First Circuit Turns Libel Law on its Head

John Peter Zenger's trial set the cornerstone for freedom of the press - and Alan Noonan's cracked it.

John Peter Zenger's trial set the cornerstone for freedom of the press - and Alan Noonan's cracked it.


In Noonan v. Staples, in an opinion written by Judge Juan Torruella, the First Circuit Court of Appeals held that a defamation suit based on indisputably true statements could go forward and the plaintiff could prevail, if it was found that the statements were published maliciously. If this case stands, it could wind up making Massachusetts the least speech protective jurisdiction in the United States.

So much for the spirit of Lexington and Concord.

The Trial of John Peter Zenger: A Jury Votes its Conscience, and Lays the Cornerstone for Free Speech

Hop in, we're going to 1735

Hop in, we're going to 1735

To really understand what a disaster Torruella may have wrought, you will need to take a trip with me back to New York City in the year 1735. The Governor is Sir William Cosby, and he is both provably corrupt and arguably tyrannical. John Peter Zenger is the publisher of the only independent newspaper in the City, the New York Weekly Journal. (Governor Cosby owns the other paper).

Zenger publishes a series of articles exposing Governor Cosby’s corruption. The articles are indisputably true, and Crosby doesn’t deny their veracity. Nevertheless, neither English nor Colonial law recognized truth as a defense to the charge of “seditious libel,” so Crosby had Zenger charged with this crime.

A copy of Zenger's New York Weekly Journal

A copy of Zenger's New York Weekly Journal

Seditious libel had three elements: “first, that the content of the writing was defamatory [of the government or its officials]; second, that the defendant had published the writing or had made it with the intention of publishing it; and third, that he had acted with a knowing and malicious state of mind.”
Susan W. Brenner, Complicit Publication, 13 Alb. L.J. Sci. & Tech. 273, 291 (2003)

It was entirely irrelevant to the defense to say that the words were true. On the contrary, true words that tended to call the plaintiff into disrepute were more likely to harm the plaintiff’s reputation. Accordingly, under colonial law at the time, defamation was a strict liability crime. With this field before him, Zenger stood accused of publishing articles critical of the governor. These articles would infect the readers and “inflam[e] their minds with contempt of His Majesty’s government, and greatly disturbing the peace thereof.”

Zenger’s attorney, Andrew Hamilton, was outraged at the notion that a man could be punished for speaking the truth. He argued to the jury that it should refuse to convict Zenger if it found that his statements were true. The jury agreed and acquitted Zenger.

Little did Zenger, Hamilton, or the jurors know that they had just dragged a piece of legal stone from its quarry, molded it just right, and laid it as the cornerstone of freedom of speech in the yet-to-be-born United States. Ever since, American defamation law has been ruled by the maxim “the truth shall set you free.”

Not anymore. Well, at least not in Massachusetts anymore.

Noonan v. Staples – The First Circuit Sends Massachusetts Back to 1734 via 1902

Alan Noonan learned that padding expense reports wasn't so easy - but the First Amendment suffered

Alan Noonan learned that padding expense reports wasn't so easy - but the First Amendment suffered

Get back in the Tardis and come back to the present day. Enter Alan Noonan, a Staples, Co. sales director. Mr. Noonan was terminated for violating Staples travel expense policies by padding his expense reports. Staples’ executive vice president, Jay Baitler, apparently wanted to make an example of Noonan, so he sent an email to all employees informing them Noonan’s termination and the reason why. Noonan filed suit against Staples for inter alia libel based on the email.

In order to break a crack in the Zenger cornerstone, Judge Torruella busted out a 1902 Massachusetts law: Mass. Gen. Laws ch. 231, § 92, says that truth is a defense to libel “unless actual malice is proved.”

“Actual malice” means something very specific to First Amendment attorneys. The terms comes to us from New York Times v. Sullivan, 376 U.S. 254 (1964), a case in which the Supreme Court held that even false statements about public officials were protected by the First Amendment unless they were made with “actual malice” — meaning with knowing falsity or a reckless disregard for the truth. The rationale given by Justice Brennan:

There is “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

However, Torruella’s opinion decided that since Mass. Gen. Laws ch. 231, § 92 was written in 1902, then the term “actual malice” should be given the meaning it had in 1902. By this logic, I suppose that any time an African-American tries to insist that a law applies to them as a “person,” they had better check the date the law was enacted.

In 1902 “actual malice” meant “common-law malice.” And, to support for this interpretation of the law, Torruella relied upon a Massachusetts trial court decision, Shaari v. Harvard Student Agencies, Inc., No. CA 907810D, 1996 WL 1186873, at *9 (Mass. Super. Ct. July 19, 1996) (“To establish ‘actual malice,’ as that term is used in § 92, plaintiff need only prove ‘disinterested malevolence’ rather than ‘knowing falsity’ or ‘reckless disregard for the truth on the part of the defendants.'”). On appeal in that case, the Mass. Supreme Court overturned the trial court decision on other grounds, and said that on matters of public concern, defamation defendants clearly could not be held liable without a finding of actual malice, as defined by New York Times v. Sullivan. See Shaari v. Harvard Student Agencies, 427 Mass. 129 (Mass. 1998). However, Shaari didn’t say anything about matters that were not necessarily of public concern.

“To apply this statute to the defendants’ truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment.”

Torruella then decided to take the absence of a specific statement in Shaari about speech that might not be on a matter of public concern and he turned it into a per se rule that private citizens could sue for defamation even when the alleged defamation was truthful. Of course, perhaps that is what the 1902 Massachusetts law says, but federal judges are supposed to also take this little thing called “The First Amendment” into account. I guess Torruella didn’t get the memo on that one. He declined to consider the Constitution when writing his opinion, because the matter hadn’t been briefed properly. I wonder if he has ever read the case Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

Is the Sky Really Falling?

Maybe. Maybe not.

It is always a cause for concern when a Court of Appeals issues a ruling that is both seemingly brain-dead and which rolls back long-standing Constitutional principles. Well, with the glut of Reagan/Bush/Bush appointees on the federal courts, that’s pretty much what you expect when you go to federal court these days.

Judge Juan Torruella - Just what WAS he thinking?

Judge Juan Torruella - Just what WAS he thinking?

Sadly, Torruella first created this boondoggle last August in Noonan v. Staples, Inc., 539 F.3d 1 (1st Cir. 2008). In that case, Torruella made the same horrendous finding with respect to truth no longer being a defense to a defamation action, but he ruled against Noonan anyhow — so apparently the case didn’t get much press. Accordingly, shame on me and the rest of the media for not raising hell back then. Now that his panel issued a corrected decision, we’re stuck with it until the First Circuit hears the case en banc or the case goes to the U.S. Supreme Court.

The case doesn’t roll back New York Times v. Sullivan, and Zenger wasn’t publishing letters critical of his ex-employees. Nevertheless, for the first time in recent history, a U.S. court has held that the truth is not a defense to a defamation action. That should scare the living shit out of anyone in Massachusetts who writes a letter, email, blog, or any other written communication that might piss someone else off. Under New York Times v. Sullivan, you can still write anything you want about a public figure, and we absolutely need that right in a democracy. However, when citizens must fear speaking the truth in the state where the Revolution began, then I fear that the Revolution is finally over.

Bob Ambrogi says it well:

“You need not be superstitious to appreciate the import of this Friday the 13th ruling,” Ambrogi said. “It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.”

Other Commentary on this Case

I am really late to the party on this one. Some of my brothers in the legal blawgosphere have already raised the alarm.

  1. Robert Ambrogi is really alarmed in “Think You Know Libel Law? Think Again.
  2. Sam Bayard is perturbed in “First Circuit Upends Accepted Understanding of Truth Defense in Defamation Cases“.
  3. The ABA reports on Ambrogi’s post.
  4. Gordon Firemark flames the decision in Alarming defamation ruling: Truth is NOT always a defense
  5. Dan Kennedy at the New England First Amendment Center calls it “A chilling decision about libel” and gives a shout-out to my man Zenger.

Lets just say that the only person happy about this decision is Alan Noonan — and he is now both a public figure and the ass-hat of the week. Before he filed this case, 1500 people knew that he padded his expense reports — now the whole world knows. Smooth move, ex-lax. It drives me nuts that one asshole pads his expense reports and then gets all crybaby about it when he is used as an example to other employees. And the result is that the First Amendment gets shafted in my beloved Commonwealth.

13 Responses to First Circuit Turns Libel Law on its Head

  1. hawkhead says:

    This is the same Commonwealth of Massachusetts that banned distribution of Titicut Follies for 20+ years because of “invasion of privacy” concerns that were really a cover for the Commonwealth’s utter embarrassment at how its mental hospital was run.

  2. In all fairness to the Commonwealth, this decision wasn’t exactly their doing. It was a federal appellate court decision written by a judge from Puerto Rico.

  3. Christopher Harbin says:

    Nice TARDIS reference.

  4. Yeah, it started off as a “Bill and Ted” reference. Then I figured I would ditch half of those who would understand, but up the cool factor by going with Tom Baker’s phone box rather than George Carlin’s.

  5. hawkhead says:

    An acquaintance of mine from law school was clerking for Torruella when the case was heard and when the opinion would have been drafted. Maybe I’ll ask her what went down…

  6. Jesus Christ, please do.

  7. Paul Levy says:

    A law clerk is going to report what happened in chambers about a major decision, and then hawkhead is then going to post what she says on a blog?

    Somehow, I find that scenario unlikely.

    Also, according to the First Circuit’s web site, there are currently five active judges,, two of whom joined the opinion in question. Just how likely is en banc review on an issue of the interpretation of state law, when the First Amendment issue was not preserved?

    Finally, the opinion claims that “actual malice” as used in the statute received an authoritative construction in a 1903 decision of the Supreme Judicial Court of Massachusetts. I confess I have not read the 1903 case, but in the circumstances, maybe we should think more about how to distinguish this decision, for now….

  8. Or a legislative repeal of ch. 231, § 92…

  9. […] in Droves Against Staples v. Noonan We reported, last month, on the Staples v. Noonan case in First Circuit Turns Libel Law on its Head. It looks like a coalition of media groups are trying to convince the First Circuit to give the […]

  10. […] know that Demings’ claims are unsupportable, and that Winthrop is completely off-base. In Massachusetts, truth isn’t necessarily a defense to a defamation action — if the speech is on a […]

  11. […] v. Staples – the bad law remains, but Noonan Loses We previously reported on Noonan v. Staples, and the bad appellate decision in that case. It turns out that Mr. Noonan lost his libel case […]

  12. car253 says:

    Please call your representatives and ask them to support bill H.R. 4364. It protects our first amendment rights.

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