There’s this amusing phenomenon which may be observed when those with no prior exposure to the weird social/legal/historical/political realities of the Commonwealth first innocently wander into them. I call it Mass Confusion, and it has reigned in the blawgosphere in the last couple of weeks since the First Circuit’s Friday the 13th ruling in Noonan v. Staples, Inc., No. 07-2159 (2009).

I’m just going to voice my respectful dissent on this right up front. This is all just one kid’s opinion, but whatever else this decision may be, it is not “the most dangerous libel decision in decades.” It has not “turned libel law on its head,” it is not a “bizarre twist,” it has not held that “truth is no longer an absolute defense” to libel, and it doesn’t “threaten to overturn” anything.

The boring truth is that in Noonan the First Circuit has merely glancingly condoned (as opposed to having definitively upheld) a highly questionable state law on reasonable procedural grounds. Somehow all of the critics of this opinion seem to have lost sight of the fact that the standard here was not that which would have been used had the court reviewed the case on the merits after trial, but only in terms of a motion for summary judgment: was there a “triable issue of fact” under existing Massachusetts law? Sadly, there was.

This is not to say that I agree with the outcome: At the end of the day, I’m a public-interest attorney, a progressive voter, an ACLU member, and an uncompromising defender and fan of the First Amendment. But this is an appellate, and not a First Amendment, blawg, so the following analysis is conducted accordingly.

The facts are far simpler than the law, so let’s begin at the beginning. Plaintiff Noonan was a Staples employee who engaged in some shady accounting (not a lot, but enough to get noticed) on his expense accounts and such during the course of his employment there. Staples caught Noonan, fired him, and made an example of him in a mass email sent out to all 1,500 of his former colleagues in the company’s North American division. Noonan did not seriously contend that the email as published was not true, but sued Staples anyway on the theory that it was libelous. In Noonan, the First Circuit (Tourella, J.) has agreed that it is possible that a reasonable person could have found the email to have been libel under Massachusetts law, and has remanded to the district court for further proceedings.

This, of course, is the part where every American law school graduate’s head explodes. How could a statement which is empirically true ever constitute libel? Truth is the “absolute defense” to libel, right? Yes. Yes, it is. Everywhere but the Commonwealth.

That’s right: You’re in the jungle now. Welcome to the jungle.

Let’s get to the law:

American libel law as we know it was invented in 1735 when John Peter Zenger was tried on charges of  ”seditious libel” arising from certain articles his newspaper had published regarding one William Cosby, the sitting colonial governor of New York. (One might assume, if one is too lazy to go looking for it, that the objectionable content had something to do with Mr. Cosby’s tastelessly colorful sweaters and unholy love of Jell-O.) Zenger’s attorney argued to the jury that no matter how scandalous the content of his publication may have been, Zenger simply should not be found guilty of libel because it was all true. The jury agreed to effectively ignore the law on Zenger’s behalf, making him the first—and perhaps still the most famous—American beneficiary of an act of jury nullification.

Strange as it seems today, this was an unprecedented development in Western libel jurisprudence. Our British colonial overlords had no problem spelling “libel” without the letters L-I-E, and it was a basic point of law that truthful statements could be libelous if made with “actual malice.” The American concept of truth as an “absolute defense” to libel can be directly traced to the popular belief in the justice of Zenger’s acquittal, and nearly every American jurisdiction has adopted it.

Every American jurisdiction but one. Cue the Mass Confusion.

Massachusetts has never recognized an “absolute” truth-based defense to libel.  It has instead effectively carried on the legacy of the colonial English law in G. L. c. 231, Section 92, under which truthful statements made with “actual malice” (in the “popular sense” of “hatred and ill-will“) may still constitute libel. Given that Sec. 92 (first codified in 1855; more on the history of the statute in the 1903 case which affirmed it) is still technically valid, the First’s holding in Noonan that summary judgment in the trial court was improperly granted because there was still an open question under Massachusetts law as to the “actual malice” of Staples’s actions was not really all that radical.

To be fair, not all of the confusion here is Mass-based. The Supreme Court’s landmark 1964 decision in New York Times Co. v. Sullivan provided a new Constitutional definition for the common-law phrase “actual malice” in libel cases involving public figures. Under this standard, “actual malice” may only be found in statements made about public figures if these statements were made either with actual knowledge that the statement was false or with “reckless disregard” as to whether or not the statement was true. (Libel: Barack Obama is a “radical Muslim” who “pals around with terrorists.” Not libel: George W. Bush is a convicted drunk driver. See how that works?) So there’s inevitably going to be some confusion now between what all First Amendment lawyers know about “actual malice” in the Sullivan context, and the actual common-law definition which still controls for the purpose of the “actual malice” exception to the truth defense against claims of libel involving private individuals in Massachusetts.

Noonan was not, of course, a public figure at the time that the email went out, and no one is arguing that he should be viewed as one now. Although the SJC casually suggested more than three decades ago that it may someday address the Constitutionality of truth-based libel suits involving private persons, there has never been a direct ruling on this issue. (As far as I’m aware, the closest they’ve come since then was in a case involving my favorite series of budget travel guides and an Israeli hostelier with a groping problem, and that decision held for the defendants only because the plaintiff was a private person who happened to be involved in a matter of nominal “public concern.”) So for as stupid and anachronistic and un-American as this statute undoubtedly is, the “actual malice” bit which ultimately controls here has never been directly challenged nor struck down by a state court as it pertains to private individuals, and it is still therefore the law of the Commonwealth. Not great (or even good) law, but it’s still the law. (Now that the case has been remanded for further proceedings, it would be nice if the federal district court would be kind enough to certify this mess to the SJC for review of the Constitutionality of Sec. 92, but I really don’t see that happening.)

In light of all of this, the most surprising thing to come out of this whole decision, for me, anyway, is that Staples’s expensive appellate counsel—from a notable national law firm which will remain unnamed in the interest of keeping myself from the receiving end of my very own truth-based libel suit—appears to have dropped the Constitutional ball:

In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time.

Of course, Justice Tourella was not so much surprised as relieved, as blaming counsel for failing to properly raise the issue gave him an easy out from having to address the obvious Constitutional questions at hand. (Like most appellate courts, the First can dodge Constitutional bullets faster than Neo on amphetemines.)

Which brings me to my final point.

The First Circuit is a pretty reliably conservative collection of judges. As a body, they have spent many lovely afternoons in Boston (as well as their summer home two weeks out of the year in Puerto Rico) wandering the pleasant, well-worn contours of the path of least resistance, taking plenty of time to savor the sweet scent of that peculiar breed of American beauty we call stare decisis along the way. If you’re looking for an appellate court that will spontaneously raise issues that have not been properly brought before it just to strike down a state law as un-Constitutional, get thee to the crazy hippies of the Ninth. I hear those dudes will do anything.

Matt Cameron