1st Circuit Denies Review of Libel Ruling

The 1st U.S. Circuit Court of Appeals today turned down a petition asking the full circuit to rehear en banc the controversial decision Noonan v. Staples, in which a three-judge panel ruled that truth is not an absolute defense to libel. My earlier post about that ruling is here.

Following is the text of today's order. A note on the order said that Circuit Chief Judge Sandra Lynch recused herself from the case and did not participate in the vote.

Staples's petition for rehearing en banc, construed also as a petition for panel rehearing, challenges the constitutionality of the Massachusetts General Laws ch. 231, § 92, as construed in the panel's rehearing opinion. 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 rehearing opinion found that it need not consider the issue. See Rehearing Opinion at p. 17, n.7.

Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to a matter of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R. App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. See, e.g., Rosado-Quiñones v. Toledo, 528 F.3d 1, 6 (1st Cir. 2008) (deeming waived the "question of law about whether there is added First Amendment protection for public employees' filing of lawsuits against their employers on matters in which the public has no interest"); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 n.7 (1st Cir. 2008); see also Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982) ("Because the requirement of personal jurisdiction represents first of all an individual [due process] right, it can, like other such rights, be waived.").

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. The Massachusetts Supreme Judicial Court ("SJC") case relied upon by Staples did not hold that truth is an absolute defense in private concern cases, but rather that a private figure may recover for a negligently made defamatory falsehood in a case of public concern. Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 164 (Mass. 1975). And the Supreme Court has stated that as to matters of private concern, the First Amendment does "not necessarily force any change in at least some of the features of the common-law landscape." Phila. Newspapers v. Hepps, 475 U.S. 767, 775 (1986); see also Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985) ("In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages -- even absent a showing of 'actual malice.'"). In fact, were the issue as clear-cut as Staples suggests, the SJC would not likely have limited its own invalidation of § 92 to matters of public concern. Shaari v. Harvard Student Agencies, 691 N.E.2d 925, 929 (Mass. 1998) ("To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment." (emphasis added)). Thus, whether § 92 is a "feature[] of the common-law landscape" left unchanged for matters of private concern is an issue on which we now take no position.

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. Though Staples suggests that § 92 may violate the Massachusetts Constitution, it presents no argumentation whatsoever relating specifically to that contention. Further, Staples should not be allowed to escape the consequences of waiver through certification.

The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied. The alternative request for certification to the SJC is also denied.

Lines drawn in battle to open government

The Springfield Republican kicks off Sunshine Week with a piece on the need to reform Massachusetts public records and open meeting laws: Lines drawn in battle to open workings of government.

Official Questions Closed Door Meeting

"Just because you can do it, doesn't mean you should do it." That notable quote came from Nicholas V. Hammond, a selectman in the town of Auburn, Mass., regarding a closed-door session that should have been open. As reported by Bill Fortier in the Worcester Telegram & Gazette, the town's selectman and its school committee went into a joint executive session, ostensibly to discuss strategy involving collective bargaining. That is one of the reasons for an executive session allowed under the open meeting law. But, said Hammond of the lengthy meeting, "everything but that was discussed." He declined to tell the reporter what was talked about.

Journalists Warily Eye Massachusetts Libel Ruling

AP reporter Denise Lavoie has this story today on the 1st U.S. Circuit Court of Appeals decision in Noonan v. Staples that I wrote about on Feb. 16.

Libel Ruling Protects Anonymous Comments

Maryland's highest appellate court has issued a significant ruling underscoring the First Amendment's protection of anonymous comments posted online. The Maryland Court of Appeals decision, Independent Newspapers v. Brodie, is only the second by a state supreme court to confront the disclosure of those whose anonymous comments are alleged to be defamatory. The court established a strict, five-step process that courts in Maryland must follow before requiring disclosure of someone's identity:

When a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

The case involved anonymous comments critical of the cleanliness of a Dunkin' Donuts owned by Maryland developer Zebulon Brodie. Brodie sued the online newspaper that hosted the comments and three John Doe defendants. The trial judge dismissed the newspaper from the lawsuit under the Communications Decency Act, but nevertheless ordered the newspaper to provide identifying information about the three John Doe defendants and two others not named in the complaint.

It is interesting to note that the Court of Appeals could have disposed of this case without addressing this important issue. In reviewing the lower-court proceedings, it found that the three John Does identified in the complaint had nothing to do with the allegedly defamatory comments concerning cleanliness of the Dunkin' Donuts. The two who did make those comments were never named in the complaint. In light of this, Brodie had not established a valid cause of action for defamation against any defendant and the judge had no grounds to order the disclosures. But the Court of Appeals went on to decide the broader issue anyway, explaining, "We did not take this issue just to sort out the record but to give guidance to trial courts addressing similar matters."

You can read more about this case from The Baltimore Sun and The Washington Post.