only. Id. The jury was unable to come to a decision regarding punitive damages, causing the trial judge to declare a mistrial on that issue. Id. The trial judge ordered a second trial on the punitive damages issue, but, in an odd twist, the judge subsequently dismissed the punitive damages claim because Anderson and his attorneys disobeyed a court order prohibiting the use of the News Journal’s pre- trial polling data. Bill Kaczor, Newspaper Faces Paying $18 Million Verdict: Pensacola News Journal Won’t Face Punitive Damages, Though, Tallahassee Democrat B6 (Apr. 8, 2005) (available at 2005 WLNR 5487612). 2. Graybiel, supra n. 1, at 4C. 3. Id. Former News Journal reporter Amie Streater, who wrote the article, included the shooting accident in the story because Anderson’s possession of a firearm violated the File: Avidan.351.GALLEY(g).doc Created on: 1/4/2006 3:45:00 PM Last Printed: 1/25/2008 2:21:00 PM 228 Stetson Law Review [Vol. 35 were true, but the paper’s failure to state that authorities deter- mined that the shooting was a hunting accident until two sen- tences after the article mentioned Anderson shot and killed his wife created the false impression that Anderson had murdered his wife.4 Anderson claimed that the story cost him over $18 million in business, and the jury agreed, finding that the article’s struc- ture intentionally created a false impression.5 The Anderson verdict—and its hefty award—caused alarm among members of the media and media advocates.6 Advocates claimed that the Anderson outcome eroded the media’s First Amendment rights and had a chilling effect on the media’s ability to report the truth without fear of debilitating lawsuits.7 The media—or the “press”—is distinct as the only private in- stitution expressly guaranteed constitutional protection.8 The First Amendment to the United States Constitution provides that “Congress shall make no law . abridging the freedom of speech, or of the press . .” The Framers of the First Amendment recog- nized that an uninhibited press and the robust exchange of ideas were central to a thriving democracy.9 The United States Su- preme Court affirmed these values in opinions that put the pub- lic’s need for a free press ahead of the interests of those offended or embarrassed by news about them.10 terms of his probation from a bribery conviction in 1986. Stephen Nohlgren, Verdict Shows Truth No Shield, St. Petersburg Times 1B (Jan. 4, 2004). 4. Graybiel, supra n. 1, at 4C. 5. Id. After stating that Anderson shot and killed his wife, the article noted that Anderson filed for divorce two days prior to the accident. Nohlgren, supra n. 3, at 1B. In the next sentence, the story told readers that the police found that the shooting was acci- dental. Id. Anderson claimed this created the false impression that he had a motive for killing his wife. Id. 6. Bill Kaczor, Lawyers: Verdict May Hurt Reporting, The Bradenton Herald 10 (Jan. 17, 2004) [hereinafter Hurt Reporting]; Nohlgren, supra n. 3, at 1B; see also Joe O’Neill, O’Pinions To Go Online, The “Libel Lite” Case: Truth AND Conse- quences, http://opinionstogoonline.com/read.asp?ArtID=506 (Jan. 12, 2004) (noting that “[j]ournalists, media attorneys and most legal scholars were—and still are—shell shocked at the [Anderson] verdict – and what passed muster as evidence”). 7. Kaczor, Hurt Reporting, supra n. 6, at 10; Nohlgren, supra n. 3, at 1B. 8. Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 633 (1975). 9. See generally David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455 (1983) (chronicling the history of the First Amendment); see also Stewart, supra n. 8, at 634 (arguing that “[t]he primary purpose of the constitutional guarantee of a free press was . to create a fourth institution outside the Government as an additional check on the three official branches”). 10. See e.g. N.Y. Times v. Sullivan, 376 U.S. 254, 279–280, 285–286 (1964) (holding File: Avidan.351.GALLEY(g).doc Created on: 1/4/2006 3:45:00 PM Last Printed: 1/25/2008 2:21:00 PM 2005] Protecting the Media’s First Amendment Rights in Florida 229 Florida has departed from these tenets of First Amendment law by allowing a cause of action against the press for the com- mon law tort of false light invasion of privacy (or false light).11 False light allows a person to sue the press even if the facts in a story are completely true, but those facts create a false impression in the public eye.12 Plaintiffs in Florida have discovered that false light may be easier to prove—and harder for the media to defend against—than defamation, the claim plaintiffs typically have used against the press.13 Defamation, unlike false light, requires that the offending communication be false; truth is an absolute de- fense against defamation.14 In addition, Florida’s statute of limi- tations allows a person alleging false light two more years to state that public officials must prove with convincing clarity “actual malice” in libel claims against the media). In Sullivan, the Court wrote as follows: “erroneous statement is inevi- table in free debate, and . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . to survive.’” Id. at 271–272 (citing NAACP v. But- ton, 371 U.S. 415, 433 (1963)). The Court added the following: A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount— leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the ex- pense of having to do so . The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. Id. at 279. See also Curtis Publg. Co. v. Butts, 388 U.S. 130, 155 (1967) (applying the ac- tual malice standard announced in Sullivan to public figures); Phila. Newsps., Inc. v. Hepps, 475 U.S. 767, 776–777 (1986) (holding that plaintiffs in most media defamation cases bear the burden of proving falsity). 11. Kaczor, Hurt Reporting, supra n. 6, at 10; Nohlgren, supra n. 3, at 1B. 12. Agency for Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So. 2d 1239, 1252 (Fla. 1996); Heekin v. CBS Broad., Inc., 789 So. 2d 355, 359 (Fla. 2d Dist. App. 2001). 13. See Mile Marker, Inc. v. Petersen Publg., L.L.C., 811 So. 2d 841, 845 (Fla. 4th Dist. App. 2002) (noting the requirements of defamation). In Florida, a private plaintiff’s suc- cessful defamation action against the media “requires the unprivileged publication (to a third party) of a false and defamatory statement concerning another, with fault amounting to at least negligence on behalf of the publisher, with damage ensuing.” Id. (citing Thomas v. Jacksonville TV, Inc., 699 So. 2d 800, 803–804 (Fla. 1st Dist. App. 1997)). A statement “is ‘defamatory’ if it tends to harm the reputation of another as to lower him or her in the estimation of [the] community or deter third persons from associating or dealing with the defamed party.” LRX, Inc.
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