Think Progress: Spot the Tort
Think Progress has produced and published a new video, a little work of deception-through-editing in which they misrepresent a handful of people as racist members of the Tea Party movement.
We’ve heard this song before from the Left. It didn’t prove a catchy tune last year. This year is no different. Except that the midterms are around the corner and Democrats everywhere are grinding their teeth. So now they’re desperate. And they’re pushing the limits because, you know, you generally can’t defame a group. So let’s keep calling them racists. We have nothing to lose.
Well, Think Progress isn’t thinking, period (which is sad and funny at one time because they’re part of a liberal think tank). Unfortunately for them, their Legal Department is not on the ball either. You generally can’t defame a group; and you generally can’t defame an individual with video of that individual saying something nasty. But you can still cause a legal harm to an individual with the sort of deceptive editing contained in Think Progress’s video, through the tort of False Light (scroll all the way down).
Unlike the common law tort of Defamation, False Light does not protect reputation, but mental well-being (and we’re not talking about public figures here, so Hustler v. Falwell doesn’t come into play).
In D.C. – where Think Progress‘s parent organization is headquartered – and in many other jurisdictions where the video is no doubt viewable, the law recognizes the tort of False Light: “Plaintiffs can sue for false light when a false and offensive statement is made about them to the public and causes them distress.” One could argue that at least two individuals depicted on the Think Progress video may have False Light claims, especially the man who was quoted out of context who also happens to be married to an African American woman and is the father of a mixed-race child.
But why stop at one claim? Fans of the defamation tort are in luck, because the District of Columbia Circuit has held that “[p]ublicity that is actionable in a false light claim generally will be actionable in defamation as well.”
Think Progress – for a think tank blog – has acted in an incredibly amateurish fashion in producing this demonstrably false video. And it is very likely that they have harmed – at the least – the reputations of private individuals. That they have harmed their own institutional reputation is a foregone conclusion.