On Feb. 13, 2009, the 1st Circuit U.S. Court of Appeals in Boston held that truth may no longer be a defense to libel in lawsuits brought by private figure plaintiffs under Massachusetts law if the allegedly libelous statement was published by a defendant acting out of “ill will.”
Judge Juan R. Torruella, writing for a three-judge panel of the appeals court, ruled in Noonan v. Staples, 2009 U.S. App. Lexis 2848 (1st Cir. 2009), that Alan S. Noonan, a former employee of the office supply company Staples, could maintain an action for libel in Massachusetts against Staples after it sent an e-mail to more than 1,500 employees stating truthfully that Noonan was fired for violating the company’s travel and expenses policy.
According to the court’s opinion, Staples Executive Vice President Jay Baitler sent an e-mail the day after Noonan was fired for falsifying travel expense reports that said, “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 policies.” In his lawsuit against Staples, Noonan did not challenge the truth of the statements in the e-mail before the appeals court.
Under Massachusetts libel law, a plaintiff must prove that the alleged libel is defamatory and false. A defendant in a libel lawsuit may then assert the statement’s truth as a defense to a libel claim. But the 1st Circuit ruled that a 1902 Massachusetts state law recognizes a narrow exception to truth as a defense against libel if the defendant acted with “actual malice” in publishing the libelous statement. Mass. Gen. Laws ch. 231 section 92 states that the defendant in an action for libel may introduce into evidence “the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.”
The 1st Circuit ruled that “actual malice” should be defined in accordance with state common law as “actual malevolent intent or ill will.” In doing so, the federal appeals court rejected the standard for “actual malice” set forth in the U.S. Supreme Court case New York Times v. Sullivan, 376 U.S. 254 (1964). In that landmark case regarding libel of a public official, the Supreme Court defined “actual malice” as knowledge of falsity or reckless disregard for the truth.
Judge Torruella’s opinion refused to apply the New York Times v. Sullivan definition of “actual malice” to the Massachusetts statute because the 1902 law predated the 1964 Supreme Court case. Therefore, the court concluded, applying the modern definition of “actual malice” to the statute’s terms would be inconsistent with the intent of the state legislature that enacted the statute.
Furthermore, Torruella’s opinion stated the Supreme Court defined the term “actual malice” in Sullivan in the context of libelous statements regarding public officials. Noonan v. Staples, however, concerned a private figure, Torruella wrote, thus rendering the Sullivan standard inapplicable.
In Gertz v. Robert Welch, 418 U.S. 323 (1972), the Supreme Court said that public figures are individuals who “have assumed roles of special prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” Such figures can include famous celebrities and star athletes.
Private individuals, however, do not have the same ability as public figures to rectify damage to reputation through rebuttal in the media or other channels of communication, nor have they submitted themselves voluntarily to the scrutiny directed at public officials, according to Gertz. Therefore, the Supreme Court concluded, private figure plaintiffs do not have to meet the heightened standard of proving “actual malice” in defamation lawsuits. Gertz left to the states the responsibility of specifying the degree of fault private figure plaintiffs would have to prove in defamation lawsuits, so long as the states did not impose liability without fault in such cases.
In considering whether summary judgment was appropriate, the 1st Circuit determined that a jury could infer that the allegedly libelous statements regarding Noonan’s termination were made with actual malice. Baitler had never before in his twelve years with Staples referred to a terminated employee by name in an e-mail. Therefore, according to the court’s opinion, “a jury could permissibly infer that Baitler singled out Noonan in order to humiliate him.”
Baitler also did not send an e-mail to employees naming another Staples employee who was terminated for similar reasons. Finally, Baitler sent the e-mail to more than 1,500 employees, some of whom did not travel and had no reason to be aware of the company’s travel policy. The court’s opinion stated that the fact the e-mail was sent to a large number of employees could constitute evidence of Baitler’s “malevolent desire to harm Noonan’s reputation.” The 1st Circuit determined Noonan had provided sufficient evidence to defeat Staples’ motion for summary judgment, and remanded the case to the lower court for trial.
The 1st Circuit had initially issued a ruling in the same case on Aug. 21, 2008 in Noonan v. Staples, Inc., 539 F.3d 1 (1st Cir. 2008). In that opinion, the court granted summary judgment for the defendant, Staples. The appeals court ruled that libelous statements published with “actual malice” might be actionable in Massachusetts, even if true, but said the common law definition of “actual malice” in Massachusetts law had been superseded by the modern definition contained in New York Times v. Sullivan. The court subsequently withdrew its first ruling after granting a petition for rehearing in the case on Feb. 13, 2009.
First Amendment lawyer Robert Bertsche, a partner at Boston law firm Prince Lobel Glovsky & Tye, called the February 13 ruling “troubling on so many levels that it beggars the imagination,” according to a Feb. 17, 2009 post on the blog Media Nation. “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.’ . . . 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.”
First Amendment lawyer Robert Corn-Revere, a partner at law firm Davis Wright Tremaine, said, however, that the case should be understood as a narrow ruling on Massachusetts state law, according to a Feb. 24, 2009 First Amendment Center story available online at http://www.firstamendmentcenter.org/news.aspx?id=21284. “[The court] does its best to interpret the law of Massachusetts,” Corn-Revere said. He said he believed that if a First Amendment defense had been argued by Staples, the speech would have been protected.
– Amba Datta
Silha Research Assistant