I haven’t read the decision, but it sounds like good old false light, which is one of the quartet of privacy torts that often follow in the train of defamation. (The other three privacy torts are: Misappropriation of name or likeness; Public disclosure of private facts;and Intrusion upon solitude and seclusion.)
ELEMENTS OF FALSE LIGHT
The elements of false light are (1) publication, (2) made with actual malice (a term of art meaning (a) knowledge of the publication’s falsehood, or (b) reckless disregard for its truth (I will explain why “reckless” is italicized presently)), (3) which places the plaintiff in a false light, and (4) which false light a reasonable person of ordinary emotional resilience would find highly offensive.
These are evaluated sequentially (so, first you must show publication, then actual malice, then false light, then offensiveness). Let’s grant that here publication is present. Let’s also grant that if we get to step four, falsely being accused of a terrorist outrage is indeed highly offensive to reasonable persons of ordinary emotional resilience.
ELABORATING ON THE ELEMENTS: REPRESENTATIVE CASES
Wiki cites five representative cases. I’ll give a synopsis:
[ul]
[li]People’s Bank & Trust Co. v. Globe, Int’l, Inc., 786 F. Supp. 791, 792 (D. Ark. 1992). Newspaper publishes picture of elderly newsstand operator. Alongside that, a separate article reports that an elderly newspaper deliverer (not the person portrayed in the photograph) is retiring due to pregnancy. Plaintiff prevails, arguing that this juxaposition places her in a false light. [/li][li]Porn Mag Case I. Soap opera star is featured on the cover of a magazine. Separate headlines suggest that nude photo shoots of soap opera stars appear therein. Plaintiff initially won, but was reversed on appeal. Reversed because the soap opera star is a limited public figure (i.e., someone who will be treated as a public figure as to publications dealing to certain limited spheres where that person has a measure of celebrity. So a music professor might generally be treated as a private individual, but in publications dealing with the academic music world, he/she will be treated as a public figure until New York Times v. Sullivan.)[/li][li]Porn Mag Case II. The facts are super well set forth here. Mainly this case pertains to the fact that one cannot doubly recover under both defamation and false light.[/ul][/li]
The next two are the most important, as they are NYCtApp (the relevant jurisdiction) and SCOTUS cases.
[ul]
[li]Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1967). Author writes a fictionalized, flattering children’s book about a baseball star. Namely, the book states that the baseball star was a war hero. Because the exaggerations are flattering in nature, no defamation is present. Court holds that this is false light. (I note that a person might be embarrassed by a book that makes him appear to claim military honors he did not in fact earn.)[/li][li]Time, Inc. v. Hill, 385 U.S. 374 (1967). This is the ur-case of false light. The Hill family were victims of hostage taking by some escaped convicts. This situation was then made into a series of novels and plays “inspired” by the crime. Life magazine published a photo spread at the family’s home and stated it was a reenactment of the incident. The Supreme Court held for the magazine and stated that actual malice (knowledge of falsehood or reckless disregard for truth). [/li][/ul]
DISTINGUISHING THE CASES
Can we distinguish the favorable cases? At first blush, the Arkansas case might be the one that seems most similar. But there, the false light was occasioned by the juxtaposition of a picture with a story that had nothing to do with the picture. But here, the photo was accompanied by a photo about which the story was about. Indeed, a significant element of the story was “This is the photo that authorities are circulating amongst themselves as they seek the perpetrators of these bombings.”
As to the public/private figure distinction, the possible identities of the perpetrators was manifestly a matter of palpable public interest. Thus, the class of “persons of interest in the Boston Bombing case” are treated with the more press-favoring Sullivan standard.
I italicized “reckless” above. You should know that there are four categories of mens rea. Intentional commission of an unlawful act (I know what I’m doing and I mean to do it); knowing commission of an unlawful act (I know what I’m doing, and maybe I don’t mean any bad consequences, but I am not ignorant as to what I am doing); reckless commission of an unlawful act (inattention so foolhardy that it merits more punishment than mere inattention); and negligent commission of an unlawful act (no knowledge, and a level of inattention less objectionable than reckless). And of course, there is innocent commission of a lawful act.
APPLYING THESE RULES TO THE POST
So going back to our elements: Did the Post publish the photo with at least reckless disregard for the story’s potential to portray the plaintiffs in a false light?
Here, I think not. One thing to notice about Spahn and Hill is that each pertain to fictionalized accounts, where the fiction does not rise to the level of defamation. But that is not present here: Instead, we have the engaged in no embellishments. The photo was the photo being circulated by authorities. They were of interest to the authorities because they were carrying bags like those implicated in the bombing. All of this is consistent with the Post’s story and were included therein.
Failing this, the Post still has a defense in arguing that the publication rose to no more than negligence. This will turn on how well-sourced the story was. Here, alternative, non-false-light-portraying meanings for the headline “Bag Men” will tend to work in favor of negligence.
The palpable public interest in the progress of the investigation will be a further shield for the Post. Unlike the Arkansas case, this was no mere local shopkeeper and a quirky “Whaddya Think of That?” story. The extreme public concern implicated in this reporting will guarantee the Post the most solicitous protections of the First Amendment.