Truth is no longer a defense in some private-figure libel cases in Massachusetts where the "ill will" of the speaker is established — at least according to a federal appellate opinion issued last week. The court was interpreting Massachusetts state law, not federal law.
The decision in Noonan v. Staples took a unique approach to libel law by ruling that true statements can be libelous if published maliciously. The court also interpreted the term “actual malice” to mean an intentional ill will, finding that a state statute that predated U.S. Supreme Court precedent had a different meaning than the "actual malice" standard of New York Times v. Sullivan.
The Feb. 13 ruling issued by the U.S. Court of Appeals in Boston (1st Circuit) counters years of precedent holding that truth is an absolute defense to libel and that “actual malice” means reckless disregard for the truth.
“It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech,” Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, wrote on his blog.
The case involved a lawsuit brought by a former Staples employee against his employer. Alan Noonan sued Staples for libel after the company’s executive vice president sent an e-mail to 1,500 employees alerting them that Noonan had been fired for violating the company’s travel and expense policy.
Noonan acknowledged that everything written in the e-mail was true, but still claimed he had been libeled because it was sent with malicious intent.
In finding that a reasonable jury might find that the Staples e-mail was sent maliciously, the court pointed to a century-old Massachusetts statute that allows true statements to be considered libelous “if the plaintiff can show that the defendant acted with ‘actual malice’ in publishing the statement.” According to Ambrogi’s blog, the Massachusetts statute was held unconstitutional by a 1998 state court decision.
The court held that the statute’s use of the term ”actual malice" did not have the same meaning as the U.S. Supreme Court’s definition of the term in the landmark First Amendment case New York Times v. Sullivan. Instead of interpreting actual malice to mean that the plaintiff acted with reckless disregard for the truth, as New York Times held, the Court of Appeals ruled that it means ill will or malevolent intent, a much lower standard for the plaintiff to prove.
“Though the Massachusetts statute at issue in this case also uses the term ‘actual malice,’ we are persuaded that we should not read that term as having the specialized meaning later developed by the Supreme Court,” Judge Juan Torruella wrote in the opinion.
The court listed several reasons for its refusal to apply the New York Times definition of actual malice in this case. Among them, the court wrote that the New York Times standard applies only to libel claims involving public figures, not cases involving private plaintiffs and defendants like this case. Additionally, the Massachusetts statute was enacted before New York Times v. Sullivan, and thus could not have meant to adopt the New York Times standard. Instead, the court ruled that the legislative intent of the statute was to apply the older, common-law definition of malice.
"[S]ince the statute deals not with public figures, but with defenses under traditional tort law, it is more appropriate to use the traditional tort law meaning of the term," wrote the court.
The court held that the author of the e-mail, Staples Executive Vice-President Jay Baitler, might have acted with actual malice because he “singled out Noonan” and sent the e-mail to 1,500 employers, which shows “excessive publication.” Neither of these actions would prove that Baitler had acted with reckless disregard for the truth. However, the court held that they do fall under the standard of ill will that the court adopted.
The court did not hold that the Staples e-mail was libelous; it merely refused to dismiss the case, finding that the issue of libel must be presented to a jury.
Though the case involved private employer-employee speech, it could have devastating effects for the media.
The case has even garnered the attention of the British media, where libel law has always been less constitutionally protected.
“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,” Rob Bertsche, a prominent First Amendment attorney in Boston, wrote in The Guardian reporter Dan Kennedy’s blog.
Bertsche added: “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.”