The Volokh Conspiracy - 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.

	[Eugene Volokh, February 25, 2009 at 11:03am] Trackbacks 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.