Does Recent First Circuit Ruling Turn Libel Law on Its Head?

[WSJ_law_blog]

It’s one of the bedrock precepts in media law: truth is the ultimate defense to libel and defamation suits.

But according to a story in Friday’s Boston Globe, a recent First Circuit ruling might be putting that notion into jeopardy.

Here’s the deal: The First Circuit ruled recently that a former salesman at Staples can sue the company for libel after a vice president sent an e-mail to about 1,500 employees saying the salesman had been fired for violations of company procedures regarding expenses.

The decision did not involve a news outlet, but journalists, bloggers, and media law specialists are fretting that it could discourage news organizations from pursuing true stories that might cast subjects in a bad light.

On his blog Media Law, Bob Ambrogi, a lawyer and executive director of the Massachusetts Newspaper Publishers Association, called the ruling by a three-member panel “the most dangerous libel decision in decades.”

Wendy Sibbison, the Greenfield appellate lawyer for the fired Staples employee said the ruling applies only to lawsuits by private figures against private defendants. “No one is a bigger believer in the First Amendment than I am, and I genuinely cannot understand this outpouring of anxiety and catastrophizing,” said Sibbison.

Still, Staples has asked the full appeals court to reconsider the ruling, and 51 news organizations have filed an amicus brief saying that the decision, if allowed to stand, “will create a precedent that hinders the media’s ability to rely on truthful publication to avoid defamation liability.”

The lower court initially dismissed the claim, writing that “truth is an absolute defense to a defamation action under Massachusetts law.”

Noonan appealed to the First Circuit, which says Noonan could pursue that part of his lawsuit because of a relatively obscure 1902 state law that tweaks the commonly held definition of “actual malice.” Generally speaking, libel law says that truth is a defense against libel unless the plaintiff can show “actual malice” by the person publishing the statement.

Alex S. Jones, director of the Shorenstein Center on the Press, Politics, and Public Policy at Harvard University, said the 1902 Massachusetts law struck him as “an anachronism from a more censorious age” when some states passed laws that sought to trump the First Amendment. “There is every reason to be fearful that this kind of ruling could very well be damaging, because it puts a higher value on other things than it does on the truth,” he said.