Staples libel ruling concerns news media groups
Truth not failsafe as defense in case
Journalists who believe truth is the ultimate defense against libel suits fear that a federal appeals court has created a dangerous exception that could chill news reporting.
The US Court of Appeals for the First Circuit in Boston ruled recently that a former salesman at
Although the decision did not involve a news outlet, it has alarmed journalists, bloggers, and media law specialists, who worry that it could discourage news organizations from pursuing true stories that might cast subjects in a bad light.
On his blog Media Law, Robert J. Ambrogi, a lawyer and executive director of the Massachusetts Newspaper Publishers Association, called the ruling by a three-member panel "the most dangerous libel decision in decades."
"It puts a crack in the granite of what's been an assumption for a long time," he said in an interview yesterday.
Staples has asked the full appeals court to reconsider the ruling, and 51 news organizations have filed a friend-of-the-court brief saying that the decision, if allowed to stand, "will create a precedent that hinders the media's ability to rely on truthful publication to avoid defamation liability."
But Wendy Sibbison, the Greenfield appellate lawyer for the fired Staples employee, Alan S. Noonan, said the ruling applies only to lawsuits by private figures against private defendants, that is, defendants not involved in the news business, over purely private matters.
"No one is a bigger believer in the First Amendment than I am, and I genuinely cannot understand this outpouring of anxiety and catastrophizing," said Sibbison, whose late father was a journalist who covered Capitol Hill for the Associated Press. "There isn't a First Amendment right for a private company to broadcast the news of a private person's firing to its employees."
The dispute revolves around the firing of Noonan in January 2006 as regional sales director of Staples after an internal audit determined that he had overbilled the company in expense reports, failed to submit required receipts, and falsified expense reports, according to the appeals court's Feb. 13 ruling.
The day after the firing, Jay Baitler, executive vice president, e-mailed the approximately 1,500 people that make up the company's North American division.
"It is with sincere regret that I must inform you of the termination of Alan Noonan's employment with Staples," it began. "A thorough investigation determined that Alan was not in compliance with our [travel and expense] policies." The e-mail went on to stress the importance of following those policies.
Noonan filed a complaint that said Staples had defamed him and violated several employment agreements. US District Court Judge Morris E. Lasker dismissed the claim, writing that "truth is an absolute defense to a defamation action under Massachusetts law."
Noonan appealed to a three-member panel for the First Circuit, which initially upheld the ruling by Lasker. But last month it reversed itself on the libel claim, saying Noonan could pursue that part of his lawsuit because of a relatively obscure 1902 state law.
The law says truth is a defense against libel unless the plaintiff can show "actual malice" by the person publishing the statement.
In ordinary discussions of First Amendment law, "actual malice" refers to the standard established in the landmark 1964 US Supreme Court decision in
In that context, it means a plaintiff who is a public figure can win a libel suit only after proving that a journalist knew a published statement was false or acted in reckless disregard for the truth.
But in the Massachusetts law cited by the appeals court, "actual malice" means "malevolent intent or ill will," said the panel. Noonan might be able to persuade a jury that the company demonstrated ill will; Baitler had never referred to a fired employee by name in a mass e-mail before, and jurors might conclude he "singled out Noonan in order to humiliate him," the court wrote.
Sibbison - who says her client, Noonan, was a "sloppy record keeper" but not a thief - said the ruling lets him sue a company that "violated its own policies on employee privacy" through the mass e-mail.
Robert A. Bertsche, the Boston lawyer who filed the news organizations' brief, dismissed Sibbison's assurances that the ruling applied only to private defendants.
He said that if a newspaper reported about the Staples e-mail, it could be sued for libel, and jurors would weigh whether ill will was a factor in the publication.
Alex S. Jones, director of the Shorenstein Center on the Press, Politics, and Public Policy at Harvard University, said the 1902 Massachusetts law struck him as "an anachronism from a more censorious age" when some states passed laws that sought to trump the First Amendment.
"There is every reason to be fearful that this kind of ruling could very well be damaging, because it puts a higher value on other things than it does on the truth," he said.
Saltzman can be reached at jsaltzman@globe.com. 
