Is libel law turning against us, new and old media alike?

By Warner Todd Huston

This is not a story of bias in the media. It is a story, rather, that affects both the Old Media of newspapers, TV and radio, as well as the New Media of the Internet. Our disagreements with the Old Media aside, we both stand to see trouble if a recent court case in Massachusetts gains momentum or is applied liberally henceforth.

The Associated Press reports on a libel case in Boston that pits a fired employee of the Staples office supply chain against his former employer. Staples, as it happens, sent out an emailed newsletter informing its employees that salesman Alan Noonan was fired for padding his expense account. Noonan sued for libel. Alarmingly, even though the emailed newsletter was reporting the strict truth the court held that truth was no defense in this case.

What does this mean to us? Journalists (and that means us too, folks) have been protected for decades by the concept that "truth isn't libelous" allowing things of a nature vexing to people in the news to be published without fear of a lawsuit. Even though this court case is not about journalism per se, it could come back to bite us all if this ruling is applied broadly.

The Massachusetts court held that Noonan proved that Staples could possibly have had "actual malice" in distributing his name even though the reason they fired him was strictly the truth. In this case, they held, truth is no shield against libel and Noonan's defamation lawsuit can go forward.

And here is the problem from the standpoint of journalism and Internet publishing: if we all cannot live by the truth-isn't-libel principle, what can we print/post/publish/air without constant fear of a lawsuit?

The AP article mentions the law blogging of Robert Ambrogi who has covered this ruling on his blog Media Law.

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.

What more can be said? If any of us report some true, but perhaps uncomfortable, situation in the life of any figure, public or not, do we now have to fear being sued for libel for any perceived "actual malice"? If this ruling is more broadly applied, how could we be safe? Let's face it we Internet writers are fast becoming as legitimate as the Old Media.

Certainly every single blogger on this site has written something that is sure to make the targets of our derision unhappy with us — I as much as anyone. Can we all now expect to hear from the courts as a result on into the future? Are we expected to hire legal counsel just to post on a website from this point forward?

It most certainly could happen. After all, have you ever heard of a law or court ruling that forever remained narrowly defined? Isn't it the natural propensity of law, courts and government each to enlarge their sphere of influence and to seize on the tiniest vestiges of power as an avenue to larger jurisdiction?

This ruling is an ominous tear in the blanket of protection that journalists have traditionally enjoyed. It truly could be the "most dangerous libel decision in decades."

This is a situation we all should be concerned about, Old and New media alike. For that matter, it is something even posters on websites should worry about.

© Warner Todd Huston