By Dan Kennedy • The press, politics, technology, culture and other passions

A chilling decision about libel

In my latest for the Guardian, I analyze one of the most dangerous First Amendment decisions in many years — an opinion handed down by a three-judge federal appeals court panel in Boston last Friday holding that truth may no longer be an absolute defense against a libel suit.

The decision, written by Judge Juan Torruella of the U.S. Court of Appeals for the First Circuit, allows Alan Noonan, a sales director fired by Staples, to pursue his libel claim against the company. Staples’s executive vice president, Jay Baitler, had sent an e-mail to some 1,500 employees stating that Noonan had been terminated for violating the company’s travel and expense policies.

Torruella found that the contents of the e-mail were true, but added that, because Noonan is a private figure, the e-mail may have crossed the line into “actual malice.” In reaching that conclusion, Torruella relied on a 1902 Massachusetts law and said that “actual malice” should be defined as “ill will” or “malevolent intent.” Never mind that, in the 1964 case of Times v. Sullivan, the U.S. Supreme Court redefined “actual malice” so that it now pertains solely to statements made with deliberate falsity, or with “reckless disregard” for the truth.

Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, calls the ruling “the most dangerous libel decision in decades.” Longtime Massachusetts newspaper editor William Ketter, now a top executive with the CNHI chain, writes that the decision “could chill aggressive reporting of tough stories for fear that a private individual might end up suing the media even when the published facts are true.”

In an e-mail to Media Nation, Robert Bertsche, a prominent First Amendment lawyer with the Boston firm Prince Lobel Glovsky & Tye, says:

A panel of the First Circuit Court of Appeals has decreed that truth is no longer an absolute defense to a libel charge in Massachusetts. The ruling is troubling on so many levels that it beggars the imagination. Begin with the court’s ruling that one can be found liable in damages for making a statement that is indisputably true — that is a notion that flies in the face of everyone’s most basic understanding of what libel is.

With this decision, the First Amendment has been replaced by the maxim, “If you don’t have anything nice to say, don’t say it.” Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What’s worse, the court offers no guidance about how to distinguish what is of “public concern” from what is of “private concern.” (You can be sure that among the 1,500 employees of Staples who received the company’s statement about Noonan’s firing, this was a matter of quite public concern.)

It is mind-boggling that the Court of Appeals offered so little analysis, and gave so little explanation, for a decision that arguably makes Massachusetts the least speech-protective state in the nation. Why didn’t this federal court (in a diversity case, no less) ask the Massachusetts SJC [the state’s Supreme Judicial Court] to opine on the validity and interpretation of this statute passed in the days of the buggy whip? It’s a bit like the state police descending on Fenway Park to handcuff Terry Francona for violating state law against public spitting.

Talk about a chilling effect on speech! Lawyers across the state should advise their clients simply not to say negative comments about people. Even if what you say is true, you will be made to pay damages if a judge decides that what you said is not of “public concern” and a jury decides you were motivated by ill will.

This is a bad decision for employers and employees, because it will reduce the flow of information in the workplace. It’s a disastrous decision for the media, and in particular for the new media: bloggers, people who post on Facebook, indeed anyone who has a website but lacks press credentials. That’s because the mainstream media may be protected, at least haphazardly, by an assumption that if The Boston Globe writes about a topic, then by definition the topic is one of public concern. But no such presumption is likely to protect an outspoken blogger’s critical remarks.

This is an aberrational ruling from a well-respected court. I remain hopeful that the three-judge panel will reconsider the ruling, or that the full Court of Appeals will agree to rehear it and correct this misjudgment. But until that happens, everyone who cares about free speech should lobby his or her legislator to remove this archaic statute from the law books.

As it stands, Torruella’s decision applies only to Massachusetts. But what if the federal courts were to discover similar laws on the books in other states?

You might have thought that the court would find the 1902 law to be unconstitutionally restrictive in light of Times v. Sullivan and its progeny. Instead, Torruella chose to drag freedom of speech back into the pre-1964 dark ages. Amazing. And frightening.

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  1. NewsHound

    I can recall being at a publishers conference years ago in which the speaker was a Boston Globe attorney and the topic was libel. He gave examples and stressed that truth was not always a defense. So, for me, I am not surprised. One example expressed would be the republication of a picture taken of people in a bread line during the Depression, in which a particular person is identified and embarrassed. This seminar or conference was not for the purpose of attempting to determine whether the law was right or wrong or violated the Constitution, but to provide warning to editors and publishers on how to be careful. The point was that it was okay in 1930 to be broke and have their picture in the paper, but in 1970 it could embarrass a private citizen to be reminded or pointed out to others that he was so poor years earlier. It may not be a good example, but it was the example provided I suspect on theory rather than case history.My recollection is that the meeting may have been sponsored by either the Boston Globe or Massachusetts Publishers’ Association, not be be confused with the Massachusetts Press Association.If the Staples employee were charged with embezzlement that would then be in the public domain.

  2. Dan Kennedy

    NewsHound: You are talking about privacy law, in which case truth is not a defense. Different subject.

  3. Suldog

    The lack of logic in this decision beggars description. Rather than using fact as a basis for a decision, Torruella instead wishes to rely upon the almost-wholly subjective, i.e., whether there is “ill will” or “malevolent intent.”Stunning.

  4. lkcape

    Some of the Court’s points that seem to be missed in your comments, Dan:1: This decision is for a remand for trial, not a decision on the merits of the case;2: The decision is based on the Court’s assessment that issues of triable fact remain,; 3: The decision is that a jury is the appropriate finder of those facts; and4: The decision is narrowly based on Massachusetts’s Constitution and statutes, standing in the place of the MA Supreme Judicial Court, as required by previous state and federal opinions and precedents.The rush to decry this ruling as unconstitutional and a threat to freedom is decidedly premature. The outcome of a trial of this matter under state law can be the subject of appeal to the Federal Court.

  5. Rob

    Dan – I don’t disagree with your overall analysis of the problematic approach to libel law the court took here. However, I am not worried about any far reaching implications coming from it. The decision is very narrowly tailored to MA regarding the 1902 statute. The court’s reading of the intent seems reasonable, even if modern libel law does not follow it anymore. The SJC can easily amend this on certification and clarify the statute’s meaning, assuming the defendant files that motion. Worst case, the Legislature can clarify this with an updated statute. A smart Rep or Senator would jump all over this and file something for some good PR in fact.

  6. Ani

    Does that case White v. Blue Cross (2004) that’s cited in the opinion lay any groundwork for what the court did here? I couldn’t tell from the court’s citation of it, but the way they did cite it left me wondering.

  7. Rob

    Ani, from what I can tell, they cited to White merely to set out the standard for Mass. defamation suits since it’s a relatively recent SJC case on the topic.

  8. Ani at footnote 4 in Phelan v. May Dept. Stores: "'By statute, Massachusetts permits a plaintiff to recover for a truthful defamatory statement published in writing (or its equivalent) with actual malice, G.L. c. 231, sec. 92, except as confined by the requirements of the First Amendment to the United States Constitution.' White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 n.4 (2004). See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629 n. 3 (2003)."

  9. Matt

    Even though this case seems to be based on very specific Massachusetts statutes, it seems that federal libel precedents should still have overruled those precedents. Yes, the ruling applies just to Massachusetts, but it shouldn’t, because federal courts have routinely made decisions to the contrary.DK: I’m guessing this will be our opening topic in class today. It seems it couldn’t be timed much better to line up with Law of the Press.Matt

  10. lkcape

    The Court ruled on the question before it, the matter of the issuance of summary judgment.Summary judgment is permitted only when there are no triable issues of fact.The Court determined that there were.This ruling has nothing to do with libel other than it was rendered on a procedural issue arising from a libel suit.

  11. Dan Kennedy

    Ikcape: The summary-judgment motion was filed on the basis of an argument that there were no triable issues of fact because the contents of the e-mail were true, and because truth is an absolute defense against a libel suit. The ruling has everything to do with how one defines libel.

  12. DanH

    Appalling. One clarification: the difference between common law malice (hatred, ill-will) and actual malice (knowingly publishing falsehoods) has to date been used more as a way to quickly figure out if there are absolute defenses or only partial defenses to defamatory speech and to decide questions about punitive damages.This decision echoes that but as others note, takes it way too far and beyond those benchmarks.-dan

  13. DanH

    I just went back to my old Comm Law textbook and found another defense used in libel cases like this one: “master/servant.”It is meant to allow employers to make defamatory statements about employees in such things as performance evaluations and letters of recommendation without being liable.I wonder why that failed here?-dan

  14. lkcape

    I concur, Dan. But the court is giving the appellant the OPPORTUNITY for rebuttal that is permitted by the Massachusetts law. The Court has not ruled on any constitutional question because that is not the question before them. The issuance of Summary Judgement is.The standard, here, favors the non-moving party on the Motion for Summary Judgment The appellant was the non-moving party.They reversed the decision so a sto allow due process under the law, which is, in many ways, as important a right as freedom of speech.

  15. Dan Kennedy

    Ikcape: But Noonan should receive no opportunity to prove his libel claim unless he can show that the contents of the e-mail were false. The fact that Staples has to keep fighting and paying lawyers (I know, I know, but it could be your hometown weekly) even after the court found that the e-mail was true is an outrage against the First Amendment.

  16. Dan Kennedy

    The courts have often held that summary judgment is especially important in First Amendment cases because keeping a frivolous lawsuit alive is chilling to free speech.Before last Friday, pursuing a libel suit over statements that were provably true would have been considered the very definition of frivolous.

  17. Ani

    How do you explain the SJC’s apparent acceptance of statutory grounds for a plaintiff to recover for a truthful defamatory statement in footnotes in Phelan and White? If you want to join issue and debate just what are these confines required by the 1st amendment (to which the SJC apparently refers), and how does traditional tort law intersect with this, I’m all for it, but to dismiss this Staples case as coming out of nowhere seems to me to be a distortion that makes discussing the development of the doctrine really difficult.

  18. lkcape

    And therein, Dan, is the dilemma. Free speech vs due process.Since the appeal was a process appeal, the ruling would be appropriate. If it had been a merit appeal, then the ruling could well have been different.

  19. The Perfessor

    Dan, what if the statements are literally true but present the plaintiff in a false light? Literal truth is not a complete defense. Without looking at the submissions, we cannot ascertain what evidence Mr. Noonan offered to present a genuine issue of material fact; and in any case, how can it be concluded that Staples is entitled to judgment “as a matter of law” when there is a law on the books suggesting otherwise? There is an ambiguity between the 1902 law and the later SJC precedent which doesn’t speak to it. Isn’t that enough of a problem to foreclose summary judgment?

  20. Dan Kennedy

    Perfesser: You raise an excellent point, and there is some language in the decision suggesting that maybe that’s what Judge Torruella has in mind.BUT … “false light” is a separate tort under privacy law, where it’s already established that truth is not a defense. The term “false light” never comes up in the decision. I’m not sure it’s a tort even recognized in Massachusetts — there are many states where it’s not recognized.So I think you’re trying to throw Torruella a lifeline that he doesn’t deserve. This is a libel case, period.

  21. The Perfessor

    Actually Dan, it’s NOT just a libel case. It’s a case involving libel, breach of a stock option agreement and breach of a severance agreement – and the record included evidence that the travel reimbursement policies that Noonan violated were “irregularly enforced and often not followed by many employees.”So perhaps it was that the 1st Circuit panel felt the man ought to have his day in court before being stripped of his severance and stock options.

  22. Dan Kennedy

    Perfesser: The First Amendment aspects of the case pertain only to libel. The court could have — should have — thrown it out. I don’t see why that would stop the other aspects of the case from going to trial.

  23. Ani

    If we extend the privilege in Times v. Sullivan et al. to purely private situations, are we justifying preventing recovery in defamation for malicious publication of something true and not of public concern that is injurious to a private person’s reputation on the grounds that not to will chill other, privileged speech? Because the countervailing consideration is whether we want to encourage publication of injurious material concerning purely private matters — I think the two issues need to be carefully weighed, especially with how easy it is to “publish” now.

  24. Dan Kennedy

    Ani: That’s what privacy law is for. Invasion of privacy assumes that the offending material is true — the greater the truth, the greater the breech of privacy. There is certainly no need to start redefining libel so that it can include truthful statements.The very definition of libel as everyone understands it is a false, defamatory statement published with some degree of fault — negligence in the case of private figures, “actual malice” in the case of public officials and public figures.

  25. Ani

    Defamation, of which libel is a subset, is about injury to reputation. Yes, the means is usually, at least, these days, a false statement, but it isn’t clear to me that falsity is crucial to the concept of defamation. The Mass. 1902 statute seems to include a notion of fault, requiring a higher level of bad animus for a true statement.I am not sure I see how behavior becomes constitutionally protected in one case or actionable in another depending on what “form of action” the plaintiff chooses to bring. When constitutional concerns were brought to bear in 1964 on the body of defamation law developed by case and statute, I think the Supreme Court took an incremental approach and that the details of that encounter between the two bodies of law are still being worked out. And I suppose I retain an affection for the doctrinal development of common law.

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