Edward Fitzpatrick

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Edward Fitzpatrick: In this case, the truth really hurts

01:00 AM EST on Thursday, February 26, 2009

When you charge your company $1,129 for a meal at McDonald’s, that’s not just a Big Mac. That’s a whopper.

So it’s no surprise Staples fired salesman Alan S. Noonan for allegedly padding his expense reports. But then his boss sent an e-mail to about 1,500 other Staples employees, letting them know Noonan had been canned and emphasizing that expense report policies are mandatory. And Noonan, a Florida resident, sued Staples, a Massachusetts corporation, alleging libel.

A federal judge in Massachusetts tossed the case out. But on Feb. 13, the Boston-based 1st U.S. Circuit Court of Appeals, which handles appeals from Rhode Island, said the libel claim could proceed — even though the e-mail contained the truth.

I don’t mind telling you, that ruling made me Grimace.

And First Amendment advocates are calling it one of the most dangerous rulings in decades because it challenges the long-cherished American legal principle that truth is an absolute defense against libel suits.

“People are really alarmed at this,” said Northeastern University journalism Prof. Walter V. Robinson, who once led the Boston Globe’s investigative team and now coordinates the New England First Amendment Center. “The news business is on shaky ground for all sorts of reasons, but the one firm piece of ground that we all occupy is that if you print the truth you get credit, not a judgment against you.”

The 1st Circuit ruling, written by Judge Juan R. Torruella, took note of truth as a defense but said a 1902 Massachusetts law “recognizes a narrow exception” when “the plaintiff can show that the defendant acted with ‘actual malice’ in publishing the statement.”

The U.S. Supreme Court set the “actual malice” standard in its landmark New York Times v. Sullivan ruling, saying public officials and public figures had to show a defamatory statement was published “with knowledge that it was false or reckless disregard of whether it was false or not.” But the 1st Circuit noted the Staples case does not involve a public official or figure, and Massachusetts passed the 1902 law long before the New York Times v. Sullivan ruling in 1964.

In The Guardian, Northeastern University journalism Prof. Dan Kennedy said, “Any rational legal observer might have thought Torruella would find the 1902 Massachusetts law was unconstitutional in light of the last 45 years of libel jurisprudence.” And on his Media Nation blog, Kennedy quoted Boston media lawyer Robert A. Bertsche as saying: “Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the 1st Circuit says there is no constitutional protection for true statements on matters of private concern.”

First Amendment lawyer Joseph V. Cavanagh Jr., who often represents The Journal, said the 1st Circuit ruling is more of a concern for private communications than for the media. But he said it’s not just a concern for Massachusetts, because Rhode Island has a similar law and has seen a similar ruling. He cited a 1995 Rhode Island Supreme Court case in which a woman sued her former husband for calling her a “whore” in front of 50 to 75 people at Twin Oaks restaurant in Cranston. The court said the woman was entitled to $5,000 in compensatory damages because although his statement was “essentially true,” the former husband had acted “out of spite and ill will.”

I’ve always thought you can learn a lot about Rhode Island at Twin Oaks, and here’s another lesson: The truth doesn’t always set you free.

efitzpat@projo.com

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