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Denver Publishing Co. v. Bueno9/16/2002
iciently similar to justify the elimination of a false light remedy for the leftover "narrow band of cases." See id. at 28.
My main concern with the majority's approach is not with its comparison of false light and defamation, but with its decision to "solve" the overlap by foreclosing the false light tort entirely. In my opinion, a better solution would be to restrict the damages available to plaintiffs raising both false light and defamation claims, thus preventing duplicative damages awards. The Restatement (Second) of Torts encourages this approach, stating that where more than one privacy claim is based on a single publication, the injured party may "have only one recovery of his damages upon one or all of the different grounds." Restatement (Second) of Torts ยง 652A cmt. d (1977).
Such a solution is not novel - courts are well versed at preventing duplicate awards while simultaneously providing plaintiffs with multiple avenues of relief. For example, a plaintiff with a products liability complaint may choose among several causes of action, including a claim for negligence, strict liability, a breach of express or implied warranty, or a combination of the above. See, e.g., Palmer v. A.H. Robins Co., 684 P.2d 187, 198 (Colo. 1984) (involving all of the above actions simultaneously). Therefore, the mere similarity between false light and defamation does not justify the complete rejection of the false light tort. See also Cain v. Hearst Corp., 878 S.W.2d 577, 588 (Tex. 1994) (Hightower, J., dissenting) (arguing in a 5-4 dissent that plaintiffs often have a choice between similar claims for relief, and that "overlap, by itself, is no reason to reject a cause of action for false light invasion of privacy").
III. False Light Adequately Protects First Amendment Freedoms
In order to justify the preclusion of claims that fall under only the false light tort, the majority opinion explains that First Amendment concerns outweigh the need to provide an independent false light remedy. See maj. op. at 29-30. At the outset, I disagree with the majority's conclusion that false light is particularly threatening to First Amendment freedoms due to its "subjective component." See id. at 30. The majority attempts to distinguish false light from defamation by noting that "defamation is measured by its results; whereas false light invasion of privacy is measured by perception." Id. at 31. I do not see a meaningful difference between the level of objectivity of these two tests. In my view, neither standard is easily quantifiable and neither standard can be measured without some consideration of the geographic or temporal context of the statement in question. Therefore, the objective false light standard is no more threatening to First Amendment rights than the objective defamation standard.
Furthermore, the identical "actual malice" standard protects First Amendment freedoms in both defamation
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