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Truth No Defense in Libel Action?

So says the U.S. Court of Appeals for the First Circuit, in Noonan v. Staples, Inc., interpreting Massachusetts law. I'm inclined to agree with 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 "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 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 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.

Mark_Spottswood (mail) (www):
We protect an awful lot of false speech under the First Amendment; this makes it seem like Justice Powell's assertion in Gertz probably explains less about First Amendment law than it purports to. Indeed, he offered no argument in favor of the view that "honest errors" have no value in public debate.

I think a line that better fits the actual caselaw---and that is more justifiable both on normative and on epistemic grounds---is to say that errors generally receive protection but that lies do not. In other words, the fundamental question we should ask in deciding whether speech is entitled to Constitutional protection is not whether it is true; it is whether the speaker believed it to be true.

For more on this, see my paper here.
2.25.2009 11:22am
Oren:

It's all well and good to hew to the standard practice of not considering arguments not raised by the parties

Does the court even have authority to consider the Constitutional issues sua sponte?
2.25.2009 11:30am
Former Clerk:

Due to my past experience with the First Circuit, I can say with confidence that the First Circuit takes a fairly hard line on waiver -- both cases where the party does not raise an issue in the district court, or where it does not offer developed argumentation for a point in its appellate brief.

This (important) footnote from the opinion leads me to believe that this was the case here:

"This exception to the truth defense is not constitutional whenapplied to matters of public concern. Shaari v. Harvard StudentAgencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998). In the rehearingproceedings, Staples has suggested that this exception to the truthdefense may never be constitutional. But this argument is notdeveloped now and was not raised in the initial briefing. Accordingly, we do not consider it at this time."

So, although I agree that had the issue been raised, the First Circuit should have found the statute unconstitutional in all its applications, the issue probably can still be raised on remand, and if not, it's ultimately counsel's fault for not pressing this rather strong argument when it had the opportunity.
2.25.2009 11:34am
FormerStudent:
I'm skeptical of Courts rampaging off to decide cases on the basis of legal theories and arguments not advanced by counsel. It is simply unfair to the parties to have a law clerk with a thousand other responsibilities or even the judge rummage around the library and decide the case on an issue the parties weren't afforded the opportunity to brief. Just look at the number of times in appellate arguments a judge asks what they think is a decisive question only to have the attorney deflect it with a case or fact the judge (quite understandably) knows nothing about. Here, if people want to fight about constitutional issues they can go back down and fight about them, and then have the appeals court decide it on a developed record where the parties have had the opportunity to prepare and present their arguments. Well done 1st Circuit!
2.25.2009 12:05pm
Soronel Haetir (mail):
OK's recent posts on traffic laws illustrates the above point nicely.
2.25.2009 12:10pm
David at BMG (www):
As a technical matter of applying the rules of appellate procedure, the 1st Cir may have been right not to decide the constitutional issue. But it seems to me that it was nonetheless a silly approach, for the reasons Eugene and others have stated, and one that is likely to cause a great deal more trouble than it was worth. Other options were available. For example, this opinion was delivered on panel rehearing, the Court already having been persuaded that it got it wrong once. At that point, why not instruct the parties to brief the constitutional issue? Or, as I noted in my original post on this case, since the case arose under an old (1902) Massachusetts libel statute, why not certify to the MA Supreme Judicial Court the question of the proper interpretation of the statute? Again, this was panel rehearing, so the 1st Cir had already screwed it up once — why not go to the source, rather than risk another error? Further, the SJC is well aware of the constitutional difficulties of this 1902 law, and has limited its application in several previous cases — as the 1st Cir itself noted in the footnote mentioned by FormerClerk. Since this was a diversity case, it seems peculiar indeed for a federal court to seemingly go out of its way to create a constitutional morass without at least getting the guidance of the state court with ultimate responsibility for the statute.
2.25.2009 12:30pm
anomdebus (mail):
What of matters where the speech is not quite objective fact, but colored by opinion or subjectivity? (ie "Stompers office supply company paper contains troubling amounts of bleaching agents!" (name changed to protect me :P))
2.25.2009 12:40pm
anomdebus (mail):
I forgot to mention that I believe the 'whore' incident touches on subjectivity
2.25.2009 12:53pm
Former Clerk:
David at BMG:

There's no constitutional morass. The Court did not hold that the provision was constitutional; it just declined to address the issue altogether (and explicitly so.) The morass is the same as it would have been if this lawsuit was never filed.

The First Circuit's doesn't affect anyone but Staples, who can most likely develop this argument below. There's also a non-negligible chance that the case can be resolved on non-constitutional grounds, or that the state courts could have the first chance at weighing in.
2.25.2009 1:04pm
Former Clerk:
That is to say, the "First Circuit's decison doesn't affect anyone but Staples."
2.25.2009 1:06pm
krs:
This is the part dealing with truth.

Since a given statement, even if libelous, must also be false to give rise to a cause of action, the defendant may assert the statement's truth as an absolute defense to a libel claim. Mass. Sch. of Law at Andover, 142 F.3d at 42 (citing Bander v. Metro. Life Ins. Co., 47 N.E.2d 595, 598 (Mass. 1943)); McAvoy, 518 N.E.2d at 517. Massachusetts law, however, recognizes a narrow exception to this defense: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with "actual malice" in publishing the statement. White, 809 N.E.2d at 1036 n.4 (citing Mass. Gen. Laws ch. 231, § 92).

[snip]

Our review of the record in the light most favorable to Noonan reveals no triable issue of fact because, as Staples asserts, everything said in the e-mail was true -- or at least substantially true -- and substantial truth is all that is required.

[snip]
Given this holding, Noonan's only hope for keeping his libel claim alive is to prove that Staples -- or other employees responsible for composing and sending the e-mail -- acted with actual malice. As noted above, under Massachusetts law, even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with "actual malice." Mass. Gen. Laws ch. 231, § 92; White, 809 N.E.2d at 1036 n.4; Conroy v. Fall River Herald News Publ'g Co., 28 N.E.2d 729, 731-32 (Mass. 1940).

2.25.2009 1:12pm
NTB24601:
On a completely unrelated note, I'm curious why Noonan's $290,714.40 payment didn't qualify as exercising his stock options before he was dismissed for cause.
2.25.2009 1:30pm
Jon Roland (mail) (www):
Oren:

Does the court even have authority to consider the Constitutional issues sua sponte?

Refraining from considering issues not raised by the parties is only custom, policy and practice, not law. It is a prudential decision, for the convenience of the court, not a matter of jurisdiction.

I would argue that the oath judges are supposed to take to "uphold the Constitution" obligates them to always provide any missing constitutional arguments, or remand with instructions to the parties to provide them, or invite intervenors or amici to make them.
2.25.2009 1:39pm
Jon Roland (mail) (www):
Corrections to last post: Should be "support this Constitution", Art. VI cl. 3.

I regard jurors as "judicial officers" that are also supposed to take an oath or affirmation to "support this Constitution", and that the failure to do so invalidates the jury verdict.
2.25.2009 1:45pm
zuch (mail) (www):
Mark_Spottswood:
I think a line that better fits the actual caselaw---and that is more justifiable both on normative and on epistemic grounds---is to say that errors generally receive protection but that lies do not. In other words, the fundamental question we should ask in deciding whether speech is entitled to Constitutional protection is not whether it is true; it is whether the speaker believed it to be true.
Interestingly enough, the Perjury Chapter (10 USC § 1621 et seq.) cares not about the falsity of the statement, but rather the belief of the affiant as to the falsity of such. This leads to the curious situation where it is possible for a perjury charge to lie [so to speak] even if the statement made is literally true. The fact that perjury might occur even for literally true statements seems to stick in the craw of some courts, though. In one case, U.S. v. DeZarn, the court had to go through the machinations of deciding that -- in essence -- the affiant had answered not the literal question given him, but rather a different question (they used the "full context" of the questioning to reach this conclusion), and that he had wilfully answered that (manufactured/"corrected") question falsely, knowing this "answer" was false. In sum, they punished him for his effort to deceive (in a rather roundabout way), even though his answer was indeed literally true.

Cheers,
2.25.2009 2:16pm
LTEC (mail) (www):
I've never seen a serious discussion about whether the benefits of libel/slander laws outweigh the harms of those laws in practice. (Whenever I say this, which is often, someone always responds with a discussion of the benefits without even mentioning the harms. This isn't serious.)

I think we would be better off with no libel/slander laws at all (either criminal or civil).
2.25.2009 2:25pm
David Schwartz (mail):
And let's not forget, one of the harms of the slander/libel laws is that people frequently assume that they have more teeth than they actually do and that things "must be true" or else they'd be slanderous or libelous.
2.25.2009 2:44pm
NTB24601:
Justice Ginsburg, writing for the majority in Greenlaw v. United States, ___ U.S. ___, 128 S.Ct. 2559 (2008), provides a strong explanation for why refraining from addressing issues not raised is central to the function of our judicial system:
In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant's rights. See Castro v. United States, 540 U.S. 375, 381-383 (2003). But as a general rule, “[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” Id. at 386 (Scalia, J., concurring in part and concurring in judgment). As cogently explained:

[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.
United States v. Samuels, 808 F.2d 1298, 1301 (C.A.8 1987) (R. Arnold, J., concurring in denial of reh'g en banc).
128 S.Ct. at 2564.

David at BMG may be correct that the court could have requested briefing on the constitutional question, but I find it difficult to fault the Tenth Circuit for following this well-settled principle.
2.25.2009 2:51pm
NTB24601:
Err. I mean "fault the First Circuit."
2.25.2009 2:53pm
Oren:
Jon, it seems manifestly unfair to the Constitution to create bad law by ruling on matters with an insufficient factual background.

The doctrine of waiver seems perfectly consistent with the oath in Art III -- one cannot violate a right that the victim does not assert as relevant.
2.25.2009 2:54pm
PatHMV (mail) (www):
It seems to me that the problem with adhering to the doctrine of avoiding constitutional issues in this context is the chilling effect, an important aspect of First Amendment law. The court's decision, in essence, says that there MAY indeed be some areas where the state law could constitutionally proscribe or penalize true statements. I don't believe, under applicable First Amendment law and precedents, that there are any such areas. It is thus erroneous for the court to remand for further proceedings. Had the court remanded for better briefing or record developing on the issue of constitutionality, fine, but that's not what it did.

Now, and until this case is brought up again or the doctrine is otherwise clarified, those who may wish to maliciously speak true facts about another must labor under the realistic possibility of expensive litigation, should the offended party sue, and indeed must do so with no confidence that the court will hold that all true speech is constitutionally protected. That is not an appropriate result.
2.25.2009 3:00pm
Jon Roland (mail) (www):
NTB24601:

[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.

There is a fundamental problem with this policy/practice: It assumes that at least one party in every case has a stake in constitutional compliance, and will therefore defend the Constitution. However, most of the members of this forum can probably cite examples of where none of the parties had an interest in defending the Constitution, and even an interest on the part of all parties to violate it. In every case involving constitutional issues there needs to be an advocate for the Constitution.

Much of what I have done in this field is file amicus briefs or interventions where I thought the Constitution was being unrepresented.
2.25.2009 3:01pm
Jon Roland (mail) (www):
Oren:

Jon, it seems manifestly unfair to the Constitution to create bad law by ruling on matters with an insufficient factual background.

The doctrine of waiver seems perfectly consistent with the oath in Art III -- one cannot violate a right that the victim does not assert as relevant.

It is more unfair to decide only among two positions both of which violate the Constitution, and this happens often. Sometimes it comes only from hitting page limits, but sometimes from incompetence on the part of the lawyers or their clients.

The doctrine of waiver presumes only the interests of the parties are at stake, but this would only work if it were not combined with the doctrine of stare decisis, a doctrine that makes every case a matter of public and potentially constitutional concern, and not just a private matter for the parties, allowing them to stand in for the public without being conscientious about the duties that come with that.
2.25.2009 3:10pm
NTB24601:
Jon Roland:
There is a fundamental problem with this policy/practice: It assumes that at least one party in every case has a stake in constitutional compliance, and will therefore defend the Constitution.

I don't see the problem. A decision has no precedential value as to issues that are not raised. Granted, someone might mistakenly cite this decision for the proposition that the First Amendment does not require an absolute defense of truth. I don't think, however, that the danger of sloppy lawyering presents a good argument for changing a practice fundamental to the adversay system.

(By the way: to any readers quickly perusing the comments, the language quoted by Jon above isn't mine; its language from an Eighth Circuit opinion quoted by Justice Ginsberg).
2.25.2009 3:15pm
Jon Roland (mail) (www):
The Constitution is not just about rights. It is also about duties.

When the Constitution states, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;" (Art. III Sec. 2 Cl. 3), it stated a duty. The Framers knew how to phrase that as a right, that could be waived. They did not do that. It was stated as a mandate, regardless of the wishes of the parties. One can argue that taking the word "all crimes" to mean "all crimes" is impractical, but the Constitution is not about practicality. Otherwise it would establish a dictatorship.
2.25.2009 3:22pm
Oren:

The court's decision, in essence, says that there MAY indeed be some areas where the state law could constitutionally proscribe or penalize true statements. I don't believe, under applicable First Amendment law and precedents, that there are any such areas.

You are free to mount a facial challenge to the statute then, in which case, you will have to establish that no set of circumstances exists under which the Act would be valid (US v. Salerno).
2.25.2009 3:23pm
NTB24601:
Jon Roland: The Constitution is not just about rights. It is also about duties.

I don't understand how your last comment relates to this discussion. Could you explain further?
2.25.2009 3:39pm
PatHMV (mail) (www):
Oren: I may not have standing to do so. Even if I intend to publish something maliciously in that state, I still might not have standing to file such a challenge until I was actually threatened with a suit.

First Amendment law, speaking generally, looks much more favorably on facial challenges than just about any other area of the law, because free speech is one of our most fundamental rights. Rather than remanding to give the plaintiff a further opportunity to convince the trier-of-fact of the defendant's maliciousness, the court should have either ordered briefing on the issue or remanded for consideration of that issue specifically, before the party whose speech was threatened is forced to incur further legal expenses defending its speech rights.

Granted, it would seem to border on malpractice that the defendant's attorneys didn't raise this issues properly beforehand, but as others have noted, courts are not always bound by such decisions of the parties.
2.25.2009 4:01pm
Jon Roland (mail) (www):
NTB24601:

Jon Roland:
There is a fundamental problem with this policy/practice: It assumes that at least one party in every case has a stake in constitutional compliance, and will therefore defend the Constitution.

I don't see the problem. A decision has no precedential value as to issues that are not raised. Granted, someone might mistakenly cite this decision

That is profoundly naive. In surveying the history of law I find regular citation to cases as precedents on issues that were not addressed by the court, especially if they were raised and the cases decided on another point. This pattern seems to be a variation of "expressio unius est exclusio alterius", applied not to constitutional or statutory construction, but to case analysis. It seems to have been especially used to misconstrue in Second Amendment cases.
2.25.2009 4:08pm
ed (mail) (www):
Hmmm.

1. What kind of medication are judges on now?

2. Doesn't this gut the 1st Amendment?
2.25.2009 4:08pm
a non e mouse:
As an aside (IIRC from a legal history course I took year's ago) under common law the veracity of a statement was an exacerbating element in libel/slander cases. I always thought that required quite a different (and interesting) perspective on the issue.
2.25.2009 4:14pm
Jon Roland (mail) (www):
NTB24601:

Jon Roland: The Constitution is not just about rights. It is also about duties.

I don't understand how your last comment relates to this discussion. Could you explain further?

It is my position that, having taken an affirmation to "preserve, protect, and defend the Constitution", I, and all other citizens (whether they take the oath or not), are obliged to put constitutional compliance ahead of their private interests whenever they appear in any court, regardless of personal consequences, and that any attorneys who might represent them do the same.
2.25.2009 4:15pm
Bored Lawyer:

Massachusetts law, however, recognizes a narrow exception to this defense: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with "actual malice" in publishing the statement.



In the context of libel law, "malice" usually means knowledge of the falsity of the statement or reckless disregard as to its truth or falsity.

That cannot be the meaning here, since we are talking about true statements.

So what does "actual malice" mean in this context? An intent to harm the other person or his/her reputation?
2.25.2009 4:30pm
mga (mail):
I think this is more about the label put on the tort than the underlying theory. As I read the opinion, the Court is saying that Staples can be liable if its motive for sending the e-mail was to embarrass, humiliate, or otherwise injure plaintiff, rather than for some legitimate reason. What makes the conduct tortious is the motive, not the method by which it is carried out. Other states might label this a prima facie tort or possibly intentional infliction of emotional distress. I would not think the First Amendment would outlaw these torts just because the method by which the malice was implemented involved speech
2.25.2009 4:34pm
NTB24601:
Jon Roland:

In surveying the history of law I find regular citation to cases as precedents on issues that were not addressed by the court, especially if they were raised and the cases decided on another point.
If the issue was raised and not addressed by the court that's entirely different. In those cases, there may be some validity to drawing an inference from the court's silence. That's not the situation that we are discussing. In this case, the issue was not raised and, consequently, nothing can be inferred from the court's silence on the issue.

I, too, have frequently seen attorneys citing to decisions for issues that were not raised in them. Attorneys often make bad arguments in their efforts to zealously represent their clients. I don't think that is a sound argument for departing from the fundaments of the advocacy system.

In surveying the history of law I find regular citation to cases as precedents on issues that were not addressed by the court, especially if they were raised and the cases decided on another point.
Staples' first amendment rights are personal to the corporation. If Staples chooses to waive those rights, that doesn't undermine the United States Constitution. As I mentioned above, the court's decision will have no precedential value on issues that were not raised. All that Staples is doing is foregoing one avenue of defending itself from an expense.

Furthermore, I strongly believe that sua sponte decisions do more to undermine the values of our Constitution than failure to address an unraised issue ever could.

I worked as a law clerk in state appellate courts for many years. Back then, I was inclined toward a rather expansive view of what issues were presented. As a litigator, I sometimes cringe inwardly at the memory. Little exasperates me more then when a court invents and develops an argument that my opponent never raised. Not only does this cast the court improperly in the role of advocate, it also deprives me and my client of a fair opportunity to respond.

Due process is justice; in absence of divine intervention, the closest we can approximate to "true justice" is to follow uniform rules and give both sides to a controversy a fair opportunity to present their cases. When a Court decides issues on its own initiative (save in a few rare situations), the Court strikes at the heart of justice in our society.
2.25.2009 4:53pm
NTB24601:
Bored Lawyer: So what does "actual malice" mean in this context? An intent to harm the other person or his/her reputation?

Yes. The First Circuit concluded that, as used in the Massachusetts libel statute, "actual malice" means "ill will" or "malevolent intent." The court concluded that evidence tending to support the proposition that Staples singled out Noonan to humilate him could support a finding of actual malice by a jury.
2.25.2009 5:03pm
zuch (mail) (www):
Jon Roland:
The Constitution is not just about rights. It is also about duties.

When the Constitution states, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;" (Art. III Sec. 2 Cl. 3), it stated a duty. The Framers knew how to phrase that as a right, that could be waived. They did not do that. It was stated as a mandate, regardless of the wishes of the parties.
Ummmm ... you can waive your right to a jury trial.

Cheers,
2.25.2009 5:49pm
zuch (mail) (www):
a non e mouse:
As an aside (IIRC from a legal history course I took year's ago) under common law the veracity of a statement was an exacerbating element in libel/slander cases. I always thought that required quite a different (and interesting) perspective on the issue.
I don't know if it exacerbates the tort/crime, but some legal systems do/did consider that a true slander is actually more damaging (may make a difference as to amount of damages or the severity of the penalty). If there is no defence of truth and the gravamen of the tort/crime is the infliction of damage or distress regardless of the truth, this makes perfect sense. I'd note that the tort of "intentional infliction of emotional distress" seems to fit such type actions, but is generally not looked upon highly by the courts (see, e.g., Hustler v. Falwell [or, as it was termed in the movie, "People v. Larry Flynt"], albeit that involved "false" statements ... or at least so we hope).

Cheers,
2.25.2009 6:04pm
zuch (mail) (www):
Bored Lawyer:
Massachusetts law, however, recognizes a narrow exception to this defense: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with "actual malice" in publishing the statement.
So what does "actual malice" mean in this context? An intent to harm the other person or his/her reputation?
Pretty much, yes. The opinion discusses this and concludes (correctly, IMNSHO) that the term "actual malice" doesn't have the technical definition of Times v. Sullivan (which postdated the statute) but rather the more common law idea of 'actual ill intent'.

Cheers,
2.25.2009 6:09pm
zuch (mail) (www):
mga:
Other states might label this a prima facie tort or possibly intentional infliction of emotional distress. I would not think the First Amendment would outlaw these torts just because the method by which the malice was implemented involved speech.
See Falwell v. Hustler (linked above).

Cheers,
2.25.2009 6:12pm
Oren:

It is my position that, having taken an affirmation to "preserve, protect, and defend the Constitution", I, and all other citizens (whether they take the oath or not), are obliged to put constitutional compliance ahead of their private interests whenever they appear in any court, regardless of personal consequences, and that any attorneys who might represent them do the same.

And if the Judge, bound by that oath, believes in good faith that the right to present Constitutional arguments to a court can be waived by failure to raise the issue at the appropriate time?

This is not about substantive Constitutional rights, it's about whether the Courts can require litigants to present their cases in an orderly fashion.
2.25.2009 6:20pm
Jon Roland (mail) (www):
NTB24601:

I, too, have frequently seen attorneys citing to decisions for issues that were not raised in them. Attorneys often make bad arguments in their efforts to zealously represent their clients. I don't think that is a sound argument for departing from the fundaments of the advocacy system.

It wouldn't if judges refused to let them get away with that, but all too often those bad arguments find their way into precedents that take constitutional jurisprudence away from constitutional fiedlity like the walk of a drunken sailor. (
See Markov process.)
2.25.2009 7:10pm
Jon Roland (mail) (www):
zuch:

Jon Roland:
When the Constitution states, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;" (Art. III Sec. 2 Cl. 3), it stated a duty. The Framers knew how to phrase that as a right, that could be waived. They did not do that. It was stated as a mandate, regardless of the wishes of the parties.

Ummmm ... you can waive your right to a jury trial.

Yes you can. You can also waive your right (really privilege) to vote, but that doesn't relieve officials of the duty to hold an election. The language of the Constitution is clear, and that language means a jury trial whether the defendant wants one or not. It is the duty of the court, under that provision, not of the party, to try by jury.
2.25.2009 7:15pm
Oren:

Yes you can. You can also waive your right (really privilege) to vote, but that doesn't relieve officials of the duty to hold an election.

No, but, having failed to vote on Nov 2nd, you cannot show up at the county clerk on Nov 9th and demand your right to vote.
2.25.2009 7:22pm
Oren:
Nor can the county clerk, on Nov 9th, having noticed that you didn't exercise your right to vote on the 2nd, give you another chance to do so. In fact, after you've failed to vote at the proper time, there isn't anyone in the entire country that can go back and "vindicate" that right. It's gone.
2.25.2009 7:24pm
Jon Roland (mail) (www):
Oren:

And if the Judge, bound by that oath, believes in good faith that the right to present Constitutional arguments to a court can be waived by failure to raise the issue at the appropriate time?

Having a duty does not absolve one of that duty just because one has a good faith belief one doesn't have the duty. He might be correct for contractual or statutory rights, but constitutional rights deserve special attention.


This is not about substantive Constitutional rights, it's about whether the Courts can require litigants to present their cases in an orderly fashion.

And the oath requires judges to instruct litigants to be diligent in arguing constitutional issues, and to enforce those instructions appropriately. If they refuse, the judge has the duty to proclaim that the case shall not be cited as a precedent.
2.25.2009 7:25pm
Jon Roland (mail) (www):
Oren:

No, but, having failed to vote on Nov 2nd, you cannot show up at the county clerk on Nov 9th and demand your right to vote.

No, and once the jury has rendered its verdict a party can't re-open and retry the case with arguments he chose not to make to the jury when it had the chance. But the Constitution still requires that there be a jury there hearing such arguments as the parties choose to make.
2.25.2009 7:33pm
stombs (mail):
Isn't the problem here a "prudential" one, rather than Constitutional? By declining to rule on a question not raised, the court ensures further litigation and the waste of time and resources. If the matter is clearly going to be decided on 1st Amendment grounds in the end, why not dispose of it now? Is there really a compelling state interest in "requir(ing) litigants to present their cases in an orderly fashion"? (Do not pass go, do not collect $200?) Perhaps there is, but it doesn't seem obvious to me.
2.25.2009 7:45pm
Jon Roland (mail) (www):
stombs:

Isn't the problem here a "prudential" one, rather than Constitutional? By declining to rule on a question not raised, the court ensures further litigation and the waste of time and resources.

We need a Latin maxim for "kicking the can down the road".
2.25.2009 7:51pm
NTB24601:
Jon Roland: It wouldn't if judges refused to let them get away with that, but all too often those bad arguments find their way into precedents ....

No judge is going to be persuaded by those arguments. Judges already predisposed to rule a certain way might rely on them to bolster their decision, but in those situations the argument isn't really making a difference anyway.

Even if you don't agree with me on this point, the proper remedy shouldn't be to get judges to raise more issues sua sponte. The remedy should be to get judges to adhere more faithfully to the actual holdings.

....but constitutional rights deserve special attention.

Indeed, they do. Judges should exercise particular care before delving into a constitutional issue. That's an argument for avoiding a constitutional question that has not been fully briefed. Its not an argument for sua sponte decisions.
2.25.2009 7:52pm
NTB24601:
stombs: If the matter is clearly going to be decided on 1st Amendment grounds in the end, why not dispose of it now?

Three standard answers come immediately to my mind:

1. The issue has not been fully briefed, meaning that the decision will be the product only of the law clerk assigned to it by the authoring judge. By contrast, a fully briefed issue will be thoroughly researched by two adversarial law firms as well as the judge's chambers.

2. Disposing of an issue sua sponte is fundamentally unfair to the parties. The parties have a right to expect that the court's decision will be based on the issues presented to it.

3. When a court makes new law on a constitutional issue, the court is acting in a fundamentally undemocratic fashion. Unlike statutory interpretation, a decision on a constitutional issue can not be overruled by the legislative (i.e., democratic) process. Consequently, courts should decide cases on constitutional grounds only where necessary. In this case, there is a very good chance that the court will never have to make a constitutional ruling, depending on the findings by the jury.
2.25.2009 8:06pm
Sagar:
when politicians do things we don't like (irrespective of right or wrong) we all pile on them ... in a nasty way.

when judges do stuff like this, there is hardly any reaction (if anything people try to look for deeper meaning and whatnot). is it strictly due to professional courtesy?
2.25.2009 9:42pm
Jon Roland (mail) (www):
NTB24601:

Jon Roland: It wouldn't if judges refused to let them get away with that, but all too often those bad arguments find their way into precedents ....

No judge is going to be persuaded by those arguments. Judges already predisposed to rule a certain way might rely on them to bolster their decision, but in those situations the argument isn't really making a difference anyway.

Real judges don't just do one or the other. Many will be poised on the edge and the presence or absence of an argument can encourage or discourage how they might go.

But you seem to be focused on using sua sponte motions to "dispose" of an issue. I am arguing for using them to remand and instruct to develop the missing arguments. That is a different matter. It is not "disposing" to do that.
2.25.2009 10:06pm
Dissident (mail):
BTW, what is the difference under the Massachusette law between "actual malice" and plain old "malice?"

Presumably, it is legal in Massachusetts to harbor resentment toward someone else. Just don't express it to a third party -- even if the underlying facts are true.

For example, if a clerk in a department store is chatting with his friends instead of serving you, do not under any circumstances complain to the manager or suggest that he be fired. And, do not tell anyone else about it. In other words, if you can't say something nice, do not say anything. Hey, I think I saw that movie -- "The Stepford Wives."
2.25.2009 10:53pm
NTB24601:
Jon Roland: Real judges don't just do one or the other. Many will be poised on the edge and the presence or absence of an argument can encourage or discourage how they might go.

Not in my experience drafting opinions for judges or litigating before them. In my experience, most judges decide how they want to rule and then, after deciding, look for case law to support the decision they've already made. (So the trick is to first convince the court that it wants to find in your favor and then give them the case law that allows them to do so.) I doubt that any judge who is thoughtful enough to truly keep an open mind before looking to the case law would be snookered by an argument that relies on an opinion where the issue in question wasn't raised.

But you seem to be focused on using sua sponte motions to "dispose" of an issue. I am arguing for using them to remand and instruct to develop the missing arguments. That is a different matter. It is not "disposing" to do that.

That's essentially what the Court of Appeals accomplished here by flagging the issue in a footnote then reversing and remanding.

There are occasions when its appropriate for a court to ask the parties to submit supplemental briefing on an important issue. Even that ought to be done with caution though. It will inevitably favor one party over the other. As the U.S. Supreme Court explained in Greenlaw, 128 S.Ct. at 2564, it is simply not the courts' role to "sally forth each day looking for wrongs to right." That's the role of litigants and academics.
2.25.2009 11:11pm
FmrADA (mail):
I fail to see the "problematic" Constitutional issue that the OP believes is posed by the First Circuit's decision.

Here's an example of true speech that would be forbidden. A man takes to following his ex-wife around public spaces all day long, shouting, "This woman does cocaine and cheats on her husband!" No matter how true those statements may be, he will eventually be arrested for any number of misdemeanor-type charges ranging from harassment to stalking, and rightly so. The conduct is offensive, even if its separate components (walking in public spaces &stating true facts) are not.

Another example, taken from England, is a man who was sanctioned for whistling the "Adams Family" tune whenever he came near his elderly neighbors.

What I believe the First Circuit did was to recognize the long-standing distinction between the censorship of speech qua speech, and the regulation of conduct consisting largely or entirely of speech. If it were possible for a jury to conclude in the Noonan case that the speaker actually intended to harm the plaintiff, and did so by juxtaposing technically "true" statements in a way designed to create an inference that was unfair and damaging — this is precisely what the First Circuit held! — then what we're talking about is conduct.

(BTW if memory serves, the well-worn "fire in a crowded theater" exception to the First Amendment privilege was not set out as an example of false speech meriting no protection, but as an example of a benefit-harm analysis that should govern the discussion...notwithstanding that in the "fire" case the statement would also be false.)
2.25.2009 11:20pm
Jon Roland (mail) (www):
NTB24601:

In my experience, most judges decide how they want to rule and then, after deciding, look for case law to support the decision they've already made.

So it doesn't matter what are the legal merits of the parties or how they argue their case? Most laypersons already suspect that, which is why the selection of judges has become so political. But even if our arguments have no hope of making the difference, we at least have the duty not to make it easy on the judges.


There are occasions when its appropriate for a court to ask the parties to submit supplemental briefing on an important issue.

Such as whenever there are constitutional issues that aren't being adequately argued by one side or the other. But about the only way this could favor one side would be if the Constitution does, in which case the court should favor the party.
2.25.2009 11:22pm
MCM (mail):
Wow. I saw the headline "Truth No Defense in Libel Action?" and freaked out because there was a question on the bar exam today that turned on a truth defense to a libel action.

Thanks for the heart attack.
2.26.2009 12:10am
NTB24601:
Jon Roland: So it doesn't matter what are the legal merits of the parties or how they argue their case?

Briefing makes a difference (and oral argument makes a difference when the court makes a ruling from the bench without the benefit of briefs). IMHO, though, you are in trouble if you are relying on the strength of your legal arguments and your precedents. You'd better be able to convince the court in a one-page summary of your argument and your statement of the facts that "justice" lies on your side.

I'm not claiming that all judges are like that, but I am saying those who are more thoughtful won't be persuaded by opinions that don't actually address the issue in question.

Such as whenever there are constitutional issues that aren't being adequately argued by one side or the other.

If its a constitutional issue necessary to their opinion, then yes. If they can avoid the constitutional issue by concluding that the parties waived or failed to raise it, then its better for the court to respect our democratic process and avoid the issue.
2.26.2009 12:12am
Adam J:
FmrADA - So because you can think of one example where outrageous conduct would already be covered by other criminal statutes then its okay to punish truthful speech? If other statutes cover your example then why punish the truthful speech element at all? And your one example is hardly the only occasion where malice could be shown, its entirely possible that someone could say something truthful &with malice without breaking other criminal statutes.
2.26.2009 10:59am
Phil Byler (mail):
What in the world is this? Falsity is an element of a libel action; indeed, the libel plaintiff has the burden of proving falsity after the Hepps case. Truth is technically not a defense because if the statement true, there is no action for libel and you don't get to affirmative defenses.

Centuries ago in Great Britain, truth was not a defense. But libel law has changed since then.
2.27.2009 11:52am
FmrADA (mail):
AdamJ -- My point isn't that we should punish truthful speech per se. My point is that when speech takes on the characteristics of conduct, i.e. becomes a verbal action, the law treats it differently and with less deference. I understood the original poster to saying that the Constitution prohibits punishing true statements under any circumstances. Indeed, the OP says true speech should be untouchable even if made with malice. I am challenging the notion that all speakers making objectively true statements should be afforded carte blanche immunity from punishment for speaking (truth) in a way that is hurtful.

I agree that there are plenty of ways to make true statements with malice. But the question posed by the First Circuit case is whether one can commit a tort (libel) with speech that is objectively true but because of the particular circumstances creates a false impression in the mind of its listener. The default answer appears to be "no," but with the addition of actual malice, the First Circuit thinks "yes." We can debate whether the jury should ultimately find actual malice, but the Constitutional objection strikes me as a red herring.
2.27.2009 2:11pm
David Schwartz (mail):
FmrADA: In all your examples, it's not the speech that's the problem. It just happens to be speech that's the conduct at issue. All of the conduct could occur equally well without speech.

However, in this case, it is the speech itself that's prohibited. The conduct is solely the communication of truthful information. It has nothing to do with the way that information was communicated. There was no way to change the time, place, or manner and still communicate the true facts to the speaker's intended audience.

If it were possible for a jury to conclude in the Noonan case that the speaker actually intended to harm the plaintiff, and did so by juxtaposing technically "true" statements in a way designed to create an inference that was unfair and damaging — this is precisely what the First Circuit held! — then what we're talking about is conduct.
The court did not hold that there was any such "implied falsehood" requirement. If it had, there would be no argument.

The court held that all that was necessary was that a statement be written, defamatory (capable of being reasonably be read as discrediting in the minds of any considerable and respectable class of the community), intended to cause harm or loss, and actually causing loss.

I don't see any requirement of implied falsehood or juxtaposition here.
2.27.2009 3:04pm
Dissident (mail):
Question: Is "he started it" a valid defense to a claaim of intentional infliction of emotional distress?

If Noonan indeed ripped off Staples, why shoudn't Staples be able to expose him as a petty thief? It is almost unnatural for a law to force someone who has been wronged to hold his tongue.

I recall a woman telling how she dealt with a groper on a crowded subway car. She took the hand of the unknown groper, raised it above her head and said loudly, "Whose hand is this?" In Massachusetts, is that conduct libelous or intentional infliction of emotional distress? If so, that is good news for Massachusetts perverts.
2.28.2009 12:25pm

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