False Light, the First Amendment, and Missouri

This month, the Missouri Attorney General’s office filed an appellant’s brief in the Eight Circuit Court of Appeals defending Missouri Secretary of State Denny Hoskins against a False Light lawsuit filed on behalf of a man wrongly identified as being involved in a shooting that occurred at the Chiefs Super Bowl parade in Kansas City in February 2024. Hoskins filed the appeal after a federal judge in October 2025 denied his motion to dismiss the lawsuit.

The lawsuit alleges that Hoskins, as a state senator, re-tweeted a photograph of the man that falsely referred to him as an “illegal alien” and a “shooter” at the parade. The lawsuit further stated that Hoskins added his own content to the tweet, including the following: “Fact – President Biden’s @POTUS open borders policies & cities who promote themselves as Sanctuary Cities like @KansasCity invite violent illegal immigrants into the U.S.” The man appearing in the tweet, however, had been born and raised in the United States and was not involved in the shooting.

False light is a species of the common law tort of invasion of privacy. While it shares many features with its better known cousin defamation, false light stems from creating misleading impression, even if technically true, that portrays the person in an offensive way.

Legally, the false light case against Hoskins is intriguing in no small part because whether Missouri even recognizes false light is an open question. Many would answer “no.” Case law rejecting false light in Missouri goes back at least as far as the mid-1980s, when the Missouri Supreme Court declined to recognize the tort in the case Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, (Mo. 1986).

In truth, Sullivan did not shut the door on false light claims in Missouri – it left it unlatched and banging in the breeze. The Sullivan court suggested that a false light claim might be recognized in the future where a false impression is created in the public eye. Two examples Sullivan provided were a false attribution to a person of a utterance that the person did not in fact make, or when the person’s likeness would be used in connection with a story in which the person was not involved.

So with this musing, the Missouri Supreme Court seeded the imaginations of trial attorneys. In 2009, the Missouri Court of Appeals recognized a false light claim in Meyerkord v. Zipatoni Co., 276 S.W.3d 319 (Mo.App.E.D. 2008), where an employer left an ex-employee’s name as a website registrant, a website that became wrapped up in public criticism. But in Smith v. Humane Society of United States, 519 S.W.3d 789 (Mo.banc 2017), the Missouri Supreme Court again refused to recognize a false light claim, emphasizing that if a false light claim also states a defamation claim, there can be no false light claim.

Most recently, in Johnson v. Usera, 695 S.W.3d 272 (Mo.App.W.D. 2024), in which the Missouri Court of Appeals, in a footnote, recounted that Missouri had refused to recognize the tort where the tort of defamation would also apply. And this has become the standard refrain – if defamation works, then a false light claim will not, in Missouri. For this reason, false light claims can avoid dismissal for a time, at least, if a lawyer pleads the claim creatively.

With respect to the false light theory itself, it is possible that this fact pattern – where the statements allegedly added by Hoskins are not, in themselves defamatory, but potentially contribute to a false impression – could fit the map drawn in Sullivan and embraced in Meyerkord.

However, in the Hoskins case, the Missouri Secretary of State did not argue for dismissal on the basis of non-recognition of the false light claim. Instead, it argued that a federal law, Section 230 of the Communications Decency Act (CDA), provides immunity to individuals who only repost and comment on content created by another, and who are not involved in the development of the content. The Eighth Circuit has not yet ruled, though, on what it means to be involved in the development of content. Would Hoskins’ alleged additions of extra information to the original post defeat his CDA immunity defense? We should find out this year.

One last useful note. In this appellant’s brief, the Missouri AG’s argues that the First Amendment should have protected Hoskin’s tweet, taking the position that the plaintiff needed to show Hoskins was willfully aware of the tweet’s falsity: “Before the dawn of social media, federal courts understood that the forum of public discourse must operate free from the chilling effects of .untrammeled liability.” Here’s to hoping that Missouri continues to recognize the importance of the free expression of ideas in 2026.