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Judge Juan Torruella, Boston
Flipping off the ghost of John Peter Zenger
Andrew Hamilton, the great Colonial-era lawyer, would have been appalled by Judge JUAN TORRUELLA.

It was Hamilton, at the 1735 trial of New-York Weekly Journal publisher John Peter Zenger, who put forward the then-revolutionary notion that no one should be convicted of libel for "speaking and writing truth." And it is Torruella, 274 years later, who now seeks to undo that historic principle.

Torruella, who sits on the US Court of Appeals for the First Circuit, in Boston, ruled in February on behalf of a three-judge panel that a libel suit brought against the office-supply giant Staples could proceed. Alan Noonan, a former sales director at the company, had sued Staples because his supervisor sent an e-mail to some 1500 employees revealing that Noonan had been fired for violating the company's expense-report policy.

In explaining his decision, Torruella wrote that, though the contents of the e-mail were true, Noonan's suit should move forward because of a 1902 Massachusetts law, which held that a true statement could be found libelous if it had been made with "actual malice." Never mind that, since the US Supreme Court's Times v. Sullivan ruling in 1964, the phrase "actual malice" pertains only to defamatory statements that are knowingly false or made with "reckless disregard" for the truth. Torruella said he had to follow the 1902 meaning, which he defined as "ill will" or "malevolent intent."

The notion that truth is an absolute defense in a libel suit is well established, and crucial to the functioning of a free press. The Supreme Court has held that even a private figure such as Noonan must prove defamation, falsity, and negligence in order to prevail in a libel action. No wonder Robert Ambrogi, a First Amendment lawyer and executive director of the Massachusetts Newspaper Publishers Association, called Torruella's ruling "the most dangerous libel decision in decades."

Back in 1735, Hamilton lost his argument but won his case, as the jury ignored Chief Justice James Delancey's instructions and acquitted Zenger of charges that he had libeled Governor William Cosby. If only Judge Torruella's wrong-headed ruling could be so easily cast aside.

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