From the Spring 2009 issue of The News Media & The Law, page 23.
It is one of the most basic tenants of media law: Truthful statements cannot be libelous, because a libelous statement must be both false and defamatory.
But a recent decision of the U.S. Court of Appeals in Boston (1st Cir.) has suggested that the principle is not as absolute as believed, upholding a 1902 statute that undermines the truth defense.
In Noonan v. Staples, the court ruled that under Massachusetts law, true statements on matters of purely private concern can be libelous if published maliciously. Additionally, the court interpreted the term “actual malice” to mean intentional ill will, in accordance with the century-old state statute, rather than defining it in as the U.S. Supreme Court did in the landmark 1964 case New York Times v. Sullivan, which was decided long after the statute was enacted.
“Never were we thinking about a world where people could sue for true statements and prevail because the media may not have liked the plaintiff,” said Mary-Rose Papandrea, a media law professor at Boston College Law School. “It’s hard to really cabin in the ramifications of this decision.”
The Feb. 13 ruling did not come in a media case. It involved a private dispute between a salesman who had been fired from the Staples office supply company and his employer. The court noted that matters of public concern, such as a report by a newspaper about a public controversy, must meet the heightened Sullivan test. In addition, the court left open the question of whether the 1902 statute is unconstitutional.
But its decision could have an effect on a narrow category of defamation cases involving the media — those in which a court finds the media was reporting about something that is not a matter of public concern.
Alan Noonan was fired in late 2005 from Staples for padding expense reports. Among other things, according to the court, he once misplaced a decimal point and reported paying $1,129 for a McDonald’s meal, instead of $11.29. After he was fired, Executive Vice President Jay Baitler sent a mass e-mail to all Staples employees in North America informing them that Noonan had been fired for violating the expense policy, and reminding them of the company’s rules for expense reports.
Noonan then filed suit against Staples for libel in federal court, alleging that Baitler’s e-mail harmed his reputation.
The federal district court in Massachusetts disagreed, holding that the e-mail was not libelous because it was substantially true.
On appeal, a First Circuit panel initially upheld that finding. But then it reconsidered its decision to examine the 1902 statute, and overturned the lower court’s dismissal. The court held that even though the e-mail was true it could still be libelous under the 1902 Massachusetts law that still applied to libel claims involving private figures; the law had only been held unconstitutional in its application to matters of public concern. Under Mass. Gen. Laws ch. 231 §92, the court wrote, true statements can be libelous if the plaintiff proves that the defendant published those statements with actual malice.
Though the statute doesn’t define the term “actual malice,” the court applied the common law definition of the term that existed in 1902, when it was enacted into law. To prove actual malice, the court wrote, the plaintiff needs to show only that the defendant acted with “ill will,” not the New York Times v. Sullivan standard of “reckless disregard for the truth.”
The ruling garnered the attention of media lawyers nationwide who were concerned about the effect the decision could have on libel cases involving the media. When Staples decided to ask for a rehearing before the entire panel of First Circuit judges, a group of media organizations, including the Reporters Committee, filed a friend-of-the-court brief on behalf of Staples.
The court denied that request in March. As of early May, no further appeals had been filed. Attorneys for Staples declined to comment.
The court’s reasoning
Bob Ambrogi, an attorney and the executive director of the Massachusetts Newspaper Association, wrote on his blog that the Noonan ruling is “the most dangerous libel decision in decades,” because of the court’s finding that truth is not always a defense to libel and the adoption of a common law definition of actual malice.
As Bill Ketter, executive director of Community Newspaper Holdings, Inc, which owns media companies in about 150 communities, explained, “Telling the truth has always been the first defense against libel.”
“We have always operated on the theory that when it came to defenses against libel, truth is the first defense and the best defense,” he said.
English jurist William Blackstone wrote in 1769 that in civil lawsuits “a libel must appear to be false, as well as scandalous; for, if the charge be true, the plaintiff has received no private injury.”
Throughout American legal history, the concept that truth is a defense to libel has been steadily recognized by courts.
But the Noonan court saw things differently. In developing its ruling, it relied on an old, rarely litigated, Massachusetts statute. The 1902 law states specifically that “truth shall be a justification unless actual malice is proved.”
Media attorneys Rob Bertsche and Kimberley Keyes, with Prince, Lobel, Glovsky & Tye in Boston, authored the friend-of-the-court brief on behalf of the media companies. In it, they argued that the 1902 statute does not reflect a modern view of libel law. While the statute was used in both criminal and civil libel actions at the turn of the last century, it has laid dormant since the Supreme Court’s New York Times v. Sullivan ruling that plaintiffs bear the burden of proving that the alleged defamatory material is false. In fact, the attorneys argued, since that decision, no court in Massachusetts has relied on the statute to find that a truthful statement can be libelous.
“In modern times, however, Section 92 has received little attention, while defamation law has moved in a different, more speech-protective direction,” the brief argued.
The second problematic aspect of the decision muddies the law even more. After the court cited the statute to hold that truthful statements can still be libelous if the defendant acts with actual malice, the court went on to analyze how actual malice is defined.
New York Times v. Sullivan defined actual malice in public figure defamation cases to mean a “reckless disregard for the truth.” That case stands for the proposition that the burden on plaintiffs in defamation cases involving matters of public concern is high, in order to uphold the principle that, as the Court held, “debate on public issues should be uninhibited, robust, and wide-open.”
The Noonan court disregarded that precedent and instead defined actual malice as “ill will.”
“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 said it did not apply the New York Times standard because that standard applies only to libel claims involving public figures, unlike Noonan, and because the Massachusetts statute was enacted decades before New York Times v. Sullivan and could not have been meant to adopt a standard articulated much later. The legislative intent of the statute was to apply the older, common law definition of malice.
The court’s reasoning on both of these factors was based on statutory interpretation. That raises the problem of the statute itself, which Bertsche acknowledged in the friend-of-the-court brief.
Though the law has not been held unconstitutional, he pointed to a 1998 state court decision that held the statute couldn’t be constitutionally applied to cases brought by private figures about matters of public concern.
On March 18, the appeals court issued a two-page order denying the petition for rehearing.
The court ruled that it could not decide the constitutionality of the statute because Staples had failed to raise that argument in earlier briefs.
Effects on the news media
Though the Noonan decision didn’t involve the media, there is fear that some of the court’s reasoning will bleed into media cases.
“Once you have a ruling that establishes that truth is no longer a defense against libel in private party cases, it will raise a red flag in the media business even if it isn’t a media law case,” Ketter explained. “It’s a real worry as to how this thing might come into play. There is a lot of uncertainty about it.”
Of particularly pressing concern, again, is the court’s adoption of “ill will” as its gauge for determining actual malice.
“How do you define ‘ill will’ when the job as the news media is to get at the truth?” Ketter asked. “We are always publishing stories about people that embarrass them. But we determine if they are newsworthy. That is the standard: What does the public want or have the right to know?”
Potential plaintiffs may perceive that a reporter has some sort of ill will against them, he said; that’s why the law has required a higher standard in libel cases involving the media.
Papandrea agreed, adding that if a plaintiff can prevail in a libel lawsuit against a reporter, simply because that plaintiff believes that the reporter might have had ill will toward him, it will open the floodgates of litigation.
Cases making a distinction between media and non-media are problematic, Papandrea said, because the line between what is the media and what isn’t is constantly changing. A court may be able to use the Noonan decision in a case involving a blogger or tweeter because they are not traditional journalists.
In a comment on a blog in The Guardian newspaper shortly after the February ruling, Bertsche expanded on this idea.
“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,” Bertsche wrote.
“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,” he added. “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.”