Author: Dan Kennedy

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With this decision, the First Amendment has been replaced by the maxim, “If you don’t have anything nice to say, don’t say it.”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.