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 privacy1 was developed on the basis of an early law review article, Samuel D. Warren & Louis D. Brandéis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890).2 Warren and *204Brandéis 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 plaintiff’s ... 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 op the Law op 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 Brandéis 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 nonad-vertising 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 Law — 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 § 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 plaintiff’s residential telephone line and had apparently listened to plaintiff’s personal telephone conversations. In affording the plaintiff *205relief, 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 modem 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 § 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 plaintiffs 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 § 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.
*206The false light invasion of privacy action has also been recognized by several other Texas courts of appeals. Wilhite v. H.E. 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 § 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.
*207Duplication 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 § 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 § 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 § 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 § 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 § 652H (1977); Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (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, 255-56 (5th Cir.), cert. denied, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984), but physical illness and harm to the plaintiff’s commercial interests have also been recognized. See William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 409 (1960); Russell G. Donaldson, Annotation, False Light Invasion of Privacy—Defenses and Remedies, 57 A.L.R. 4th 244, 311-12 (1987). These are essentially the types of damages sought in defamation actions. See Restatement (Second) of Torts §§ 620-23 (1977); Bruce W. Sanford, supra, at 431-54; Shearson Lehman Hutton, 806 S.W.2d at 922. Thus many, if not all, of the injuries redressed by the false light tort are also redressed by defamation. See Kapellas v. Kofman, 1 Cal.3d 20, 35 n. 16, 81 Cal.Rptr. 360, 369 n. 16, 459 P.2d 912, 921 n. 16 (1969) (“[sjince the complaint contains a specific cause of action for libel, the privacy count, if intended [as a false light count] is superfluous and should be dismissed.”).
*208The false light tort also overlaps with some of the other, better recognized, privacy torts. See, e.g., Harry Kalven, Jr., Privacy in Tort Law—Were Warren and Brandeis Wrong?, 31 Law & Contemp. Probs. 326, 332 (1966) (noting the potential overlap of false light and appropriation); Lerman v. Flynt Distributing Co., 745 F.2d 123, 135 (2d Cir.1984) (“while not specifically alleged in her complaint, [plaintiffs right to publicity] action presents a classic false light claim”). Finally, as we observed in Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973), “some of the right of privacy interests have been afforded protection under such traditional theories as libel and slander, wrongful search and seizure, eavesdropping and wiretapping, and other similar invasions into the private business and personal affairs of an individual.”
A few commentators have attempted to delineate the theoretical differences between false light invasion of privacy and other torts, particularly defamation. As one notes:
[I]n defamation cases the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world. In privacy cases the interest affected is the subjective one of injury to the inner person ... in defamation cases, where the issue is truth or falsity, the marketplace of ideas furnishes a forum in which the battle can be fought. In privacy cases, resort to the marketplace simply accentuates the injury.
Thomas I. Emerson, The Right of Privacy and Freedom of the Press, 14 HaRV. C.R.C.L. L. Rev. 329, 333 (1979). See also William L. Prosser, Prosser and Keeton on the Law of Torts 864 (W. Page Keeton ed., 5th ed. 1984). But a number of other scholars have argued that false light and defamation are nearly identical or even indistinguishable. See, e.g., Bruce W. Sanford, supra, § 11.4.1 at 567 (2d ed. 1991) (“Legally, placing someone in a false light amounts to little more than defamation”); Robert D. Sack, Libel, Slander, and Related Problems 394 (1980) (where the circumstances would support an action for “false light” invasion of privacy, plaintiffs may often successfully use libel or slander in addition or instead); John W. Wade, Defamation and the Right of Privacy, 15 Yand.L.Rev. 1093, 1121 (1962) (“the great majority of defamation actions can now be brought for invasion of privacy ... the action for invasion of privacy may come to supplant the action for defamation”); William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 400 (1960) (“[t]here has been a good deal of overlapping of defamation in the false light cases, and apparently either action, or both, will very often lie”).
In practice, the theoretical distinctions between false light and defamation have proven largely illusory. Of the six false light cases considered by Texas courts of appeals, all were brought, or could have been brought, under another legal theory. In Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.—Fort Worth 1982, no writ), the defendant took out a newspaper advertisement reproducing a letter that plaintiff had received from the Texas Water Development Board. The letter and accompanying comments by defendant implied that plaintiff was involved in political graft. Id. at 223. The court of appeals granted no relief on the plaintiff’s false light claim, however, because the disputed publication was not false. Likewise, the court granted no relief under intrusion or public disclosure theories of invasion of privacy. Id. at 224. Because the publication was not false, a libel action would not have been successful either. The false light action thus afforded the plaintiff no relief beyond what was available under libel and other invasion of privacy theories.
In Wilhite v. H.E. Butt Co., 812 S.W.2d 1 (Tex.App.—Corpus Christi 1991, no writ), the plaintiff was discharged from his job at a grocery store. He brought suit against the store alleging civil conspiracy, invasion of privacy, wrongful discharge, breach of express and/or implied contract, and defamation. Id. at 3. The trial court granted summary judgment against the plaintiff on all claims except defamation, which went to a jury trial. The jury found that the statements supporting his defamation claim *209were true, and thus not defamatory. Thus, a false light claim would not have been supportable either.
In National Bonding Agency v. Deme-son, 648 S.W.2d 748 (Tex.App.—Dallas 1983, no writ), the defendant bonding agency displayed a “wanted” poster depicting the plaintiff, describing her as a “bond jumper,” and referring to her sexual habits. Id. at 749. The plaintiff alleged damages in connection with the poster under theories of libel, slander, invasion of privacy (by intrusion, public disclosure of private facts, and false light) and intentional infliction of emotional distress. The jury awarded actual damages for invasion of privacy and exemplary damages for “invasion of privacy or libel.” Id. at 750-51. Her injury was clearly addressed by numerous causes of action.
Both Covington v. Houston Post, 743 S.W.2d 345 (Tex.App.—Houston [14th Dist.] 1987, no writ), and Clarke v. Denton Publishing Co., 793 S.W.2d 329, 330 (Tex.App.—Fort Worth 1990, writ denied), involved newspaper stories that incorrectly attributed criminal conduct to the plaintiffs, conduct generally cognizable under libel. When their libel claims were barred by limitations, the plaintiffs were able to prevail on their false light claims.
Finally, Mendez, the plaintiff in the instant case, alleged that he was placed in a false light when his employer spread allegedly false information about his termination among its employees. This claim clearly sounds in defamation, see Marathon Oil Co. v. Salazar, 682 S.W.2d 624 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.),7 which, in fact, Mendez originally pleaded.
In essence, Mendez asks this Court to afford him relief under a false light theory simply because he was prevented by limitations from prevailing on a defamation theory.8 In response, we should adopt this reasoning of the North Carolina Supreme Court in Renwick:
[T]he recognition of claims for relief for false light invasions of privacy would reduce judicial efficiency by requiring our courts to consider two claims for the same relief which, if not identical, would not differ significantly.
Renwick v. News & Observer Publishing Co., 310 N.C. 312, 312 S.E.2d 405, 413, cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984). I see no reason to recognize a cause of action for false light invasion of privacy when recovery for that tort is substantially duplicated by torts already established in this state.
Freedom of Speech Considerations
As discussed above, the false light tort bears remarkable similarities to defamation. However, the torts are not wholly identical for two reasons: (1) defamation actions are subject to a number of procedural requirements to which invasion of privacy actions are not subject, and (2) certain publications not actionable under a defamation theory might be actionable under false light. Far from persuading me that these distinctions justify a separate tort, I believe they demonstrate that adopting a false light tort in this state would unacceptably derogate constitutional free speech rights under both the Texas and the United States Constitution.
1. Procedural Differences
Actions for defamation in Texas are subject to numerous procedural and substan*210tive hurdles. For example, accounts of governmental proceedings, public meetings dealing with a public purpose, or any “reasonable and fair comment on or criticism of an official act” are privileged under Texas Civil Practice & Remedies Code § 73.002. Broadcasters are generally not liable in defamation for broadcasts made by third parties. Tex.Civ.Prac. & Rem.Code § 73.-004. Qualified privileges against defamation exist at common law when a communication is made in good faith and the author, the recipient or a third person, or one of their family members, has an interest that is sufficiently affected by the communication. Restatement (Second) of Torts §§ 594-97 (1977); see also Holloway v. Texas Medical Ass’n, 757 S.W.2d 810, 813 (Tex.App.—Houston [1st Dist.] 1988, writ denied). A communication may also be conditionally privileged if it affects an important public interest. Restatement (Second) of Torts § 598 (1977); see generally Bruce W. Sanford, supra, at 701-94.1 (collecting libel privilege statutes from all fifty states). Damages awarded for defamatory statements may be mitigated by factors such as public apology, correction, or retraction. Tex.Civ.Prac. & Rem.Code § 73.-003; see generally Bruce W. Sanford, supra, at 701-94.1 (collecting libel retraction statutes from thirty-three states). Constitutional county courts in Texas are without jurisdiction to hear defamation cases. Tex. Gov’t Code § 26.043(1). Finally, Texas Rule of Civil Procedure 137 provides that in defamation actions, if the verdict for the plaintiff is less than twenty dollars, the plaintiff will not recover costs, but each party will be taxed with the costs incurred in the suit. See also Restatement (Second) of Torts § 652E, comment e (1977) (listing other possible limitations on the defamation action, including bond posting requirements and proof of special damages).
These technical restrictions serve to safeguard the freedom of speech.9 Every defamation action that the law permits necessarily inhibits free speech. As the Supreme Court stated with respect to political speech in New York Times v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 702 (1964), “[w]hatever is added to the field of libel is taken from the field of free debate.” While less compelling, these same considerations are also at play in private, non-political expression. Thus, the defamation action has been narrowly tailored to limit free speech as little as possible.
Courts in many jurisdictions have preserved their protection of speech by holding false light actions to the same strictures as defamation actions. As the Restatement (Second) of Torts § 652E, comment e reasons:
[w]hen the false publicity is also defamatory ... it is arguable that limitations of long standing that have been found desirable for the action for defamation should not be successfully evaded by a proceeding upon a different theory of later origin, in the development of which the attention of the courts has not been directed to the limitations.
*211Several courts have followed this reasoning, particularly regarding the applicable limitations period. See Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 480 (Mo.1986) (limitations); Kapellas v. Kofman, 1 Cal.3d 20, 81 Cal.Rptr. 360, 370, 459 P.2d 912, 922 (1969) (privilege for truthful publications); Gashgai v. Leibowitz, 703 F.2d 10, 13 (1st Cir.1983) (limitations). See also Diane Leenheer Zimmerman, supra, at nn. 16 & 21 (1989); Debra Ann Bacharach, Comment, The Privacy Action in Texas: Its Characterization, and a Determination of Applicable Statutes of Limitations, 29 Sw.L.J. 928, 950 (1975); Russell G. Donaldson, Annotation, False Light Invasion of Privcay—Defenses and Remedies, 57 A.L.R. 4th 244, 266-68 (1987). But see Covington v. Houston Post, 743 S.W.2d 345 (Tex.App.—Houston [14th Dist.] 1987, no writ) (declining to apply defamation statute of limitations to false light claim); Clarke v. Denton Publishing Co., 793 S.W.2d 329, 330 (Tex.App.—Fort Worth 1990, writ denied). Permitting plaintiffs to bring actions for false light without the limits established for defamation actions may inhibit free speech beyond the permissible range.10 This is especially true in Texas since this Court recently held in Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992), that article I, section 8 of the Texas Constitution affords greater protection to free speech than the First Amendment.11 On the other hand, no useful purpose would be served by the separate tort if these restrictions are imposed. As the court observed in Renwick v. News & Observer Publishing Co., 310 N.C. 312, 312 S.E.2d 405, cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984):
Given the First Amendment limitations placed upon defamation actions by [New York Times v.] Sullivan and upon false light invasion of privacy actions by [Time, Inc. v.J Hill, we think that such additional remedies as we might be required to make available to plaintiffs should we recognize false light invasion of privacy claims are not sufficient to justify the recognition in this jurisdiction of such inherently constitutionally suspect claims for relief.
Id. at 413. See also Lerman v. Flynt Distributing Co., 745 F.2d 123, 135 (2d Cir.1984) (“regardless of whether [plaintiff's] cause of action is cast in terms of libel or false light ... the same constitutional protections apply”); Berry v. NBC, Inc., 480 F.2d 428, 431 (8th Cir.1973) (“[t]he problem is whether the plaintiff can, by suing for invasion of privacy, by-pass the various safeguards and limitations which have grown up around the accusation of defamation”). Thus, we should decline to restrict speech in any manner beyond our existing tort law.
*212 2. Non-Defamatory Speech
In theory, the false light action may provide a remedy for certain non-defamatory speech against which there may be no other remedy in tort law. See Restatement (Second) of Torts § 652E, comment b (1977). This rationale, however, is not sufficient to persuade me to recognize the false light tort.
It is questionable whether a remedy for non-defamatory speech should exist at all.12 In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), the Supreme Court plurality viewed with disfavor the restriction of nondefamatory statements by the New York privacy statute:
We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person’s name, picture or portrait, particularly as related to nondefamatory matter.
385 U.S. at 389, 87 S.Ct. at 542-43, 17 L.Ed.2d at 467 (emphasis added).13
On balance, the marginal benefit to be achieved by permitting recovery against non-defamatory speech not addressed by any existing tort would be outweighed by the probable chilling effect on speech and, in some cases, on freedom of the press, that would result from recognition of the false light tort.
For the reasons expressed in this opinion, we should reverse and render this cause and expressly decline to recognize the tort of false light.
CORNYN, J., joins this opinion.. The dissent bemoans the “assault on the right to privacy;” states that the right to privacy "encompasses a broad range of personal rights, from a married couple's determination to use contraceptives to a woman’s decision whether or not to terminate her pregnancy;" and claims that “the right of privacy is intricately woven into the fabric of our constitutional and common law." 844 S.W.2d at 213-214. Such claims grossly mischaracterize the effect of the writings today. The right of privacy recognized under the United States Constitution in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), is not even implicated in this case since Diamond Shamrock is purely a private corporation. Federal constitutional guarantees only apply against "state actors" — such guarantees do not apply against private individuals unless the individuals are performing a governmental function or the state encourages or coerces the actions of the individuals. See Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). Mendez has not alleged that Diamond Shamrock is a state actor, nor could he under the facts of this case.
The application of the state action doctrine to the Texas Constitution has not been conclusively established by this Court. However, even assuming for the sake of argument that the Texas constitutional right of privacy does not require state action, Mendez never alleged that his constitutional privacy rights were violated. Therefore, this case has absolutely nothing to do with constitutional privacy rights — the only claim before us is a common-law privacy claim.
. But see James H. Barron, Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, (1890): Demystifying a Landmark Citation, 13 Suffolk U.L.Rev. 875, 892-93 (1979) (questioning *204the tale of whether the article was a response to a series of uncomplimentary Boston newspaper articles describing the wedding of Warren’s daughter).
. In Milner v. Red River Valley Publishing Co., 249 S.W.2d 227 (Tex.Civ.App.—Dallas 1952, no writ), a Sherman newspaper published an article revealing that a man who had recently been killed in a traffic accident had been indicted the previous year for grand theft. His survivors brought an action against the newspaper, alleging that, although truthful, the article invaded their privacy and caused their "embarrassment, humiliation and mortification." Id. at 228. The court held that the right to privacy had not been recognized by the common law of Texas or the legislature, and that the libel statute [Tex.Rev.Civ.Stat. art. 5430 (recodified at TexCiv. Prac. & Rem.Code § 73.001)] already granted a cause of action for "the publication of written or printed statements which blacken ‘the memory of the dead.’” Id. at 229. Thus, recovery was denied. See also Hansson v. Harris, 252 S.W.2d 600 (Tex.Civ.App.—Austin 1952, writ ref'd n.r.e.); O’Brien v. Pabst Sales Co., 124 F.2d 167, 170 (5th Cir.1941), cert. denied, 315 U.S. 823, 62 S.Ct. 917, 86 L.Ed. 1220 (1942) (noting that no Texas cases had yet recognized the right of privacy).
. The second type of privacy right, protecting against appropriation of a name or likeness, is well established in the jurisprudence of many states. See James M. Treece, Commercial Exploitation of Names, Likenesses, and Personal Histories, 51 Tex.L.Rev. 637 (1973); Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 75-81 (1905) (discussing Michigan and New York cases and predicting future widespread acceptance of this tort). The only Texas case recognizing this tort is Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719, 721-22 (Tex.Civ.App.—Eastland 1975, writ ref'd n.r.e.). See also Benavidez v. Anheuser Busch, Inc., 873 F.2d 102, 104 (5th Cir.1989) (applying Texas law).
. See Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840, 845 (1979), cert. denied sub nom. 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, 1329-30 (1982); Harrison v. Washington Post Co., 391 A.2d 781, 784 (D.C.1978); Winegard v. Larsen, 260 N.W.2d 816, 822 (Iowa 1977); Froelich v. Adair, 213 Kan. 357, 516 P.2d 993 (1973); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 887-88 (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, 740 (Okla.1980); Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70, 83 (1984); 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, 1296 (1986); Todd v. South Carolina Farm Bureau Mut. Ins. Co., 216 S.C. 284, 278 S.E.2d 607 (1981).
. A challenge to the validity of the false light action was also raised in this Court by a group of amicus curiae comprising the Reporters Committee for Freedom of the Press, A.H. Belo Corp., National Association of Broadcasters, Houston Chronicle Publishing Co., Capital Cities-ABC, Inc., KTRK Television, Inc., the Fort Worth Star-Telegram, Associated Press, the San Antonio Light, and Freedom T.V. Sub, Inc. d/b/a/ KFDM-TV.
. Marathon presents a factual situation remarkably similar to that of the instant case, yet premised on a defamation claim:
Salazar, a seven-year employee of [Marathon] sued Marathon and ... four ... Marathon “officers, employees or managing agents,” after he was charged with, arrested, and fired for the theft of a tool ... owned by a Marathon subcontractor and found in [Salazar’s] garage. Later investigation revealed that an employee of the sub-contractor had consented to loan the tool to Salazar.
Id. at 626-27. Thus, Salazar appears to have stated a claim similar to Mendez's, but based on defamation. It is probable that he lost nothing by the absence of a false light claim.
. The statute of limitations for defamation actions is one year. Tex.Civ.Prac. & Rem.Code § 16.-002. The limitations period for privacy actions has not been expressly delineated by this Court, but the two-year limitations period of § 16.003 probably would apply. See, e.g., Wood v. Hustler Magazine, 736 F.2d at 1088.
. One commentator notes,
control of words in order to protect reputation has an impact on freedom to speak ... recognition [of this fact] came in the evolution of privileges to protect defamatory communications ... Even though reputation may be injured, sometimes very seriously, by defamation that is privileged, courts concluded that on balance the damage visited upon the ability to speak and write and the consequent danger of loss to society of such communication was too great to permit the person defamed to recover.
Robert D. Sack, supra, at 1-2. See also Harry Kalven, Jr., Privacy in Tort Law—Were Warren and Brandéis Wrong?, 31 Law & Contemp. Probs. 326, 341 (1966) (“[t]he technical complexity of the law of defamation, which has shown remarkable stamina in the teeth of centuries of acid criticism, may reflect one useful strategy for a legal system forced against its ultimate better judgment to deal with dignitary harms.”).
Moreover, defamation is not the only tort that has been limited to protect the. freedom of speech. See Diane Leenheer Zimmerman, supra, at 430 (assault and intentional infliction of emotional distress have also been limited in response to free speech concerns.). But see Steven Shiffrin, Defamatory Non-Media Speech and First Amendment Methodology, 25 UCLA L. Rev. 915, 938-41 (1978) (claiming that modern restrictions on defamation are due in large part to "now forgotten doctrines of judicial jurisdiction and ... seventeenth century necessities of judicial administration”).
. This is despite the Supreme Court’s seeming approval of the false light tort in 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). See Diane Leenheer Zimmerman, supra, at 436 (”[t]he sheer breadth of the privacy tort exposes a much wider range of errors to liability than does defamation. The inevitable result is a sharp increase in the potential chilling effect of false light.”) See also Thomas I. Emerson, supra, at 333 (false light ”raise[s] serious first amendment problems" in the context of freedom of the press); J. Skelly Wright, Defamation, Privacy, and the Public’s Right to Know: A National Problem and a New Approach, 46 Tex.L.Rev. 630, 635 (1968); William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 401 (1960) (if false light ultimately swallows up the law of defamation, it may be asked "what of the numerous restrictions and limitations which have hedged defamation about for many years, in the interest of freedom of the press and the discouragement of trivial and extortionate claims? Are they of so little consequence that they may be circumvented in so casual and cavalier a fashion?”).
. In Davenport, this Court invalidated a trial court’s gag order by adopting a stringent test for scrutinizing prior restraints under article I, section 8 of the Texas Constitution. 834 S.W.2d at 10. The Court held that a gag order would "withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.” Id. We stated that although we could benefit from the insights of well-reasoned and developed federal jurisprudence, we were not compelled to reach identical results. Id. at 10. Thus, although this issue is not presently before the Court, it is quite possible that Davenport might have ramifications on defamation law in this state.
. Robert Sack explains why communications not rising to the level of defamation should not be tortious:
There is common agreement that a communication that is merely unflattering, annoying, irking, or embarrassing, or that hurts the plaintiffs feelings, without more, is not actionable ... People are expected to be sufficiently hardy to withstand the occasional jibe or disparaging remark; if each statement gave rise to a cause of action, courts would have time for nothing but defamation suits.
Robert D. Sack, supra, at 45-46. See also Kalven, supra, at 340 (‘If the statement is not offensive enough to the reasonable man to be defamatory, how does it become offensive enough to the reasonable man to be an invasion of privacy?");
Diane Leenheer Zimmerman, supra, at 430-34; Kapellas v. Kofman, 1 Cal.3d 20, 81 Cal.Rptr. 360, 370, 459 P.2d 912, 922 (1969) (declining to extend the invasion of privacy tort to truthful, newsworthy publications).
. The Supreme Court again cast doubt on recovery for non-defamatory false speech in Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). The case centered on a parodie and offensive depiction of Rev. Falwell that appeared in Hustler Magazine. A jury awarded Falwell $100,000 in actual damages for the intentional infliction of emotional distress, plus an additional $100,000 in punitive damages. The Supreme Court reversed, holding that this application of the tort constituted an illegitimate effort to restrict the magazine’s free speech rights. Id. at 50-51, 108 S.Ct. at 879-80.