Alarming defamation ruling: Truth is NOT always a defense
Entertainment 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.
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.
Yah, this is scary. I can’t imagine it being upheld higher up though. It’s Orwellian.
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.
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.