Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

Late last week a federal jury returned a verdict in the defendant's favor in a libel case from Massachusetts that has attracted national attention.  The case, Noonan v. Staples, came into the spotlight because of a ruling from the First Circuit Court of Appeals that the plaintiff's libel claim could go to trial even if the communication at issue were true or substantially true.  We wrote about the decision here, noting the consternation the decision had drawn from First Amendment advocates for its implication that a truthful publication, if published with common-law malice, could constitute actionable defamation.  Such an outcome erodes the principle, long taken as gospel in libel jurisprudence, that truth operates as an absolute defense to liability.

The lawsuit involved a private-figure plaintiff who sued his former employer (Staples) for sending out a mass email discussing his termination of employment.  The plaintiff contended that the email, which asserted that Staples had fired Noonan “for cause” because Noonan allegedly “padded his expense reports,” was libelous.  The trial court dismissed the claim at the summary judgment stage, holding that the email at issue was true or substantially true and therefore could not be actionable as a matter of law.

The First Circuit reinstated Noonan's claim, focusing on a Massachusetts statute that predated the Supreme Court's seminal New York Times v. Sullivan decision and that  provides:

The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.

The First Circuit reasoned that while the statute could no longer be applied as a constitutional matter in public-figure or private figure/public concern cases after Sullivan, it still could operate in defamation actions brought by private figures such as Noonan over matters of private concern. 

The case therefore went to trial on the question of whether Staples representative sent the truthful email with malice.  The jury answered the question negatively, which precluded any liability on the part of Staples.  However, Staples still was put to the time and expense -- not to mention the risk -- of a jury trial on a defamation claim involving a communication that was true.  Courts have long recognized that the mere prospect of facing trial -- even on a legally deficient claim -- can have a chilling effect on speech.

So while the final outcome was a good one for Staples, the legacy of this case may be troubling for media organizations and other defendants who are sued by private-figure plaintiffs, at least in Massachusetts.  Even though Staples ultimately prevailed, the First Circuit's summary judgment decision remains good law unless addressed by the Massachusetts legislature.  The decision is binding on district courts in the First Circuit and available to be cited as persuasive authority in the state courts of Massachusetts and elsewhere, and it therefore may lead to other libel defendants proceeding to trial on claims of dubious validity.

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The First Circuit recently affirmed summary judgment in favor of Fox News Network and Fox personalities Steve Doocy and Brian Kilmeade over a three-hour cable program during which the hosts discussed a report of an alleged “hate crime” at a public school in Lewiston, Maine, where the plaintiff was the superintendent of schools.  During the program, Doocy and Kilmeade repeatedly quoted an article about the incident that contained false quotations and false citation to the Associated Press but also contained substantially true information.

The facts underlying Levesque v. Doocy, No. 08-1814, slip op. (Mar. 19, 2009), involve commentary about an incident at a public middle school in which a student placed a bag containing a leftover ham steak on the cafeteria table where Somali Muslim students were having lunch.  School investigators and police classified the event as a “hate crime.”  A reporter for the Lewiston Sun Journal wrote an article (linked here) on the incident and interviewed the plaintiff, who was superintendent of the school system where the incident occurred.  The plaintiff was quoted in the article describing what happened as “‘a hate incident,’” and another source stated that without a response “‘more degrading acts will follow, until at some point we’ll end up having violence.’”

Several days after the Lewiston Sun Journal article, another writer (Nicholas Plagman) published an article about the Lewiston incident on Associated Content, a website that allows writers to post their own material.  According to the First Circuit, the Plagman article “mischaracterized some facts, such as reporting that the students left a ham sandwich, rather than a ham steak, on the cafeteria table.”  Additionally, the Plagman article included “fictitious quotations” based upon quotes accurately reported in the Lewiston Sun Journal article (e.g., the school and others were developing “an anti-ham ‘response plan,’” “These children have got to learn that ham is not a toy,” and more as reported in the opinion) and falsely listed the Associated Press as a source for the piece.

Plagman posted his article to Associated Content in both the humor and news categories, and the story was picked up and distributed by the news aggregator Google News where a Fox line producer found it.  Fox conducted additional research and was able to confirm some of the facts and sources.  Additionally, Fox located the earlier newspaper article and confirmed that the Lewiston Sun Journal was a legitimate paper.

During the three-hour cablecast of “Fox and Friends,” Doocy and Kilmeade discussed the incident as reported in the Plagman article, “frequently ridiculing Levesque” and reporting the fake quotes that Plagman attributed to the plaintiff.  During the program, Doocy made a few comments the plaintiff later tried to use to show that Doocy and Fox doubted the truth of the report—for example, “I’m not making this up,” “I thought this was a joke,” and “I hope we’re not being duped.”  At some point after the program, the plaintiff contacted Fox to complain about the inaccuracies in the program, and Fox retracted and apologized.

The plaintiff filed claims for libel, libel per se, false light invasion of privacy, and punitive damages based on five statements made by the defendants during the program.  He stipulated that he was a public official for purposes of defamation law.  The district court granted summary judgment for the defendants based largely on the requirement that a public-official plaintiff must demonstrate by “clear and convincing” evidence—even at summary judgment—that the defendant acted with “actual malice.”

Although the First Circuit was sympathetic to the plaintiff’s claim and critical of Fox’s reporting on the matter, the court affirmed the district court’s decision that the plaintiff failed to present clear and convincing evidence of “actual malice.”  The First Circuit affirmed the lower court’s ruling that two of the statements were not defamatory in nature—one of the statements was substantially true while another (the “anti-ham ‘response plan’”) was non-actionable “imaginative expression” or “rhetorical hyperbole.”

As for the three other statements that served as the basis for the action, the First Circuit agreed with the district court that a jury could find them to be defamatory.  The court then turned to the “actual malice” inquiry.

Levesque contends that the defendants' failure to corroborate the fabricated quotes from the Plagman article coupled with incredulous statements during the cablecast (e.g., "I hope we're not being duped," and "I thought this was a joke") establish that the defendants acted with reckless disregard for the truth. He notes that Fox rushed to broadcast the two-week-old story even though it was not breaking news. It is true that a more deliberate consideration of the Plagman article should have caused reasonable skepticism about the source and that the defendants were careless in relying on it, but this is an indication of negligence, not actual malice, and Superintendent Levesque faces the heavy burden of providing evidence that the defendants recognized the carelessness with which they were proceeding.

Ultimately, the court concluded that Fox used reputable sources to authenticate the incident and various facts that were reported by Plagman.  “In the present case, the two actionable statements attributed to Levesque were certainly absurd, but the Plagman article presented them within larger, accurate comments that could be corroborated with the [Lewiston Sun Journal] article.”  (An expert testified during deposition that the discrepancy between an Associated Content and Associated Press piece should have been noticed, but the court found the oversight to be merely negligent.)  Further, although the statements by Doocy and Kilmeae that arguably expressed doubt about the truth of the Plagman article (e.g., “I hope we’re not being duped”), the First Circuit found that “in the context of a consistently irreverent (and to many, insensitive) morning television show, . . . such statements frequently are used as devices to magnify the presentation and grab viewers’ attention”—the statements did not present clear and convincing evidence of actual malice.

Note that the First Circuit distinguished Levesque from Noonan v. Staples, a decision reached by a different panel (with one shared judge) only a few weeks earlier.  As we discussed in our post about Noonan, the First Circuit applied the Massachusetts common-law definition of malice, whereas the court in Levesque applied the constitutional standard.  Levesque demonstrates that the First Circuit obviously knows how to apply the “actual malice” standard to public officials—but getting to the point where the standard applies has not been easy for media defendants in the First Circuit recently.

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On March 18, 2009, the First Circuit denied a petition for rehearing en banc of a case in which a panel of the First Circuit recognized that, under Massachusetts law, truth is not an absolute defense to a libel claim.  The defendant raised a constitutional attack against the state statute that served as the basis of the panel's decision, but the First Circuit determined that the constitutional argument was not properly before the court.  The outcome—in which common-law malice may defeat the truth defense—cannot easily be squared with the federal constitutional requirements for state defamation law.

The denial of rehearing en banc follows the First Circuit’s February 13, 2009, decision upon rehearing the case in which it reversed and remanded a lower court decision granting summary judgment for a libel defendant because the allegedly defamatory statement at issue was true and because the plaintiff could not defeat the defense of truth by showing the defendant acted with “actual malice.”  With this rehearing opinion in February, the First Circuit reversed its own earlier decision in August 2008 in which it affirmed the district court’s ruling.

In Noonan v. Staples, Inc., No. 07-2159, slip op. (1st Cir. Feb. 13, 2009), the plaintiff (Noonan) was a former employee of the defendant (Staples).  Staples claimed that it fired Noonan “for cause” because Noonan allegedly “padded his expense reports.”  According to the First Circuit, the evidence demonstrated that Staples investigated Noonan’s expense report filings and determined that he “deliberately falsified” some reports in violation of company policies.  After terminating Noonan, a representative of Staples sent an e-mail to 1,500 to 1,600 people (the exact number could not be determined) that stated that Noonan’s employment was terminated because he did not comply with the company’s travel and expenses policies.  Noonan subsequently filed a complaint against the company and claimed libel based on the e-mail and breach of contract based on the company’s refusal to allow him to exercise stock options and to receive severance.  Noonan did not dispute that he had made errors on his expense reports, but he claimed that the company’s travel and expense report policies were not routinely followed by employees or enforced by Staples.  The district court rejected the plaintiff’s claims and entered summary judgment for Staples.

In reaching its decision to reverse the district court’s decision as to the libel claim (the First Circuit affirmed district court on the breach of contract claims), the First Circuit first analyzed the evidence in the context of the essential elements of a libel claim. In setting out the governing law, the First Circuit wrote:

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. 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. (citations omitted)

The court cited a Massachusetts statute, Mass. Gen. Laws ch. 231, § 92, which states: “The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.”

In its initial decision in August, the First Circuit agreed with the district court and found that “actual malice” as referred to in the statute meant constitutional actual malice—knowledge of falsity or reckless disregard for the truth.  However, the First Circuit reversed itself in February and held that “actual malice” as referenced in the statute means common-law malice or ill will.  That is, instead of focusing on the defendant’s attitude toward the truth, the First Circuit decided in February that the court should focus on the defendant’s attitude toward the plaintiff.

The First Circuit justified its holding based on the fact that Mass. Gen. Laws ch. 231, § 92 was passed before the development of the definition of “actual malice” by New York Times v. Sullivan and its progeny; indeed, the court cited a 1903 case interpreting the term as meaning of “actual malice” in the statute as “‘malicious intention.’”  Additionally, the court found that the “legal context” supported interpreting “actual malice” as “‘ill will’ or ‘malevolent intent’” because (1) the statute deals not with public figures but with defenses under traditional tort law, (2) application of the “modern” meaning of “actual malice” would mean liability for true statements could only occur where the speaker utters a true statement but has serious doubts about or sincerely disbelieves its truth (the court found the statute was “not likely” meant to be limited to such an “odd result”), and (3) “in the public-figure context, the ‘actual malice’ test applies to statements of public concern, an area in which defamatory true statements are not actionable at all” (see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)).

Ultimately, the First Circuit found that the statements made in the e-mail about Noonan—that Staples fired Noonan after an investigation determined he had not complied with the company’s travel and expense policy—were true or substantially true.  However, the court found Noonan’s proffered evidence that the sender of the e-mail harbored ill will toward Noonan raised a triable issue of fact regarding whether the sender acted with common-law malice toward the plaintiff.  The libel claim was allowed to proceed.

To understand Noonan and the Massachusetts statute that supposedly creates an exception to the truth defense, it is helpful to consider Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129 (Mass. 1998).  The First Circuit cited the case (see footnote 7) for the proposition that the actual malice exception “is not constitutional when applied to matters of public concern.”  In Shaari the plaintiff, the proprietor of a youth hostel, sued the preparer and publisher of Let’s Go: Egypt & Israel over allegedly defamatory statements made in the travel guide about him—the guide stated that there were multiple sexual harassment claims against the plaintiff.  The Massachusetts Supreme Judicial Court held that plaintiff was a private figure involved in a matter of public concern, and, as such, Mass. Gen. Laws ch. 231, § 92 could not be applied to the defendants without violating the First Amendment.  As noted in Shaari, the body of law developed by the U.S. Supreme Court, particularly Philadelphia Newspapers, Inc. v. Hepps, requires that a private figure involved in a matter of public concern “cannot recover damages without also showing that the statements at issue are false.”  The Shaari court also stated that, in an earlier case, the Massachusetts Supreme Judicial Court held that the statute cannot, consistent with the First Amendment, apply to a public figure or public official. See Materia v. Huff, 394 Mass. 328, 333 n.6 (Mass. 1985).  Noonan, Shaari, and Materia collectively mean that the only types of libel claims the statute may apply to, consistent with precedent, are private figure, private concern claims.

As noted above, the Noonan rehearing opinion acknowledges that Staples raised during rehearing the argument that the statute may never be constitutional.  However, because, according to the court, Staples did not develop or raise that argument in its initial brief to the court, the First Circuit did not consider the constitutionality of the statute.  The March order denied rehearing for the same reason and because Staples had not timely argued the matter at hand was an issue of public concern.  Additionally, the court wrote that the constitutional issue was not "so clear" that the court should sua sponte strike down the statute without notice to the state attorney general.

The First Circuit also denied the defendants’ request to certify the matter to the Massachusetts Supreme Judicial Court for resolution.  At least for now, the statute is still good law in Massachusetts, and observers will have to wait and see if the statute survives constitutional scrutiny when applied to a private figure involved in a matter of private concern.
 

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