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.

Board's E-mails Violated Open Meeting Law

The Essex County District Attorney's Office has determined that the Boxford, Mass., Board of Health violated the open meeting law when it deliberated policy issues through a series of e-mails sent between March and June 2008. Both Wicked Local and The Salem News have reports this week of the DA's ruling, which it issued Nov. 13. The e-mails discussed the formation of a horse-stables regulation committee and what its duties would be.

More Views on 'Dangerous' Libel Case

Friday's 1st Circuit decision that truth is not always a defense to libel -- which I posted about here and here -- continues to draw reactions from other bloggers:

• At Nieman Journalism Lab, Martin Langeveld writes: "The case threatens to muzzle both news and entertainment media, and could be particularly dangerous to independent bloggers and small startup news organizations — neither of which is likely to have the legal resources a traditional established news organization has to battle libel suits."

• Los Angeles entertainment lawyer Gordon P. Firemark blogs: "If allowed to stand, this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech, such as documentary films and many forms of investigative journalism."

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.

Think You Know Libel Law? Think Again

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.

To reach this outcome, the 1st U.S. Circuit Court of Appeals panel dusted off a 1902 statute that the highest state court in Massachusetts long ago ruled unconstitutional in a related context. The statute, G. L. c. 231, Section 92, says that truth is a defense to libel "unless actual malice is proved." In a 1998 case, Shaari v. Harvard Student Agencies, the Supreme Judicial Court ruled that statute unconstitutional as applied to matters of public concern. Citing a line of U.S. Supreme Court opinions leading back to the seminal 1964 case, New York Times v. Sullivan, the SJC said, "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."

Remarkably, the 1st Circuit sidestepped Shaari with barely a nod to its significance. In a 34-page opinion written by Circuit Judge Juan R. Torruella, the court gave Shaari only a footnote. It dismissed Staples' argument that Shaari applied here on a procedural formality. "This argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time." It ignored Shaari even though the SJC suggested in dictum that the ruling should apply equally to private cases. "Although the Supreme Court has instructed that private figure plaintiffs may recover 'on a less demanding showing than that required' in cases of public figure plaintiffs, ... the falsity of the defendant's defamatory statement regarding matters of public concern remains a prerequisite to recovery," the SJC said.

At issue in this case was an e-mail a Staples executive sent to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The company terminated Noonan for cause after investigators concluded that he had deliberately falsified expense reports. The next day, Executive Vice President Jay Baitler sent the e-mail. "It is with sincere regret that I must inform you of the termination of Alan Noonan's employment with Staples," he wrote. "A thorough investigation determined that Alan was not in compliance with our [travel and expense] policies."

As the 1st Circuit itself acknowledged, "everything said in the e-mail was true." But it said Noonan could still have a claim under the 1902 statute if he could show that the e-mail was sent "with actual malice." The Supreme Court's decision in New York Times v. Sullivan defined actual malice as requiring knowledge that a statement was false or reckless disregard for its truth or falsity. The first time the 1st Circuit decided this case, it applied that standard to dismiss Noonan's appeal. This time, it leapfrogged back in time over 40 years of Supreme Court precedent to apply a 1903 SJC ruling that defined actual malice as "malicious intention," which Torruella recasts as "ill will."

"From this evidence, a jury could permissibly infer that Baitler singled out Noonan in order to humiliate him," Torruella wrote. He cites three pieces of evidence he considers key. First, Baitler had never before referred to a fired employee by name in a communication to employees. Second, he sent no memo about another employee who was fired for embezzling money through fraudulent expense reports. Third, he sent the e-mail to some 1,500 employees, many of whom did not travel and had no reason to be reminded of the policy. "The presence of these three pieces of evidence support inferences upon which a jury could base a verdict for Noonan," Torruella said.

This is far from the end of this case. The 1st Circuit's decision sends it back to the lower court for a trial to determine how the case should be decided. Most likely, Staples will ask the full panel of 1st Circuit judges to review this case en banc. It could even make its way to the Supreme Court. For the time being, however, be afraid -- be very, very afraid -- of this precedent. If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant.

Public Records Panel Friday in Boston

I received the following announcement from Bruce Mohl, editor of CommonWealth Magazine:

January 30 , 2009
Hard Data: A panel discussion on the Massachusetts Public Records Law
10:00 a.m. to 11:30 a.m.
The State House
Room A-2
Boston, MA

CommonWealth magazine will host "Hard Data: A panel discussion on the Massachusetts Public Records Law." Join legislators, lawyers, and journalists as they explore why the law designed to shed light on the inner workings of state and local government is instead leaving much of the bureaucracy in shadows, if not total darkness. The panel will feature Alan Cote, the state's supervisor of public records; Rep. Antonio Cabral, who has filed legislation amending the Public Records Law; Walter Robinson, a long-time investigative reporter with the Boston Globe who now teaches at Northeastern University, and Jonathan Albano, a partner at Bingham McCutchen. Moderated by CommonWealth Editor Bruce Mohl.

Click here to rsvp or call (617) 742-6800 ext. 120.

Lowell Sun Files Open Meeting Complaint

Latest example of government officials turning the law upside down: Preparing to go into a closed school committee meeting, the Wilmington, Mass., school superintendent told a Sun reporter that it would be illegal for the committee to meet in public. In fact, the law requires a public meeting before going into closed session. The Sun has filed a complaint with the Middlesex district attorney.

Time Almost Up: Help Us Win Best Podcast

Voting ends tomorrow, Jan. 2, for best legal podcast in the ABA Journal Blawg 100. Our podcast, Lawyer2Lawyer, was in the lead, but has fallen into second place in these waning hours, behind the LexisNexis Legal News and Litigation Report. Voting is easy -- all you have to do is click on a box. Do it today (or tomorrow) and forward this on to your friends.

Vote here.

Our Podcast Named Best for Lawyers

For the third year running, Dennis Kennedy's Blawggie Awards have named Lawyer2Lawyer as the best legal podcast. This year, we tied for best with Denise Howell's This Week in Law. Lawyer2Lawyer also won the Blawggie in 2007 and 2006.

Lawyer2Lawyer was recently selected as a top legal podcast by the editors of the ABA Journal and is currently in a neck and neck competition for first place in the ABA Journal's readers' poll. (Please vote if you haven't already.)

Here is what Dennis Kennedy said about L2L:

Bob Ambrogi's and Craig Williams' Lawyer2Lawyer Podcast is the longest-running weekly legal podcast and has more than 100 episodes. They cover many legal topics, which is both a plus and a minus, since an episode might stray outside your area of interest. But they generally do a great job of finding broad enough topics and getting excellent guests on leading edge topics.

Judge Reprimanded for Letters to Publisher

The judge who sent threatening letters to the publisher of The Boston Herald received a public reprimand today from the Supreme Judicial Court. The SJC concluded that Superior Court Judge Ernest B. Murphy violated standards of judicial ethics when he wrote two letters to Herald Publisher Patrick J. Purcell on official court letterhead demanding payment of a more than $2 million libel award. From today's opinion:

It is beyond serious dispute that the letters sent by Judge Murphy do not promote public confidence in the judiciary. Judge Murphy concedes that he should not have used judicial letterhead. But more than stationery is at issue here. Although a judge is not prohibited from communications related to personal litigation, including those in pursuit of settlement, permissible communications must reflect the standards required to be followed by a judge both on and off the bench.

"That the standards imposed on judges are high goes without saying. Because of the great power and responsibility judges have in passing judgment on their fellow citizens, such standards are desirable and necessary and there should be strict adherence to them. Failure on the part of even a few judges to comply with these standards serves to degrade and demean the entire judiciary and to erode public confidence in the judicial process." Matter of Morrissey, 366 Mass. 11, 16-17 (1974). In sending the letters at issue, Judge Murphy did not meet the high standards required of judges.

The full-text of the opinion is here: In the Matter of Ernest B. Murphy, SJC-10179 December 18, 2008.

Salem News: Why the Secrecy?

Commenting on the Haverhill school committee's secret meeting to discuss an overdue electric bill, The Salem News says:

In general, public officials should err on the side of openness rather than privacy. They claim to want the public trust. Conducting business behind closed doors is not the way to gain, or hold, that trust.

Where there is an illegal closed-door meeting in government, there is probably someone trying to cover his or her political butt.

MNPA Annual Meeting: Still Time to Register

The annual meeting of the Massachusetts Newspaper Publishers Association is this Friday, Dec. 5. There is still time to register and you can do so using the 2008 registration form.

The luncheon speaker is retiring Supreme Judicial Court Justice John M. Greaney, longtime cochair of the SJC's Judiciary-Media Committee. Today is his last day at the court before he joins the Suffolk University Law School faculty. (See Saturday's profile of Justice Greaney by AP writer Denise Lavoie.)

The morning panel will explore the legal issues surrounding blogs and comments on newspaper-hosted Web sites. Three experts will share their insights and advice:

• Robert A. Bertsche, Esq., a nationally known media lawyer and partner with the Boston firm Prince, Lobel, Glovsky & Tye.
• David Ardia, Esq., fellow at the Berkman Center for Internet and Society and the director of the Citizen Media Law Project, which provides legal education and resources for individuals and organizations involved in citizen media.
• Ed Kubosiak, editor-in-chief of MassLive.com.
  

The day begins with the MNPA's annual business meeting at 10 a.m., followed by the panel discussion at 11, a reception at noon and the luncheon at 12:30. The event is being held at Anthony's Pier 4 in Boston.

Questions? E-mail info@masspublishers.org.

Two New Open Meeting Investigations

In Brookfield, the Worcester district attorney is investigating allegations that the Board of Selectmen violated the open meeting law twice in as many months, the Worcester Telegram & Gazette reports. Two selectmen are alleged to have participated in unposted meetings on July 8 and Sept. 9. Both allegedly involved private meetings held just prior to or immediately following public selectmen's meetings.

In Harvard, School Committee Chairman Stuart Sklar announced during a public meeting that the district attorney's office is investigating whether the committee violated the open meeting law on Sept. 18, Nashoba Publishing reports. Three of the committee's five members attended a "coffee" at one member's home to receive public input regarding a contract extension for the school superintendent.

The latter item provides this week's classic misinterpretation of the open meeting law. School Committee Chairman Sklar offered this explanation for why he believed no violation occurred: "I was very careful to not speak to [fellow committee member Patty Wenger] when I was there. And if I remember correctly, Patty didn't speak at all."

Boston Globe Newsroom

Cell phone pic taken yesterday during tour.

Several Open Meeting Items Today

A number of open meetings items in the news today:

• Board Cited 3rd Time on Meeting Law. For the third time in a year, the Charlton Water-Sewer Commission has been cited for violating the open meeting law.

• Town Manager Under Fire. Stoughton residents vent anger over perceived open meeting law violation.

• Lodge: Patrick Locks Out the Public. Metrowest Daily News Editor Richard Lodge blasts Gov. Patrick for a series of closed-door meetings with local officials.

• Boston City Council admits open meeting law violations. See the posts here and here from the blog The BIG Campaign, which say that the council has filed a motion that would allow judgment against it in a long-fought (and expensive) open meeting battle.

The Wilkerson Case and the Open Meeting Law

Sen. Diane Wilkerson faces the possibility of prison for allegedly violating the law and the public trust. Yet other public officials involved in this case also may have violated the law and the public trust, but they are unlikely to face any consequences. That is because their violations were of the open meeting law -- one of the few laws on the books that carries no penalties for those who violate it.

The apparent open meeting law violation involves the Boston Licensing Board's issuance of the liquor license that is at the heart of the complaint against Wilkerson. Kevin McCrea wrote about this yesterday at his blog, The BIG Campaign, and Universal Hub picked up on it today. Consider this excerpt from the affidavit of FBI Special Agent Krista L. Corr, which forms the basis for the complaint against Wilkerson. It comes after the affidavit describes Wilkerson's alleged efforts to strong-arm the BLB into granting a license to the planned club Dejavu. References to CW are to the unidentified cooperating witness:

23. Boston Licensing Board "Smoke and Mirrors": On the same day, August 15, 2007, the BLB held a public hearing at Boston City Hall. Dejavu's application for a license did not appear on the agenda that day. Agents attended the public hearing and there was no public discussion of Dejavu's application or a public vote to grant Dejavu any type of license. Despite this, the attorney recruited by WILKERSON later left a message for the CW telling him that "the vote was in" and that the beer and wine license had been approved. When the CW subsequently told WILKERSON in a recorded call that there was no mention of Dejavu's application at the BLB public hearing but that the attorney claimed that the license was granted, WILKERSON responded that the way the BLB did its business was "all smoke and mirrors." The following Monday, August 16, 2007, the CW, at the attorney's direction, called WILKERSON and left her a voicemail message requesting that WILKERSON be "very, very nice" to the BLB Chairman at the meeting scheduled for that day. The attorney subsequently left a message on the CW's telephone stating that he had, "talked to the Senator [WILKERSON] this morning" and told her that the license was "all set."

25. Boston Licensing Board Awards Dejavu a Beer and Wine License: On August 16, 2007, the BLB issued a letter notifying Dejavu that its petition for a malt and wine license had been granted. On the same day, WILKERSON met with the BLB Chairman, the Senate President, the Boston City Council President, and Senator Y to discuss the status of the Dejavu license and related issues. The outcome of the meeting was an agreement that the City of Boston would submit, and WILKERSON would sponsor, legislation which would authorize 40 new nontransferable liquor licenses and 30 new nontransferable beer and wine licenses for the City of Boston. ... It was understood that Dejavu would receive one of these new special liquor licenses, if another one did not become available first, and that WILKERSON would be able to control several other licenses.

Surprising to me is that when I testified before Sen. Wilkerson on the need for open meeting law reform, she spoke forcefully in agreement. As a matter of fact, she co-chaired that hearing on June 19, 2007 -- just one day after the alleged bra-stuffing incident. Here is what I wrote about that hearing at the time:

In comments during the hearing, both Rep. Cabral and Sen. Dianne Wilkerson (D-Boston), the Senate chair, indicated their support for strengthening the enforcement provisions of the open meeting law. When an opponent of the bill testified that officials who violate the open meeting law do so innocently, Sen. Wilkerson responded that her experience suggested otherwise. She has served on numerous boards and commissions, she said, and has seen them "skate close to the edge a lot." Both Sen. Wilkerson and Rep. Cabral appeared to agree that adding penalties and attorneys' fees is necessary in order to enforce the law.

If the allegations against her are true, then even as she condemned officials who "skate close to the edge," she was already well onto the thin ice. Could the BLB's "smoke and mirrors" be the smoking gun that leads to open meeting law reform?