Jews for Jesus, Inc. v. Rapp

• Decision Date: 23 October 2008
• Docket Number: No. SC06-2491.,SC06-2491.
• Citation: 997 So.2d 1098
• Parties: JEWS FOR JESUS, INC., Petitioner, v. Edith RAPP, Respondent.
• Court: Florida Supreme Court

997 So.2d 1098

JEWS FOR JESUS, INC., Petitioner, v. Edith RAPP, Respondent.

No. SC06-2491.

Supreme Court of Florida.

October 23, 2008.

Rehearing Denied December 17, 2008.

Mathew D. Staver and Anita L. Staver, Liberty Counsel, Maitland, FL, Erik W. Stanley, Mary E. McAlister, Rena M. Lindevaldsen, and David M. Corry, Liberty Counsel, Lynchburg, VA, for Petitioner.

Barry M. Silver, Boca Raton, FL, for Respondent.

Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, FL, and on behalf of Joe Anderson, Jr.; and Gregg D. Thomas, James J. McGuire, and Rachel E. Fugate of Thomas and Locicero, P.L., Tampa, FL, on behalf of Media General Operations, Inc., The New York Times Company, Orlando Sentinel Communications Company, Sun-Sentinel Company, the Florida Press Association, ABC, Inc., ESPN, Inc., the E.W. Scripps Company, the Association of American Publishers, and Cox Enterprises, Inc. (collectively the Florida Media Organizations), as Amici Curiae.

PARIENTE, J.

The issue in this case is whether the tort of false light invasion of privacy should be recognized in Florida. In Rapp v. Jews for Jesus, Inc., 944 So.2d 460 (Fla. 4th DCA 2006), the Fourth District Court of Appeal certified the following question to be of great public importance:

Does Florida recognize the tort of false light invasion of privacy, and if so, are the elements of the tort set forth in section 652E of Restatement (Second) of Torts?

Id. at 468. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Because we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment, we decline to recognize the tort and answer the certified question in the negative. In declining to recognize false light, we resolve two additional issues raised by this case. First, we conclude that Florida recognizes a cause of action for defamation by implication. Second, we hold that a communication can be considered defamatory if it "prejudices" the plaintiff in the eyes of a "substantial and respectable minority of the community," as set forth in comment e of the Restatement (Second) of Torts § 559 (1972). We elaborate on these two existing principles of defamation law because they further support our decision not to recognize false light in view of the competing policy considerations.

FACTS AND PROCEDURAL HISTORY

We begin with the facts that gave rise to the claim for false light invasion of privacy in this case, which are based on the allegations contained in the second amended complaint of the petitioner, Edith Rapp. Edith Rapp was married to Marty Rapp until his death in 2003. Bruce Rapp, who was Marty's son and Edith Rapp's stepson, was employed by Jews for Jesus, Inc. Prior to Marty's death, Bruce reported the following account in the Jews for Jesus newsletter:

I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for sometime and I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie 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, and showed her the parallels with the Passover Lamb. 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! Pray for Edie's faith to grow and be strengthened. And please pray for my father Marty's salvation.

Rapp, 944 So.2d at 462. The complaint alleged that the newsletter was published on the internet and seen by one of Edith's relatives. Id.

The gravamen of Rapp's claim is that Jews for Jesus falsely and without her permission stated that she had "joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus." Second Amended Complaint at 2, Rapp v. Jews for Jesus, Inc., No. 502003CA013234XXOCAH (Fla. 15th Cir. Mar. 28, 2005). Rapp's complaint alleged: (1) false light invasion of privacy; (2) defamation; and (3) intentional infliction of emotional distress. The trial court granted Jews for Jesus's motion to dismiss without prejudice and also struck several paragraphs from the complaint described by the Fourth District as "primarily polemical" against Jews for Jesus, Inc. Id. at 462-63.¹

Rapp then filed an 81-paragraph amended complaint, alleging the same causes of action as the initial complaint, but adding a count for negligent training and supervision. The trial court granted Jews for Jesus's motion to dismiss the counts for false light invasion of privacy and defamation with prejudice, and the counts for intentional infliction of emotional distress and negligent training and supervision without prejudice. In a final attempt, Rapp filed a 101-paragraph second amended complaint, alleging intentional infliction of emotional distress, negligent training and supervision, and negligent infliction of emotional distress. Jews for Jesus again filed a motion to dismiss for failure to state a cause of action and a motion to strike certain allegations. The trial court dismissed this final complaint in its entirety with prejudice. Id. at 463.²

On appeal, the Fourth District addressed, among other things, three of Rapp's claims that were dismissed.³ First, as to the defamation claim, the court determined that the complaint failed to state a cause of action "because the `common mind' reading the newsletter would not have found Edith to be an object of `hatred, distrust, ridicule, contempt or disgrace.'" Id. at 464. In reaching this conclusion, the Fourth District rejected the standard set forth in section 559, comment e, of the Restatement (Second) of Torts (1977), namely, that a communication is defamatory if it "prejudiced" the plaintiff in the eyes of a "substantial and respectable minority of the community." Id. at 465-66. However, the Fourth District declined to apply comment e because it concluded that this Court had not adopted the "substantial and respectable minority" standard in any case. Id. Accordingly, the district court affirmed the dismissal of the defamation claim based on its understanding of the applicable community standard.

As to the count for the tort of false light, the court reviewed section 652E of the Restatement (Second) of Torts, which defines the cause of action. Id. at 467. The Fourth District noted that the tort involved a "`major misrepresentation' of a person's `character, history, activities or beliefs'" and that just as a misrepresented political party affiliation could be such an example, so too could misrepresentation of a person's religious beliefs. Id. at 467-68. The Fourth District determined that if it were "writing on a blank slate," the court would be inclined to side with the courts that have rejected the cause of action, but concluded that this Court's prior precedent "tacitly recognized the cause of action." Id. at 468. However, because of uncertainty in this area of the law, the Fourth District certified to us the question of whether the tort of false light is recognized in Florida.⁴

ANALYSIS

I. The Origins of False Light

Our discussion of false light naturally begins with an overview of the common law tort of invasion of privacy. First recognized in 1890 as a legal theory by Samuel D. Warren and Louis D. Brandeis,⁵ common law invasion of privacy was expounded upon in 1960 by William L. Prosser, a leading scholar in tort law. William L. Prosser, Privacy, 48 Cal. L.Rev. 383 (1960). Prosser proposed that invasion of privacy consisted of four distinct torts: (1) intrusion upon the seclusion of another; (2) commercial appropriation of one's name or likeness;⁶ (3) publication of private facts; and (4) false light. Id. at 389. Prosser defined the tort of false light as one that "consists of publicity that places the plaintiff in a false light in the public eye." Id. at 398. The United States Supreme Court in Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974), a case involving the false light theory of invasion of privacy, referred to the claim as being "generally recognized as one of the several distinct kinds of invasions actionable under the privacy rubric." Id. at 248 n. 2, 95 S.Ct. 465.

In 1977, the Restatement (Second) of Torts codified 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 his 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.

Restatement (Second) of Torts § 652E. With these background principles in mind, we now address the certified question.

II. To Recognize or Not to Recognize—That is the Certified Question

This Court has previously acknowledged Prosser's paradigm of the four general categories of invasion of privacy, one of which is a cause of action for false light. See Allstate Ins. Co. v. Ginsberg, 863 So.2d 156, 160-61 (Fla.2003); Agency for Health Care Admin. v. Associated Industries of Fla., Inc., 678 So.2d 1239, 1252 n. 20 (Fla. 1996) (citing Forsberg v. Hous. Auth. of Miami Beach, 455 So.2d 373 (Fla. 1984) (Overton, J., concurring)) [hereinafter AHCA]. However, we have reviewed each of these cases and conclude that the Court was simply repeating citations from academic treatises...