The United States Court of Appeals for the First Circuit issued an order today denying Staples' petition for rehearing en banc in Noonan v. Staples, a decision in which a panel of the First Circuit held that chapter 231, section 92 of the Massachusetts General Laws permits a private figure plaintiff to recover for defamation based on truthful statements made with "actual malevolent intent or ill will," at least if the statements relate to matters of purely private concern. The Staples case has generated outcry and tons of media attention because it upends the fundamental notion that defamatory statements must be false. Last week, the CMLP joined a coalition of media organizations and media law advocacy groups in filing an amicus curiae brief urging the court to grant Staples' petition for rehearing.
The First Circuit stuck by its guns, arguing that Staples had waived 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).
In related news, the First Circuit denied the news media coalition's motion to file its amicus brief. The order denying leave to file said that accepting the brief might create a need for judicial recusal that would not otherwise exist. The recusal issue likely stems from a First Circuit judge owning stock in one of the companies making up the coalition (one of the drawbacks of having such an enormous group of interested organizations). In any event, it looks like the court didn't get the benefit of amici's arguments, which may explain its chilly response to the merits of the constitutional argument.
While the overall result is surely a disappointment, the order makes clear that the constitutionality of the statute is an open question. Back in the trial court, Staples can conceivably raise the constitutional question in a number of ways. It might be able to file a renewed motion for summary judgment arguing the issue, assuming the trial court's scheduling order would permit it. Alternatively, Staples could raise the issue during trial in a motion challenging the sufficiency of Noonan's evidence or after trial in a motion challenging an adverse jury verdict.
In short, we haven't seen the last of this one, and no court has ruled on whether Massachusetts law can constitutionally punish truthful statements on matters of purely private concern. Unfortunately, the First Circuit's cursory comments on the issue may make the trial court unreceptive to the constitutional arguments when they come up. In any event, the First Circuit will undoubtedly find itself addressing the issue in a future appeal, at which time it can look beyond the language of Hepps and Dun & Bradstreet, neither of which do anything more than nibble at the edges of the issue.