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

Libel battle won, but war remains lost

A battle has been won over a bizarre and dangerous decision by a federal appeals court earlier this year that truth may not be a defense in libel cases brought by private parties. Unfortunately, the war remains lost.

According to lawyer Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, a jury found recently that the office-supply chain Staples did not act with malice when a manager sent an e-mail to some 1,500 employees informing them he had fired a sales manager named Alan Noonan for violating the company’s travel and expense policies. (Ambrogi points to an article in the National Law Journal, but it’s subscription-only.)

As I reported earlier this year in the Guardian, the U.S. Court of Appeals for the First Circuit, in Boston, ruled that Noonan’s libel suit against Staples could proceed even though the contents of the e-mail were true. The court relied on an old provision of Massachusetts libel law pertaining to “actual malice,” which Judge Juan Torruella wrote should be defined as “ill will” or “malevolent intent.” Torruella earned a Boston Phoenix Muzzle Award for his anti-First Amendment decision.

Although Staples may not spring immediately to mind when one thinks about freedom of the press, the implications for the news media are obvious.

In the 1964 U.S. Supreme Court case of Times v. Sullivan, actual malice is defined as pertaining to a defamatory statement made with knowing falsity, or with “reckless disregard” for the truth. And though Times v. Sullivan applies solely to public officials, a series of subsequent decisions by the Court made it clear that a defamatory statement can never be found libelous if it is true — a principle asserted by free-speech advocates since the 1735 trial of John Peter Zenger.

First Amendment lawyers such as Ambrogi and Robert Bertsche wrote that Torruella should have thrown out the Massachusetts law, on the books since 1902, as unconstitutional in light of Times v. Sullivan.

So far, though, Torruella’s toxic handiwork remains in effect — at least in Massachusetts.

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  1. LFNeilson

    So, do I have this right? Judge T. allowed the suit to proceed (the bad news). Then the jury found for the defendant, Staples (the good news). But this decision has not overturned Judge T’s ruling that truth is no reason to disallow a libel suit?

  2. Dan Kennedy

    Larz: I wish I could read the National Law Journal story, but there’s no way a jury can overrule a decision by the appeals court. It boils down to this:

    1. Appeals court says if you find Staples acted with malice, then you may also find that Staples libeled Noonan.

    2. Jury finds there was no malice. End of case.

    3. Appeals court’s precedent regarding malice remains intact.

  3. lkcape

    Your problem is not with the Court, Dan, it is a) with 200+ years of case law defining due process and b) with the laws of the State of Massachusetts.

    The Appeals Court merely said that it would not stand in the shoes of the MA Supreme Judicial Court as the first reviewer of the constitutionality of a MA law and b) the appellants did not provide compelling LEGAL reason for the Court NOT to let the MA SJC rule first.

    Both contentions are eminently reasonable, and legally quite sound.

    I notice that the appellants did not pursue the matter to a higher court. Might one ask why?

    Your efforts, Dan, should not be to flog this dead horse, but rather to get the legislature to revise the out-dated law.

    As it stands now, your are right. End of case!


    Because there IS NO case to be had in this litigation, and unless the trier of fact found malice, there never would be one.

  4. Newshound

    Dan -You may be able to read National Law Journal in the law library at Moakley Court, Harvard, etc.

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