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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Is Silence the Price of Patents? | Main | Why Is This Still So Goddamn Hard? »

March 23, 2009

Anti-Staples Ruling Troubles Free-Speech Advocates

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Posted by Alan Wexelblat

Staples' slogan is "That Was Easy." Now it appears that the ease of mass-mailing something to a large number of employees may have brought trouble not only to this company but to everyone - bloggers, journalists, critics, etc - who relies on the notion that truth is an absolute defense against charges of libel.

Nobody debates that Jay Baitler, an executive VP at Staples, sent out a mass email giving information about the causes for firing Alan S. Noonan. The ostensible purpose of the email was to remind employees to follow certain Staples procedures. But the cause for action was the inclusion in the email of details about the cause for firing that Noonan claims are defamatory.

Initially these claims were dismissed because MA law, like that of the US, provides "an absolute defense to a defamation action" based on the truth of the statement. This principle was established for the US in a 1964 SCOTUS decision known as New York Times Co. v. Sullivan. The situation is a bit complicated in the States because not only is there Federal law about defamation but many states also have relevant clauses in their constitutions and state law books. Even so, US District Court Judge Morris E. Lasker determined in his dismissal of Noonan's claim that MA law and US law were consonant on this matter.

However, Noonan appealed to the First Circuit, which recently reversed an initial upholding and instead allowed a claim to go forward for "actual malice" based on an obscure 1902 Mass. law. The three-judge panel reasoned that Noonan might be able to convince a jury that Baitler met a standard of ill will provided for in the law. Since Staples is a private company and Baitler is not himself a public figure, the argument is that different standards apply. In particular, the Sullivan decision refers to public officials and Noonan's lawyer is claiming that this decision does not have First Amendment implications.

That argument isn't convincing many people, and may still be reversed if the Circuit agrees to review the decision en banc. Meanwhile, news organizations are left scratching their heads over whether they can publish this story or whether that act of publication could itself bring a suit for "ill will."

Regardless of whether or not a paper or blogger could win such a suit, the mere possibility that it could be filed might chill publication of information, not least of all reporting on the incident itself. With so many newspapers teetering on the financial edge, the last thing they need is to spend thousands more on lawyers' fees.

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