844 S.W.2d 198 (1992)

DIAMOND SHAMROCK REFINING AND MARKETING COMPANY, Petitioner,
v.
Roque MENDEZ, Respondent.

No. D-1090.

Supreme Court of Texas.

October 7, 1992. Rehearing Overruled December 31, 1992. Concurring and Dissenting Opinions on Motion for Rehearing December 31, 1992.

W. Wendell Hall, San Antonio, for petitioner.

Jo Chris G. Lopez, San Antonio, Ruben R. Pena, Michael E. Hearn, Weslaco, for respondent.

OPINION

PHILLIPS, Chief Justice.

In this action, an employee claims that his employer committed the torts of "false light" invasion of privacy and intentional infliction of emotional distress by circulating information about his termination among his fellow employees. The trial court rendered judgment on a jury verdict for the plaintiff on both theories. The court of appeals held that no evidence supported the jury's verdict as to intentional infliction of emotional distress, but it affirmed the judgment of the trial court under the false light theory. 809 S.W.2d 514. We reverse the judgment of the court of appeals and remand for a new trial on Mendez's false light theory.

I

Roque Mendez was a chief operator at the Diamond Shamrock oil refinery in Three Rivers, Texas. The evidence most favorable to sustaining the jury's verdict is that on September 4, 1985, Mendez was ordered by his supervisor to clean up debris that had been left in his work area, including loose nails discarded by carpenters. He became angry at being assigned the clean-up task, which he perceived to be *199 outside the scope of his ordinary duties. While he was cleaning, Mendez threw some of the nails, the value of which was less than five dollars, into a box and put the box into his lunch bag. He then placed the bag on a shelf while he finished cleaning. When he was finished he went to the clock house, which was on company property, placed the bag on a table, clocked out, and left the refinery.

After Mendez departed, a security officer found his lunch bag and noticed that it contained the nails. The security staff reported the finding to Wayne Billings, Human Resource and Administrative Manager, and John Hoffman, Plant Manager. Billings telephoned Mendez and asked him to return to the refinery. Confronted by Billings and Hoffman, Mendez identified the bag as his own. When asked to explain, Mendez described how he had become angered by his supervisor's order and rudeness and how he simply threw the nails into the box and threw the box into the bag. Hoffman then told Mendez that the bag contained company property and that it appeared that Mendez was stealing. When Hoffman asked whether Mendez agreed, Mendez replied, "I guess so." Hoffman then terminated Mendez and left the room. Left alone with Mendez, Billings asked why Mendez had not simply asked for a "gate pass" to take the nails off the premises. Mendez replied, "I don't know, Wayne. I guess I messed up."

Word of Mendez's termination spread quickly in Three Rivers. Many people with whom Mendez spoke during the next few weeks, including potential employers, knew that he had been terminated for stealing. As a result, he claims to have suffered significant financial and emotional setbacks.

Mendez filed suit against Diamond Shamrock on September 1, 1987, nearly two years after his termination. In his original petition, he alleged defamation, breach of contract, bad faith and unfair dealing, and violation of certain constitutional rights. Later, he added claims for malicious and wrongful termination, intentional or reckless infliction of emotional distress, negligence, and invasion of privacy comprising the embarrassing disclosure of personal facts and placing the plaintiff in a false light in the public eye. Mendez did not pursue his defamation claim, presumably because he did not bring it within the applicable one-year limitations period. See Tex. Civ.Prac. 16.002. The trial court submitted questions to the jury on only two theories of liability: intentional infliction of emotional distress and false light invasion of privacy. With respect to false light, the court submitted the following question to the jury:

Did the Defendant, Diamond Shamrock, by and through its employees, invade the privacy of the Plaintiff, Roque Mendez?

You are instructed that the Defendant may invade the privacy of the Plaintiff if it publicized matters which placed him in a false light before the public that would be highly offensive to a reasonable person.

Diamond Shamrock objected to this question, arguing that it omitted the "actual malice" standard for false light, an essential element of Mendez's cause of action. The trial court overruled this objection. The jury found for Mendez on both the false light and intentional infliction of emotional distress counts, awarding him $460,000 in damages: $260,000 for past and future lost wages, $100,000 for mental anguish, and $100,000 for loss of reputation. The trial court rendered judgment on the jury verdict.

On appeal to the court of appeals, Diamond Shamrock argued that the trial court erred by failing to include the element of actual malice in its instruction to the jury on false light invasion of privacy. The court of appeals affirmed the judgment, holding that negligence, rather than actual malice, should be the standard in false light suits by private individuals. 809 S.W.2d at 520. Further, Diamond Shamrock could not complain of the absence of a negligence instruction, since it had not requested one. Although the court also held that there was no evidence that Diamond Shamrock intentionally inflicted emotional distress on Mendez, it affirmed the judgment of the trial *200 court because it rested on alternate grounds.

II

This court has never expressly held that a tort for false light invasion of privacy exists in Texas, although we have recognized that it is one of the four usual categories of private actions for invasion of privacy. See Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex.1976). Although amicus curiae^[1] urge us to reject the false light tort, we do not reach this issue, as it has not been adequately presented by the parties. Even assuming the availability of this cause of action, however, Mendez would not be entitled to recover on the record before us, as he did not submit all the essential elements of the false light tort.

The Restatement (Second) of Torts ง 652E defines the false light tort to include an actual malice requirement as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Moreover, the Texas courts of appeals that have recognized this tort have applied the actual malice standard, see Clarke v. Denton Publishing Co., 793 S.W.2d 329, 331 (Tex.App.-Fort Worth 1990, writ denied); Covington v. Houston Post, 743 S.W.2d 345 (Tex.App.-Houston [14th Dist] 1987, no writ); Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.-Fort Worth 1982, no writ), as have most courts in other jurisdictions. See, e.g., Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert, denied, Little Rock Newspapers, Inc. v. Dodrill, 444 U.S. 1076,100 S.Ct. 1024, 62 L.Ed.2d 759 (1980); Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky.1981), cert, denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982); McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla.1980); Gill v. Curtis Pub. Co., 38 Cal.2d 273, 239 P.2d 630 (1952); Eastwood v. Cascade Broadcasting Co., 106 Wash.2d 466, 722 P.2d 1295 (1986). But see Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 898 (Iowa 1989), Crump v. Beckley Newspapers, Inc., 1.3 W.Va. 699, 320 S.E.2d 70, 90 (1984), adopting a negligence standard. Thus, if the tort of false light invasion of privacy exists in Texas, it requires a showing of actual malice as an element of recovery. Because the trial court's instruction omitted an element of Mendez's cause of action, Diamond Shamrock properly preserved error by objecting. Tex.R.Civ.P. 274, 279. See Moulton v. Alamo Ambulance Serv., 414 S.W.2d 444, 449-50 (Tex. 1967). Since Mendez failed to establish an essential element of the false light cause of action under the Restatement and the preponderance of case law, the court of appeals' judgment in favor of Mendez on this claim must be reversed. McKinley v. Stripling, 763 S.W.2d 407, 409-410 (Tex.1989).

Because of the conflict between jurisdictions regarding the proper standard of conduct, and because this Court has not yet either recognized or disapproved the tort, we remand this cause of action for a new trial in the interest of justice, giving Mendez an opportunity to prove actual malice and Diamond Shamrock an opportunity to object to the theory of recovery in its entirety. Tex.R.App.P. 180.

The concurring and dissenting opinions assert that we should not remand for a *201 new trial on false light without expressly deciding whether the tort exists in Texas. While we appreciate the difficulties inherent in our disposition, we believe the actions of the parties compel such a result. For its part, Diamond Shamrock did not challenge the existence of the tort in the trial court, the court of appeals, or by a distinct point of error even in this Court. Moreover, neither Diamond Shamrock nor Mendez adequately briefed or argued the issue to us. It would ill serve the State's jurisprudence to decide whether this tort exists on such a sparse record. Neither, of course, is Mendez without fault, since, despite timely objection, he failed to establish actual malice, an essential element of false light if it does exist in Texas. On that basis alone, the concurring and dissenting justices would render judgment against him. As the dissenting opinion points out, however, the elements of false light have not been definitively established. In addition to the minority case law, we note that Restatement ง 652E contains the following caveat:

The Institute takes no position on whether there are any circumstances under which recovery can be obtained under this Section if the actor did not know of or act with reckless disregard as to the falsity of the matter publicized and the false light in which the other would be placed but was negligent in regard to these matters.

Also, the United States Court of Appeals for the Fifth Circuit, in a false light case under Texas law, predicted that this Court would adopt a negligence standard if presented with the issue. Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1091 (5th Cir.1984). Because of this uncertainty, the least objectionable alternative, among several bad choices, is to remand for a new trial without expressly deciding whether the false light tort exists in Texas.

The concurring and dissenting justices point to our holding in Westgate v. State, 843 S.W.2d 448 (1992), where we refused to remand in the interest of justice to allow a plaintiff to pursue a legal theory not recognized under Texas law. In Westgate, however, the uncertain legal theory, bad-faith delay by a condemning authority, had never been advanced by the plaintiff at any stage of the case. Thus the defendant had been given no opportunity to object to the existence of the cause of action. Under those circumstances, it would have been unfair to subject the defendant to a second trial. Here, Mendez consistently asserted a claim for false light, yet Diamond Shamrock failed to challenge the existence of the tort in an appropriate manner. This failure by Diamond Shamrock precludes the Court from deciding whether the tort exists; therefore it is not unfair to subject Diamond Shamrock to a second trial on an uncertain theory. The rule of Westgate is sound, but it does not control under these unique circumstances.

III

The court of appeals reversed the trial court's judgment that Diamond Shamrock intentionally inflicted emotional distress on Mendez, finding no evidence of such an infliction. By cross-point, Mendez urges us to reverse this holding.

The Restatement (Second) of Torts ง 46 (1965) defines the tort of intentional infliction of emotional distress as follows:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress....

We have never recognized this tort, but a number of Texas courts of appeals have done so, see, e.g., Tidelands Automobile Club v. Walters, 699 S.W.2d 939 (Tex. App.-Beaumont 1985, writ ref'd n.r.e.); Bushell v. Dean, 781 S.W.2d 652, 657-58 (Tex.App.-Austin 1989), rev'd on other grounds, 803 S.W.2d 711 (Tex.1991); Service Lloyds Ins. Co. v. Greenhalgh, 111 S.W.2d 688, 692 (Tex.App.-Austin 1989), rev'd on other grounds, 787 S.W.2d 938 (Tex.1990), as have courts in many other jurisdictions.^[2] We need not decide in this *202 case whether the tort exists in Texas, because Mendez failed to offer more than a scintilla of evidence of an essential element of the tort as it has been recognized in lower courts of this state and in courts of other jurisdictions, the presence of outrageous conduct.

Mendez argues that Diamond Shamrock's tortious conduct occurred not by terminating him, but by falsely depicting him in the community as a thief. Even if Mendez's charges are taken as true, however, this conduct is not sufficiently outrageous to raise a fact issue.^[3] Restatement ง 46, comment d, describes conduct reaching the level of "outrageousness" necessary for liability for intentional infliction of emotional distress in these terms:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

There is no evidence that Diamond Shamrock's conduct met this standard. We need not condone or agree with Diamond Shamrock's actions to conclude that, as a matter of law, they fall short of being "beyond all possible bounds of decency," "atrocious," and "utterly intolerable in a civilized community." While there may obviously be instances where a termination is accompanied by behavior of this sort, there would be little left of the employment-at-will doctrine if an employer's public statement of the reason for termination was, so long as the employee disputed that reason, in and of itself some evidence that a tort of intentional infliction of emotional distress had been committed. The court of appeals did not err in denying Mendez recovery on this ground.

IV

For the foregoing reasons, we affirm the judgment of the court of appeals against Mendez on the ground of intentional infliction of emotional distress. We reverse the judgment of the court of appeals in favor of Mendez on the ground of false light, and remand that claim to the trial court for a new trial.

HIGHTOWER, J., concurs with opinion.

GONZALEZ, J., concurs and dissents with opinion in which CORNYN, J., joins.

HECHT, J., concurs and dissents with opinion.

DOGGETT, dissents with opinion in which MAUZY and GAMMAGE, JJ., join.

HIGHTOWER, Justice, concurring.

I join the court's opinion and judgment in this cause. However, I write separately to *203 express my continuing support of the right to privacy under the Texas Constitution.

In Texas State Employee's Union v. Texas Dep't of Mental Health and Mental Retardation, 746 S.W.2d 203 (Tex.1987), cited by the dissent, this court recognized that the Texas Constitution guarantees the right to privacy and articulated a strict standard of review for governmental intrusion:

Each of these provisions [sections 6, 8, 9, 10, 19 and 25 of article 1 of the Texas Constitution] gives rise to a concomitant zone of privacy. We do not doubt, therefore, that a right of individual privacy is implicit among those "general, great, and essential principles of liberty and free government" established by the Texas Bill of Rights. We hold that the Texas Constitution protects personal privacy from unreasonable intrusion. This right to privacy should yield only when the government can demonstrate that an intrusion is reasonably warranted for the achievement of a compelling governmental objective that can be achieved by no less intrusive, more reasonable means.

Id. at 205 (citations omitted). In an unanimous opinion, this court held "that the Department's polygraph policies impermissibly violate privacy rights protected by the Texas Constitution." Id. at 206. I have and will resist any attempts to trivialize or otherwise weaken this fundamental right. It is imperative that the right to privacy under the Texas Constitution remain a vital right for the protection of all Texans.

GONZALEZ, Justice, concurring and dissenting.

I concur with the Court's disposition regarding the tort of intentional infliction of emotional distress. However, I disagree that this case should be remanded for trial on a cause of action that we have not expressly recognized in Texas. As the Court recently stated in Westgate, Ltd v. State, 843 S.W.2d 448, 455 (Tex.1992): "We have located no other case where this Court ordered a remand to allow the losing party to pursue a legal theory not recognized under Texas law. Indeed, such a remand would not be in the interest of justice, as it would subject the prevailing party to a second trial on an uncertain legal theory." Westgate should be applied today to render, rather than remand, this case.

The plurality opinion leaves the fundamental issue of the existence of the tort of false light invasion of privacy completely unresolved. I would reach this important issue, and expressly reject this tort because it duplicates the tort of defamation and lacks many of the procedural limitations that accompany a cause of action for defamation.

The common law action for invasion of privacy^[1] was developed on the basis of an early law review article, Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890).^[2] Warren and *204 Brandeis stated that their purpose in writing the article was "to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is." Id. at 197. Dean Prosser described their methodology as follows:

Piecing together old decisions in which relief had been afforded on the basis of defamation, or the invasion of some property right, or a breach of confidence or an implied contract, the article concluded that such cases were in reality based upon a broader principle which was entitled to separate recognition. This principle they called the right to privacy.... William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 384 (1960).

The "right to privacy" slowly gained acceptance among courts in the states. See Id. at 385-88. By 1941, Dean Prosser had identified three separate injuries that had been recognized under the "right of privacy:" "intrusion upon the plaintiffs ... right to be let alone in his own affairs," "publicity ... given to private information about the plaintiff," and the most widely recognized injury, "appropriation of some element of the plaintiffs personality for a commercial use." William L. Prosser, Handbook of the Law of Torts 1054-56 (1st ed. 1941). By 1955, however, he had amended his treatise to include a fourth privacy tort, false light, which "ha[d] made a rather amorphous appearance in several cases," and consists of publicity that places "the plaintiff in a false but not necessarily defamatory position in the public eye...." William L. Prosser, Handbook of the Law of Torts 638 (2d ed. 1955). Dean Prosser professed reservations about this action, noting in an influential law review article that Warren and Brandeis apparently did not intend a false light tort as part of invasion of privacy. William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 389 (1960). Others believe, his protestations to the contrary, Dean Prosser was not merely the messenger, but indeed, the progenitor, of the doctrine. One commentator writes:

[Prosser's] efforts at creative taxonomy, applied to the rather amorphous body of judicial opinion on privacy, in a real sense "invented" the false light tort by singling out previously unacknowledged features common to most of the nonadvertising appropriation cases ... This result is ironic, since Prosser himself was skeptical about the desirability of the false light privacy action.

Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light that Failed, 64 N.Y.U.L.Rev. 364, 382 (1989). See also Harry Kalven, Jr., Privacy in Tort Lawโ€”Were Warren and Brandeis Wrong?, 31 Law & Contemp. Probs. 326, 332 n. 41 (1966). Nevertheless, the tort was soon adopted and enshrined in the Restatement (Second) of Torts ง 652A (1965).

However, Texas did not recognize any of the four types of invasion of privacy until our decision in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973).^[3] In Billings, the defendant, a telephone company employee, had placed a wire tap on the plaintiffs residential telephone line and had apparently listened to plaintiff's personal telephone conversations. In affording the plaintiff *205 relief, we noted that the majority of jurisdictions in the United States recognized an independent cause of action for the invasion of privacy, and held that "the right of privacy constitutes a legal injury for which a remedy will be granted." Id. at 860. We explained that:

the increased complexity and intensity of modern civilization and the development of man's spiritual sensibilities have rendered man more sensitive to publicity and have increased his need of privacy, while the great technological improvements in the means of communication have more and more subjected the intimacies of his private life to exploitation by those who pander to commercialism and to prurient and idle curiosity. A legally enforceable right of privacy is deemed to be a proper protection against this type of encroachment upon the personality of the individual.

Id. (quoting 62 AM.JUR.2d Privacy ง 4 (1962)).

Billings falls into the first category of invasion of privacy as developed by Prosser and recognized by the Restatement: an intrusion into the plaintiff's seclusion. We have also expressly recognized the third type of privacy right, the right to "freedom from public disclosure of embarrassing private facts." Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex.1976), cert, denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977).^[4] Although we acknowledged the Prosser categorization in Industrial Foundation, we have never embraced nor recognized the fourth and final type of invasion of privacy, the "false light" tort 844 S.W.2d at 200. We should decline to do so today.

The Restatement (Second) of Torts ง 652E (1977) defines false light invasion of privacy as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if:

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Despite its questionable origins, the false light tort has been recognized by at least eleven jurisdictions.^[5] Twice it has been approved by the United States Supreme Court: Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), and Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974). In Hill, the Court considered a New York privacy statute and imposed an "actual malice" standard on the false light action, and in Cantrell, the Court reaffirmed this standard for a common law false light action brought under Ohio law.

*206 The false light invasion of privacy action has also been recognized by several other Texas courts of appeals. Wilhite v. HE. Butt Co., 812 S.W.2d 1, 6 (Tex.App.-Corpus Christi 1991, no writ); Clarke v. Denton Publishing Co., 793 S.W.2d 329, 331 (Tex.App.-Fort Worth 1990, writ denied); Covington v. Houston Post, 743 S.W.2d 345, 347 (Tex.App.-Houston [14th Dist] 1987, no writ); National Bonding Agency v. Demeson, 648 S.W.2d 748, 750 (Tex. App.-Dallas 1983, no writ); Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.-Fort Worth 1982, no writ). In all of these cases, either no application for writ of error was filed in this Court or the court rejected the application with the notation "writ denied," so that our approval was never given to any of these holdings. Also, several federal courts interpreting Texas law have permitted a cause of action for false light. See Moore v. Big Picture Co., 828 F.2d 270, 273 (5th Cir.1987); Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1091 (5th Cir. 1984), cert, denied, 469 U.S. 1107, 105 S.Ct. 783, 83 L.Ed.2d 777 (1985); Braun v. Flynt, 726 F.2d 245, 252 (5th Cir.), cert, denied, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984).

Nevertheless, false light remains the least-recognized and most controversial aspect of invasion of privacy. See Bruce W. Sanford, Libel and Privacy ง 11.4.1 at 567 (2d ed. 1991) ("Of Dean Prosser's four types of privacy torts, the `false light' school has generated the most criticism because of its elusive, amorphous nature"); Diane Leenheer Zimmerman, supra, at 452 ("the wiser course may be for states to eliminate false light altogether").

A number of other jurisdictions have declined to adopt the false light tort. See Renwick v. News & Observer Publishing Co., 310 N.C. 312, 312 S.E.2d 405, 412, cert, denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984); Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 479-80 (Mo.1986); Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 945, 434 N.E.2d 1319, 1323 (1982), cert, denied, 459 U.S. 1146,103 S.Ct. 787, 74 L.Ed.2d 994 (1983); Yeager v. Local Union 20, Int'l Brotherhood of Teamsters, 6 Ohio St.3d 369, 453 N.E.2d 666, 669-70 (1983); see also Falwell v. Penthouse Int'l, Ltd., 521 F.Supp. 1204, 1206 (W.D.Va.1981) ("[t]he courts of Virginia simply do not recognize such a common law cause of action"). Today, we should join these jurisdictions in declining to recognize the false light invasion of privacy action.

I recognize that Diamond Shamrock did not challenge the validity of the false light invasion of privacy action until the filing of its application for writ of error in this Court.^[6] Thus, it did not preserve error as to this point under Texas Rule of Appellate Procedure 52(a). However, this Court has traditionally been willing to address issues fundamental to our jurisdiction, such as the recognition of common law causes of action or defenses, whether assigned as error or not. See, e.g., McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971) (abolishing the "unity of release" rule); Farley v. MM Cattle Co., 529 S.W.2d 751 (Tex.1975) (abolishing the "assumption of risk" doctrine); Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977) (abolishing the doctrine of interspousal immunity for intentional torts). We cannot premise the recognition of a cause of action or defense in our common law on the vagaries of one litigant's full compliance in one case with our appellate preservation rules.

We should reject the false light invasion of privacy tort for two reasons: first, because it largely duplicates other rights of recovery, particularly defamation; and second, because it lacks many of the procedural limitations that accompany actions for defamation, thus unacceptably increasing the tension that already exists between free speech constitutional guarantees and tort law.

*207 Duplication of Other Causes of Action

The false light action, as it has been defined by the Restatement, permits recovery for injuries caused by publicity that unreasonably places the plaintiff in a false light before the public. Restatement (Second) of Torts ง 652A (1977). Although not explicitly required by the Restatement definition, most jurisdictions, including the lower Texas courts that have recognized the action, require that a statement be false if it is to be cognizable under the false light doctrine. See Clarke v. Denton Publishing Co., 793 S.W.2d 329, 331 (Tex.App.-Fort Worth 1990, writ denied) (false light action "concerns untrue statements about a party"); Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.-Fort Worth 1982, no writ) ("evidence will not support a cause of action for false light because we believe no false statements of fact were ever publicized"); Machleder v. Diaz, 801 F.2d 46 (2d Cir. 1986), cert, denied, 479 U.S. 1088,107 S.Ct. 1294, 94 L.Ed.2d 150 (1987) (in New Jersey, truth is an absolute defense to the false light action); Robert D. Sack, Libel, Slander, and Related Problems 394 (1980) ("[t]he statement ... must be false"). The falsity requirement is sensible, considering that the "revelation of private facts" invasion of privacy tort purports to grant relief for the disclosure of true statements that adversely affect the subject. But see Thomas I. Emerson, The Right of Privacy and Freedom of the Press, 14 Harv. C.R.-C.L. L.Rev. 329, 345 (1979) (the truth or falsity of statements giving rise to liability for false light should not matter; rather, false light cases should be treated the same as embarrassing disclosure cases).

If we were to recognize a false light tort in Texas, it would largely duplicate several existing causes of action, particularly defamation. Libel, which is written defamation, is defined by Texas Civil Practice & Remedies Code ง 73.001 as follows:

A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Slander, the spoken form of defamation, is not codified by statute, but has been recognized at common law to be "a defamatory statement orally published to a third party without justification or excuse." See Restatement (Second) of Torts ง 568 (1977); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.). Thus, like false light, defamatory statements must be false in order to be actionable. See Restatement (Second) of Torts ง 558 (1977); see generally Bruce W. Sanford, Libel and Privacy 201-39 (2d ed. 1991).

Furthermore, the elements of damages that have been recognized in false light actions are similar to those awarded for defamation. The principal element of actual damages for false light claims is typically mental anguish, see Restatement (Second) of Torts ง 652H (1977); Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir.1984), cert, denied,