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53 U. Kan. L. Rev. 81 (2004-2005)
Creating a New Tort for Wrongful Mispresentation of Character

handle is hein.journals/ukalr53 and id is 93 raw text is: Creating a New Tort for Wrongful Mispresentation of Character Nat Stern* I. INTRODUCTION Defamation law's ungainly hybrid of constitutional labyrinth and common law residue has proved an irresistible target of criticism.' False light invasion of privacy, defamation's half-sibling, has aroused even more withering critique.2 Sentiment that the two doctrines are confusing and often arbitrary-as well as largely redundant-is widespread. A significant source of dissatisfaction, this Article contends, is that the prevailing system fails to account adequately for the existence of genuinely close cases. While tension with First Amendment values is inherent in any effort to furnish redress for damaging misstatements about individuals, that tension is intensified where comparably plausible cases can be made for both the plaintiffs claim and the defendant's re- buttal. Such cases inevitably arise under doctrines that, like defamation and false light, contain major elements of indeterminacy. Yet defama- tion and false light rules are generally based on the tacit premise that a suit must culminate in the wholesale vindication of one party: generous damages for the plaintiff or the defendant's complete escape from liabil- ity. Given the gap between these outcomes, it is not surprising that so much time and cost are invested in the pursuit of appeals by parties against whom the balance is initially tipped. This Article proposes a new tort, wrongful mispresentation of char- acter, as an intermediate judgment between the sometimes unwarranted choice of extravagant damages or absence of liability. Unlike a number of other reforms that have been advocated,3 this proposal assumes en- trenched legislative resistance to schemes for declaratory relief as an al- ternative to damages suits. Rather, adoption of this tort would accom- * John W. and Ashley E. Frost Professor of Law, Florida State University College of Law. Research for this Article was supported by a grant from Florida State University. David Childs and Julie Landrigan provided valuable research assistance. 1. See infra text accompanying notes 34-38. 2. Commentators on false light are more likely to question the validity of the tort itself. See infra text accompanying notes 71-79. 3. See infra text accompanying notes 39-50.

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