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Is Libel Law Turning Against Us, New and Old Media Alike?

By: Warner Todd Huston (Diary)  |  March 10th, 2009 at 04:10 AM  | 

RESIZE: AAA

This is not a story of bias in the media. It is a story, rather, that affects both the Old Media of newspapers, TV and radio, as well as the New Media of the Internet. Our disagreements with the Old Media aside, we both stand to see trouble if a recent court case in Massachusetts gains momentum or is applied liberally henceforth.

The Associated Press reports on a libel case in Boston that pits a fired employee of the Staples office supply chain against his former employer. Staples, as it happens, sent out an emailed newsletter informing its employees that salesman Alan Noonan was fired for padding his expense account. Noonan sued for libel. Alarmingly, even though the emailed newsletter was reporting the strict truth the court held that truth was no defense in this case.

What does this mean to us? Journalists (and that means us too, folks) have been protected for decades by the concept that “truth isn’t libelous” allowing things of a nature vexing to people in the news to be published without fear of a lawsuit. Even though this court case is not about journalism per se, it could come back to bite us all if this ruling is applied broadly.

The Massachusetts court held that Noonan proved that Staples could possibly have had “actual malice” in distributing his name even though the reason they fired him was strictly the truth. In this case, they held, truth is no shield against libel and Noonan’s defamation lawsuit can go forward.

And here is the problem from the standpoint of journalism and Internet publishing: if we all cannot live by the truth-isn’t-libel principle, what can we print/post/publish/air without constant fear of a lawsuit?

The AP article mentions the law blogging of Robert Ambrogi who has covered this ruling on his blog Media Law.

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.

What more can be said? If any of us report some true, but perhaps uncomfortable, situation in the life of any figure, public or not, do we now have to fear being sued for libel for any perceived “actual malice”? If this ruling is more broadly applied, how could we be safe? Let’s face it we Internet writers are fast becoming as legitimate as the Old Media.

Certainly every single blogger on this site has written something that is sure to make the targets of our derision unhappy with us — I as much as anyone. Can we all now expect to hear from the courts as a result on into the future? Are we expected to hire legal counsel just to post on a website from this point forward?

It most certainly could happen. After all, have you ever heard of a law or court ruling that forever remained narrowly defined? Isn’t it the natural propensity of law, courts and government each to enlarge their sphere of influence and to seize on the tiniest vestiges of power as an avenue to larger jurisdiction?

This ruling is an ominous tear in the blanket of protection that journalists have traditionally enjoyed. It truly could be the “most dangerous libel decision in decades.”

This is a situation we all should be concerned about, Old and New media alike. For that matter, it is something even posters on websites should worry about.

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  • http://www.phxgonline.com phxg

    Talk about a Pandora’s box of unintended consequences.

  • Brian Hibbert

    The actual ruling gives a lengthy explanation, but the gist of it as I interpret it is:
    1. Noonan was the second employee fired for a similar cause.
    2. The same supervisor didn’t send a similar email mentioning the first employee.
    3. The email was sent to employees that don’t travel and therefor the business need to warn other employees to not repeat the same actions was exceeded.

    These showed “actual malice” which allows a limited exception to the “truth” defense when not discussing public figures. They also state that since they were reviewing a summary judgment, they had to review in the light that most favors Noonan.

    The conclusion states that they are overturning the summary judgment on the libel charge and returning the issue to the lower court for an actual trial. As a layman, They agreed with the summary judgment on Staples’ decision to not allow him to execute stock options or receive severance benefits due to being fired for cause.

    Since I am a layman, rather than a lawyer, I’m not certain how wide this case can be applied for precedent, but I’m sure we’ll be getting a lot of references in other cases to test the limits.

    As a side note. Staples’ management sucks. Whoever was responsible for reviewing these expense reports in the first place should have been fired. If their procedures didn’t have a reviewer in place, the whole management team sucks and should be replaced. I mean, how can you let a $1128 meal get approved without a receipt? What the heck do they EXPECT from having such a loose approval process?

    • Streiff

      from the decision

      Given this holding, Noonan’s only hope for keeping his libel claim alive is to prove that Staples — or other employees responsible for composing and sending the e-mail — acted with actual malice. As noted above, under Massachusetts law, even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with “actual malice.” Mass. Gen. Laws ch. 231, ? 92; White, 809 N.E.2d at 1036 n.4; Conroy v. Fall River Herald News Publ’g Co., 28 N.E.2d 729, 731-32 (Mass. 1940).7
      The relevant statute, Mass. Gen. Laws ch. 231, ? 92, passed in 1902, does not define the term “actual malice.”8 Noonan argues that the term “actual malice” refers to actual malevolent intent or ill will. Though we initially concluded otherwise, on rehearing we now agree.

      The underlying issue in this sideshow of the lawsuit, the main issue concerns his 401K and stock options, is whether identifying him in the newsletter and not the other people also caught in the investigation constitutes malice.

      • http://www.publiusforum.com Warner Todd Huston

        The problem as I see it is that you re both sort of gullibly imagining that the system is right and that this ruling won’t bleed over into regular libel law. I have no such illusion.

        • Streiff

          Just because I don’t sign on to every alarmist notion that comes down the pike doesn’t make me gullible.

          The ruling is clear. In Massachusetts, contra your post, truth IS a defense against libel and/or defamation. The only exception is if the action is done with malice. This, by the way, is not an exception they dreamed up, it is something the Massachusetts legislature enacted.

          In this case, I think the thief has a legitimate gripe. Were he a federal employee, what the company did would have been prohibited under the Privacy Act of 1973.

          I think you’re jumping off the deep end on this one and finding a danger where none exists. This is really reminiscent of the lefties on the issues of illegal combatants and wiretaps.

          • http://www.publiusforum.com Warner Todd Huston

            I guess we just differ in our faith on the reliability on the system. I have none, you have a full measure of it. This isn’t the 1800s at law anymore. This is the golden future of judicial activism where “law” is a mere gauzy ideal that is served by judges indulging in alchemy instead of reading the law.

  • Dencal26

    Brian
    Staples internal approval process for expenses should have no bearing on this at all regardless of how poor they manage this process. Leaving you car running while in a store resulting in theft does not excuse the car thief. I find the ” malice” issue to have no merit . The fact that an email was not sent for a prior situation does not prove a thing. Perhaps the manager just recently decided to change policy .

    • Brian Hibbert

      I was just commenting on the sorry state of management if they routinely allow such things past. A legitimate dinner expense in that (picking up the tab for multiple customers) would require VP approval in my company due to the flags that the expense processing system would raise.

      I agree, shoddy expense control systems have no bearing on the case. But they are (or were) shoddy and management heads should roll over this whole fiasco. If I were an investor in Staples, I’d be calling for a revolt (or more likely I’d just sell).

      I agree with your car analogy, the car thief would still face charges, but the insurance company would also have cause to not pay for the stolen car.

  • red4ever

    Even if “actual malice” is embedded in Mass law, that is still a fuzzy standard. What constitutes actual malice? It is probably defined elsewhere in case law and statute, but application can vary. Truth was a bright line rule that everyone knows what it means.

    Also, with regards to internet publishing especially, the net goes everywhere. If a story you wrote in Dallas is read in Boston then told to someone in Charlotte, and the person in Charlotte finds out, can they sue in Boston (site of the reading by a third party)? Thereby subjecting you to the rules of Massachusetts on defamation. Which would have a chilling effect on what you choose to publish on the net.