Twilight: The Fading of False Light Invasion of Privacy
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INVASION OF PRIVACY
ANDREW OSORIO*
INTRODUCTION
One hundred twenty years ago Samuel Warren and Lewis Bran-
deis sowed the first seeds of America's distinct privacy law in their
groundbreaking treatise The Right to Privacy.1 Through their work,
the pair argued that the common law could, and should, protect
those persons with whose affairs the community has no legitimate
concern, from being dragged into an undesirable and undesired
publicity and to protect all persons, whatsoever[ ] their position or
station, from having matters that they may properly prefer to keep
private, made public against their will.2 Seventy years later William
Prosser penned his article Privacy, wherein he differentiated and
cataloged what he deemed to be the various limbs of the legal sap-
ling planted by Warren and Brandeis.3 In so doing, Prosser suc-
ceeded in grafting onto the law a new branch, which he termed
False Light in the Public Eye.4 Dimly conceived, Prosser claimed
that this form of invasion of privacy ... consists of publicity that
places the plaintiff in a false light in the public eye.5 Adopted by
the American Law Institute (ALI) in the Restatement of Torts as
Publicity Placing Person in False Light,6 this tort has faced near
constant assault from scholars since its formal recognition.7 Just
* New York University School of Law, J.D. Candidate, 2010; Pomona College,
B.A., 2003. 1 would first like to thank Dr. Ivan and Mrs. Sheryl Osorio; they neither
pushed nor pulled (much) but guided me gently along my own path. I am also
indebted to Aaron Terry, Stuart Karle, Michael Sant'Ambrogio, and the staff of the
New York University Annual Survey of American Law for all of the insightful editorial
advice. Lastly, I dedicate this work to Mrs. Geraldine Terry; without her, none of
this would have been possible.
1. 4 HARv. L. REv. 193 (1890).
2. Id. at 214-15.
3. William L. Prosser, Privacy, 48 CAL. L. REv. 383 (1960).
4. Id. at 398-401.
5. Id. at 398.
6. RESTATEMENT (SECOND) OF TORTs § 652E (1977). The tort will be referred
to throughout this Note as either false light invasion of privacy or simply false
light.
7. E.g., J. Clark Kelso, False Light Privacy: A Requiem, 32 SANTA CLARA L. REv.
783 (1992); Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light
That Failed, 64 N.Y.U. L. REv. 364 (1989); Jeffrey Deutschman, Note, Fellows v.
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Twilight: The Fading of False Light Invasion of Privacy
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