issue because Staples did not argue First Amendment protection for its statements. [ 28 ] The courts often decide cases on issues not argued by the parties, and the court assumed in this case that the Massachusetts law was constitutional under the First Amendment. Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted. Privilege is any circumstance that justifies or excuses a prima facie tort. It can be said that privilege recognizes a defendant's action stemmed from an interest of social importance – and that society wants to protect such interests by not punishing those who pursue them. Privilege can be argued whenever a defendant can show that he acted from a justifiable motive. While some privileges have long been recognized, the court may create a new privilege for particular circumstances – privilege as an affirmative defense is a potentially ever-evolving doctrine. Such newly created or circumstantially recognized privileges are referred to as residual justification privileges. There are two types of privilege in the common law tradition: " Absolute privilege " has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court (although this may give rise to different claims, such as an action for malicious prosecution or perjury) or statements made in a session of the legislature (known as 'Parliamentary privilege' in Commonwealth countries). "Qualified privilege" may be available to