“The most dangerous libel decision in decades”

Originally posted 2009-02-17 17:12:25. Republished by Blog Post Promoter

That’s how Robert Ambrogi describes this decision, as reported by Sam Bayard:

Last Friday, the First Circuit Court of Appeals upended the generally accepted notion that U.S. defamation law does not impose [defamation] liability for truthful statements.  In Noonan v. Staples, a three-judge panel of the federal appeals court in Boston held that Alan Noonan, a former Staples employee, may hold the company liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan’s termination, so long as he can prove that the email was sent with “actual malevolent intent or ill will.”

Huh?  Here’s part of Robert’s precis:

As the 1st Circuit itself acknowledged, “everything said in the e-mail was true.” But it said Noonan could still have a claim under the 1902 statute if he could show that the e-mail was sent “with actual malice.” The Supreme Court’s decision in New York Times v. Sullivan defined actual malice as requiring knowledge that a statement was false or reckless disregard for its truth or falsity. The first time the 1st Circuit decided this case, it applied that standard to dismiss Noonan’s appeal. This time, it leapfrogged back in time over 40 years of Supreme Court precedent to apply a 1903 SJC ruling that defined actual malice as “malicious intention,” which Torruella recasts as “ill will.”

Huh?
UPDATE: More here.

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Author:Ron Coleman

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10 Responses to ““The most dangerous libel decision in decades””

  1. James H
    February 17, 2009 at 5:46 pm #

    Defamation seems like an odd tort to bring in this case. Wouldn’t an invasion of privacy claim of some sort be more appropriate? Even if the likelihood of success would be low on one of those torts it seems more apropos. (I’m totally being off the cuff here, as I barely remember anything about invasion of privacy torts).

    • February 17, 2009 at 5:52 pm #

      I agree. In fact I added “defamation” in brackets because I was thinking along these lines.

  2. February 17, 2009 at 6:27 pm #

    Let me preface with I am not a lawyer but I have significant experience (having been in business for myself my entire adult life) in hiring and firing people. I don’t see how defamation would enter into it at all. Disclosing the reason(s) behind an employee termination, as all HR personnel and middling middle managers are taught, is a no-no. That, if anything, would have been the issue. “If anything” as the premise of that decision was to disallow a practice (telling the truth) that might hamper the former employee’s ability to obtain future work. Was the fired guy planning to re-apply to the same company??? Then he has a brilliant case!

  3. James H
    February 17, 2009 at 8:05 pm #

    what was the rationale for non-disclosure?

  4. February 17, 2009 at 8:27 pm #

    Hmm. I read the decision somewhat differently. The court recognizes the silly Massachusetts rule that malicious statements can be libelous even if true. It also says that Staples only argued for the first time upon rehearing that the rule is always unconstitutional (as opposed to only unconstitutional when applied to speech on matters of public interest, as MA courts have already found). It therefore declines to decide whether it is always unconstitutional. See footnote 7:

    “In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not
    developed now and was not raised in the initial briefing.
    Accordingly, we do not consider it at this time.”

    I think that’s an odd exercise of discretion in this case — the proposition that the rule is unconstitutional seems rather self-evident to me. But at the very least, it leaves the door wide open to make the argument that the rule is always unconstitutional in any future case.

  5. Ken Katkin
    February 18, 2009 at 12:40 am #

    I agree with Ron and others that it seems strange to talk about “truthful defamation,” and that this tort action would look prettier with a different label on it. But the First Amendment definitely does not protect all truthful speech against tort liability. Copyright infringement, invasion of right of publicity, intentional infliction of emotional distress, espionage, leaking information that could lead to insider trading–all of these are categories of truthful speech that are not generally First Amendment protected and that frequently give rise to tort (and sometimes criminal) liability. Although I haven’t thought hard about it, on first blush it seems to me that the Massachusetts Supreme Court’s First Amendment distinction between speech on matters of public interest and speech of purely private concern is precisely consistent with the rule set forth by the US Supreme Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985) and more recently reaffirmed in Bartnicki v Vopper, 532 U.S. 514 (2001), especially in the concurring opinion of Justice Breyer.

Trackbacks/Pingbacks

  1. Ron Coleman - February 17, 2009

    LIKELY / CONFUSION “The most dangerous libel decision in decades”: That’s ho.. http://tinyurl.com/b65w9d

  2. Brenda Speer - February 17, 2009

    Noonan v Staples-scary defamation case. 1st Cir Ct: “actual malevolent intent or ill will” trumps truth defense. http://tinyurl.com/b65w9d

  3. Walter Olson - February 18, 2009

    No truth defense in libel? Outcry at “dangerous” First Circuit decision http://bit.ly/ysVjc http://bit.ly/FlvPj http://bit.ly/ewn0h

  4. February 23 roundup - February 23, 2009

    […] Even truthful statements libelous if made with actual malice? Outcry at “dangerous” First Circuit decision [Ambrogi/LegaLine, Bayard/Citizen Media Law, Coleman/Likelihood of Confusion] […]

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