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Denver Publishing Co. v. Bueno9/16/2002
and false light cases, and this court can easily apply the full range of other constitutional protections afforded to defamation cases to false light invasion of privacy cases. See, e.g., Lerman v. Flynt Distrib. Co., 745 F.2d 123, 135 (2d. Cir. 1984) (applying the same constitutional protections to both libel and false light cases). Under these constitutional protections, false light does not pose any unusual threat to First Amendment freedoms.
IV. The Majority's Analysis in Rejecting False Light Has Negative Ramifications Both Generally and As Applied to Bueno
A. General Ramifications
I must first emphasize the national context in which today's decision takes place. The majority opinion leaves Colorado at odds with the United States Supreme Court and a clear majority of states that recognize the false light tort, joining only three states that explicitly reject the tort in its entirety. See Cain, 878 S.W.2d at 579; Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235-36 (Minn. 1998); Renwick v. News & Observer Publ'g. Co., 312 S.E.2d 405, 413 (N.C. 1984). We depart from the majority rule despite our recent acknowledgement that we traditionally rely upon majority jurisdictions with respect to invasion of privacy torts. See Dickerson & Assoc. v. Dittmar, 34 P.3d 995, 1001 (Colo. 2001). Furthermore, no modern trend explains today's decision-- Tennessee, the most recent state before Colorado to consider this debate in light of current cases and commentary, explicitly embraced the majority rule just last year, recognizing false light as a viable and independent tort. West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 648 (Tenn. 2001).
I also note that although the majority opinion claims that its decision reflects "caution with respect to adopting new torts," maj. op. at 29, the decision is more accurately described as one that deprives plaintiffs of a tort that is already, in effect, recognized in this state. While it is true that this court never explicitly adopted false light in the past, we have made consistent references to its existence. See People v. Home Ins. Co., 197 Colo. 260, 263 n.2, 591 P.2d 1036, 1038 n.2 (Colo. 1979) (referring to the "four distinct kinds of invasion [of privacy]" set forth in the Restatement (2d) of Torts); see also Ozer v. Borquez, 940 P.2d 371, 377 (Colo. 1997); Dittmar, 34 P.3d at 1000. Furthermore, in McCammon & Associates, Inc. v. McGraw-Hill Broadcasting Co., 716 P.2d 490, 492 (Colo. App. 1986), the court of appeals expressly recognized false light and defined its elements.
Due to the uncritical manner in which both this court and the court of appeals have treated the false light tort over the past twenty years, even the United States District Court for the district of Colorado has been led to conclude that false light is viable under Colorado law. See Brown v. O'Bannon, 84 F. Supp. 2d 1176, 1180 (D. Colo. 2000); Seidl v.
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