Volume 20

Ethical Complexities in Defamation and False Light Claims

by Rodney Smolla

Richard Simmons was for decades a well-known American celebrity, health and fitness guru, motivational life-coach, comedian, and actor. In early 2014, Simmons left the public spotlight. In 2016, the National Enquirer claimed in a front-page article that Simmons had transitioned from male to female. Simmons sued the Enquirer for defamation and false light invasion of privacy. The author of this article represented him. The case vividly illustrated a long-standing conundrum over what should or should not be deemed defamatory. The realistic position, which can be traced to opinions by the jurists Oliver Wendell Holmes and Learned Hand, asks only whether, viewed realistically, the falsehoods would damage the reputation of the plaintiff within a substantial segment of the community, without regard to whether the views of that segment of the community were “right-thinking.” In contrast, the idealistic position requires that the segment of the community in which the reputation of the plaintiff would be diminished be “right-thinking,” in the sense that their views reflect the higher or more progressive moral sensibilities of society. Simmons lost, because the court adopted the idealistic view, reasoning that right-thinking persons would not think less of Simmons for having transitioned. The article explores the tensions between these opposing positions and argues in addition that whether or not defamation is an appropriate legal response to the falsehoods Simmons alleged, the tort of false light, properly understood, should still be available, because it was designed to provide a remedy for falsehoods that, while arguably not defamatory, would nonetheless be highly offensive to a reasonable person.

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