A recent interpretation of a 1902 Massachusetts statute by a 1st U.S. Circuit Court of Appeals panel has the blogosphere abuzz over the judges’ apparent disregard for a basic principle of libel law: truth as an absolute defense.
Though proof of a statement’s truth as an absolute defense against libel lawsuits has long been a touchstone of libel law, the three-judge panel did not heed that standard in its Feb. 13 decision in Noonan v. Staples, at least where private matters are concerned.
Relying on the 1902 Massachusetts statute, the panel ruled that Alan S. Noonan, a former Staples employee, could proceed with a libel suit against Staples after an executive sent an e-mail to 1,500 employees that named Noonan. Although the e-mail truthfully stated the reasons for Noonan’s firing, the federal panel found that it may have been written with actual malice. The term was defined in New York Times Co. v. Sullivan as knowledge of falsity or reckless disregard as to truth or falsity.
In its opinion, the panel wrote that “since the statute was passed before the development of the modern definition of actual malice, it would not be consistent with legislative intent to read it as applying a more modern definition.” The opinion said Massachusetts law “recognizes a narrow exception” to truth as a libel defense: “[T]he truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with ‘actual malice’ in publishing the statement.”
Some First Amendment advocates said they saw this ruling as a potentially dangerous breach of free speech.
“It is the most dangerous libel decision in decades,” wrote Massachusetts lawyer Robert J. Ambrogi on his blog, Media Law. “The decision puts a crack in the bedrock that threatens to undermine free speech.”
The panel was rehearing the case, in which initially, last year, it had affirmed a district court’s granting of summary judgment for Staples. Circuit Judge Juan Torruella wrote in the new opinion that after the panel’s rehearing, the court was withdrawing that prior opinion. Without ruling on the truth of Noonan’s claims, the court in its new opinion distinguished between the modern actual-malice test used for public figures as established by the Supreme Court in 1964 in Sullivan and the “common-law” definition, meaning ill-will, which the panel surmised would have likely been the meaning of the word as stated in the 1902 statute.
Robert Corn-Revere, a Washington, D.C.-based lawyer specializing in First Amendment, Internet and communications law, emphasized that the panel’s very specific role in this decision was the interpretation of Massachusetts law. The panel never addressed or interpreted the constitutional implications of the First Amendment in its decision.
The idea that truth might not be a defense in libel, Corn-Revere said, “makes it seem as though the sky is falling, but [the ruling is] much narrower than that. [The court] does its best to interpret the law of Massachusetts” in the decision, he said. He said he believed that if a First Amendment defense were argued, the speech would likely be protected in a subsequent decision.
However, Gordon Firemark, an entertainment lawyer, wrote on his Feb. 16 blog that the ruling was “disregarding 40 years of Defamation jurisprudence … . If allowed to stand, this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech.”
The Supreme Court in Sullivan ruled that a public official who believes he or she has been libeled must prove a statement libelous by demonstrating that the defendant made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Noonan fits neither of these two criteria.
In its libel rulings, however, the Supreme Court has written that standards for proving libel in cases involving private persons should be less stringent than in cases concerning public officials or public figures.
The crux of Noonan’s libel argument is his belief that the company singled him out to humiliate him.
The e-mail in question, as reproduced in the opinion, reads:
“It is with sincere regret that I must inform you of the termination of Alan Noonan’s employment with Staples. A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies. As always, our policies are consistently applied to everyone and compliance is mandatory on everyone’s part. It is incumbent on all managers to understand Staples[’s] policies and to consistently communicate, educate and monitor compliance every single day. Compliance with company policies is not subject to personal discretion and is not optional. In addition to ensuring compliance, the approver’s responsibility to monitor and question is a critical factor in effective management of this and all policies.
“If you have any questions about Staples[’s] policies or Code of Ethics, call the Ethics Hotline … or ask your human resources manager.” (Brackets are the court’s.)
The panel cited three reasons for why, when malice is defined as ill-will, there could be evidence of actual malice.
First, in his 12 years at Staples, the executive who sent the e-mail, Jay Baitler, had never referenced a fired employee by name in an e-mail before this incident. “From this evidence,” the panel wrote “a jury could permissibly infer that Baitler singled out Noonan in order to humiliate him.”
Second, Baitler had not sent any memo about another employee recently fired under similar circumstances.
Third, the e-mail was sent to about 1,500 employees, many of whom didn’t travel and didn’t need to know about the policy Noonan violated.
“Noonan will thus ask the jury to infer that the e-mail’s excessive publication shows Baitler’s, and thus Staples’s, malevolent desire to harm Noonan’s reputation,” wrote the panel. “In this case, the presence of these three pieces of evidence support inferences upon which a jury could base a verdict for Noonan.”
The case will be sent back to the lower court for a trial to determine how it should be decided. Ambrogi wrote on his blog that the case could make it all the way to the Supreme Court.
Caroline Tenenbaum is a senior majoring in political science at Belmont University in Nashville.