First Circuit rejects libel appeal


d_kennedyBy Dan Kennedy

The U.S. Court of Appeals for the First Circuit in Boston has refused to overturn a ruling (PDF) that defamatory statements made in matters of private concern may be found libelous even if true.

The court has also declined to accept (PDF) an amicus curiae brief filed by several dozen of the largest and most influential media organizations in the country, citing a conflict of interest that would be created if it were to do so. Apparently one of the judges has a tie to a media organization, which would force a recusal.

No word on what comes next. Is it possible that the U.S. Supreme Court will rule on this? The idea that a statement must be defamatory and false in order to be held libelous is so fundamental to our notion of a free press that it’s hard to imagine the ruling will stand, even if it pertains only to Massachusetts, based as it is on a 1902 state law.

From the time I reported on this case for The Guardian, I’ve heard a low buzz suggesting that the ruling may not matter all that much, given that it pertains to private parties — and that, in fact, private persons deserve more protection under the libel laws than public officials and public figures.

My answer to that is that they already do, but that private figures — according to all the libel law that we understand — still have to prove falsehood.

I think the most telling case is that of Gertz v. Robert Welch, a 1974 Supreme Court decision about a libel suit brought by a lawyer who had been falsely defamed by a John Birch Society publication. The court ruled that the lawyer, Elmer Gertz, was a private figure, and would thus not to have to prove “actual malice” as defined by Times v. Sullivan (1964) — that is, he would not have to prove that the Birchers had published defamatory material knowing it was false, or with reckless disregard for the truth. Instead, the court ruled that, henceforth, private figures would have to show negligence at the very least, with the states free to adopt more stringent language if they chose.

Reading the Gertz decision, you can’t help but be struck how the notion of falsehood is raised over and over. The phrase “defamatory falsehood” is used repeatedly. The most famous section of the majority decision, written by Justice Lewis Powell, is built around the principle that libel is a false and defamatory statement of fact:

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Remember, Gertz was a private figure. Powell was writing quite specifically about the libel standards that should prevail when a private citizen brings a libel suit, yet he made it absolutely clear that falsehood and defamation are the two key elements of libel.

It’s hard to imagine what the First Circuit is thinking.

Cross-posted from Media Nation.


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