October 23, 2012
It is widely known that the “truth” is a complete defense to a defamation claim. If a business owner tells the public not to do business with a competitor because the competitor is a convicted felon, the business owner should be able to defeat a defamation suit if his statement was true. However, the elements of a state law tortious interference suit, at least in Mississippi, do not seem to focus on the truth, but rather the motive of the business owner who allegedly interfered with the competitor. For example, assume the business owner sends out a letter across the nation to his current or former customers stating that his competitor’s business practices violate certain federal regulations and are improper or even unlawful. If the competitor finds evidence that the business owner wanted to harm the competitor or even run the competitor out of business in sending the letter, even if the statements were true, can the business owner be held liable under a tortious interference claim?
To answer the question we must take a closer look at the effect of the First Amendment regarding truthful statements. If the statements made by the business owner were truthful, then it does not matter if he had a malicious motive in sending the letters – – the business owner had a First Amendment right to provide truthful information to the public, especially about a federal program. For example, in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 & 916 f.n. 51 (U.S. 1982), the Supreme Court stated:
this Court has recognized that expression on public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” Carey v. Brown, 447 U.S. 455, 467. “[Speech] concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75. There is a “profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270.
Id. (holding that “[a]lthough this is a civil lawsuit between private parties, the application of state rules of law by the Mississippi state courts in a manner alleged to restrict First Amendment freedoms constitutes ‘state action’ under the Fourteenth Amendment.”).
Consistent with the protections provided by the First Amendment, many courts have confirmed that a defendant’s motive is irrelevant if the statements made are truthful. See Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., 54 Cal. Rptr. 2d 888 (Cal. App. 1st Dist. 1996) (“a true representation does not become wrongful just because the defendant is motivated by a black desire to hurt plaintiff’s business“); C.R. Bard, Inc. v. Wordtronics Corp., 561 A.2d 694 (Law Div. 1989) (“Defendant’s motive is not relevant to the determination of this case. . . . It is not improper to give truthful information to a customer about someone else’s product, and this is so even if the purpose is to interfere with an existing or prospective contractual relationship.”); Worldwide Primates v. McGreal, 26 F.3d 1089, 1092 (11th Cir. Fla. 1994) (“Worldwide could establish no cause of action for interference with its business relationship with Delta when all McGreal did was give Dr. Gerone truthful information.”); Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988) (“in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment[;] . . . even when a speaker or writer is motivated by hatred or ill-will, his expression is protected by the First Amendment.”); Garrison v. Louisiana, 379 US 64 (1964) (plaintiff’s “interest in private reputation is overborne by the larger public interest, secured by the Constitution in the dissemination of truth”; “Truth may not be the subject of either civil or criminal sanctions.”); State v. Burnham, 9 N. H. 34, 42-43, 31 Am. Dec. 217, 221 (1837) (“If upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice.”).
Likewise, the Second Restatement of Torts § 772 provides:
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other’s contractual relation, by giving the third person (a) truthful information, or (b) honest advice within the scope of a request for the advice.
Restatement (Second) of Torts § 772 (1979); see also Comment to Section “(“b. Truthful information. There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another. The interference in this instance is clearly not improper. This is true even though the facts are marshaled in such a way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason for breaking his contract or refusing to deal with another. It is also true whether or not the information is requested. Compare § 581A, on the effect of truth in an action for defamation.).
We see, therefore, that the business owner should be able to prevail over the competitor’s tortious interference claim based on the First Amendment as truth is a complete defense.
