Comments on: A chilling decision about libel

By: Ani

Ani — Mon, 23 Feb 2009 12:16:00 +0000

Defamation, of which libel is a subset, is about injury to reputation. Yes, the means is usually, at least, these days, a false statement, but it isn’t clear to me that falsity is crucial to the concept of defamation. The Mass. 1902 statute seems to include a notion of fault, requiring a higher level of bad animus for a true statement.
I am not sure I see how behavior becomes constitutionally protected in one case or actionable in another depending on what “form of action” the plaintiff chooses to bring. When constitutional concerns were brought to bear in 1964 on the body of defamation law developed by case and statute, I think the Supreme Court took an incremental approach and that the details of that encounter between the two bodies of law are still being worked out. And I suppose I retain an affection for the doctrinal development of common law.

By: Dan Kennedy

Dan Kennedy — Mon, 23 Feb 2009 02:12:00 +0000

Ani: That's what privacy law is for. Invasion of privacy assumes that the offending material is true — the greater the truth, the greater the breech of privacy. There is certainly no need to start redefining libel so that it can include truthful statements.

The very definition of libel as everyone understands it is a false, defamatory statement published with some degree of fault — negligence in the case of private figures, "actual malice" in the case of public officials and public figures.

By: Ani

Ani — Mon, 23 Feb 2009 02:06:00 +0000

If we extend the privilege in Times v. Sullivan et al. to purely private situations, are we justifying preventing recovery in defamation for malicious publication of something true and not of public concern that is injurious to a private person’s reputation on the grounds that not to will chill other, privileged speech? Because the countervailing consideration is whether we want to encourage publication of injurious material concerning purely private matters — I think the two issues need to be carefully weighed, especially with how easy it is to “publish” now.

By: Dan Kennedy

Dan Kennedy — Sat, 21 Feb 2009 14:07:00 +0000

Perfesser: The First Amendment aspects of the case pertain only to libel. The court could have — should have — thrown it out. I don’t see why that would stop the other aspects of the case from going to trial.

By: The Perfessor

The Perfessor — Sat, 21 Feb 2009 14:05:00 +0000

Actually Dan, it’s NOT just a libel case. It’s a case involving libel, breach of a stock option agreement and breach of a severance agreement – and the record included evidence that the travel reimbursement policies that Noonan violated were “irregularly enforced and often not followed by many employees.”

So perhaps it was that the 1st Circuit panel felt the man ought to have his day in court before being stripped of his severance and stock options.

By: Dan Kennedy

Dan Kennedy — Sat, 21 Feb 2009 13:48:00 +0000

Perfesser: You raise an excellent point, and there is some language in the decision suggesting that maybe that’s what Judge Torruella has in mind.

BUT … “false light” is a separate tort under privacy law, where it’s already established that truth is not a defense. The term “false light” never comes up in the decision. I’m not sure it’s a tort even recognized in Massachusetts — there are many states where it’s not recognized.

So I think you’re trying to throw Torruella a lifeline that he doesn’t deserve. This is a libel case, period.

By: The Perfessor

The Perfessor — Sat, 21 Feb 2009 13:42:00 +0000

Dan, what if the statements are literally true but present the plaintiff in a false light? Literal truth is not a complete defense. Without looking at the submissions, we cannot ascertain what evidence Mr. Noonan offered to present a genuine issue of material fact; and in any case, how can it be concluded that Staples is entitled to judgment “as a matter of law” when there is a law on the books suggesting otherwise? There is an ambiguity between the 1902 law and the later SJC precedent which doesn’t speak to it. Isn’t that enough of a problem to foreclose summary judgment?

By: lkcape

lkcape — Wed, 18 Feb 2009 23:14:00 +0000

And therein, Dan, is the dilemma. Free speech vs due process.

Since the appeal was a process appeal, the ruling would be appropriate. If it had been a merit appeal, then the ruling could well have been different.

By: Ani

Ani — Wed, 18 Feb 2009 22:11:00 +0000

How do you explain the SJC’s apparent acceptance of statutory grounds for a plaintiff to recover for a truthful defamatory statement in footnotes in Phelan and White? If you want to join issue and debate just what are these confines required by the 1st amendment (to which the SJC apparently refers), and how does traditional tort law intersect with this, I’m all for it, but to dismiss this Staples case as coming out of nowhere seems to me to be a distortion that makes discussing the development of the doctrine really difficult.

By: Dan Kennedy

Dan Kennedy — Wed, 18 Feb 2009 21:50:00 +0000

The courts have often held that summary judgment is especially important in First Amendment cases because keeping a frivolous lawsuit alive is chilling to free speech.

Before last Friday, pursuing a libel suit over statements that were provably true would have been considered the very definition of frivolous.