Showing posts with label First Amendment. Show all posts
Showing posts with label First Amendment. Show all posts
Tuesday, March 24, 2009
No Mulligan For Staples
The First Circuit has denied rehearing in Noonan v. Staples, Inc., No. 07-2195. It did so last week, but the order itself appears to have been released to the masses today. The Court's earlier decision, which was surprisingly controversial (surprisingly because the First Circuit did little more than apply a really, really old statute's plain language), therefore stands.
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.
Okay.
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%.
Okay.
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%.
Thursday, April 10, 2008
Two Things A Lot Of People Love
Nudity and Harvard Square. Together in this interesting case, Commonwealth v. Ora, SJC No. 10019.
The SJC affirms the constitutionality of the statute barring public nudity "done in such a way as to produce alarm or shock." Somehow, the SJC concludes that "[n]either the language of the statute nor its legislative history suggests that the statute targets any expressive message contained in any display of nudity."
Why is that important?
Because if the statute aims at an expressive message, it's going to be a lot tougher for it to pass muster. But this statute does target an expressive message, the message I WANT TO SHOCK AND ALARM YOU SO I'M GOING TO TAKE OFF MY CLOTHES! This is a messy reality of First Amendment jurisprudence. Courts are very likely to find that a statute or rule doesn't target a certain kind of expression if the expression that it's targeting (either implicitly or explicitly) offends their puritanic or patriotic sensibilities. We tolerate such obvious illogic because the logical approach would probably result in the invalidation of vast swaths of the American statutory landscape.
Universal Hub, as in Adam, is all over this.
The SJC affirms the constitutionality of the statute barring public nudity "done in such a way as to produce alarm or shock." Somehow, the SJC concludes that "[n]either the language of the statute nor its legislative history suggests that the statute targets any expressive message contained in any display of nudity."
Why is that important?
Because if the statute aims at an expressive message, it's going to be a lot tougher for it to pass muster. But this statute does target an expressive message, the message I WANT TO SHOCK AND ALARM YOU SO I'M GOING TO TAKE OFF MY CLOTHES! This is a messy reality of First Amendment jurisprudence. Courts are very likely to find that a statute or rule doesn't target a certain kind of expression if the expression that it's targeting (either implicitly or explicitly) offends their puritanic or patriotic sensibilities. We tolerate such obvious illogic because the logical approach would probably result in the invalidation of vast swaths of the American statutory landscape.
Universal Hub, as in Adam, is all over this.
Friday, November 2, 2007
October 12, 2007
Use it Or Lose it
One would suppose that Merrill Lynch cringed just a tiny bit when it received bills from Eugene Volokh related to his First Amendment work on this case decided today by the First Circuit. That is, assuming that Prof. Volokh billed his time; he could just have a deep and abiding interest in the ability of big financial services companies to exercise First Amendment rights when firing employees. Or not. Everyone’s got to eat, in any event.
One would suppose that Merrill Lynch cringed just a tiny bit when it received bills from Eugene Volokh related to his First Amendment work on this case decided today by the First Circuit. That is, assuming that Prof. Volokh billed his time; he could just have a deep and abiding interest in the ability of big financial services companies to exercise First Amendment rights when firing employees. Or not. Everyone’s got to eat, in any event.
Learning that they’d lost the ability to even raise the First Amendment issue because they hadn’t raised it in the trial court? Merrill can’t have been too happy about that.
It’s always interesting to see what constitutional causes the assorted right-leaning members of the legal academy tend to espouse. The ability of big companies to make false statements about former employees seems a bit less urgent than others.
October 4, 2007
Absence of Restraint
Two things that we thought we knew: (1) deceased people, even heroes, have no legal right to privacy and can’t be defamed; and (2) a court can’t prevent a news organization from reporting something before the fact unless there’s a *very* urgent national security interest at stake. It turns out we may have been wrong. WHDH is trying to get to the bottom of it.
The question of whether it was indecorous to report this story, by the way, is separate and distinct from the constitutional question involved.
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