A chilling decision about libel

By Dan Kennedy

Last Friday — Friday the 13th, no less — a three-judge federal appeals court panel in Boston issued the most dangerous libel decision in many years. In ruling that truth may not be an absolute defense in matters of private concern, the panel undermined a fundamental principle of First Amendment law.

The opinion, 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. (Public officials and public figures must prove actual malice in order to win a libel claim.)

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, Robert Bertsche, a prominent First Amendment lawyer with the Boston firm Prince Lobel Glovsky & Tye, says:

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With this decision, the First Amendment has been replaced by the maxim, “If you don’t have anything nice to say, don’t say it.”

Bertsche’s e-mail is well worth reading in full. I’ve posted it on my blog, Media Nation. And for a fuller analysis of the decision, please see my commentary in the Guardian.

It’s possible that the three-judge panel will be persuaded to reverse itself, or that the full appeals court will overturn the panel’s decision. As it stands, the ruling pertains only to Massachusetts. Still, you can’t help but wonder if federal judges will discover similar archaic laws on the books in other states.

Andrew Hamilton, the lawyer for John Peter Zenger, is no doubt turning over in his grave right now. What’s ironic is that Hamilton persuaded a jury to ignore the law and find that Zenger should be acquitted on the grounds that his newspaper’s anti-government diatribes were true.

Nearly three centuries later, we are once again faced with the prospect that truth may not be protected from a libel action. Amazing. And frightening.