Intellectual Property Law

First Circuit Decision Holding That ?Truth is Not a Defense? to Stand

By Lee.Gesmer

The First Circuit has denied Staples’ request that it hear the Noonan v. Staples case en banc, or that it ask the SJC to advise it on how to apply the 100 year old Massachusetts statute which provides that “actual malice” may create an exception to the principle that defamation must be false to be actionable.

I posted on this case a few weeks ago (link here), and commented on the agita it had created in the First Amendment milieu. In fact, a vast number of publishers and First Amendment advocates filed an amicus brief urging the First Circuit to reconsider this decision en banc.

Today, the Court denied this request and let its February 13, 2009 decision stand. In an order several pages long, the Court found that Staples had waived any First Amendment challenge to the state law by failing to raise it earlier, and that Staples could not, moreover, cite a case supporting the proposition that the law was unconstitutional. Here are some selective quotes from the Order:

Since its initial brief, Staples has argued under the premise that the term “actual malice” in § 92 means “malevolent intent.” Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the . . . opinion found that it need not consider the issue. . . .

The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. . . .

Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern.

Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification.

Staples’ petition for rehearing is here.

It is worth pointing out, as a complement to the Staples case, a recent decision by Massachusetts Superior Court Justice James Lemire, issued on January 14, 2009 in Oropallo v. Brenner. The issue in that case was not defamation, but rather the right to privacy under Massachusetts law. In facts not too different from the Staples case, the employer (the Town of Northborough) became aware of a sexual relationship an employee had had with another employee, and some misconduct associated with the affair. The affair was referenced in an investigative report and in the employee’s termination letter. Quoting from the decision:

The disclosure of private facts about an employee, even if the disclosed facts are kept internally within a company, may be sufficient to impair an employee’s right of privacy. . . . For the purposes of summary judgment, this court cannot say as a matter of law that an employer’s interest in the sexual relationships between supervisors and subordinates outweighs an employee’s expectation that the details of her relationships will be kept private. Therefore, there exists a genuine issue of material fact as to whether [the Town] had a legitimate interest in publishing the Confidential Materials to Town employees and volunteers that outweighed [the employee’s[ interest in keeping aspects of her personal life from public view.

Accordingly, the Court held, the case should proceed to trial.

Link: Oropallo v. Brenner.

In light of these two recent cases it probably goes with out saying, but I’ll say it anyways: employers should proceed with extreme caution with respect to statements they make about employees, lest they risk claims of defamation and/or invasion of privacy.  Praemonitus, praemunitus.

Full post as published by Mass Law Blog on March 19, 2009 (boomark / email).