In my last entry I discussed two recent FIrst Circuit decisions, including one involving Staples, Inc. Another decision involving that company came down last Friday (plug in the same address link from my last entry and look for Noonan v. Staples). This decision is of interest because, among other things, it is that rare example of a granted panel rehearing – Judges Torruella and Lipez (with a visitor), changed their minds.
It is very very hard to get a rehearing in the First Circuit. To get an en banc hearing, you need the vote of a majority of the active members. With only five active members, this means you need to persuade a chunk of the same folks who didn't buy your argument the first time — none of this Ninth Circuit, 8 gazillion judges, who knows who you will get and what they will think situation. To get a rehearing by the same panel, you again need to persuade the same folks you couldn't the first time. So how did the appellant do it here?
Well, first, the appellant's lawyer on appeal was Wendy Sibbison. She's the Queen of Appeals in Massachusetts. So I'd bet that's one big reason. She's done this many times before and she's very good at what she does. Sometimes that pays off.
Substantively, the issue here touches on a First Amendment matter I've discussed before. The plaintiff employee sued for, among other things, defamation. The panel had granted summary judgment for the defendant; on rehearing, it said there was enough to go to a jury. Massachusetts law has the unusual (I think – Maine doesn't have it) principle that you can be liable for defamation even if what you say is true, if you say it with actual malice. To me this is rather odd – it's not really defamation if it's true, is it? Maybe it's intentional infliction of emotional distress in some rare instances (taunting, etc.). I've discussed this issue previously, and, as I noted, had a First Circuit appeal in which the issue did not have to be addressed. Here, the Court said that the utterance had to be false if it was a matter of public concern, but that the defendant had waited too long to argue that the statement must be false in all instances. So once again this issue of whether a statement must be false to be actionable is left for another day.
Instead, what they changed their minds about was the definition of actual malice under Massachusetts law. Earlier, they had used the general, objective term of art malice definition. On rehearing, noting, among other things, that the Massachusetts tort existed before that term of art came into being, the court said it was subjective – a malevolence.
Well, the panel's new thinking is probably right, assuming no constitutional problem with penalizing truthful speech (a big if in my book). The term of art malice is basically reckless disregard of the truth. So if something is true in the first instance, the term doesn't really seem applicable. If you wanted to create a tort in which truthful speech could be a tort, the malice involved would need to be something other than an indifference to the truth. Hence, if Massachusetts really wants to penalize truthful speech, it does seem logical that the malice element would have to be something other than the usual First Amendment definition.
That said, this means that in Massachusetts you can get sued for saying something that is perfectly true, if you say it with subjective malice. I guess this is the legal rendition of your mother's admonition "if you can't say anything nice about someone, don't say anything at all." In the future, you'd better be darn careful what you say about somebody in Beantown.
I certainly hope that there's an exception for when the Yankees come to town to play the Red Sox. My guess is a few people will be making malevolent utterances (albeit it truthful ones) about one or two of NY's players when they come to town.