Yelp! Libel or Free Speech: The Future of Internet Defamation Litigation in Massachusetts in the Wake of Noonan V. Staples
Spinosa, Shauna L., Suffolk University Law Review
"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." (1)
In Noonan v. Staples, Inc., (2) the First Circuit reinterpreted Massachusetts's libel statute by lowering the standard to prove actual malice in libel suits. (3) This has the potential for far-reaching consequences in the context of the internet blogosphere. (4) With the increasing trend of posting thoughts and product or service reviews on websites such as Yelp!, internet defamation litigation is on the rise. (5) Before Noonan, bloggers and internet defamation victims lacked a clear boundary between posting opinions constituting free speech and posting libelous statements that are actionable. (6) Legal scholars often lamented that defamation victims had no recourse for their damaged reputations in the law; internet bloggers could use the defense of truth to any libel claim and the Communications Decency Act of 1996 immunized websites from liability for libelous statements posted on their sites by third parties. (7) The court in Noonan interpreted Massachusetts's libel law as only including truth as a defense to libel where the bloggers making the statements lack "actual malice" or "ill will" towards the defamed individual. (8) As a result, bloggers expressing opinions and experiences on the internet are vulnerable to liability if the plaintiff can prove that the bloggers published even true statements with "ill will" or "malevolent intent." (9)
The threat of litigation to bloggers and online reviewers chills free speech by exposing internet users to liability for posting any critical opinions or experiences on the internet, whether true or not. (10) Increased accessibility to customer reviews or information on an individual or their services via internet search engines makes critical blogs or messages a permanent reputation blight, thereby affecting employment possibilities or customer-based business. (11) Defamed individuals and businesses often threaten litigation against critical posters, which sometimes results in host sites taking down negative posts, or bloggers not posting any negative opinions at all. (12) Many internet users post anonymously, leading defamation victims to smoke out the identity of the individual through a subpoena to either sue or force the individual to remove the message for fear of expensive litigation. (13) Critics argue this process interferes with freedom of speech and individual privacy rights. (14)
This Note will first analyze the history of early internet defamation litigation and subsequent federal statutory solutions. (15) It will then discuss libel statutes and decisions applicable to internet libel suits from Massachusetts and other jurisdictions. (16) The Note will then discuss the Noonan decision and how it reconciles with previous case law and Massachusetts statutory law. (17) In the analysis section, the Note will examine the Noonan decision and its potential impact on future internet libel suits. (18) The Note will argue for First Amendment protection for those who post anonymous opinions on the internet and a higher standard of proof to demonstrate the "actual malice" element of libel. (19) It will also recommend and discuss various alternatives for protecting bloggers' rights to free speech on the internet via state anti-Strategic Legislation Against Public Participation (SLAPP) legislation, which bars frivolous suits intended to silence critics. (20) Finally, this Note will examine the ability of Massachusetts's anti-SLAPP statute to extend to internet communications beyond those petitioning the government. (21)
A. Libel and Defamation in Perspective
1. Libel as a Tort
Defamation is a common-law action that allows victims to recover for their loss of professional or business reputation. (22) Defamation comprises the separate, though related, torts of libel and slander, both of which allow recovery for false publications that damage an individual's reputation. (23) Libel encompasses written words or communication in a tangible form, such as a television broadcast or photograph, whereas slander involves oral communications. (24) The statutory definition of libel varies by jurisdiction. (25) In most all jurisdictions, true statements or statements regarding matters of public concern are protected from liability by the First Amendment. (26)
2. Sullivan and Actual Malice
In New York Times Co. v. Sullivan, (27) the Supreme Court expanded the privilege for defamatory statements in holding that the Constitution may protect defamatory publications. (28) The Court also held that plaintiffs who are public officials bear a higher burden of proof to demonstrate a negative statement was made with "actual malice," defined as knowledge of the statement's falsity or reckless disregard as to its truth. (29) The Court reasoned that "erroneous statement[s are] inevitable in free debate" and truth should be an adequate defense to libel. (30) This standard, however, does not apply to private figures filing actions, and the Court later held that states must require some level of fault for a private plaintiff attempting to meet the standard of proof for libel actions. (31) The Court's reasoning suggested that the First Amendment affords greater protections in actions brought by public officials than it does for defendants in private cases. (32)
Cases following Sullivan expanded and clarified the requirement of actual malice. (33) Curtis Publishing Co. v. Butts (34) extended the Sullivan ruling to public figures who are not public officials. (35) The Court justified the heightened standard by arguing that public life carries with it an inherent risk of defamation and that public officials are in a position to rebut such defamatory statements. (36) In Rosenbloom v. Metromedia, Inc. (37) the Court also explored constitutional protections for speech defaming private individuals. (38) The Court, in a plurality opinion, held that actual malice was required in cases brought by private plaintiffs if the statements at issue addressed matters of public or general concern. (39) In Gertz v. Robert Welch, Inc., (40) the Court abandoned Rosenbloom's rationale, holding that the actual malice test applies only where the plaintiff has greater access to public communication, the plaintiff has assumed the risk of defamation, and the source of public attention to which the plaintiff has availed himself is the subject of the defamatory statement. (41) Gertz established the current standard for First Amendment protections of defamatory speech. (42)
3. Libel on the Internet
The increased ability of the public to express thoughts or experiences on the internet has made individuals, businesses, and corporations easy targets for defamation. (43) Instances of online defamation have become more prevalent as people posting statements on the internet exercise free reign in expressing their opinions, because they expect all true statements to be protected by the First Amendment. (44) Increased internet speech has led to an increase in victims alleging defamation and seeking recovery through tort actions. (45) It is difficult to apply defamation law, which is based largely on newspaper publications, to the internet because of the many parties involved in hosting a site, providing internet service, and posting messages. (46) These aspects leave the line unclear as to what constitutes libel on the internet. (47) In Cubby, Inc. v. CompuServe, Inc., (48) the United States District Court for the Southern District of New York held that CompuServe, an internet service provider (ISP), was not liable for defamation because it exercised no editorial control, and was therefore a mere distributor of the defamatory posting. (49) Subsequently, in Stratton Oakmont, Inc. v. Prodigy Services Co., a New York court held that an ISP could be liable for third-party content where the service provider exercised editorial control. (50)
B. Section 230 and Immunity for Websites
1. Context for the Communications Decency Act
Those defamed by internet speech began pursuing defamation actions against the internet host or service provider for the site displaying the defamatory comments. (51) Following Cubby and Stratton Oakmont, which held ISPs liable for third-party postings where they exercise editorial control, Congress sought to clarify the liability of online service providers and protect free speech on message boards by immunizing ISPs from liability if they do not retain editorial control, thereby overruling Stratton Oakmont. (52) To limit litigation against website hosts and ISPs, Congress passed Section 230 of the Communications Decency Act (Section 230), thereby immunizing ISPs from liability in defamation actions where a third party posted the defamatory statement. (53)
2. Application of Section 230
In Zeran v. America Online, Inc., (54) the Fourth Circuit, interpreting Section 230, maintained that websites are not liable for third-party defamatory content even where they receive notice of such content and yet fail to order the third-party user to take it down. (55) The court further held that Section 230 immunized ISPs from online publication of third-party content even where they had actual or constructive knowledge of the statements, noting that one of the important purposes of the statute was to encourage self-regulation of internet speech. (56) zeran argued Section 230 immunity only applies to publishers, and computer service providers like America online are normally considered distributors rather than publishers, and thus still subject to notice-based liability. (57) The Ninth Circuit, in Batzel v. Smith, (58) expanded Section 230's immunity beyond the ISPs to include an individual who maintains an e-mail mailing list for his website. (59) The court did so by defining interactive computer service as covering any information service that allows multiple users to access a computer server, thereby effectively including all websites. (60) The California Supreme Court's decision in Barrett v. Rosenthal (61) reached a similar conclusion. (62) In Barrett, Section 230 shielded the operator of a healthcare fraud internet discussion group from liability regarding a patient's defamatory statement about a doctor even where the website operators knowingly republished the defamatory messages. (63) The court allowed application of the statute, reasoning that to interpret Section 230 as imposing liability when knowledge of defamatory publication exists would disincentivize the regulation of internet, and thus thwart Section 230's goal of self-regulation. (64)
C. Internet Libel Actions in the Wake of Section 230
1. Third-Party Liability as a Result of Section 230
Section 230's liability shield leaves defamation victims without a promising avenue of recovery from ISPs. (65) Instead, plaintiffs must sue the third party who posted the defamatory statement, many of whom are anonymous bloggers or users. (66) An outpouring of frivolous suits have ensued against individual users, most of which are settled, dismissed, or are still in early stages of litigation. (67)
Though many of these plaintiffs are individuals without resources for expensive litigation, corporate defamation plaintiffs can more easily use the threat of litigation to force bloggers to erase allegedly defamatory content. (68) Consequently, internet users wary of lawsuits are deterred from expressing their thoughts and experiences about businesses and services over the internet. (69) As describing one's opinions and experiences on user review websites or social networking sites has become more prevalent, and as readers rely upon these reviews when choosing services or businesses to patronize, some doctors and healthcare service providers further chill free speech by forcing patients to enter into contracts not to post their relevant thoughts online. (70)
2. Libel in Massachusetts Pre- and Post-Noonan
a. Massachusetts Pre-Noonan
In Stone v. Essex County Newspapers, Inc., (71) the Supreme Judicial Court weighed First Amendment speech-related rights against the right to be free from defamatory remarks. (72) The court followed the Gertz ruling, which stated that unless the statement concerns a matter of public interest, defamation actions by private plaintiffs do not invoke the Sullivan actual malice test. (73) The court favored Gertz's justification for a lower standard of proof in private cases because private individuals are more vulnerable to injury and thus more deserving of recovery than public officials and figures who avail themselves of attention. (74) Because states have discretion to determine the standard of liability in private defamation actions, the court further held that private persons can recover on proof of negligent publication or defamatory falsehood. (75)
Under the Massachusetts libel law, (76) a plaintiff that alleges another has committed libel must establish: "(1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss." (77) Because a statement must be false to give rise to a cause of action for libel, a statement's truth may be an absolute defense to libel. (78) Massachusetts recognizes a narrow exception to the defense, however, where the truth of the statement is immaterial if the plaintiff can demonstrate that the defendant acted with actual malice in publishing the statement. (79)
b. The Noonan Effect on Libel
i. The Decision
In Noonan v. Staples, Inc., (80) a former employee of Staples (Noonan), sued for libel as a result of an e-mail sent by a Staples executive vice-president, which stated that Staples terminated his employment due to a violation of the company's travel and expense policy. (81) At issue in the case was Staples's contention that the e-mail was true, which, if proven, would undermine the libel claim absent proof of Staples's actual malice. (82) Staples proved the e-mail's contents were substantially true, and, therefore, required Noonan to prove actual malice on the part of Staples. (83) Although Staples was a private plaintiff, the court reasoned actual malice could vitiate the defense of truth. (84) The Noonan Court rejected the Supreme Judicial Court's interpretation of actual malice in Rotkiewicz v. Sadowsky, (85) which construed actual malice as reckless disregard of a statement's truth or knowledge of falsity. (86) The Noonan Court determined that the legislative intent in the 1902 libel statute did not include the modern definition of actual malice as reckless disregard of a statement's truth or knowledge of falsity and reasoned that such an application would result in the unintended consequence of only imposing liability for a true statement where the speaker had knowledge of the falsity of the statement. (87) Rejecting the modern interpretations of actual malice from Sullivan and its progeny, the court instituted the common-law ill-will standard, defining actual malice as "malevolent intent." (88)
ii. Reach of Noonan
Noonan changed Sullivan's actual malice interpretation from the defense of truth to a more liberal common-law ill-will standard. (89) Legal commentators expect the First Circuit's holding to have negative implications for bloggers and internet users in future libel actions. (90) Critics anticipate a chilling effect on free speech as a result of reducing the availability of the defense of truth. (91) As a First Circuit case, only federal courts in Massachusetts are bound by this standard, leaving undetermined how a Massachusetts state court will address the issue. (92) In addition, the court did not address the issue of whether the First Amendment requires truth be an absolute defense to libel. (93) If that were the case, Massachusetts's exception would be unconstitutional as a whole, thus rendering the First Circuit's low-bar interpretation of the actual malice exception to truth irrelevant. (94)
3. Anti-SLAPP Legislation as a Means of Protecting Bloggers
State legislatures have passed anti-SLAPP statutes in response to increased litigation and as a means of protecting internet speech where a plaintiff's purpose in filing a suit is to silence a defendant or deter others from similar speech. (95) Defendants often seek to show that a lawsuit is a SLAPP in the context of internet defamation actions where plaintiffs file frivolous suits against individuals speaking negatively about a person or business on the internet. (96) If sued in a state with an anti-SLAPP law, a defendant may be able to get the case dismissed. (97) Furthermore, in states such as California and New York with "SLAPP-back" provisions in their statutes, the defendant may file a counterclaim or separate lawsuit against the SLAPP plaintiff and recover punitive and compensatory damages for abuse of the legal process. (98) California suits against individual Yelp! users settled under the state's strong anti-SLAPP legislation protecting individuals' communications on the internet from frivolous litigation attempting to silence internet speech.
The Massachusetts anti-SLAPP statute does not extend beyond communications to petition government or communications involving public officials, as opposed to the anti-SLAPP statute in California. (99) This may be due to the narrower interpretation of the First Amendment that petitions government or implicates the public interest. (100) Consequently, the Massachusetts statute fails to protect bloggers from libel threats to the same degree as some stronger anti-SLAPP statutes. (101) In one case, however, the Massachusetts Appeals Court held that a website criticizing town government issues met the "petitioning activity" requirement necessary for coverage by the anti-SLAPP statute because the site served as a place to discuss issues of concern regarding community and town governance. (102) Federal courts in Massachusetts have not applied the anti-SLAPP statutes because the statute is a state procedural law. (103)
A. Noonan's Reasoning and Inability to Reconcile with Sullivan
The Noonan decision has sent shockwaves through the legal community, both for its surprising result of lowering the bar of defendant liability in private defamation actions and for its inconsistency with the Sullivan line of cases and Massachusetts precedent interpreting section 92 of chapter 231 of the Massachusetts General Laws. (104)
The Noonan decision is inconsistent with the Supreme Court's Sullivan ruling, which held that the First Amendment protected statements made against a public figure, unless plaintiffs prove actual malice by clear and convincing evidence. (105) By requiring a plaintiff to demonstrate not only that statements were defamatory, but also false and made with actual malice, the Supreme Court has appeared adamant in protecting First Amendment rights of free speech in the context of libel actions. (106)
The Court has been more reluctant to protect statements against public officials or figures or statements concerning matters of public concern. (107) The underlying rationale favoring defendants who made statements of public concern over those who made statements of private concern is that a public defamation victim has assumed the risk of exposure by nature of his public position, or by drawing himself or herself into a public controversy. (108) The Court values the First Amendment right of free speech more in the context of public debate because it fosters the democratic process. (109) This rationale assumes the First Amendment protects truthful statements concerning both private and public figures. (110) The Sullivan requirement of demonstrating "actual malice"--defined as "reckless disregard" of the truth or knowledge of falsity--in effect, mandates that the defamatory statement is known to be false, or that it was published negligently where a reasonable person would be aware it was false. (111) Therefore, Noonan's interpretation of the Massachusetts libel law's exception to the defense of truth as ill will deprives defendants of the First Amendment protections guaranteed to truthful statements in Sullivan. (112) Furthermore, the Supreme Court held in Garrison v. Louisiana that "any standard" lower than the modern standard of actual malice is unconstitutional as an exception to the affirmative defense of truth; yet the First Circuit in Noonan imposed the lower standard of ill will that the Court held unconstitutional in the public context in Garrison. (113) In this regard, truth remains an absolute defense in the public figure or public concern context. (114) The Supreme Court has afforded greater protections to statements of public concern or public officials; however, the Court has not suggested that private figure libel suits warrant such additional safeguards for defendants. (115)
In Shaari v. Harvard Student Agencies, Inc. (116) the Supreme Judicial Court held that a plaintiff cannot recover for a truthful statement concerning a matter of public concern even where it was malicious. (117) The court further held that applying the Massachusetts libel law's actual malice exception to truthful statements violates the First Amendment. (118) Following the Supreme Court's precedent granting broad deference to the press and individuals in publishing opinions on matters of public concern, it determined that application of the 1902 Massachusetts statute would be unconstitutional. (119)
The First Circuit's imposition of the common-law malice, or ill-will, exception to the truth defense ignores the Supreme Court's line of reasoning in Sullivan as well as the Supreme Judicial Court's Shaari decision. (120) While the Supreme Court and Massachusetts state courts have yet to address truthful defamatory statements against private persons, neither court has distinguished public and private actions so strongly as to allow for such a low standard for liability, even where true statements are concerned. (121) Massachusetts is unique in that it provides an exception to the affirmative defense of truth, defying the common-law understanding of truth as an absolute exception to libel. (122) Using this exception to interpret the malice exception as mere ill will undermines the Supreme Court's priority of protecting truthful statements through the First Amendment. (123) In effect, this decision potentially deprives defendants of the defense of truth, assuming the plaintiff shows the defendant made the statement with ill will or malevolent intent. (124) The First Circuit interpreted the exception as not requiring actual malice--a higher degree of negligence as defined in Sullivan. (125) By imposing a lower standard of liability that is unconstitutional in the public figure context, and neglecting to differentiate private actors from public officials as a justification for this imposition, the First Circuit ignored precedent; therefore, Noonan should be overturned and section 92 of chapter 231 of the Massachusetts General Laws should be deemed unconstitutional. (126)
B. Noonan's Predicted Impact on Internet Libel Cases in Massachusetts and the First Circuit
By depriving libel defendants of the truth defense, the Noonan decision arguably makes Massachusetts--and the rest of the First Circuit--the least protected jurisdiction in the country with regards to speech. (127) The predicted detrimental impact on internet users posting thoughts and opinions about private individuals or concerns online presents disconcerting implications for free-speech rights. (128) Section 230, relieving only the ISP or web host of liability, and the recent Noonan decision did not address the status of the First Amendment rights of bloggers as private individuals, leaving them vulnerable to the possibility of litigation. (129) While the Noonan opinion interpreting Massachusetts law is valid in the First Circuit, it does not bind state courts, and, assuming Massachusetts state courts do not agree with Noonan, the impact of the decision will be confined to First Circuit cases. (130)
Where, generally, bloggers' only real protection from defamation suits is to publish opinions or experiences based in truth, the Massachusetts exception of ill will deprives bloggers of this defense where the defendant demonstrates that the publication was made out of hatred toward the plaintiff. (131) As blogs, social networking, and review sites encourage individuals to vent their frustrations via the internet, ill will may be extraordinarily easy to demonstrate. (132) Although internet defamation suits are on the rise, no court has made a decision regarding bloggers' First Amendment rights. (133) Until the issue reaches the Supreme Court or is addressed by Congress, the fear of litigation may deter bloggers from speaking freely on internet sites like Yelp!. (134) Such lawsuits are already on the rise, and the Noonan decision may exacerbate this problem in Massachusetts by making allegedly defamed individuals and companies more likely to threaten or pursue litigation as a way to silence internet bloggers because private plaintiffs can now recover for defamation from true statements by demonstrating ill will. (135)
C. Recommendations to Alleviate Burden on Individual Bloggers
As Noonan effectively does away with the defense of truth in libel wherever a plaintiff can demonstrate malevolent intent for publishing the statement, legislative treatment is needed at state and federal levels. (136) A statute akin to Section 230 but applicable to third-party posters would be the most effective means to protect everyday internet users without the resources to litigate defamation actions. (137) Congress should model Section 230 on relevant state anti-SLAPP statutes to provide a fee-shifting provision that would allow for attorney fee reimbursement should a court deem the action frivolous or grant the statutory motion to dismiss. (138)
In Massachusetts, Noonaris holding highlights the need for a state-specific means of protecting internet speech. (139) Noonan provides a higher likelihood for plaintiffs to recover for true defamatory statements, thereby increasing the likelihood that defamed individuals and companies will use litigation as a scare tactic to prevent critical internet speech in the context of blogs and review sites. (140) Strengthening Massachusetts's anti-SLAPP legislation would dissuade possible defamation plaintiffs, including companies, from utilizing threats of frivolous litigation to silence possible plaintiffs. (141) Expanding the Massachusetts anti-SLAPP statute beyond protecting only speech petitioning the government to also include opinion or experience speech would discourage frivolous lawsuits and threats of litigation that chill free speech. (142) California's powerful anti-SLAPP statute, which protects any opinions published in a public forum, has successfully defended internet posters from unnecessary or speech-chilling litigation. (143) Modeling the Massachusetts statute after California's by adopting similar provisions to protect everyday internet users would reduce the possibility of engaging in frivolous and costly litigation, and the possibility of a finding against the defendant in the event the plaintiff can demonstrate ill will at trial. (144)
Early internet legislation immunizing web site hosts from defamation actions resulting from libelous statements posted by third parties has left bloggers vulnerable to attack in an age of widespread internet speech. (145) The Sullivan standard established that the First Amendment protects parties who make truthful defamatory statements against public figures. (146) While truth has historically been considered a common-law defense to libel in actions brought by private citizens and public figures alike, the First Circuit's decision in Noonan extinguishes this expected defense to defamation claims by allowing truthful defamation actions to stand as long as plaintiffs can prove ill will or malevolent intent behind the statement. (147) Although Noonan failed to addressed the First Amendment implications of adopting such a low standard, or how it reconciles with Sullivan, the decision may resonate in cyberspace where bloggers use the internet as a conduit to vent regarding their experiences and opinions on review websites such as Yelp! and other social networking sites. (148)
Until courts further clarify the Noonan decision regarding its impact on internet users, or courts address Noonan's constitutionality in light of the First Amendment speech protections, state and federal legislation remain the best remedial measures to uniformly protect third-party internet posters. Federal legislation creating a fee-shifting provision that provides a plaintiff attorney's fees after a granted motion to dismiss, would deter frivolous suits and attempts to silence critics with threats of costly litigation. Similarly, adopting stronger anti-SLAPP legislation in states with weaker protections, such as Massachusetts, safeguards individuals engaged in speech in public forums from threats of frivolous litigation by potential plaintiffs who seek to silence critics by abusing the legal system. Such legislative remedies would shelter bloggers who speak the truth or their opinions about private individuals by deterring corporations and other potential defamation plaintiffs from threatening litigation, thus better protecting First Amendment freedoms and our democratic ideals in the world's largest public forum.
(1.) Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
(2.) 556 F.3d 20 (1st Cir. 2009).
(3.) Id. at 28 (construing state libel statute's actual malice requirement as "ill will").
(4.) See Dawn C. Nunziato, The Death of the Public Forum in Cyberspace, 20 Berkeley Tech. L.J. 1115, 1119 (2005) (noting widespread use of internet as public forum); Jarrod F. Reich, Online Libel, First Amendment Center, http://www.firstamendmentcenter.org/online-libel (discussing increase in internet libel lawsuits).
(5.) See supra note 4 and accompanying text.
(6.) See Daniel J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet 194 (2007) (noting "bloggers are much less restrained than the mainstream media"). See generally S. Elizabeth Malloy, Anonymous Bloggers and Defamation: Balancing Interests on the Internet, 84 Wash. U. L. Rev. 1187 (2006) (illustrating different standards applied to internet defamers). Noonan has likely constrained bloggers' previous free reign in regard to the legal consequences of their writings. See Dan Kennedy, With Malice Aforethought, The Guardian (Feb. 17, 2009, 7:30 PM), http://www.guardian.co.uk/commentisfree/cifamerica/2009/feb/17/us-media- libel.
(7.) See Solove, supra note 6, at 118 (noting defamation law as ineffective tool to prevent libel); see also id. at 152 (discussing immunity for ISPs).
(8.) See Noonan v. Staples, Inc., 556 F.3d 20, 29 (1st Cir. 2009) (applying common-law definition to actual malice standard); see also Mass. Gen. Laws ch. 231, [section] 92 (2010) (stating truth absolute defense unless actual malice present).
(9.) See Samantha Fredrickson, First Circuit Rules that Truth Can Be Libelous, The Reporter's Committee for Freedom of the Press (Feb. 19, 2009 5:58 PM), http://www.rcfp.org/newsitems/index.php?i=9958 (predicting Noonan's impact on bloggers); Kennedy, supra note 6 (anticipating negative consequences of Noonan decision).
(10.) See Solove, supra note 6, at 120 (describing lawsuits' chilling effect); Jason C. Miller, Article, Who's Exposing John Doe? Distinguishing Between Public and Private Figure Plaintiffs in Subpoenas to ISPs in Anonymous Online Defamation Suits, 13 J. Tech. L. & Pol'y 229, 230 (2008) (discussing plaintiff's use of John Doe lawsuits to counter libelous statements).
(11.) See Anthony Ciolli, Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas, 63 U. Miami L. Rev. 137, 138 (2008) (addressing modern effects of internet defamation).
(12.) Id. (illustrating means of silencing internet users through litigation or economic coercion).
(13.) See Miller, supra note 10 (detailing defamation victim use of subpoenas for remedy).
(14.) See Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 945-46 (2000) (noting interference with First Amendment doctrines).
(15.) See infra Part II.A-B (outlining case law and statutes before Noonan).
(16.) See infra Part II.A-C (examining Sullivan decision and Massachusetts libel statutes and case law).
(17.) See infra Part II.C (explaining Noonan holding and reasoning).
(18.) See infra Part III.A-B (discussing Noonan and predicted impact on internet libel law).
(19.) See infra Part III.A (arguing Noonan reasoning irreconcilable with Sullivan).
(20.) See infra Part III.C (recommending extension of anti-SLAPP legislation).
(21.) See infra Part III.C (recommending alternatives); see also infra Part II.D (comparing Massachusetts's anti-SLAPP statute to other jurisdictions).
(22.) See W. Page Keeton et al., Prosser and Keeton on the Law of Torts [section] 111, at 773-74 (5th ed. 1984).
(23.) Id. at 771 (stating defamation action types). To demonstrate that a statement was published, a plaintiff must establish that the defendant communicated it to someone other than the plaintiff. See Jody L. Newman & Joseph D. Lipchitz, Massachusetts Superior Court Civil Practice Jury Instructions [section] 6.2.1 (Supp. 2001), available at http://www.mintz.com/media/upload/docs/dyn/publications/MCLE-Def.pdf (defining publication).
(24.) See Keeton et al., supra note 22, at 787 (illustrating general acceptance of new forms of media as falling within scope of defamation).
(25.) See 53 C.J.S. Libel and Slander; Injurious Falsehood [section] 3 (2011) (defining libel by jurisdiction).
(26.) See D. Mark Jackson, Note, The Corporate Defamation Plaintiff in the Era of SLAPPs: Revisiting New York Times v. Sullivan, 9 Wm. & Mary Bill Rts. J. 491, 496 (2001) (listing privileged areas of speech and highlighting qualified "fair comment" public interest privilege).
(27.) 376 U.S. 254 (1964).
(28.) Id. at 268 (holding some defamatory speech constitutionally protected).
(29.) Id. at 279-80 (defining actual malice as recklessness or knowledge of falsity).
(30.) Id. at 271-72 (reasoning false statements need constitutional protection). In Brennan's majority opinion, he further reasoned that the fundamental principles of American government were founded upon free speech and examination of public characters. See id. at 273-75. This democratic model and the value placed on free communication derived from opposition to British attempts at censure such as the Alien and Sedition Acts. Id. at 274-76.
(31.) See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (holding fault required for liability in private defamation actions). See generally Sisler v. Gannett Co., 516 A.2d 1083 (N.J. 1986) (requiring actual malice in private individual's actions where plaintiff engaged in actions of public interest).
(32.) See Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and Civil Liability, 109 Colum. L. Rev. 1650, 1658 (2009).
(33.) See Jackson, supra note 26, at 496-98 (describing expansion of truth privilege).
(34.) 388 U.S. 130 (1967).
(35.) See id. at 155 (requiring public figure defamation plaintiffs to demonstrate actual malice). In Butts, a newspaper article accused the athletic director of the University of Georgia of fixing a football game. See id. at 135-36. The defendant raised the defense of substantial truth, and evidence proved the statements to be true. See id. at 136. The Court had to consider whether libel actions by individuals who are not public officials, but are "public figures" by nature of their involvement in matters of public interest, are subject to the Sullivan ruling, requiring a demonstration of actual malice when true statements were made. See id. at 134. The Court accepted the defendant's argument that the administration and athletics of a state university was a matter of public interest. See id. The Court ruled that although the plaintiff was technically a private figure by virtue of his employment with a private corporation, his role was sufficient in the conduct of athletic affairs by a public educational institution to justify constitutional protection analogous to that of a public official. See id.
(36.) See id. at 155 (reasoning plaintiff's "purposeful activity" in area of public interest exposed him to risk of defamation); Aaron Perzanowski, Comment, Relative Access to Corrective Speech: A New Test for Requiring Actual Malice, 94 Calif. L. Rev. 833, 841-45 (2006) (explaining assumption of risk policy rationale). The underlying rationale that public figures not only have voluntarily assumed the risk of defamation, but also are better able to engage in self-help remedies in the face of defamatory statements, shifts the courts' policy consideration in favor of extending First Amendment protection to speech that contributes to public debate. See Perzanowski, supra, at 844-45 (weighing First Amendment values against liability for public figure defamation).
(37.) 403 U.S. 29 (1971), abrogated by Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
(38.) See id. at 43-44 (honoring First Amendment values of public discussion). The Court reasoned that the First Amendment protects matters of "public or general interest," regardless of whether the individual involved is a public or private figure. Id.
(39.) See id. at 52 (holding courts sustain defamation only where proof defendant knew statement false); see also Perzanowski, supra note 36, at 840 (discussing Butts's reasoning followed in Rosenbloom). By expanding protection to defamatory statements of matters of public concern made by private individuals, rather than to statements made regarding public persons, the Rosenbloom Court significantly expanded First Amendment protection to speech regarding public subject matter. See Perzanowski, supra note 36, at 840 (discussing implications of Rosenbloom decision).
(40.) 418 U.S. 323 (1974).
(41.) Id. at 344-45 (defining public figure classification). The Court classified public figures as those who either attain status or a role of influence in public and social affairs, or those who inject themselves into the forefront of a particular issue or controversy so as to be deemed a public figure temporarily until the resolution of that issue. Id. at 345. The Court rationalized that private plaintiffs deserve greater protection from defamation due to lack of self-help opportunities, and that those who become public figures by involving themselves in matters of public concern share the access that public officials have to self-help regimes and have similarly assumed risk of defamatory statements. Id.
(42.) See Perzanowksi, supra note 36, at 840 (identifying Gertz rule as current applicable standard). In addition, Gertz currently stands for the proposition that states can define liability standards for defamatory falsehoods to private individuals as long as they impose some standard of fault. See 418 U.S. at 347.
(43.) See Lidsky, supra note 14, at 862-64 (discussing trend of internet "venting" without careful consideration and potentially endless reach of defamatory statements).
(44.) See Law of the Internet [section] 6.04, at 3(c) (Lexis 2009) (stating most people engaged in "weblogs" unfamiliar with legal ramifications); First Circuit Turns Libel Law on its Head, The Legal Satyricon (Feb. 22, 2009, 9:21PM) [hereinafter First Circuit], http://randazza.wordpress.com/2009/02/22/first-circuit-turnslibel-law- on-its-head (noting American defamation law maxim "the truth shall set you free"); Jonathan Wallace, My Web Libel Adventure, The Ethical Spectacle (Mar. 2001), http://www.spectacle.org/ 0301/libel.html (discussing assumption of truth as defense).
(45.) See Lidsky, supra note 14, at 861 (noting defamatory posting trend and resulting corporate plaintiff suits); see also id. at 904 (discussing expectation of First Amendment protection).
(46.) See Allison E. Horton, Note, Beyond Control?: The Rise and Fall of Defamation Regulation on the Internet, 43 Val. U. L. Rev. 1265, 1296 (2009) (noting complexity of applying libel law to internet).
(47.) See id. (noting lack of clear libel standard in internet context).
(48.) 776 F. Supp. 135 (S.D.N.Y. 1991).
(49.) Id. at 140-41 (comparing editorial control of CompuServe to public libraries and other distributors). In Cubby, CompuServe provided an "electronic library" of information compiled by an independent third party, and a third company contracted to manage and edit all content within the database at issue. Id. at 137. The court held that CompuServe was thus a distributor of information and as a result could not be liable without proof it knew or had reason to know of the defamatory publication. Id. at 140-41.
(50.) See 1995 WL 323710, at *4-5 (N.Y. Sup. Ct. May 24, 1995) (holding exercise of editorial control by ISP subjected defendant to liability as publisher), superseded by statute, 47 U.S.C. [section] 230(c)(1) (1998), as recognized in Shiamili v. Real Estate Grp. of N.Y., 2011 WL 2313818 (N.Y. June 14, 2011).
(51.) See Ciolli, supra note 11, at 145-47 (examining ISP liability for third-party content).
(52.) See Perzanowski, supra note 36, at 855-56 (discussing developing body of internet libel case law).
(53.) See 47 U.S.C. [section] 230(c)(1) (1998) (prohibiting treatment of ISPs as publisher of third-party content); Ciolli, supra note 11, at 138 (describing congressional intent behind Section 230 to protect internet free market). The relevant portion of Section 230 states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. [section] 230(c)(1).
(54.) 129 F.3d 327 (4th Cir. 1997).
(55.) See id. at 331 (refusing application of notice-based liability).
(56.) See id. (discussing legislative intent and essential purposes of Section 230). The court reasoned that imposing notice-based liability would deter self-regulation because ISPs would face potential liability whenever they receive notice of a defamatory statement. Id. at 333. The court reasoned this would create frivolous suits and would chill free speech. Id.
(57.) See id. at 331 (contending actual or constructive knowledge warrants liability). The court rejected Zeran's interpretation of Section 230, reasoning that "[t]he simple fact of notice surely cannot transform one from an original publisher to a distributor in the eyes of the law." Id. at 332. The court further rationalized that notice-based liability would create an immense burden on computer service providers, and therefore Congress could not have intended such an interpretation. Id. at 333.
(58.) 333 F.3d 1018 (9th Cir. 2003).
(59.) Id. at 1026-28 (holding website host with e-mail list as ISP covered by Section 230 immunity).
(60.) Id. at 1030 (including listserve as "interactive computer service" within purview of Section 230). The court further reasoned that any internet service or system enabling multiple users to access the internet or information systems qualifies as an interactive computer service. Id. This broad definition includes websites. Id. at 1030 n.16.
(61.) 146 P.3d 510 (Cal. 2006).
(62.) Id. at 514 n.4 (holding Section 230 applicable).
(63.) Id. at 529 (reversing appellate court ruling allowing knowledge-based liability). The Barrett Court followed Zeran's rationale in reasoning that actual or constructive knowledge of the defamatory nature of a publication on its site nevertheless justifies immunity under Section 230's legislative goal of encouraging ISPs to self-regulate their own content. Id. Critics posit that if courts adopt Barrett's rationale in all jurisdictions, defamation victims will have no recourse for statements posted on the web. See Ternisha Miles, Casenote, Barrett v. Rosenthal: Oh, What a Tangled Web We Weave-No Liability for Web Defamation, 29 N.C. Cent. L.J. 267, 277-78 (2007) (discussing negative implications of Barrett holding in California).
(64.) See Barrett, 146 P.3d at 523-24 (reasoning legislative intent precludes imposition of notice-based liability).
(65.) See Lidsky, supra note 14, at 871-72 (noting effects of ISP immunity); Miles, supra note 63, at 27778 (lamenting lack of recourse for defamation victims after Barrett decision).
(66.) See Law of the Internet [section] 6.04, at 3(c) (Lexis 2009) (commenting bloggers face liability after passage of Section 230); Lidsky, supra note 14, at 872 (stating defamation suits target posters after Section 230).
(67.) See Bruce P. Smith, Cybersmearing and the Problem of Anonymous Online Speech, Comm. Law., Fall 2000, at 3, 7 (discussing status of internet defamation suits). Social networking sites such as Twitter, MySpace, and Facebook, as well as product and service review websites such as Yelp!, have facilitated an increase in defamatory posts and a wider readership of such statements, thus encouraging litigation initiated by corporate and individual defamation victims against individual users. See Deborah Gage, Dentist Sues Over Negative Yelp Review, S.F. Chron., Jan. 13, 2009, available at http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2009/01/13/BU40158CPE.DTL (discussing internet libel lawsuit against Yelp! user); Andrew Johnson & Ian Griggs, Love's Online Spat Sparks First Twitter Libel Suit, The Independent, Mar. 29, 2009, available at http://www.independent.co.uk/news/media/online/loves-online-spat-sparks-first- twitter-libel-suit- 1656621.html (noting trend in libel lawsuits from social networking site statements); Laura Parker, Jury Awards S11.3M Over Defamatory Internet Posts, USA Today, Oct. 11, 2006, available at http://www.usatoday.com/news/nation/2006-10-10-internet-defamation-case_x.htm (noting trend in defamation litigation over internet postings); Justin Rebello, Negative Reviews on Yelp.com Fuel Defamation Suits, Lawyers USA, Feb. 9, 2009, available at http://www.reputation.com/press_room/negative-reviews-on-yelpcom-fuel- defamation-suits (examining suits against Yelp! reviewers).
(68.) See Jackson, supra note 26, at 491-92 (characterizing defamation suit as tool to silence critics). Recognizing they typically have greater financial resources than potential defamation defendants, corporations take advantage of individuals' fears and cause them to remove offensive postings by threatening expensive litigation. See id. (noting corporate practice of threatening litigation to chill speech).
(69.) See id. (discussing chilling impact on free speech).
(70.) See JoNel Aleccia, Docs Seek to Stifle Patients' Rants on Web Sites, MSNBC.com, Jan. 13, 2009, http://www.msnbc.msn.com/id/34794632/ns/health-health_care (reporting trend of contracts barring publishing of defamatory statements online). As the contracts require censorship in order to receive health services, such contracts will likely not prevail in courts. See id.
(71.) 330 N.E.2d 161 (Mass. 1975).
(72.) See id. at 166 (weighing tort law aims against free speech). The court rationalized that the issue was whether a publication not protected by First Amendment rights was actionable in tort law, and by what standard. Id. at 167. The court held false statements fall outside the ambit of free speech protections, and weighed whether to impose liability if such false statements are shown to be the product of mere negligence or a reckless disregard for the truth--a higher burden as set out in Sullivan. See id. at 166-67.
(73.) See id. at 167-68 (following Gertz precedent). The Supreme Judicial Court in Stone held that a plaintiff can recover for defamatory statements made against a private figure regarding a matter of public concern as long as there is some negligence or fault in publication, and further, that statements concerning a public official or figure are punishable where a plaintiff establishes actual malice. Id. at 164 (reaffirming Gertz's holding). As Gertz established that states may define liability standards for defamation actions by a private individual as long as some fault is required, Stone determined that negligent publication--as opposed to the higher requirement of reckless disregard for truth--is necessary to impose liability where statements were made against a private individual. Id. at 168 (stating private individuals can recover for "negligent publication of a defamatory falsehood"). Stone further held, in the case of a plaintiff who is a public official or figure, or a statement involving public concern, a plaintiff must prove actual malice standard by clear and convincing evidence in the Commonwealth. See id. at 164, 167 n.6 (stating standard of proof). Additionally, the Supreme Judicial Court held that courts will only assess damages for defamation on a compensatory basis based on actual injury, and that punitive damages will not be recoverable. Id. at 164. Clarifying the subjective standard of actual malice that Sullivan defined as reckless disregard for the truth, the court stated that plaintiffs must demonstrate reckless disregard with "'sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'" Id. at 173 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).
(74.) See id. at 168-69 (agreeing with Gertz's argument regarding access); Perzanowski, supra note 36, at 840 (distinguishing level of standards of showing for defamatory speech claims between private and public figures).
(75.) Stone, 330 N.E.2d at 168 (stating rule of recovery for private defamation plaintiffs). But see Garrison v. Louisiana, 379 U.S. 64, 79 (1964) (holding statute imposing liability for making truthful defamatory statements against public officials with ill will unconstitutional). In Garrison, the Supreme Court held that the First Amendment protects truthful speech concerning public officials even if ill will is intended. See id. at 77. The Louisiana statute at issue in Garrison directed that truthful criticism of a public official was punishable in tort if there was "actual malice," which was interpreted as meaning "'hatred, ill will or enmity or a wanton desire to injure.'" Id. at 78 (quoting State v. Garrison, 154 So. 2d 400, 423 (La. 1963), rev'd, 379 U.S. 64 (1964)). The Court reasoned that, according to Sullivan, the First Amendment invalidated the punishment of any truthful criticism of public officials, and that the actual malice standard for liability as defined by Sullivan only applied to false statements made against public officials. Id. (reiterating Sullivan holding, "which absolutely prohibits punishment of truthful criticism"). After Sullivan, the higher standard of actual malice, which includes reckless disregard of the truth or knowledge of falsity, is only applied when statements are made against public officials or figures. See Stone, 330 N.E.2d at 167-68 (following Sullivan's actual malice liability standard).
(76.) Mass. Gen. Laws ch. 231, [section] 92 (2010).
(77.) Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009); see also Mass. Gen. Laws ch. 231, [section] 92 (2010).
(78.) See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 42 (1st Cir. 1998) (stating truth absolute defense to libel).
(79.) See Mass. Gen. Laws ch. 231, [section] 92 (2010) (stating "the truth shall be a justification unless actual malice is proved"); White v. Blue Cross & Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036 (Mass. 2004) (noting Massachusetts's rare exception to defense of truth).
(80.) 556 F.3d 20 (1st Cir. 2009).
(81.) Id. at 26 (stating facts).
(82.) See id. (noting if e-mail's contents true, court must dismiss libel claim unless actual malice present).
(83.) See id. Staples proved the statements were substantially true, and substantial truth is sufficient to demonstrate truth. Id. at 28; see Murphy v. Bos. Herald, Inc., 865 N.E.2d 746, 754 (Mass. 2007) (requiring only substantial truth).
(84.) See Noonan, 556 F.3d at 29 (reasoning true statements still punishable where actual malice under statute).
(85.) 730 N.E.2d 282 (Mass. 2000).
(86.) See Noonan v. Staples, Inc., 556 F.3d 20, 28-29 (1st Cir. 2009) (rejecting Supreme Judicial Court interpretation); Rotkiewicz, 730 N.E.2d at 289 (interpreting actual malice).
(87.) Noonan, 556 F.3d at 29 (construing legislative intent, and reasoning actual malice test inapplicable to true statements).
(88.) See id. (interpreting ill will as "malevolent intent").
(89.) Id. (changing actual malice interpretation from Sullivan's definition to ill will).
(90.) See Martin Langeveld, Noonan v. Staples: "The Most Dangerous Libel Decision in Decades", Neiman Journalism Lab (Feb. 18, 2009 10:23 AM), http://www.niemanlab.org/2009/02/the-most-dangerouslibel-decision-in- decades (anticipating Noonan's negative effect on bloggers); accord Robert Ambrogi, Think You Know Libel Law? Think Again, Media Law (Feb. 16, 2009 10:20 AM), http://medialaw.legaline.com/2009/02/think-you-know-libel-law-think-again. html; Kennedy, supra note 6.
(91.) See supra notes 9-10 and accompanying text (noting opinions and criticisms of Noonan).
(92.) See Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997) (speculating Noonan's jurisdictional impact).
(93.) See supra text accompanying note 92 (recognizing First Amendment argument left open); see also Noonan v. Staples, Inc., 561 F.3d 4, 6 (1st Cir. 2009) (petition for rehearing en banc) (refusing to address First Amendment concerns not timely pleaded).
(94.) See William Huhn, Noonan v. Staples--Truthful Defamation?, Akron Law Cafe (Mar. 10, 2009), http://www.ohioverticals.com/blogs/akron_law_cafe/2009/03/noonan-v-staples- truthful-defamation.
(95.) See generally Responding to Strategic Lawsuits Against Public Participation (SLAPPs), Citizen Media Law Project, http://www.citmedialaw.org/legal-guide/responding-strategic-lawsuits-against- public-participation- slapps (last updated July 7, 2011) (defining SLAPP and identifying states with anti-SLAPP laws).
(96.) Id. (discussing SLAPP lawsuits' origin and usage).
(97.) Id. (stating expedited dismissal plus attorney's fees as remedy for frivolous SLAPP litigation).
(98.) Id. (stating further damages available to successful SLAPP plaintiffs in certain states).
(99.) See Anti-SLAPP Law in Massachusetts, Citizen Media Law Project, http://www.citmedialaw.org/legal-guide/anti-slapp-law-massachusetts (last updated July 27, 2010) (describing activities covered by Massachusetts anti-SLAPP statute); see also Mass. Gen. Laws ch. 231, [section] 59H (2010) (defining SLAPP). California's statute includes in its definition of when a defendant can challenge a SLAPP lawsuit the statement "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest." Cal. Civ. Proc. Code [section] 425.16(e)(1-4) (West 2010). A publicly accessible website constitutes a public forum in California. See Anti-SLAPP Law in California, Citizen Media Law Project, http://www.citmedialaw.org/legal-guide/anti-slapp-law-california (last updated July 8, 2011) (describing activities covered by California anti-SLAPP statute); see also Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006) (noting internet as public forum). The Massachusetts SLAPP statute states that it will allow a motion to dismiss involving speech implicated in the right to petition government, defined as the following:
[A]ny written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
Mass. Gen. Laws ch. 231, [section] 59H (2010). The Massachusetts statute narrowly construes speech protections related to the right to petition government. See id. In Baker v. Parsons, the Supreme Judicial Court of Massachusetts ruled [section] 59H was applicable to defamation actions, reasoning that defamation was the most popular SLAPP cause of action. See 750 N.E.2d 953, 959-60 (Mass. 2001).
(100.) See Ciolli, supra note 11, at 160-61 (positing First Amendment interpreted as only protecting public or socially beneficial speech).
(101.) See supra note 99 and accompanying text (comparing Massachusetts's narrow statutory coverage to California's broader protections).
(102.) MacDonald v. Paton, 782 N.E.2d 1089, 1093-94 (Mass. App. Ct. 2003) (holding website created as forum for political speech met threshold burden for petitioning activity under anti-SLAPP statute).
(103.) See Anti-SLAPP Law in Massachusetts, supra note 99 (indicating Massachusetts anti-SLAPP statute rule inapplicable in federal courts); see also Stuborn Ltd. P'ship v. Bernstein, 245 F. Supp. 2d 312, 316 (D. Mass. 2003) (noting inherent conflict between anti-SLAPP statute and Federal Rules of Procedure).
(104.) See infra notes 105-126 and accompanying text (discussing Noonan's inconsistency with libel law and precedent).
(105.) New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (setting fault standard for defamation).
(106.) See id. at 268 (prioritizing First Amendment speech protections); see also Solove, supra note 6, at 7 (discussing Supreme Court's pattern of protecting speech in defamation actions). But see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (allowing recovery for false private defamatory statements without malice showing). The Court held in Dun & Bradstreet that false defamatory statements against a private person would allow for recovery and punitive damages without any showing of malice, reasoning that the First Amendment provides less protection for speech of private concern. Id. at 759-61.
(107.) See infra note 108 and accompanying text (discussing greater protections for speech against public officials).
(108.) See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974) (reasoning speech about private figures deserves less protection); see also Perzanowski, supra note 36, at 841-42 (making assumption of risk argument).
(109.) See Dun & Bradstreet, 472 U.S. at 759-60 (valuing First Amendment's emphasis on "free and robust debate of public issues" (quoting Harley-Davidson Motorsports, Inc. v. Markley, 568 P.2d 1359, 1363 (Or. 1977))).
(110.) See id. at 751 (discussing Gertz holding requiring finding of false statement before determining amount of malice). Gertz required that "state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved," and observed that it was "necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury." Gertz, 418 U.S. at 349. Such holdings require a showing of negligence to recover compensatory damages and a greater showing of reckless disregard for truth to recover punitive damages, and presume the defamatory statement to be false in order to recover under libel laws. See id.
(111.) See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (proclaiming First Amendment entirely bars punishment of truthful criticism).
(112.) See id. (noting truthful statements protected by First Amendment); see also Mass. Gen. Laws ch. 231, [section] 92 (2010).
(113.) See Garrison v. Louisiana, 379 U.S. 64, 79 (1964); see also Sullivan, 376 U.S. at 279; supra note 75 and accompanying text (discussing Garrison holding).
(114.) See Sullivan, 376 U.S. at 279 (acknowledging truth as absolute defense in public context); see also id. at 279-80 (holding actual malice not mere ill will but reckless disregard for truth).
(115.) See supra note 108 and accompanying text (discussing recovery for private and public plaintiffs); supra note 110 and accompanying text (regarding damages for private plaintiffs resulting from false statements alone).
(116.) 691 N.E.2d 925 (Mass. 1998).
(117.) See id. at 929 (holding application of Mass. Gen. Laws ch. 231, [section] 92 in public figure context unconstitutional).
(118.) Id. (holding statutory exception permitting recovery for truthful statements unconstitutional); see also Mass. Gen. Laws ch. 231, [section] 92 (2010).
(119.) See Shaari, 691 N.E.2d at 929.
(120.) See id. (holding Mass. Gen. Laws ch. 231, [section] 92's application to truthful statements unconstitutional in matter of public concern); supra note 75 and accompanying text (discussing Garrison holding); supra note 106 (reasoning First Amendment requires greater actual malice standard to punish true statements).
(121.) See Gertz v. Robert Welch, Inc., 418 U.S. 323, 348 (1974) (holding states determine recovery for private figure as long as fault required). Shaari suggests that while private figure plaintiffs may not have to show malice in making the statements, plaintiffs must show some falsity and fault to determine recovery. See Shaari, 691 N.E.2d at 927-28 (discussing private plaintiff recovery in public concern context).
(122.) See supra note 79 and accompanying text (noting unique nature of Massachusetts's statutory exception).
(123.) See Stone v. Essex Cnty. Newspapers, Inc., 330 N.E.2d 161, 168-69 (Mass. 1975) (reasoning First Amendment prohibits application of malice exception in matter of public concern); supra note 106 (discussing Court's emphasis on First Amendment). The Shaari Court stated that it felt "compelled ... by the Supreme Court's view of the First Amendment to require that ... recovery be predicated, in part, on proof that the defamatory statements were untrue." Shaari v. Harvard Student Agencies, Inc., 691 N.E.2d 925, 928 (Mass. 1998) (interpreting Supreme Court's view of First Amendment protecting true statements).
(124.) See Noonan v. Staples, Inc., 561 F.3d 4, 6 (1st. Cir. 2009) (petition for rehearing en banc) (defining section 92's ill-will requirement as malevolent intent).
(125.) See id. at 29 (refusing application of "modern standard" developed later by Supreme Court).
(126.) See id. at 29-30 (recognizing contrary precedent in public figure or public concern context). The First Circuit reasoned by statutory interpretation rather than the First Amendment public figure-private figure distinction. See id. at 29. In the ensuing petition for rehearing en banc, the First Circuit noted the defendant failed to raise the argument of the statue's constitutionality in a timely manner; the court noted, however, that the defendant "has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down [the statute]." Id.
(127.) See First Circuit, supra note 44 (discussing negative impact of Noonan decision on Massachusetts's residents).
(128.) See supra note 9 (predicting negative effect of Noonan).
(129.) See supra note 9 (forecasting impact of Noonan); note 65 and accompanying text (noting vulnerability of individual posters due to Section 230 immunity).
(130.) See supra note 92 and accompanying text. The First Circuit denied the defendant's request to certify the matter to the Supreme Judicial Court of Massachusetts for resolution, and, as a result, the decision remains good law. See Noonan v. Staples, Inc., 561 F.3d 4, 7 (1st. Cir. 2009) (denying petition for rehearing en banc and certification of matter to Supreme Judicial Court).
(131.) See Newman & Lipchitz, supra note 23 (interpreting effect of Mass Gen. Laws ch. 231, [section] 92 in private figure scenario).
(132.) See supra note 90 (speculating ill will low standard for plaintiffs, leaving defendants vulnerable).
(133.) See supra note 94 and accompanying text (questioning constitutionality of Noonan as not yet addressed).
(134.) See Elinor Mills, Yelp User Faces Lawsuit Over Negative Review, CNet News, (Jan. 6 2009 3:52 PM), http://news.cnet.com/8301-1023_3-10133466-93.html (noting fear of litigation sparks chilling effect).
(135.) See Huma Yusuf, Rise in Lawsuits Against Bloggers, Christian Sci. Monitor (July 16, 2008), available at http://www.csmonitor.com/Innovation/Tech-Culture/2008/0716/rise-in-lawsuits- against-bloggers; see also supra note 89 (discussing new Massachusetts defamation standard).
(136.) See Noonan v. Staples, Inc., 556 F.3d 4, 29 (1st Cir. 2009) (refusing application of "modern definition" of "actual malice"); supra note 6 (projecting Noonan impact on bloggers).
(137.) See Ciolli, supra note 11, at 199 (urging fee-shifting amendment to section 230).
(138.) See id. (urging Congress to amend section 230).
(139.) See supra note 129 and accompanying text (calling bloggers vulnerable in Massachusetts).
(140.) See supra note 90 (predicting negative effect on internet users after Noonan).
(141.) See supra note 99 and accompanying text (discussing Massachusetts's narrow statutory coverage).
(142.) See supra note 99 and accompanying text (addressing breadth of statutes and aim of anti-SLAPP legislation).
(143.) See supra note 99 and accompanying text (detailing California's exceptionally strong public forum statutory protection).
(144.) See supra note 101 and accompanying text (comparing anti-SLAPP legislation).
(145.) See supra note 45 and accompanying text (analyzing blogging trend and resulting defamation litigation).
(146.) See New York Times Co. v. Sullivan, 376 U.S. 254, 268 (1964) (protecting truthful statements concerning public matters under First Amendment).
(147.) See supra note 104 and accompanying text (noting ill-will standard drastically alters libel law and truth exception).
(148.) See supra note 121 and accompanying text (discussing First Circuit's refusal to address constitutional aspects); supra note 90 (predicting ill-will standard's impact on bloggers).…
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Publication information: Article title: Yelp! Libel or Free Speech: The Future of Internet Defamation Litigation in Massachusetts in the Wake of Noonan V. Staples. Contributors: Spinosa, Shauna L. - Author. Journal title: Suffolk University Law Review. Volume: 44. Issue: 3 Publication date: Summer 2011. Page number: 747+. © 2009 Suffolk University Law School. COPYRIGHT 2011 Gale Group.