With malice aforethought A US court ruling threatens to overturn the American legal principle that truth is an absolute defence against libel
<http://www.guardian.co.uk/profile/dankennedy>Dan Kennedy http://www.guardian.co.uk/commentisfree/cifamerica/2009/feb/17/us-media-libel Perhaps Jay Baitler should have thought twice before hitting the "send" button. Still, no one could have foreseen the consequences of his fateful e-mail: an assault on the long-established American legal principle that <http://en.wikipedia.org/wiki/Defamation#United_States>truth is an absolute defence against a libel suit. Baitler, executive vice-president of the <http://finance.yahoo.com/q?s=SPLS>Staples office-supply chain, may have wanted to make an example out of Alan Noonan, a sales director whom he had just fired for the not-very-original sin of pumping up his expenses. But to blast out an e-mail to some 1,500 Staples employees announcing Noonan had been let go for violating the company's travel and expense policies could be seen as needlessly harming Noonan's reputation. Even so, a three-judge federal appeals court panel <http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2159P2.01A>ruled last Friday, the contents of Baitler's e-mail were true. And that is precisely the problem. Because the panel also ruled that Noonan may pursue his libel suit against his former employer - a stunning deviation from the idea that a defamatory statement cannot be found libelous unless it is proven false. The opinion, written by judge Juan Torruella of the Boston-based US court of appeals for the first circuit, relies on a 1902 Massachusetts law. Under that law, a libel plaintiff may win, even on the basis of a true statement, if he is able to show that the defendant acted with "actual malice". Because of the US supreme court's landmark <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=376&invol=254>New York Times v Sullivan decision in 1964, public officials and public figures must prove "actual malice" in order to prevail in a libel suit. The Times decision also imbued "actual malice" with a precise definition: a defamatory statement made with knowing falsity, or with "reckless disregard" for the truth. In later decisions, the court ruled that even private figures suing for libel - like Noonan, for instance - must show that the statement was false and made negligently. But judge Torruella blew past those distinctions, ruling that, in 1902, "actual malice" meant "ill will" or "malevolent intent", and that it was wrongheaded to substitute the 1964 definition. Fair enough. It's just that 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. "The ruling is troubling on so many levels that it beggars the imagination," <http://www.princelobel.com/attorneys-2.html>Robert Bertsche, a prominent Boston media lawyer, told me by e-mail. "Begin with the court's ruling that one can be found liable in damages for making a statement that is indisputably true - that is a notion that flies in the face of everyone's most basic understanding of what libel is. With this decision, the first amendment has been replaced by the maxim: 'If you don't have anything nice to say, don't say it'." Robert Ambrogi, a lawyer who is also executive director of the Massachusetts Newspaper Publishers Association, is similarly horrified. "It is the most dangerous libel decision in decades," <http://www.legaline.com/2009/02/think-you-know-libel-law-think-again.html>Ambrogi writes on his blog, adding: "If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant." Though British readers may shrug their shoulders at being told that a true statement may be found libelous under some circumstances, it is anathema to the American idea of freedom of the press. As far back as 1735, a German-immigrant printer named John Peter Zenger, publisher of the New York Weekly Journal, was <http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html>acquitted of seditious libel in connection with the Journal's caustic criticism of the royal governor, William Cosby. Zenger's lawyer, Andrew Hamilton, had argued - in direct contravention of the law at that time - that the jury should find for Zenger because what he had published was true. Despite (or perhaps because of) Hamilton's extra-legal tactics, seditious-libel prosecutions were essentially dead in the American colonies, as the scholar Paul Starr observed in his 2004 book, <http://www.princeton.edu/%7Estarr/CreationoftheMedia/Media.html#Reviews>The Creation of the Media. Indeed, so ingrained in the public consciousness did the Zenger case become that even John Adams's hated <http://www.earlyamerica.com/earlyamerica/milestones/sedition/>Alien and Sedition Acts, aimed at Thomas Jefferson and his allies, at least paid lip service to the notion that utterances against the government could be prosecuted only if they were "false, scandalous and malicious". Though the supreme court rarely intervened in state libel law, that changed starting in 1964, when the court acted to protect the New York Times from officials in Birmingham, Alabama, who had sued the Times over incidental errors in a <http://faculty-web.at.northwestern.edu/commstud/freespeech/cont/cases/nytsullivan.GIF>full-page ad taken out by supporters of Martin Luther King. In Times v Sullivan and later decisions, the court made it clear that true statements could never be found libelous, even if they harmed the reputations of private citizens. The quotidian nature of Alan Noonan's complaint against Staples may seem to have nothing in common with the great issues at stake in the Zenger case, in the struggle between Adams and Jefferson, or in the civil rights movement. In fact, if Torruella's dangerous opinion were to lead federal judges' finding state laws similar to the 1902 statute in Massachusetts, the result could turn back the clock on freedom of speech and freedom of the press. If the truth no longer sets us free, then the first amendment will have shrunk beyond recognition. The media will lose, of course. But so will the public they ostensibly serve. --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to Mark Crispin Miller's "News From Underground" newsgroup. 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