Today, the Citizen Media Law Project joined numerous other media organizations and media law advocacy groups in filing an amicus curiae brief urging the U.S. Court of Appeals for the First Circuit to grant rehearing en banc in Noonan v. Staples.  In Noonan, a three-judge panel of the First Circuit held that an outdated Massachusetts statute allowed a former Staples employee to hold the company liable for defamation based on a truthful email sent to employees explaining the reason for his termination, so long as he could prove that the email was sent with "actual malevolent intent or ill will." 

In the decision, which Robert Ambrogi rightly called "the most dangerous libel decision in decades," the First Circuit declined to address the very substantial First Amendment issue raised by enforcement of a statute permitting defamation liability for truthful statements, explaining that Staples failed to raise the issue properly in its initial briefing.  Without even dealing with the constitutional issue, the court's opinion de facto carved out an exclusion from First Amendment protection for all statements of purely private concern in lawsuits brought by private-figure plaintiffs, at least for purposes of Massachusetts law.

The amicus curiae brief, also joined by the Washington Post, the New York Times, the Society for Professional Journalists, the Reporters Committee for Freedom of the Press, and many others, argues that the First Circuit should grant rehearing in order to grapple with the constitutional issue and correct the panel's blunder, which "violates hard-won protections for freedom of speech and of the press."  The introductory section of the brief captures well the scope of the problem:

The panel's decision resuscitates a little-known and less-used pre-Civil war statute, first enacted in the early days of the telegraph, before the invention of the telephone, motion pictures, radio, or television, and last revised more than a century ago.  It then construes that statute . . . in a manner that will work a significant and unfortunate change in modern libel law. It will make even indisputably accurate reporting subject to potential defamation liability if a judge or jury -- seond-guessing the media's contrary judgment -- were to conclude that the subject matter did not implicate the public interest.  Application of the statute will increase the length, cost, and risk of litigation for libel defendants, potentially allowing individuals displeased by the media's true accounts of their conduct to survive summary judgment based on thinly supported allegations that a writer or reporter was "out to get them" or was motivated by ill will toward them  In some quarters, it may even have the chilling effect of discouraging reporting and commentary on some of the most pressing issues of the day, such as the internal affairs of businesses coping with severe economic challenges, for fear that such matters might mistakenly be deemed to be of only "private concern."  

The brief makes some powerful arguments for why the Massachusetts statute is unconstitutional, including historical analysis showing that the view of libel law encapsulated in the statute has fallen into disrepute after the Supreme Court's landmark decisions in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and  Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).  My personal favorite is the argument that imposing defamation liability for truthful statements is logically incompatible with the constitutional requirement, clearly recognized by Massachusetts courts, that a defamation plaintiff must prove that the defendant was negligent regarding the falsity of the published statement, even when a private plaintiff sues over statements on a matter of private concern.  As the brief argues, "it is impossible to conclude both that a defendant published the truth . . . and that the same defendant acted 'with negligent disregard for the truth.'" 

Many thanks to Rob Bertsche and his team at Prince, Lovel, Glovsky & Tye for putting together this impressive brief under tight time pressure.  I'm glad they used my Blackstone quote.   

Update:

Noonan's counsel filed an opposition to the motion for leave to file the amicus curiae brief.