Monday, February 23, 2009

Everyone Needs To Calm The Heck Down

The world seems to have lost its collective marbles over the First Circuit's recent decision in Noonan v. Staples, Inc., No. 07-2159. The decision refers to Mass. Gen. Law ch. 231, Section 92 and reminds us that truth is not an absolute defense to libel in Massachusetts.


What does the statute say? "The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved." It dates from 1855.

So if you say or write something about a private citizen in Massachusetts and what you say happens to be defamatory and you say it with actual malice, you can't use truth as a defense. Massachusetts is pretty unique in this respect.

Massachusetts is also pretty unique in its failure to recognize a cause of action for "false light". That is, in Massachusetts as opposed to elsewhere, you can't win a lawsuit against someone if they something true about you that casts you in a false light. Might that be related to Section 92? It just might.

What's interesting about the uproar is that the First Circuit's interpretation is nothing new. The statute is 150 years old, after all. It hasn't just been sitting there up until now: if you take a spin through cases that cite to Section 92, you'll notice that courts recognize the weird uniqueness of the law and then move on. If this were as big a deal as the commentators seem to think, you can bet that Judge Lipez (who was also on the panel and who knows what he's doing) would have dissented or at least concurred.

But the real thing to keep in mind here is that this situation is about as fixable as can be. We don't have to wait around for decades for the right case to come along, pray that the SJC or the U.S. Supreme Court agrees to review it, and then cross our fingers and toes and hope that they get it right.

No. All we have to do is change the statute. So if you're that upset about the Noonan decision, go work on that. This blog will support you 100%.

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