| Via Adam and Dan, our attention is drawn to a decision issued by the U.S. Court of Appeals for the First Circuit last Friday (Friday the 13th -- coincidence??), in which the court decided that, under Massachusetts law, truth might not be an absolute defense to libel after all. That's right -- apparently, at least in Massachusetts, you can libel someone by telling the truth about them.
Note that this case does not apply to "public figures" suing for libel; this case is only about libeling private citizens. But it's still potentially a very big deal.
More.... |
The Court said, relying on a 1902 MA statute, that under MA law truth does not constitute a defense to libel if the alleged libel was made with "actual malice." And, the Court decided, "actual malice" means nothing more than, well, being mean.
[The plaintiff] argues that the term "actual malice" refers to actual malevolent intent or ill will. Though we initially concluded otherwise, on rehearing we now agree.... [T]he legal context supports construing "actual malice" as "ill will" or "malevolent intent."
So, according to the Court, if you disseminate true information about a (non-public) person with "ill will," you can be successfully sued for libel.
Whoa.
A couple of observations. First, as I noted above, this is not a "public figure" libel case, which is the sort we're most familiar with, nor is it a case in which a "matter of public concern" is being discussed. Most people who sue for libel do so because they are in the public eye and believe they've been treated unfairly by a newspaper or some such thing; libel cases may also arise where a newspaper article discussing a matter of public concern mentions people who do not qualify as "public figures." The standards for such libel cases (which have been discussed by the US Supreme Court and the MA Supreme Judicial Court, and in which truth is an absolute defense) are not affected by this case.
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.
Third, it strikes me as very foolish indeed for the Court to have decided this case based on an interpretation of a very old Massachusetts statute without first asking the Mass. Supreme Judicial Court for help. The SJC's rules allow it to answer important questions of MA law arising in cases in other courts "which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of this court." The proper interpretation of the term "actual malice" in MA's 1902 libel statute would certainly qualify, and I cannot understand why the First Circuit chose to hazard a guess (and incidentally turn modern libel law upside-down) rather than simply ask the SJC -- especially since the First Circuit issued this opinion on rehearing, meaning that it had already gotten it wrong once.
Very, very strange. Look for the defendant to file a request for rehearing or rehearing en banc, possibly accompanied by a motion for certifying the question to the SJC. |
