Lana Goldsmith, Intern
John A. Neuenschwander is professor emeritus of history at Carthage College and the municipal judge for the City of Kenosha, Wisconsin. He lectures nationwide on the legal aspects of oral history. His new book, A Guide to Oral History and the Law, explains all the critical legal issues, including legal release agreements; copyright; privacy; screening, editing, and sealing procedures to protect against defamation; the protection of sealed and anonymous interviews from courtroom disclosure; the role of Institutional Review Boards (IRBs); teaching considerations; and the new issues raised by the use of interviews on the Internet. In the post below, he examines false light lawsuits against oral history as told in Weird Ohio. Check out his other OUPblog posts here.
Weird Ohio, a travel guide to Ohio’s “Local legends and Best Kept Secrets,” was published in 2005. In addition, material from the book was also posted on a website, forgottenoh. In early 2008 Melissa Duer, a descendant of one of the 19th century founders of a historic grist mill, filed a lawsuit against the authors of the book, the publishers, and the creator of the website for trespass to land and two privacy torts: false light and unreasonable publicity to one’s private life. Duer alleged that because of claims in the book and on the website the woods near her home, the Staley Mill, were haunted; there had been repeated instances of trespass and vandalism by ghost hunters. These hunters/seekers were looking for the ghost of “Old Man Staley.” According to the authors of Weird Ohio, three brothers, Elias, David, and Andrew Staley built a unique double waterwheel grist mill in the 1820s. One of the brothers, which the authors of Weird Ohio never identified, “One night according to legend, he snapped and murdered his entire family and everyone else in the house, including the servants.” He then took his own life. As a result, “Today, it is said that if you drive down Staley Road late at night, an invisible force will grab hold of your car, causing it to do everything from swerving wildly to stalling out. Some have also reported headlights dying or horns ‘getting stuck’ and honking continually. There are even reports of seeing the ghost of Old Man Staley walking through the woods or pacing around the ruins of his old mansion.” The two page section entitled “Murder and Mayhem on Staley Road” concludes with an anonymous email message describing a mysterious body lying on Staley Road.
While no oral histories were relied upon by the authors of Weird Ohio, the case is still worth examining because of the historical subject matter, the attempt by plaintiff to raise claims of false light and giving unreasonable publicity to ones private life, and lesson of what can happen when a party who is sued fails to respond to a lawsuit. While both of these privacy torts are ones that could form the basis for a lawsuit against an oral historian or program; the first of these, false light, is the one that should raise the most concern. Although it is usually filed in conjunction with a claim of defamation, it can also be filed alone as it was in this case, Duer v. Henderson, 2009 WL4985475 (Ohio App. 2 Dist.).
False light, unlike defamation, allows a party to recover for true statements that create a false impression. In other words the facts are true but the manner of presentation ostensibly creates a different implication. The word implication is crucial to trying to understand this slippery tort. A recent case in Florida provides a good example of how an unartful arrangement of truthful information can lead to a false light claim. The Pensacola News-Journal published an article on the political connections and influence of a paving contractor. The author, perhaps to heighten reader interest, reported that the contractor had shot and killed his wife with a 12 gauge shotgun. Two sentences later the reporter clarified this astounding assertion by informing readers that the death of the contractor’s wife was the result of a tragic hunting accident. Based on this truthful but clumsy presentation of the facts, the contractor successfully sued the newspaper for false light. Only after the case reached the Florida Supreme Court did the multimillion dollar award finally get thrown out, Anderson v. Gannett Co., Inc., 994 So. 2d 1048 (Fla. 2008).
In the Duer case, both of the privacy torts were initially dismissed by the trial court. In her appeal of this decision Melissa Duer argued that the account in the book falsely implied that she was not the direct decedent of Elias Staley but of a mass murderer. To prove up a claim of false light in Ohio the plaintiff must be able to establish three elements: that he/she was publicly placed in a false light, which would be highly offensive to a reasonable person, and that the person or persons behind the publicity did so with either intent to do so or with reckless disregard as to the falsity of the publicized material. The major flaw in Duer’s claim was the absence of any false light statements that mentioned her directly. As a result, her privacy could not have been invaded by statements in Weird Ohio about one of the founders of the Staley Mill being a mass murderer.
Although the authors and publishers of Weird Ohio ultimately prevailed in this lawsuit, the co-defendant who created the forgottenoh website was not so fortunate. Because he failed to respond to the lawsuit, default judgment was entered against him by the trial court and damages in the amount of $129,794 including attorney fees were awarded Melissa Duer.
This case is instructive on several levels. Although this claim of false light was a very marginal one, both oral historians and scholars who either publish edited collections of interviews or make extensive use of such materials should always be sure that their presentation of dramatic or controversial information closely adheres to the factual record. This is not a call for self-censorship but a cautionary word. Although it may be hard to fathom why someone can sue for an alleged emotional injury due to the clumsy or confusing presentation of truthful information, unfortunately they can. The slippery nature of false light claims is further underscored by the fact that over one third of the states do not allow the filing of such a lawsuit because it is too subjective and does not have the well established body of precedent that defamation law has which courts can rely on to make consistent rulings.