Ellen Johnston v. One America Productions, Inc.
United States District Court for the Northern District of Mississippi, Delta Division
Ellen Johnston is angry that she appears, without her permission, in the movie Borat. The scene at issue in this case is near the end of the movie on Borat's way to California, when he stops at an actual Pentecostal camp meeting held in Clarksdale, Mississippi. In the scene, Borat seeks redemption at the camp meeting, during which he acts as if he has been converted by the minister and begins speaking in tongues along with other Pentecostals doing the same. While Borat appears to be experiencing this religious conversion, several members of the camp meeting, including Johnston, are shown in the film raising their arms in praise to God for Borat's conversion. Johnston is seen in the film for approximately three seconds. Johnston argues that her unknowing appearance in Borat portrays her in a false light by suggesting that she knowingly participated in a mocking of her Pentecostal religion. The defendants responded to the suit by filing a motion to dismiss for failure to state a claim.

Judge Pepper
The Court in [Bell Atlantic Corp. v.] Twombly formulated the proper standard [for evaluating a motion to dismiss] in the following way
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, [and] "the pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action,"on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Thus, the court must determine whether the defendants have established that the plaintiff's factual allegations in her Complaint, taken as true, are enough to raise a right to relief above the speculation level.

Motions to dismiss are viewed with disfavor and are rarely granted. In deciding a motion to dismiss under Rule 12(b)(6), the district court accepts as true those wellpleaded factual allegations in the complaint. The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff. "However, [the court] will not strain to find inferences favorable to the plaintiff."

As the Mississippi Supreme Court and the Fifth Circuit have done in matters involving invasion of privacy torts, this court will consult Section 652E of the Restatement (Second) of Torts regarding the false light theory....

[T]here are several statements contained in the comments to Section 652E that are particularly relevant to this case.

Comment A states that "it is essential to the rule stated in this Section that the matter published concerning the plaintiff is not true." Regarding false light's relation to defamation, comment b states: "It is not, however, necessary to an action for invasion of privacy that the plaintiff be defamed. It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position."

Comment c, regarding what is highly offensive to a reasonable person, states in pertinent part:
The rule stated in this Section applies only when the publicity given to the plaintiff has placed him in a false light before the public, of a kind that would be highly offensive to a reasonable person. In other words, it applies only when the defendant knows that the plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity. . . . It is only when there is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position, that there is a cause of action for invasion of privacy.

The defendants argue that the plaintiff was not portrayed in a false light because it is true that she voluntarily raised her hands [in] religious praise in response to the character Borat's apparent conversion to her religion. The plaintiff counters, however, that the issue is not whether she does and did raise her hands in praise upon the conversion of another; rather, the issue is whether she is reasonable to believe that viewers of the movie would question whether she knowingly and voluntarily participated in a mocking of her religion.

Considering the elements of the tort of false light invasion of privacy and the Restatement comments quoted above, the court concludes that in light of the standards for Rule 12(b)(6) motions to dismiss, it is beyond mere speculation that there are jury questions of (1) whether the Pentecostal scene portraying the plaintiff waving her arms in religious praise in response to Borat's apparent conversion would be highly objectionable to a reasonable person in the plaintiff's position such that a person in the plaintiff's position would believe others would believe she willingly participated in a mocking of her religion; and (2) whether "the defendant [knew] that the plaintiff, as a reasonable [person], would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity."

In any event, the nature of the film Borat is different from a purely fictional work since, although the viewer is aware that the plot itself is fictional and that the characters of Borat and his producer are fictional, the viewer is also aware that the vast majority, if not all, of the other people featured in the movie are non-public figures who are not actors and are likely unaware that Borat is not a Kazakhstani reporter filming a documentary for Kazakhstan. Such details would need to be developed during discovery.

CRITICAL THINKING ABOUT THE LAW
False-light claims raise many interesting questions about how to determine the effects of harm that happen inside the mind of the plaintiff and those who know the plaintiff, as well as the extent and form of the knowledge possessed by the person allegedly placing another in a false light.

1. What is the logic for the rule of law governing the granting of a motion to dismiss?
Clue: Consider the effects of having a rule of law that makes it easy to attain a motion to dismiss.

2. Can you construct a set of facts that would have led to a successful motion to dismiss in this case?
Clue: Study the last paragraph where the court explains what must be uncovered during discovery for this case to be decided.