A federal appellate panel has overruled the long-standing principal that truth is an absolute defense in libel cases.

In the second rerun incident, a three-judge panel in the 1st U.S. Circuit Court of Appeals recently upended a long-held rule of law that “truth is an absolute defense” when someone is sued for libel. The opinion has surprised some experts on libel — and, if ultimately upheld, would uproot basic legal tenets of free speech and the law.

The judges reviewed Noonan v. Staples, a case involving an employee of a business-supply firm who sued the company after an executive sent an e-mail to about 1,500 employees detailing why the employee had been fired for what the company said was falsifying expense reports.

The court’s opinion said that even if the factual account sent to other workers were true, and apparently it was, the employee involved might be able to recover damages if the e-mail was sent maliciously — in this case, to humiliate the former employee. The judges sent the case back to a lower court in Massachusetts for reconsideration.

In other words, the mere fact that you have spoken truthfully will no longer be let your words be protected by the First Amendment -- a judge will be permitted to decide if you had sufficiently good cause to speak the truth, or whether your motives for doing so were base enough to strip you of your rights under the Constitution.

Just imagine what mischief could be made if this ruling is allowed to stand. Truthful statements would become actionable – presumably even those directed against public figures and public officials. Could you imagine, just as an example, what Bill Clinton could have done with such a precedent during the Lewinsky scandal? He’d have managed to close down most of the conservative media – after all, there was certainly a lot of malice involved in the way in which the story was handled, even though the details of the case were certainly true. Do we really want the free flow of truthful information to stifled by the threat of a libel suit?

Posted by: Greg at 10:41 AM | Comments (6) | Add Comment
Post contains 364 words, total size 2 kb.

Justice Ruth Bader Ginsburg has been ill in recent weeks with pancreatic cancer. That is not an illness which gives one a great prognosis. Acknowledging that is one thing – but explicitly coming out and stating that the woman is going to die soon is rude, crude, and both socially and morally unacceptable.

And one more reason the GOP needs to find someone to run against Senator Jim Bunning in the 2010 GOP primary.

Sen. Jim Bunning (R-Ken.) warned a Kentucky GOP group Saturday that the fight over a new Supreme Court justice could come soon as Associate Justice Ruth Bader Ginsburg is likely to die shortly.

In a speech to the Hardin County Republican Party at the group's annual Lincoln Day Dinner, Bunning said Ginsburg has "bad cancer. The kind that you don't get better from," according to a report in the Louisville Courier-Journal.

Ginsburg was diagnosed with pancreatic cancer earlier this year and had surgery at a New York hospital Feb. 5. The surgery to remove Ginsburg's spleen and part of her pancreas was a success, according to a Supreme Court press release, and she is expected to be back in court to hear oral arguments on Monday.

"Even though she was operated on, usually, nine months is the longest that anybody would live" after being diagnosed with the dangerous form of cancer, Bunning said.

Interestingly enough, today was Justice Ginsburg’s first day back at work at the Supreme Court – the first of what I hope are many more.

Posted by: Greg at 10:39 AM | No Comments | Add Comment
Post contains 268 words, total size 2 kb.

Dahlia Lithwick offers an interesting observation about the current liberal justices of the Supreme Court and the sort of justice various liberals have said that Obama needs to appoint when a vacancy occurs. But in the midst of it all, she offers this observation that makes a lot of sense – but which is also a telling point about the “great” liberal justices of generations past.

It's sometimes said that in addition to being voiceless, or at least librarian-voiced, the court's liberals cannot see big. Thus we often hear that the court's liberals lack a revelatory constitutional vision. Sunstein, for instance, once lamented the "absence of anything like a heroic vision on the court's left." He writes longingly of Marshall and Brennan as "the Court's visionaries, offering a large-scale sense of where constitutional law should move." What Scalia has always done so much more effectively than anyone else at the court is sell his view of originalism and textualism. He has a coherent interpretive rulebook to which he almost always adheres. Oh, and he can explain it in 60 seconds on 60 Minutes.

Yes, it is “the vision thing” – but in the course of explaining another point about the vision of the three justices she shows the fundamental difference between a Scalia and a Brennan or a Thurgood Marshall.

Whether they persuade by the force of their personality, a la Brennan; or their life story, a la Marshall; or their browbeating analysis, a la Scalia, the big justices tend to be the ones with the big ideas.

But consider the basis upon which the three justices mentioned persuade others. In the case of Brennan, it was his personality. In the case of Marshall, it was his biography. In the case of Scalia, though, it is the expounding of rigorous legal reasoning grounded in the text of the Constitution. In effect, Lithwick is calling for a move away from the founding document, with decisions instead being based upon the whims and preferences of the men (or women) on the bench. So much for being a nation of laws.

Posted by: Greg at 01:49 PM | No Comments | Add Comment
Post contains 360 words, total size 2 kb.