In their groundbreaking 1890 article, Samuel Warren and Louis Brandeis proposed a theoretical framework for recognizing and protecting privacy interests under the law.296 Today’s tort claims for invasion of privacy rest, to a considerable extent, on the founda-
292 See Browne v. McCain, 611 F. Supp. 2d 1073, 1080–81 (C.D. Cal. 2009). 293 See Henley v. DeVore, 733 F. Supp. 2d 1144, 1148–49, 1168–69 (C.D. Cal. 2010). 294 See supra text accompanying notes 263–89.
295 See supra text accompanying notes 214–57.
tion laid by Warren and Brandeis.297 After invasion of privacy claims traveled a not-always-consistent path through the courts during the ensuing decades,298 William Prosser authored a highly influential 1960 article in which he built upon the work of Warren and Brandeis, considered the body of court decisions in invasion of privacy cases, and classified invasion of privacy claims into particu- lar categories.299 The Prosser catalogue consisted of four types of invasion of privacy claims: (1) intrusion upon a person’s solitude or into his private affairs; (2) public disclosure of private facts; (3) commercial appropriation of name or likeness; (4) and publicity that places a person in a false light in the eyes of the public (or, as this variety of claim is usually called, false light publicity).300
Commentators have suggested that, in identifying the first three types of invasion of privacy claims, Prosser found roots in the Warren and Brandeis proposal and some of the later emerging cas- es, but Prosser took more of a leap when he identified the false light publicity category.301 Regardless of whether Prosser effectively gave birth to the false light publicity tort,302 or nurtured what was already there in the law, his article had considerable impact. In rela- tively short order, courts and legislatures began adopting the four- category approach to invasion of privacy claims.303 Prosser’s article and the developments in courts and legislatures clearly influenced the invasion of privacy provisions in the Restatement (Second) of Torts (the “Restatement”).304 In section 652A, the Restatement
297 Richards & Solove, supra note 30, at 1888.
298 See Richards & Solove, supra note 30, at 1894; Lior Jacob Strahilevitz, Reunifying
Privacy Law, 98 CALIF.L.REV. 2007, 2008, 2012 (2010).
299 Prosser, supra note 29; see Richards & Solove, supra note 30, at 1888–90;
Strahilevitz, supra note 298, at 2009, 2012.
300 Prosser, supra note 29, at 389.
301 J. Clark Kelso, False Light Privacy: A Requiem, 32 SANTA CLARA L.REV. 783, 783,
788–89 (1992); Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light
that Failed, 64 N.Y.U.L.REV. 364, 366 (1989); Andrew Osorio, Note, Twilight: The
Fading of False Light Invasion of Privacy, 66 N.Y.U.ANN.SURV.AM.L. 173, 183 (2010).
302 See Kelso, supra note 301, at 783, 788–89; Zimmerman, supra note 301, at 366. 303 Kelso, supra note 301, at 783, 787; Richards & Solove, supra note 30, at 1889, 1903–
04; Zimmerman, supra note 301, at 366.
304 Richards & Solove, supra note 30, at 1890; Nat Stern, Creating a New Tort for
lists the four types of invasion of privacy in a manner that largely tracks the Prosser approach.305
What might be termed as the false light publicity theory’s hey- day stemmed from a combination of the Prosser article in 1960, early judicial and legislative receptivity to Prosser’s four-category approach, and the Restatement’s treatment of invasion of privacy in the late 1970s.306 The vast majority of states opted to recognize the four types of invasion of privacy, including false light publicity, as potentially viable causes of action.307 In later years, however, commentators sometimes criticized the false light publicity theory, with its potential for overlap with defamation among the key rea- sons for the criticism.308 As the profile of the false light publicity theory seemingly became less prominent than that of other forms of invasion of privacy, courts sometimes refused to recognize false light publicity as a valid claim.309 But those occasions were rare. Most states still recognize false light publicity as a viable cause of action, if the necessary elements are proven.310
The false light publicity elements that courts or legislatures typically require are set forth in section 652E of the Restatement.311 The section reads:
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 inva- sion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
305 RESTATEMENT (SECOND) OF TORTS § 652A (AM.LAW INST. 1977); see Prosser, supra
note 29, at 389. Later sections of the Restatement flesh out each of the four types. See RESTATEMENT (SECOND) OF TORTS §§ 652B–652E.
306 See Stern, supra note 304, at 88.
307 Richards & Solove, supra note 30, at 1903–04.
308 See Kelso, supra note 301, at 783, 788, 886; Stern, supra note 304, at 89;
Zimmerman, supra note 301, at 369, 451–52.
309 Kelso, supra note 301, at 783; Stern, supra note 304, at 89.
310 Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1134 (7th Cir. 1985).
311 RESTATEMENT (SECOND) OF TORTS § 652E (AM.LAW INST. 1977); see, e.g., Solano v.
Playgirl, Inc., 292 F.3d 1078, 1082 (9th Cir. 2002); Douglass, 769 F.2d at 1133–38; Roe v. Amazon.com, 170 F. Supp. 3d 1028, 1034–35 (S.D. Ohio 2016).
(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.312
Section 652E’s preliminary language and subsection (a) estab- lish three elements: publicity of a matter about the plaintiff; place- ment of the plaintiff in a false light; and the highly offensive nature of the false light, as measured by the reasonable person standard.313 Those elements are referred to in the discussion below as the com-
mon law elements. Section 652E(b) adds a further element that must
also be satisfied: a First Amendment-based fault requirement that the Supreme Court enunciated for false light publicity cases in a 1967 decision.314