Posted by Eugene Volokh:
Truth No Defense in Libel Action?
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235577832
So says [1]the U.S. Court of Appeals for the First Circuit, in Noonan
v. Staples, Inc., interpreting Massachusetts law. I'm inclined to
agree with [2]David Kravitz (Blue Mass Group) on this, and want to
particularly stress this:
Second, the Court seems not to have considered any constitutional
implications of its decision. That may well be because the parties
did not raise any constitutional issues in their briefs;
nonetheless, it's a strange approach for the Court to take.
Imposing any kind of liability for disseminating true information
strikes me as constitutionally problematic in any circumstances,
and I'm surprised that the Court ignored the issue, instead kicking
it down the road to the next case. It's all well and good to hew to
the standard practice of not considering arguments not raised by
the parties, but to willfully turn a blind eye to an obvious
constitutional problem seems like, at best, a waste a judicial
resources. The constitutional issue will have to be considered
sooner or later -- most likely sooner.
In my view, libel liability -- even on statements on matters of
private concern -- is premised on the notion that "[3]there is no
constitutional value in false statements of fact." If a factual
assertion is true, it should generally be fully protected, whether a
court labels it as being on a matter of "public concern" or "private
concern," and whether the speaker was animated by "malice" in the
sense of hostility or ill will or not. Perhaps the speech could still
be restricted if it falls into some other First Amendment exception,
but the libel exception can't apply unless the statement is false.
Note that conclusions like the First Circuit's are extremely rare in
recent decades. The only recent case I can think of that reaches a
similar result is the [4]Rhode Island "whore" case.
For my criticisms of the "public concern"/"private concern"
distinction, at least outside the narrow contexts of the government as
employer and of false statements of fact, see [5]PDF pp. 47-52 of this
article. In particular, I think it's far from clear that statements
said about a fired employee are indeed matters of purely "private
concern." Presumably if a union was trying to persuade members that
the employer was wrong to fire an employee, true statements about the
circumstances of the firing would be seen as fully protected speech. I
would think the same would be true when an employer is making true
statements in trying to persuade employees that it was right to fire
someone, and trying to warn the employees against engaging in
similarly dishonest behavior. But in any case, for reasons I argue in
this article, I think courts ought not be drawing this line, at least
where true statements are concerned.
References
1. http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2159P2.01A
2. http://www.bluemassgroup.com/showDiary.do?diaryId=14817
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=418&invol=323
4. http://volokh.com/posts/1183696077.shtml
5. http://www.law.ucla.edu/volokh/speechip.pdf
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