Can You Be Defamed by a Truthful Email in Massachusetts?

“The truth is an absolute defense to a claim of defamation.” But perhaps not always in Massachusetts, and that’s a problem.

Judge Juan Torruella of the US Court of Appeals for the First Circuit has allowed Alan Noonan, a sales director fired by Staples, to pursue his libel claim against the company.

Staples’s executive vice president, Jay Baitler, sent an email to some 1,500 employees stating that Noonan had been terminated for violating the company’s travel and expense policies. Noonan sued for defamation, and his case was initially dismissed because the defamation was a true statement.

However on appeal, Judge Torruella relied on a 1902 Massachusetts law.

“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”

Mass. Generals Laws, Chapter 231, Section 92

The court concluded to send the case back for jury trial to consider whether there was “malevolent intent or ill will” in the publication of that email.

Dan Kennedy in Media Nation notes that Judge Torruella ignored a 1964 ruling in Times v. Sullivan, in which the US Supreme Court redefined “actual malice” so that it now pertains only to statements made with deliberate falsity, or with “reckless disregard” for the truth.

Lee Gesmer opens his excellent coverage of the case with an Oscar Wilde quote:

It’s perfectly monstrous the way people go about nowadays saying things against one, behind one’s back, that are absolutely true.”

But what if the presence of malice was the only test for defamation?
That seems to be what the appellate ruling, and this arcane law, lead to. Mean speech would be actionable in court. This would rule out most of what passes for political speech by commentators and candidates today.  And it punishes just about anyone speaking in anger.

The appellate court failed to comment on the First Amendment issues inherent in punishing truthful speech. After all, how free can speech can be if it can’t be intentionally hurtful or offered in anger?

Alan Noonan hurt Staples.  Whether with malice or not, Staples hurt him back by circulating a truthful statement about his dismissal. With the absense of a privacy obligation, that sounds like protected First Amendment speech.  Whether its a good business practice can be debated, but its protection under the First Amendment shouldn’t be.

Hurtfulness shouldn’t be allowed to trump truthfulness in free speech.

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