Academic journal article Harvard Law Review

First Amendment - Defamation Law - First Circuit Applies Libel Law That Does Not Allow Truth as a Defense in Cases of "Actual Malice."

Academic journal article Harvard Law Review

First Amendment - Defamation Law - First Circuit Applies Libel Law That Does Not Allow Truth as a Defense in Cases of "Actual Malice."

Article excerpt


Few issues touch more closely on an individual's well-being than his reputation, and few state actions raise more sharply concerns of overly intrusive government than telling people what they can and cannot say. First Amendment jurisprudence has struggled to reconcile the tension between an individual's right to bring claims for harm to his reputation and the freedom of others to engage in speech without fear of legal liability. (1) But whatever tensions defamation cases raise with regard to free speech, one assumption that has largely gone unchallenged and unlitigated is that a person may not be held liable for making a true statement.

Last February, however, in Noonan v. Staples, Inc., (2) the First Circuit applied a Massachusetts libel law that does not allow truth as a defense for statements made with "actual malice" (3) in reversing a district court's grant of summary judgment. While the First Circuit did not err in concluding that the defendant was procedurally barred from attacking the constitutionality of the statute for the first time in a petition for rehearing, the court's decision reveals the tenuous constitutional ground on which the Massachusetts libel law currently stands. The statute's only doctrinal protection is the distinction between speech concerning public matters and speech concerning private matters. Though this distinction may be sensible in some contexts, it should not extend to statutes concerning truthful statements, both because the affected party in such cases lacks a robust reputational interest and because the distinction is likely to chill protected speech in cases that blur the line between matters of public and private concern.

In November 2005, Staples fired an employee named James Dorman, whom it had discovered embezzling money through fraudulent expense claims. (4) This incident prompted Staples to audit expense reports from a sampling of other employees. (5) Alan Noonan was a Staples sales director who travelled for business, and company policy required him to file expense reports for reimbursement. (6) Staples's audit revealed that in May 2005, Noonan had requested $1622 more than he actually spent. (7) Concluding that Noonan had deliberately falsified a number of expense reports, Staples fired him. (8) Noonan had entered into two stock option agreements and a severance agreement with Staples, none of which Staples was required to uphold if Noonan was terminated for cause. (9) Staples neither allowed Noonan to exercise the stock options nor gave him severance benefits. (10) Staples executive Jay Baitler also sent an email to approximately 1500 employees, informing them that Noonan had been fired for violating company policy and reminding them of the importance of compliance. (11)

Noonan, a Florida resident, sued Staples in Massachusetts state court, and Staples removed to the U.S. District Court for the District of Massachusetts. (12) His complaint alleged (1) libel based on Baitler's email, (2) breach of the stock option agreements, and (3) breach of the severance agreement. (13) Both parties made motions for summary judgment, and the district court granted summary judgment to Staples on all claims, finding that the information in Baitler's email was true, that there was no evidence of actual malice, and that Noonan was fired for cause and thus ineligible for the stock options and benefits. (14) Noonan appealed these three determinations to the First Circuit. (15)

The First Circuit initially affirmed the district court's decision in full, (16) but upon rehearing, the same panel reversed and remanded on the libel count. (17) To establish libel in Massachusetts, as in most jurisdictions, a plaintiff must ordinarily 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. …

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