Alarming defamation ruling: Truth is NOT always a defense

justiceEntertainment Lawyers and our clients in the film, television, music, publishing, and journalism fields  need to be aware of an alarming ruling that’s just come down in a defamation case. (Defamation is the umbrella term for reputation injury cases such as Libel and Slander).

On Friday, February 13, 2009, the 1st Circuit Court of Appeals dealt a blow to free-speech and the First Amendment,  in the case of Noonan v. Staples,  holding that in defamation cases, the long-standing rule that truth is an absolute defense will not apply when the statement(s) in question were made with Actual Malice.

Courts have long applied a test for Actual Malice that looks at whether the Defendant knew the statement was false, or acted with reckless disregard for the truth/falsity of the statement (See the U.S. Supreme Court opinion in New York Times v. Sullivan). In Noonan, however, the Court expanded this, holding that Actual Malice could be found in a case involving a true statement, if made with malicious intent (ill will), disregarding 40 years of Defamation jurisprudence, and harkening back to a 1903 ruling by the Massachusetts Supreme Judicial Court.

The Noonan case involves an executive terminated from Staples for falsifying travel expense reports. After his firing, the company’s Executive Vice President allegedly sent an email to 1500 Staples employees, naming Noonan and stating the reason for his termination.

Initially, the 1st Circuit followed the New York Times v. Sullivan Rule, but last week reviewed the decision, arriving at this alarming result, stating that given the evidence a jury could have found libel on the basis that in sending the email, defendant intended to hurt Noonan’s reputation.

Although it seems fairly certain that Staples will ask for an en banc rehearing, and if necessary appeal to the U.S. Supreme Court, if allowed to stand,  this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech, such as documentary films and many forms of investigative journalism.


11 Responses to Alarming defamation ruling: Truth is NOT always a defense

  1. Even though INTENT is a major factor in types of criminal prosecution (e.g. murder vs manslaughter) to apply intent in a defamation case involving a true statement is to begin that slippery slope that hate crimes legislation has been dancing around and down for the last 4 years or so. This is troubling. Isn’t every negative political ad malicious by intent? Isn’t every “product X is superior to product Y” ad in a sense malicious in intent? Remember, the founders wanted protection for free speech that could be considered offensive, because “sweet” speech needs no protection.

  2. I see the merits of point, but it’s a big leap from an EVP ruining someone’s reputation and a child molester harming an innocent child. I thought there were certain disclosure laws in place for child molesters anyway. I think intent is the key, and I pray that judges and juries fully grasp that. If a neighbor desires to protect her neighborhood by “outting” a molester, her intent is honorable. But an EVP going against the better judgment of the company’s HR department reeks of “ill will” to me.

  3. I am not a lawyer. However, I don’t think it is unreasonable to assume that there was malicious intent involved in sending the email. Is ill will masked by truth excusable? Isn’t it a general HR practice NOT to make public the reasons for employee termination? I think if the EVP consulted with HR he would have been advised to merely make a statement about company policy regarding falsifying documents rather than naming names.

  4. Sure, the facts in this case make it easy to find liability… it’s a case of bad judgment and bad sportsmanship, but it shouldn’t bring liability.

    The kind of rule the 1st Circuit has established makes it very hard to draw the line. I think a true fact should be open for all to see, regardless of the intention behind its disclosure.

    Suppose a child-molester moved in next door. Wouldn’t you WANT to know that “so-and-so was convicted of child molestation”. Under this rule, if a neighbor is unhappy about this new addition to the neighborhood and puts up posters, the molester could sue, and maybe even win.

    Also, media’s efforts to “bring out the truth” are often the impetus for social change. I fear that this kind of rule will chill that important kind of speech.

    Think about documentaries by Michael Moore… always with an agenda… some could characterize the agenda as “ill will”.

  5. I agree… it IS a big leap… but it’s the same rule. We don’t want judges and juries making that leap….

    The point is, the INTENT behind the speech shouldn’t matter.. it’s too subjective. If it’s TRUE, you should be allowed to say it… for whatever reason (or for no reason at all).

    The law is full of situations where intent doesn’t matter… FREE speech must be totally FREE. It’s one thing to limit it on the basis that statement isn’t true. It’s entirely another to limit it on the basis of a judge/jury’s view of what the speaker’s intent MIGHT have been.

    I’m sure the executive VP in this case could make the argument that he wasn’t trying to trash anyone, but to admonish and warn his employees of the consequences of filing false expense reports.

  6. Randy,

    The issue is MALICE, not intent. MALICE is a legally defined term which means that at the time the statement is made, the speaker knows or recklessly disregards the falsity of the statement made. In the Noonan case, the court went further, stating that if the true statement was made for the purpose of harming the plaintiff’s reputation, truth will not stand as a defense. I AGREE that this is a troubling precedent.

    The law of defamation is a very complex web of precedents, and your examples about products, etc., raise a number of other questions too. In most such cases, the statements are protected, if the judge/jury believes the viewer’s perception would be that the statements are “mere puffery” or “sales talk”. BUT, if false statements are made, could give rise to a claim of false advertising, too.

    Still, I don’t think the slippery slope argument vis-a-vis hate-crime legislation is really valid here. Criminal acts ALWAYS depend on proof of an element of intent.

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