Does Image Alteration Amount to "Defamation by Photoshop"?

On Concurring Opinions, Frank Pasquale examines a recent story from Media Matters in which the much criticized (and frequently mocked) "Fox & Friends" crew used altered photos of New York Times reporterJacques Steinberg and Times editor Steven Reddicliffe as part of a segment on the Times' allegedly unfair assessment of Fox news coverage. In the photos, the hairlines and facial characteristics of Steinberg and Reddicliffe had been distorted to give the two men an unattractive and cartoonishly sinister look.  Pasquale considers whether a news broadcaster's visual attribution of ugliness through the use of Photoshop techniques could create the predicate for a defamation claim.

Is such an image distortion a lie, a misleading visual argument? Does its presentation damage the subject altered? Is being misrepresented to be "ugly" a legal harm? In the course of these brief musings, Pasquale looks at two recent divergent cases examining whether false identification as a homosexual can be the basis for a defamation claim. The decisions are Klepetko v. Reisman, 41 A.D. 3d 551 (N.Y. App. Div. 2007)(accepting possibility of such a claim) and Greenly v. Sara Lee Corp., 2008 WL 1925230 (E.D. Cal. 2008)(rejecting such a claim as the use of the law in a manner that, in the language of Lawrence v. Texas, "demeans the lives of homosexual persons").  Several years ago, after reading Albright v. Morton, 321 F.Supp.2d 130 (D.Mass.2004), aff'd sub nom Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir.2005), in which a heterosexual ex-bodyguard for Madonna had unsuccessfully presented a defamation  per se claim arising out of a magazine photo captioning error in which his name was used to identify a homosexual person, I presented such a scenario as an exam question in order to prompt students to weigh how the law of defamation might be affected by the visions of protected liberty and sexual identity projected in and onto the Lawrence majority opinion.                

JFB