The US Court of Appeals for the First Circuit has denied a petition to rehear the case that found that truthful statements in email can constitute defamation if they are made with malice. See our earlier post on Noonan v. Staples.
The appeals court held that Staples failed to adequately raise the constitutional issue:
Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to matters of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R. App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver.
The court also indicated that the constitutional issue is “not so clear that the panel should have acted sua sponte to strike down a state statute.” In this most ominous section of the order, the First Circuit pointed out that Staples “still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern.”
The court appears to discount this possibility, relying on language from two Supreme Court cases — Philadelphia Newspapers v. Hepps and Dun & Bradstreet v. Greenmoss Builders — to suggest that speech on matters of private concern does not enjoy full First Amendment protection. Importantly, however, the court refused to take any position on the constitutionality of the Massachusetts statute (of necessity, given that the whole thrust of the order is that Staples waived the issue).