First Circuit: truth is NOT necessarily a defense to libel

If there's one bedrock principle of media law, it's that truth is an absolute defense to a claim of libel.  Everybody knows that, right? Well, not the First Circuit! Hard as it is to believe, the First Circuit has just held in a case called Noonan v. Staples, Inc. that a true statement can form the basis of a libel claim.

Here's what happened:  Noonan was a salesman for Staples. Staples fired him for filing false travel expense reports (an alleged $1,129 meal at McDonald's does tend to arouse suspicion, though, in fairness, Noonan claimed that the errors in his reports were inadvertant, and that he actually saved Staples money by bending certain rules.) A Staples executive announced Noonan's departure with an email to about 1,500 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 incompliance 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.

If you have any questions about Staples['s] policies or Code of Ethics, call the Ethics Hotline . . . or ask your human resources manager.

Noonan sued for libel (among other things). The District Court granted summary judgment for Staples, finding that everything in the email was true. The First Circuit agreed: "there is no triable issue of fact on the question of truth." End of story, no? No!

Here was the First Circuit's reasoning:  under the relevant section of Massachusetts libel law, enacted in 1902, truth is indeed a defense to a libel claim -- "unless actual malice is proved." When libel attorneys read "actual malice," they think of that term as defined in New York Times v. Sullivan: "actual malice" means "knowledge that [the allegedly libelous statement] was false or [made] with reckless disregard of whether it was false or not." In other words, "actual malice" in libel law means something different from what the term means in normal English: spite, ill-will, intent to injure, etc. But the First Circuit held that "actual malice" as used in the Massachusetts statute is not the same as New York Times v. Sullivan "actual malice." Rather, the court held, "actual malice" under Massachusetts law means exactly what every law student is taught "actual malice" does not mean: "malicious intention." So, the First Circuit held, Noonan may have a valid libel claim if he can prove to a jury that the Staples exec sent the email with a "malicious intention" -- even if -- as both the District Court and the Court of Appeals concluded -- every word of it was true.

Why, one may ask, did the First Circuit rely for its definition of "actual malice" on a 1903 Massachusetts Supreme Court decision that predates virtually all First Amendment doctrine, including the strong speech protections embodied in New York Times v. Sullivan? And why did it not even consider whether the First Amendment permits a libel claim premised on a true statement? According to the court (see footnote 7), "this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time." So the court was willing to upend what everyone thought was decades of fundamental, settled First Amendment law because the issue wasn't raised by the parties until late in the game? Seriously ? They couldn't have ordered an additional round of briefing?

Unsurprisingly, the Noonan decision is garnering worse reviews than a triple-feature of Gigli, Ishtar, and Battlefield Earth. Media lawyer Robert Ambrogi calls it "the most dangerous libel decision in decades." The Nieman Journalism Lab says Noonan "threatens to muzzle both news and entertainment media, and could be particularly dangerous to independent bloggers and small startup news organizations." And Attorney Marc Randazza says the decision  "could wind up making Massachusetts the least speech protective jurisdiction in the United States." More good analysis and reaction from the Citizen Media Law Project.

Let's hope the First Circuit fixes this en banc (et tout de suite). And that they are more protective of First Amendment values when deciding another important pending case.

(What's in the water in New England, by the way? Professor Volokh describes a similarly wrongheaded 1995 Rhode Island Supreme Court opinion here.)