A Stitch in Haste

Long-time readers know that, besides my unsurprising interest in constitutional law and gay rights issues, my first true love in law school was Torts. And, with all due respect to Murray Rothbard, I find the reputational torts to be among the most intriguing of all.

So I hope you’ll forgive me if I take a one-post detour to highlight two recent defamation stories.

ITEM: Even laypersons know that truth is an absolute defense to defamation — or is it?

Though proof of a statement’s truth as an absolute defense against libel lawsuits has long been a touchstone of libel law, the three-judge panel did not heed that standard in its Feb. 13 decision in Noonan v. Staples [No. 07-2159, 1st Cir., February 13, 2009], at least where private matters are concerned.

Relying on the 1902 Massachusetts statute, the panel ruled that Alan S. Noonan, a former Staples employee, could proceed with a libel suit against Staples after an executive sent an e-mail to 1,500 employees that named Noonan. Although the e-mail truthfully stated the reasons for Noonan’s firing, the federal panel found that it may have been written with actual malice.
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“It is the most dangerous libel decision in decades,” wrote Massachusetts lawyer Robert J. Ambrogi on his blog, Media Law. “The decision puts a crack in the bedrock that threatens to undermine free speech.”

MY TAKE: In law school you learn what your professor finds interesting, and my professor was fascinated by the concept of scienter. “Scienter” in this context basically means that “not caring whether a statement you make is true or false” is not functionally different from “knowingly making a false statement.”

Here Staples sent a nasty email that, at the time it was sent, was not necessarily true. It turned out to be true after the fact. Should that subsequent “truth” still be an absolute defense to the libel claim, even though the “truth” didn’t exist at the time that the alleged libel occurred? The First Circuit, applying Massachusetts law, says “perhaps not” and allows the case to proceed to trial.

I learned about scienter in the context of another tort — fraud. I had never considered it in the context of defamation. Apparently neither had anybody else.

The problem I have with allowing this case to proceed is with linking liability to damages. Even if a malicious statement can metastasize into a defamation claim based on scienter rather than falsity, how can a true statement be damaging? And if there can’t possibly be damages, then what is the point of going to trial one way or the other?

Oh, and that whole “First Amendment” thing too…

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ITEM: What was I just saying about Murray Rothbard?

Does Smith, for example, have the right (again, we are concerned about his right, not the morality or esthetics of his exercising that right) to print and disseminate the statement that “Jones is a liar” or that “Jones is a convicted thief” or that “Jones is a homosexual”?

Ahem:

In October 2007, Howard K. Stern, co-star of The Anna Nicole Show, filed a lawsuit claiming that he was defamed when the author of a tell-all book said he was gay. A Manhattan judge will soon decide if the suit should go to trial. Stern (not the host of the Howard Stern Show) has asked for $60 million in damages.

This may seem like a throwback, but gay libel suits abound. In December, Joseph Farah, founder of the conservative news site WorldNetDaily, threatened a libel suit against Wikipedia, which had listed him as “an Evangelical Christian American journalist and noted homosexual.” And in 2003, a Los Angeles judge awarded Tom Cruise $10 million in a gay libel suit against a porn star who claimed he and Cruise had been lovers.
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And yet these suits continue, in part because gay rights groups have ignored them. Lambda Legal, one of the largest gay legal rights groups, has taken no position in any of the cases across the country involving defamation and accusations of homosexuality. That’s partly because the group is busy with broader issues, like marriage rights. But Lambda should take the time to enter gay libel cases on the side of the defendants.

MY TAKE: One of the problems with “gay libel” (i.e., why such lawsuits keep appearing) is because it is very easy to couch the allegation in multiple ways that would still survive even after the “it’s okay to be gay” defense.

For example: If I accuse Tom Cruise of being gay and having had homosexual affairs, then I am not only accusing him of being gay but also of being an adulterer. That alone is an unambiguously defamatory statement; the gender of the “other woman” is essentially irrelevant. If I accuse Phyllis Schlafly of being a closet lesbian, then I am also accusing her of being a liar and a fraud — again defamatory statements in their own right.

It’s excruciatingly difficult to craft a fact pattern where the only allegation that could be deemed potentially defamatory is sexual orientation (i.e., with no “and therefore…”). That’s why, in my view, this important legal question isn’t withering on the vine at the pace one might expect.

(As for the clearly uninformed critique of Lambda Legal, one should keep in mind that they do a great deal of their work, perhaps most of it, “behind the scenes.” An important example: Lambda matches gays in need of mundane, “non-headline” legal assistance with a vast network of volunteer “Contributing Attorneys” in private practice — who represent gays for free or reduced fees. I have no doubt that Lambda would provide this vital referral service to any “gay libel” defendant, even straight ones, who asked for it. Not everything is a Proposition 8.)

Previously:
–They’re Straight (Not That There’s Anything Wrong With That…)
–Why Torts Will Always be My First Love

Filed under: First Amendment - Speech, Gay Rights and Issues, Torts