Denver Publishing Co. v. Bueno9/16/2002
).
We agree. False statements that a plaintiff finds "highly offensive" will generally either portray that plaintiff negatively or attack his conduct or character. At the same time, publicized statements that are disparaging and false satisfy the elements of defamation. See Schwartz, supra, at 887. Thus, the same publications that defame are likely to offend, and publications that offend are likely to defame. For example, if the article here did indeed portray Eddie Bueno as a criminal, then that statement is defamatory and not merely offensive. Those cases in which offense is taken, although no damage is done to plaintiff's reputation, are few and far between. Because the likelihood of a chilling effect is much greater than the likelihood that an offended plaintiff will be left with no cause of action, we feel that defamation law will adequately and most appropriately protect the public.
Delving into case law where a plaintiff brought false light and defamation claims further exposes the similarity between the two torts. Remarkably few instances exist where the false light claim proceeded, but defamation failed. Those that did were on atypical facts or dubious legal grounds. See, e.g., Howard v. Antilla, 160 F. Supp. 2d 169, 171, 174-75 (D.N.H. 2001) (permitting as "not inconsistent" a jury verdict for defendant on defamation claim but for plaintiff on false light claim where defendant's article identified plaintiff as the chairman of two publicly traded companies and entertained a rumor that plaintiff was actually a convicted felon who had violated securities laws); Moore v. Sun Publ'g Corp., 881 P.2d 735 (N.M. Ct. App. 1994) (ruling defamation claim failed as opinion, but false light could proceed to jury on remand where defendant's mailings portrayed plaintiff as culpable for a poor business decision).
These anomalies aside, however, there do exist scenarios where false light arguably fits, but defamation fails. See Schwartz, supra, at 893-96. Schwartz's categories are essentially two. The first involves cases where the defendant reveals intimate and personal, but false, details of plaintiff's private life, for example, portraying plaintiff as the victim of sexual harassment, Crump, 320 S.E.2d at 80, or as being poverty-stricken, Cantrell v. Forest City Publ's Co., 419 U.S. 245 (1974), or as having a terminal illness or suffering from depression. These depictions are not necessarily defamatory, but are potentially highly offensive. The second category encompasses portrayals of the plaintiff in a more positive light than he deserves. See, e.g., Spahn v. Julian Messner, Inc., 250 N.Y.S.2d 529, 538-40, 543 (N.Y. Sup. Ct. 1964), aff'd, 260 N.Y.2d 451 (N.Y.App.Div. 1965), aff'd, 221 N.E.2d 543 (N.Y. 1966), vacated, 387 U.S. 239 (1967) (trial court finding invasion of privacy where plaintiff was depicted in book as a war hero who earned Bronze Star and "raced out into the teeth of the enemy barrage" - t
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