Can I Say That? Based on the First Circuit’s Interpretation of a 1902 Law, Maybe Not

by Lee Gesmer on March 3, 2009

It’s perfectly monstrous the way people go about nowadays saying things against one, behind one’s back, that are absolutely true”

Oscar Wilde

“Gossip needn’t be false to be evil – there’s a lot of truth that shouldn’t be passed around.”

Frank A Clark

“The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved”

Entire text of Mass. Generals Laws, Chapter 231, Section 92, enacted in 1902

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“The truth is an absolute defense to a claim of defamation.”  This is something that all lawyers know, and we have told this to clients countless times.  However, we will have to temper this advice following a recent decision from the  First Circuit U.S. Court of Appeals.  The case, for reasons that should be apparent, is attracting a lot of attention.

First the case, then the law, then a few brief observations.

Facts of the Case

Alan Noonan was an employee of Staples. After an investigation, Staples concluded that Noonan had padded his expense account, and terminated him for cause. The day after the termination a Staples executive sent the following email to 1500 Staples employees:

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.

Noonan sued for defamation. Staples responded that the statement regarding Noonan was true. The federal U.S. judge found that the statement was true, and dismissed the claim.

The Appeal

On appeal, the Court of Appeals reversed. The court applied the Massachusetts defamation statute, enacted in 1902, which states in its entirety as follows:

The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved. (M.G.L. c. 231, Section 92)

The court took as true the lower court’s finding that Noonan had been out of compliance with Staples’ travel and expense policies.  Taking an “originalist” approach to the 1902 statute (a legal philosophy that takes the view that the the text of a written law should be understood according to what was meant by those who drafted and enacted it – think Supreme Court Justice Anton Scalia), the court held that “actual malice” meant “malevolent intent” or “ill will.” The court concluded that whether the Staples executive who published the email did so with “malevolent intent or ill will” was a question of fact, and sent the case back to the trial court for a jury trial.

Observations

This case will be analyzed six ways from Sunday by the defamation experts, of which there are many, so I’ll keep my observations brief.

First, it begs the obvious to observe that sending this email to 1500 Staples employees was poor judgment.  Apparently, there had been other expense account incidents at Staples before this, and one implication that readers could have taken from this email was that Noonan had engaged in fraudulent conduct (or so Noonan argued).  However, for all we know the Staples exec that sent the email had consulted with legal counsel and been told “truth is an absolute defense, ” so don’t worry about it.

Second, when I was studying for the Bar Exam I recall that we touched on this statute.  Our discussion reflected the widely held assumption that the “actual malice” exception to the “truth defense” was likely unconstitutional under the First Amendment. I’m not sure why the First Circuit didn’t address the constitutional legality of the statute before applying it. The law is more than 100 years old, and its enactment precedes the development of defamation in light of First Amendment law, all of which was deemed irrelevant under the court’s approach to statutory construction.

Third, taking the case at its literal meaning, anytime a person gossips about another person in a manner that is damaging to reputation it is actionable if it is accompanied by “ill will,” even if true (I take the “ill will” standard to be much easier to met than “malevolent intent”).  Not to overstate things, but the implications of this could be significant.  If you speak ill of your enemy in such a way that damages her reputation in the community, you may be liable for defamation, whether your statement is true or not.

Some examples:

  • You learn that someone in your community (your town, school community, church or temple, or workplace, for example), was once charged with a crime, and you share this fact with others.
  • You share the fact that someone in the community had been terminated from an earlier job based on suspicion of theft, sexual harassment or other reputation-harming conduct.
  • You share the fact that long ago, one of the attorneys in your law firm failed the bar exam on the first try, before passing it on the second try.
  • You share the fact that one of your co-workers whom no one knows is gay visits the local “gay” bar most weekend nights.

Assuming that the victim of this speech can claim that you bear her ill will, you could be liable for defamation under this decision.  And why would you share these facts if you didn’t hope to to injure the person?  In other words, ill will may not be that difficult to prove.

The issues associated with a decision like this are complex, as is the balance between freedom of speech and the harm that speech can cause.  The Supreme Court has struggled to establish the line between defamation and permissible speech when “public figures” are involved and the speech is false, but much less attention has been paid when the victim of alleged defamation is a private person, as was Mr. Noonan in this case.

The picture is complicated even further by the right of privacy.  In Massachusetts, as in many other states, the right of privacy has been interpreted to encompass a prohibition against the publication of “private facts,” which are facts of a “highly personal or intimate nature” that are “of no business of the public.”  It appears that the Noonan v. Staples decision extends the reach of that protection to a level somewhere beyond “private facts,” although this extension is based on the law of defamation according to the 1902  Massachusetts statute, not the law of privacy.

The First Circuit decision in Noonan v. Staples is here.

An article by Dan Kennedy on MediaNation (“A Chilling Decision About Libel”) critiquing this decision is here.

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