Can a plaintiff who alleges reputational harm based on speech, but who lacks the elements of a defamation claim, plead a different cause of action based on the same conduct? The answer is no—you cannot plead around the strict requirements of the First Amendment by dressing up a defamation claim as another cause of action. If your claim is based on speech and reputational harm, you can call it whatever you want, but you still have to plead the elements of defamation.
This principle was first applied to an intentional infliction of emotional distress (IIED) claim, in the landmark Supreme Court case, Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1985). In that case, pornographer Larry Flynt published some crude horseshit in Hustler Magazine, to the effect that televangelist Jerry Falwell fucks his own mother (if I recall correctly). Since this was obviously a joke, Falwell didn’t have a claim for defamation, and so he sued Flynt for IIED instead.
The Supreme Court rejected this strategy:
the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.
In the years since Hustler Magazine Inc. v. Falwell, state and federal appellate courts have pretty consistently applied this same principle to similar torts.
In most states, tortious interference (either “with contract” or “with prospective economic advantage”) requires interference with a contractual or prospective business relationship, by a third party, using “improper means,” or for “improper purposes.” Because the fact scenarios underlying these claims tend to involve speech, and because the “impropriety” requirement implicates the content of speech, a false statement of fact must be alleged, together with the intent requirement for defamation, i.e., (usually) “actual malice.” See e.g., Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 857 (10th Cir. 1999); Boladian v. UMG Recordings, Inc., 123 F. App’x 165, 169 (6th Cir. 2005); Beverly Hills Foodland, Inc. v. United Food & Com. Workers Union, Loc. 655, 39 F.3d 191, 196 (8th Cir. 1994).
The same is true of invasion of privacy claims. The Restatement (Second) of Torts sets forth four traditional forms of invasion of privacy, and most states recognize all or some of them.
One of these, “false light invasion of privacy,” is like a defamation claim but involves the publication of private or intimate information that casts the subject in a false light. The New Mexico Supreme Court has said that false light differs from defamation only in that the gravamen of damages is the emotional impact of the statement, as opposed to outright economic losses. Smith v. Durden, 2012-NMSC-010, ¶ 32, 276 P.3d 943. The New Jersey Appellate Division has said that false light invasion of privacy is “essentially a claim of defamation.” Herman v. Muhammad, 480 N.J. Super. 480 (App. Div. 2024).
The related tort of “public disclosure of private facts” is pretty similar. “Commercial misappropriation,” meanwhile, is like an intellectual property claim for the misuse of a person’s name or likeness; and “intrusion upon seclusion” involves things like eavesdropping and voyeurism. All of these claims may be viable in a revenge porn scenario, for example.
We sometimes see attorneys who are less familiar with First Amendment practice make the mistake of pleading (or threatening) invasion of privacy or tortious interference claims, as a way of getting around the strict pleading requirements for defamation. But if you want to claim reputational harm based on speech, you have to show that the speech is unprotected.
If you have a defamation matter in Washington state, or in New Mexico, contact latenightlaw.com at (505) 225-2623.
All text content © Late Night Law 2026