The above maxim is so often repeated that it is taken as true in all cases. But chapter 231, section 92 of the Massachusetts General Laws says otherwise, according to the U.S. Court of Appeals for the First Circuit in Noonan v. Staples, No. 07-2159 (1st Cir. Feb. 13, 2009), rehearing and rehearing en banc denied (1st Cir. Mar. 19, 2009). Section 92 provides in its entirety as follows: "The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved."

Construing Section 92 in a defamation action brought by a discharged employee, the appeals court concluded that "Massachusetts law … recognizes a narrow exception to [the defense of truth]: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with ‘actual malice" in publishing the statement.’

The federal district court in Massachusetts dismissed the employee’s claim that the employer was liable for defamation for distributing an e-mail to 1,500 other employees detailing the reasons for the employee’s dismissal. The district court held that the statements in the e-mail were true, and that in any event no evidence of "actual malice" had been shown by the employee.

On appeal, the First Circuit first upheld the dismissal but then reversed itself, concluding that under Section 92, even a true statement can be the basis for a libel claim in a private plaintiff case, if the plaintiff shows "actual malice." Now, "actual malice" is a term of art in defamation law, a term that refers to the publication of an untrue statement about a public figure, with knowledge, or a reason to know, of its falsity. But the First Circuit concluded that the term "actual malice" in Section 92 refers to "common law" actual malice, i.e., "actual malevolent intent or ill will" on the part of the speaker. The court drew that conclusion based on the fact that the statute in its present form was enacted in 1902, before the U.S. Supreme Court had developed the current definition of "actual malice" as applied to public figures.

Thus construing the term "actual malice," the appeals court examined the record in the case and concluded that the discharged employee had sufficiently alleged facts on which a jury could base a conclusion that the employer acted with "actual malevolent intent or ill will" toward the employee when the e-mail detailing his discharge was distributed, i.e., that he had been "singled out … in order to humiliate him" and to harm his reputation.

The ruling contained virtually no discussion of the constitutionality of the Section 92 because the appeals court deemed the issue to have been waived:

This exception to the truth defense is not constitutional when applied to matters of public concern. Shaari v. Harvard Student Agencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998). In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time. See Johnson v. Mahoney, 424 F.3d 83, 96 (1st Cir. 2005).

The employee’s defamation claim was remanded for trial.

The response to the appeals court opinion included the filing of a petition for rehearing, and the submission of an amicus brief to which numerous newspapers, media companies and advocacy organizations signed on, from the Associated Press to the Washington Post. On March 19, however, the First Circuit denied the petition for rehearing, reiterating its conclusion that the issue of constitutionality was not properly raised, and that in any event there was no showing that the statute was so obviously unconstitutional that the court should have acted sua sponte to strike it down. The court commented that the employer "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."