Jalen Brunson, his Middle Fingers & the Law of False Light

Chicago is abuzz over a high school basketball state semifinal but it has nothing to do with the incredible performance on the court phenom by Jalen Brunson.  Brunson was suspended by the Illinois High School Association (IHSA) after a photographer captured a still image of Brunson holding his two middle fingers up during a game and then publicized the image.

Brunson -- a junior point guard at Adali E. Stevenson High School in Lincolnshire, Illinois, and the son of former NBA point guard Rick Brunson -- is one of the most recruited basketball players in the country.  In last Friday night's Class 4A boys state semifinal game, Brunson scored a state-tournament record 56 of his team's 68 points in a 75-68 loss.  During that game, Brunson threw his hands up after one of his three pointers was waved off by an official.  While doing so, he momentarily extended his middle fingers on both hands.

Here is the still image:

Pretty damning, no?  Well, take a look at the video for the entire sequence and then ask yourself if it still looks bad.  And then look at this photo sequence in an excellent article by photographer Scott Strazzante of the Chicago Tribune:





Then consider that no one at the game noticed.  Not the refs, not the fans, not either team's coaches or their players.  Not Brunson's parents, who were there, or parents of other players.  Literally no one.  And no one after the game said anything, either.

But someone noticed: photographer Ron Johnson of the Peoria Star.  He published the image on-line with the caption "Jalen Brunson of Lincolnshire Stevenson makes a gesture to the Chicago Whitney Young crowd." It sparked an uproar and the IHSA decided to suspend Brunson for the following game.  Brunson apologized on Twitter, but stressed that he did not intentionally give the middle finger.  It occurred unintentionally while he had thrown up his hands in frustration.
 
Brunson and his family appeared at a hastily called hearing with the IHSA set just hours before the consolation game. They argued that the photo -- a mere still image representing a fraction of a second in a bodily movement -- was taken completely out-of-context and that the IHSA was punishing Brunson because of public reaction, not because of wrongdoing. They also argued that no one at the game noticed. The IHSA agreed and the suspension was reversed.

There is now much debate about the journalistic ethics of Johnson capturing one still image and running with it.  In Johnson's defense, the image is real and was not doctored.  It captures Brunson's body at a split second in time when Brunson unquestionably extended both middle fingers and made what in the United States and much of the world is an obscene gesture.  There is no possible defamation claim because truth is an absolute defense, and the First Amendment protects Johnson as well.

But that doesn't mean it is fair or ethical to attribute a narrative to a split second shot.  It stands to reason that if someone photographed us all the time, especially while playing sports, we might unknowingly make gestures that are offensive.

There is also a potential legal angle through the tort of false light, especially if Brunson believes the image will cause him long-term reputational harm. Generally speaking, false light is when a defendant intentionally or recklessly makes a statement (be it in text or visual) that is technically not false but is badly misleading—it places the plaintiff in a false light—and would be highly offensive and embarrassing to a reasonable person. While truth is an absolute defense to defamation, it is not an absolute defense to false light. False light is a recognized tort in Illinois.

Here is a good example of a false light claim from an article by Patricia Avidan in the Stetson Law Review:

In December 2003, a Pensacola, Florida jury awarded Joe A. Anderson Jr. $18.28 million because it found that an article in a local newspaper portrayed Anderson in a false light.  The claim stemmed from a Pensacola News Journal article focusing on Anderson’s road-paving business and the political influence it wielded. The article also disclosed that, in 1988, Anderson shot and killed his wife.  According to Anderson, the facts in the article were true, but the paper’s failure to state that authorities determined that the shooting was a hunting accident until two sentences after the article mentioned Anderson shot and killed his wife created the false impression that Anderson had murdered his wife. Anderson claimed that the story cost him over $18 million in business, and the jury agreed, finding that the article’s structure intentionally created a false impression

It will be interesting to see whether the photo leads to any legal action. The case highlights how star athletes—kids really—are placed under a microscope and how with today's technology literally their every movement can trigger controversy.