Tuesday, February 17, 2009

More on 1st Circuit's 'Dangerous' Libel Ruling

The 1st Circuit's libel ruling that I wrote about here yesterday has drawn reaction from a number of commentators. Dan Kennedy wrote about it for his weekly column in the Guardian. (In fact, it was Dan's request for comment that led me to write my post.) Dan also wrote about it on his blog, Media Nation, and at the blog of the New England First Amendment Center. Dan's Media Nation post includes a lengthy analysis by Rob Bertsche, one of the top media lawyers in New England. Other comments about the case come from Bill Ketter, vice president of news for Community Newspaper Holdings Inc., and Sam Bayard, posting at the Citizen Media Law Project. The ABA Journal also has a short piece about it.

Just to highlight two of the many thoughtful comments these others have made, let me start with this from Dan Kennedy's Guardian piece:
If Torruella's dangerous opinion were to lead federal judges' finding state laws similar to the 1902 statute in Massachusetts, the result could turn back the clock on freedom of speech and freedom of the press.

If the truth no longer sets us free, then the first amendment will have shrunk beyond recognition. The media will lose, of course. But so will the public they ostensibly serve.

And then this from Rob Bertsche, via Kennedy's blog:
With this decision, the First Amendment has been replaced by the maxim, "If you don't have anything nice to say, don't say it."Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What's worse, the court offers no guidance about how to distinguish what is of "public concern" from what is of "private concern."
As I said in my original post: Be afraid, be very, very afraid.


Deb Geisler said...

Ironically, I read your thoughtful analysis and the 1st Circuit opinion on the computer in my classroom this morning, while giving a Media Law exam. One of the questions was, "What is the classic, absolute defense against a claim of libel?"

Fortunately, none of my students had read it. Equally fortunately, I did not startle them all with a scream of rage.

Anonymous said...

The court wasted all its energy interpreting a statute that would be unconstitutional even if that interpretation is correct. Worse, it ducked the 800-pound gorilla First Amendment (and Article 16 of the Massachusetts Declaration of Rights) question in footnote 7:

This exception to the truth defense is not constitutional when applied to matters of public concern. Shaari v. Harvard Student Agencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998). In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time. See Johnson v. Mahoney, 424 F.3d 83, 96 (1st Cir. 2005).

What is there to develop? Is the phrase “freedom of speech” so ambiguous that they need a briefing on it? Or, if they don’t understand it, ask for a briefing. I know of no case law supporting a law purporting to bar truthful malicious statements against a First Amendment challenge.

Libel has always been understood by courts considering a First amendment challenge to be a false statement or inference about someone. The panel should have said the obvious, i.e., that the First Amendment prevents the state of Massachusetts from barring truthful statements about anyone whether or not the intent is malicious.

These three judges are either clueless or cowards. Good thing they were not on the Peter Zenger jury.

Anonymous said...

This whole case has been blown out of proportion and the case's critics have substitued alarmism for solid legal analysis of longstanding precedent.

Firstly, the issue is an extremely narrow one, dealing with a state statute that is unique to Massachusetts. Its general applicability is limited and it will not have a far reaching impact outside the state.

Second, the United States Supreme Court has relegated private figures suing on issues of private concern to the realm of state statutory or common law. The Noonan case clearly fell within the confines of this category. Consequently, the First Circuit had no legal precedent (unless they invented it out of whole cloth, which would be even more dangerous)to declare the state statute unconstitutional.

Finally, I don't understand how The Guardian article could claim that Judge Tourrella blew past 45-years of precedent, when that very precedent permits private figure/private concern cases to remain under the ambit of state statutory and common law.