For decades, US journalists have been guided by what most considered an absolute defense to libel lawsuits: If a news report is true, it can’t be libelous.
But a recent decision by a federal appeals court in Boston is calling that ironclad defense into question and creating an outcry from news organizations and bloggers worried that it could make reporters hesitant to touch certain stories.
The case doesn’t involve anything published by a news outlet, but instead an e-mail sent by Staples Inc, the Framingham-based office products company, to more than 1,500 employees, telling them a salesman had been fired for padding his expense reports.
A three-judge panel of the 1st US Circuit Court of Appeals found on Feb. 13 that even though the content of the e-mail was true, a jury could reasonably find that Staples had shown “actual malice” in widely circulating the e-mail to humiliate the salesman, Alan Noonan.
The court cited a 1902 Massachusetts law that holds that truth is a defense against libel unless the plaintiff can show “actual malice” on the part of the person publishing the statement.
The court’s ruling means Noonan’s defamation lawsuit against Staples can go forward.
But legal observers say the ruling could reverberate beyond the employment arena. Media bloggers have lambasted the ruling as an attack on the First Amendment, which guarantees free speech rights.
And they say the case could have implications beyond Massachusetts because in most defamation lawsuits the libel law in the state where the plaintiff lives applies.
So, for example, if a California newspaper writes something about a Massachusetts resident and the newspaper is circulated or does business in Massachusetts, the Massachusetts law could apply.
Robert Ambrogi, a lawyer and executive director of the Massachusetts Newspaper Publishers Association, called the ruling “the most dangerous libel decision in decades” on his blog, Media Law.
Ambrogi said the ruling “freezes out the long accepted notion that truth is a defense to libel.”
“For the news media, it puts reporters in the odd position of having to not just assess the truth of what they’re reporting, but also assess the intent with which something was said,” he said in an interview.
Boston media lawyer Robert Bertsche said the ruling applies only to lawsuits brought by private figures, such as Noonan, about a “private concern.”
But he said that the law does not clearly define what a “private concern” is, and that media organizations worry that juries would be more likely to find them guilty of libeling someone based on the court’s definition of actual malice as simple “ill will.”
“Let’s say a media outlet found out about Noonan’s firing and decided it was noteworthy that this individual were fired for this reason. If a jury deems that to be something of a private concern, the newspaper would potentially be on the hook for defamation for writing something that nobody disputes is true,” Bertsche said.
“It’s a scary notion when you start saying truth — undisputed truth — can be punished as defamation,” he said.
But Noonan’s lawyer, Wendy Sibbison, said the ruling has been misinterpreted.
“This case doesn’t implicate the First Amendment,” Sibbison said. “The Massachusetts statute allows a plaintiff to recover damages for malicious true speech under a narrow set of circumstances.”
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