Comments on: Alarming defamation ruling: Truth is NOT always a defense

By: Gordon Firemark

Gordon Firemark — Wed, 05 Aug 2009 05:09:37 +0000

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.

By: Randty

Randty — Tue, 04 Aug 2009 19:02:09 +0000

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.

By: Noonan v Staples - For The Good Of The Cause | RunToGold.com

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[...] lawyer Gordon Firemark, an entertainment lawyer, “It will certainly have a chilling effect on important forms of [...]

By: First Circuit Turns Libel Law on its Head « The Legal Satyricon

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By: Gordon Firemark

Gordon Firemark — Mon, 16 Feb 2009 22:29:58 +0000

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.

By: Steve Peterson

Steve Peterson — Mon, 16 Feb 2009 20:29:04 +0000

Yah, this is scary. I can’t imagine it being upheld higher up though. It’s Orwellian.

By: Angelo

Angelo — Mon, 16 Feb 2009 20:26:05 +0000

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.

By: Gordon Firemark

Gordon Firemark — Mon, 16 Feb 2009 20:17:08 +0000

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”.