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 decision en banc review. (source).
According to the First Circuit’s web site, there are currently five active judges, http://www.ca1.uscourts.gov/judges.htm, 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? (source)
The fact that the First Amendment issue was not preserved shouldn’t matter. See 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)).
On the other hand, the human element here might be of major concern. It would seem to be an exercise in frustration to take a 3-0 decision and simply add two more judges to the mix. That seems like a recipe for a 3-2 affirmation. However, the initial Noonan v. Staples decision was authored by Torruella, Wallace, and Lipez. Wallace, however, was a 9th Circuit judge, sitting by designation.
Accordingly, should the First Circuit take this case en banc, the First Amendment will have a fighting chance. Staples will need to run the table with the three judges who haven’t chimed in, but as long as those three recognize the Bose Corp. case, Noonan v. Staples should go where it belongs — in the trash heap.