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

First Circuit rejects libel appeal

The U.S. Court of Appeals for the First Circuit in Boston has refused to overturn a ruling (PDF) that statements made in matters of private concern may be found libelous even if true.

The court has also declined to accept (PDF) an amicus curiae brief filed by several dozen of the largest and most influential media organizations in the country, citing a conflict of interest that would be created if it were to do so. Apparently one of the judges has a tie to a media organization, which would force a recusal.

No word on what comes next. Is it possible that the U.S. Supreme Court will rule on this? The idea that a statement must be defamatory and false in order to be held libelous is so fundamental to our notion of a free press that it’s hard to imagine the ruling will stand, even if it pertains only to Massachusetts, based as it is on a 1902 state law.

From the time I reported on this case for The Guardian, I’ve heard a low buzz suggesting that the ruling may not matter all that much, given that it pertains to private parties — and that, in fact, private persons deserve more protection under the libel laws than public officials and public figures.

My answer to that is that they already do, but that private figures — according to all the libel law that we understand — still have to prove falsehood.

I think the most telling case is that of Gertz v. Robert Welch, a 1974 Supreme Court decision about a libel suit brought by a lawyer who had been falsely defamed by a John Birch Society publication. The court ruled that the lawyer, Elmer Gertz, was a private figure, and would thus not to have to prove “actual malice” as defined by Times v. Sullivan (1964) — that is, he would not have to prove that the Birchers had published defamatory material knowing it was false, or with reckless disregard for the truth. Instead, the court ruled that, henceforth, private figures would have to show negligence at the very least, with the states free to adopt more stringent language if they chose.

Reading the Gertz decision, you can’t help but be struck how the notion of falsehood is raised over and over. The phrase “defamatory falsehood” is used repeatedly. The most famous section of the majority decision, written by Justice Lewis Powell, is built around the principle that libel is a false and defamatory statement of fact:

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Remember, Gertz was a private figure. Powell was writing quite specifically about the libel standards that should prevail when a private citizen brings a libel suit, yet he made it absolutely clear that falsehood and defamation are the two key elements of libel.

It’s hard to imagine what the First Circuit is thinking.

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  1. DanH

    Not hard to foresee that if this stands it will result in lots more “vortex public figure” arguments.What that means is a private person who voluntarily injects themselves into the discussion of a matter of public concern gives up their “private” status for purposes of defamation.

  2. NewsHound

    I think they are thinking that individual states may have enforceable laws that prevent a non-public figure from being emotionally tortured in a hostile environment even if the statements are true. The question for the court to decide, perhaps, is whether the publication of the terminated employee’s actions was to serve as fair warning to all remaining employees or was it published in a fit of anger and revenge.Even though we may have always thought that the first defense to libel is truth, that in fact may turn out to be a lie.

  3. lkcape

    A close reading of both opinions will reveal that the Federal Court does not, at this time, wish to stand in the place of the Supreme Judicial Court on the matter of Massachusetts law. Further, on procedural matters, the court states that the Appellant failed to raise their current arguments previously, and thus loose their ability to argue them in a motion to reconsider, and failed to provide adequate legal basis for the Federal Court currently to intervene.Your anger, Dan, should probably be directed at the appellant for tactical and strategic mistakes in pressing their case.In both the first and second opinions, in which the Court declines the case, they suggest that the Massachusetts Supreme Judicial Court is the appropriate place for the first ruling on the Constitutionality of a Massachusetts statute.This is a procedural and due process issue at this time. The time for ruling on substance, including Constitutional issues, is still to come.Is the media arguing for special procedural treatment in both State and Federal Courts? Is the media irreparably harmed by allowing this case to make its way through the system?

  4. Peter Porcupine

    DK – Maybe it’s Massachusetts…wasn’t John Adams and the Sedition Act the genesis of this?In a way, I’d like to see this finally decided – that truth is an absolute defense against libel, public, private, beggarman, thief.

  5. Dan Kennedy

    PP: Here’s a little Times v. Sullivan trivia for you — there’s a section in it that overturns the Sedition Act.

  6. Peter Porcupine

    DK – Not exactly. The Court said that the Sedition Act had never been tested (Adams set it to expire at the end of his term); according to Wikipedia, “Court declared, “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” 376 U.S. 254, 276 (1964).”I’d rather have a definite decision – the Court of History has SUCH a backlog on appeals!

  7. Amused

    lkcape is dead right.Complaints about how the appellant handled the case are probably based in the defendant’s view of it as a business matter, as opposed to a free speech issue with implications beyond the personnel policies of an overpriced office supply store.

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