How better to round out the year than by commenting on a First Circuit speech case?
In Shay v. Walters, No. 12-1494, the Walters is Barbara. She wrote a memoir in 2008 in which she described an episode in the early 1980's involving her daughter and a schoolmate named "Nancy," saying that the school had kicked Nancy out for "bad behavior" and that Nancy and her daughter had been found in the nearby town "high on God-knows-what."
The plaintiff, Nancy Shay, went to school with Walters' daughter and were friends, and they were both suspended, with Nancy then expelled. Shay alleged that "the reason for this disciplinary action was that the two women were found arm-in-arm in the plaintiff's bed." The plaintiff alleged that after the suspension, she and Walters had spoken by telephone and Walters had told her "Don't say anything about this to anybody. You'll ruin your name. Never mind, you'll ruin my name and my daughter's name."
Plaintiff, who was living in Massachusetts when she learned of the statements in the memoir, sued for, inter alia, libel and negligent infliction of emotion distress. Walters moved for judgment on the pleadings, which was granted.
The Court of Appeals affirmed for two reasons. First, it agreed with the District Court that the statements in the memoir were not defamatory because "the tiny group of people who might recognize the plaintiff as the 'Nancy' in the memoir would also know what actually happened." The Court said that the complaint so states – the only people who would know the plaintiff to that "Nancy" were students from that class who happened to be there, and the plaintiff "acknowledge[d] that these individuals kn[e]w the truth surrounding" her expulsion.
Second, the First Circuit (Selya, J.) said that defmation claim was not plausible, because the complaint did not sufficiently allege fault in making the challenged statements. In discussing the degree of fault needed to ground a defamation claim in Massachusetts, the Court once again noted that in Massachusetts, you can utter something truthful and it can still be deemed actionably defamatory. See G.L. c. 231, s. 92 (providing that truth is a defense unless "actual malice," meaning ill will, is proved). I blogged on this Massachusetts rule, and another First Circuit case referencing it, Noonan v. Staples, 556 F.3d 20, in February 2009. In Noonan, the Court of Appeals avoided addressing the constitutionality of the statute by saying that the defendant had brought that issue up too late.
Is this statute unconstitutional? It's been limited by the Massachusetts SJC so that it does not apply to public figures or to matters of public concern. Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129 (1998); Materia v. Huff, 394 Mass. 328 (1982). Apparently no case has squarely raised the issue whether it is constitutional under the First Amendment (and the Massachusetts equivalent) not to allow truth as a defense, even if the defendant is motivated by ill will, when the plaintiff is a private figure and the matter is not one of public conern. The Supreme Court has also punted to date on this question. See The Florida Star v. B.J.F., 491 U.S. 524, 532-33 (1989).
Coincidentally, I have just plowed my way through a new biography of Louis Brandeis (Brandeis: A Life by Melvin Urofsky), which discusses the development of free speech jurisprudence. This concept that truth is not a defense comes from Blackstone, who said that the actionable aspect of defamation was not the content of the statement but its "provocation." This principle translated into the "bad tendency" test used by the Supreme Court in notorious cases like Patterson v. Colorado, 205 U.S. 454 (1907). In Patterson, the Court, 7-2, opinion by Oliver Wendell Holmes, upheld a conviction of contempt against a newspaper publisher for editorials, stories and cartoons riduling a state supreme court, and rejected the defendant's right to prove the truthfulness of his allegations.
We've come a long way from that sort of view, at least with matters of public concern. Should the same reasoning apply to private figures and private concerns? It's not like the Massachusetts courts appear flooded with cases brought under this statute. But theoretically, it could encompass any statement, truthful or not, uttered by someone out of ill will. Sounds a little chilly to speech rights to me. In any event, be nice when you cross that state line.
As a final aside, I plowed through this Brandeis book because I thought his jurisprudence was interesting. I also thought that Brandeis would have a kind of a jolly, Justice Breyer kind of personality. A fact-y point of view, decrying the excesses of the gilded age, I assumed, would tend to make a judge more of a nice, human sort than someone with a more haughty, Holmesian, who-cares-about-the-facts philosophy. He also looks pretty jolly in most photos (compared to Holmes' scary Moses like demeanor). This author, however, makes Brandeis sound like a real pill, full of himself and devoid of a sense of humor. Whether that's accurate or not, who knows. The book is also rather simplistic (and dogmatic) on some developments in the law – at least in some areas I know more than superficially and so can tell.
In any event, pill or not, Brandeis did ootch defamation law away from the "bad tendency" test in the public concern sphere more to a clear and present danger test with real teeth, with his buddy, old Oliver Wendell Holmes again, changing his mind and joining him. (Holmes is like Sutherland on Statutory Construction – you can find a case where he says X, then find another where is says the opposite. But he's always very quotable).