- The Washington Times - Saturday, March 7, 2009

BOSTON (AP) | For decades, journalists have been guided by what most considered an absolute defense to libel lawsuits: If a news report is true, it can’t be libelous.

But a recent decision by a federal appeals court in Boston is calling that ironclad defense into question and creating an outcry from news organizations and bloggers worried it could make reporters hesitant to touch certain stories.

The case doesn’t involve anything published by a news outlet but instead an e-mail sent by Staples Inc., the Framingham-based office products company, to more than 1,500 employees, telling them a salesman had been fired for padding his expense reports.

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A three-judge panel of the 1st U.S. Circuit Court of Appeals found Feb. 13 that even though the content of the e-mail was true, a jury could reasonably find that Staples had shown “actual malice” in widely circulating the e-mail to humiliate the salesman, Alan Noonan.

The court cited a 1902 Massachusetts law that holds that truth is a defense against libel unless the plaintiff can show “actual malice” on the part of the person publishing the statement.

The court’s ruling means Mr. Noonan’s defamation lawsuit against Staples can go forward.

But legal observers say the ruling could reverberate beyond the employment arena. Media bloggers have lambasted the ruling as an attack on the First Amendment. And they say the case could have implications beyond Massachusetts because in most defamation lawsuits, the libel law in the state where the plaintiff lives applies.

So, for example, if a California newspaper writes something about a Massachusetts resident and the newspaper is circulated or does business in Massachusetts, the Massachusetts law could apply.

Robert Ambrogi, a lawyer and executive director of the Massachusetts Newspaper Publishers Association, called the ruling “the most dangerous libel decision in decades” on his blog, Media Law.

Mr. Ambrogi said the ruling “freezes out the long-accepted notion that truth is a defense to libel.”

“For the news media, it puts reporters in the odd position of having to not just assess the truth of what they’re reporting, but also assess the intent with which something was said,” he said in an interview.

Boston media lawyer Robert Bertsche said the ruling applies only to lawsuits brought by private figures, such as Mr. Noonan, about a “private concern.” But he said that the law does not clearly define what a “private concern” is, and that media organizations worry that juries would be more likely to find them guilty of libeling someone based on the court’s definition of actual malice as simple “ill will.”

But Mr. Noonan’s lawyer, Wendy Sibbison, said the ruling has been misinterpreted.

“This case doesn’t implicate the First Amendment,” Ms. Sibbison said. “The Massachusetts statute allows a plaintiff to recover damages for malicious true speech under a narrow set of circumstances.”

A 1964 U.S. Supreme Court case set a different standard for public figures, and it defines actual malice in those cases as requiring knowledge that the information was false or that it was published with “reckless disregard” as to whether it was false.

Mr. Bertsche said there is broad concern that the 1st Circuit ruling could create a precedent and make it much easier to sue news organizations for libel, even when there is no doubt a story is true. Mr. Bertsche is preparing a friend-of-the-court brief to accompany Staples’ appeal of the ruling, to be filed next week by numerous news organizations, including the Associated Press.

Staples has asked the full bench of the 1st Circuit to rehear the case or to send the case to a lower court for a hearing.

Mr. Noonan, who lives in Plantation, Fla., and has an unpublished telephone number, could not be reached for comment.

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