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the press implies exemption from censorship, and a right in all persons to publish what they may see fit, being responsible for the abuse of the right. But whether the conductor of a public journal has any privilege above others in publishing, is not fo clear. The freedom of the press was undoubtedly intended to be secured on public grounds, and the general purpose may be said to be, to preclude those in anthority froin making use of the machinery of the law to prevent full discussion of political and
other matters in which the public are concerned. With [*218] this end *in view not only must freedom of discussion
be permitted, but there must be exemption afterward from liability for any publication made in good faith, and in the belief in its truth, the making of which, if true, would be justified by the occasion. There should consequently be freedom in discussing, in good faith, the character, the habits, and mental and inoral qualifications of any person presenting himself, or presented by his friends, as a candidate for a public office, either to the electors or to a board or officer having powers of appointinent.' The same freedom of discussion should be allowed when the character and official conduct of one holding a public office is in question, and in all cases where the matter discussed is one of general public interest.'
Story on Const. § 1889, 2 Kent, 17; son, 46 Ia. 533; Bays o. Hunt, 60 la. Rawle on Const. Ch. 10; Cooley 251; Whcaton o. Beecher, 33 N. W. Const. Lim. 420; 4 Bl. Com. 151; Rep. 503 (Mich.) Commonwealth o. Blanding, 3. Pick. Purcell 0. Sowler, 1 C. P. Div. 304.
781; Wason o. Walter, L. R. 4 Q. B. 2 Lewis o. Few, 5 Johns.1; King o. 73; Kelley o. Sherloch, L. R. 1 Q. B. Root, 4 Wend. 113; Hunt o. Bennett, 686; Kelley o. Tinling, L. R. 1 Q. B. 4 E. D. Smith, 647; S. C. 19 N. Y. 173; 699; Palmer o. Concord, 48 N. H. 211; Curtis v. Mussey, 6 Gray, 261; Aldrich Miner 0. Detroit, &c., Co., 49 Mich. o. Printing Co., 9 Minn. 133; Mayrant 358. As to what is maiter of public v. Richardson, 1 N. & McC. 348. See interest, see Purcell o. Sowler, L. R. Gathercole o. Miall, 15 M. & W. 319; 2 C. P. Div. 215, qualifying the dePurcell v. Sowler, L. R. 1 C. P. Div. cision in the court below. Also, 781; S. C. in Error, 2 C. P. Div. 215; Davis 0. Duncan, L. R. 9 C. P. 396; State v. Balch, 31 Kan. 465; Express 8. C. 10 Moak, 228; Henwood o. HarPrinting Co. 0. Copeland, 64 Tex. rison, L. R. 7 C. P. 606; S. C. 3 354. Otherwise if the article falsely Moak, 398. A newspaper article ataccuses the candidate of a crime. tacking a State Senator for his votes Bronson o. Bruce, 59 Mich. 467. As and attributing corrupt motives for to liability of individual citizens in there is libellous per se. "If one like circumstances, see Marks 0. goes out of his way to asperse the Baker, 28 Minn. 162; Moit v. Daw- personal character of a public man
The public press is also allowed to give full reports of judicial trials and hearings, provided they are not ex parte merely, and are not indecent or blasphemous. But such reports must be confined to the actual proceedings, and must contain no defamatory *observations, headings or comments.' The [*219) reason why the publication of ex parte proceedings is
and to ascribe to him base and cor- truth must be shown. Hamilton o. rupt motives, he must do so at his Eno, 81 N. Y. 116. See, Com. 0. peril, and must either prove the truth Wardwell, 136 Mass. 164; Briggs o. of what he says or answer in damages Garrett, 111 Penn. St. 404; Rowand o. to the party injured." Negley o. Far. DeCamp, 96 Penn. St. 493. The trustee row, 60 Md. 158. “The conduct of of a mining corporation is not such a public officers is open to public criti- public officer as to render the incum. cism, and it is for ihe interest of soci. bent amenable to criticism through ety that their acts may be freely pub- newspapers, as in case of persons filllished, with filting comments or stric- ing public offices of trust and confi. tures. But a line must be drawn be- dence, in the proper administration tween hostile criticism upon public of wbich the community has an interconduct and the imputation of bad mo. est. Wilson o. Fitch, 41 Cal. 363. tives or criminal offenses where such · Hoare 0. Silverlock, 9 C. B. 20; motives or offenses cannot be justly Lewis o. Levy, El. B. & El. 537; Ryand reasonably inferred from the alls 0. Leader, L. R. 1 Exch. 296; conduct." Neeb o. Hope, 111 Penn. Terry o. Fellows, 21 La. Ann. 375; St. 145. See Bourreseau o. Detroit Gazette Co. 0. Timberlake, 10 Ohio, Evening Journal, 30 N. W. Rep. 376 (N.8.) 548; Torrey o. Field, 10 Vt. 353; (Mich.); Maclean o. Scripps, 52 Mich. Saunders 0. Baxter, 6 Heisk. 369; 214. A false and damaging charge, Storey v. Wallace, 60 Ill. 51; McBee tending to ruin the professional 0. Fulton, 47 Md. 403. The privilege standing of a physician, is not condi. extends to proceedings in the nature tionally privileged because he is a of trials in voluntary associations; as, city physician and the charge refers for example, a medical society. Barto his conduct as such. Foster 0. rows v. Bell, 7 Gray, 301. Scripps, 39 Mich. 376. In general 2 Styles o. Nokes, 7 East. 493; Delthe same rules are applied to criti. egal o. Highley, 3 Bing. N. C. 950; cism by individuals upon public offi. Thomas 0. Croswell, 7 Johns. 264; cers. To charge a city official with Pittock v. O'Niell, 63 Penn, St. 253; making a report upon a paving ma- 8. C. 3 Am. Rep. 544; Usher o. Seveterial for an illicit reward at the dic. rance, 20 Me. 9; Scripps o. Reilly, 35 tation of persons interested in the Mich. 371; Story o. Wallace, 60 Ill. pavement, is not privileged. Official 51; Bathrick v. Detroit, &c., Co., 50 acts may be freely criticised, and en- Mich. 629. There is no privilege attire freedom of expression used as to tached to printing contents of a the act itself, and such criticism will divorce bill merely filed in a court be prima facie privileged. But the office before a public judicial hearing occasion will not excuse an aspersiv. is had. Barker v. St. Louis, &c., Co., attack on the motives and character of 3 Mo. App. 377. Nor of a petition to the officer; to excuse such attack disbar an attorney so filed in vacation
not privileged is, that it has a tendency "to prejudge those whom the law still presumes to be innocent, and to poison the source of justice.”
The privilege of the press is not confined to those who publish newspapers and other serials, but extends to all who make use of it to place information before the public.'
No privilege seems to be accorded to the publication of news;' but publishers will not be liable in exemplary damages for the appearance in their journals of false items of intelligence without their personal knowledge, where they have been guilty of no negligence in the selection of the agents through whom the publication has been made, and have not been accustomed habitually to make their journals the vehicle of detraction and malice;' and the press may lawfully warn the public against the con
before docketing or hearing. Cowley made by him to the House. Rex 8. 0. Pulsifer, 137 Mass. 392. Nor to Lord Abingdon, 1 Esp. 226; Rex & printing slanderous remarks of coun. Creevy, 1 M. & S. 273. But in this sel during a trial. Cone v. Godshalk, country, where the publication of 13 Phila. 575. See, also, McDermott speeches and debates is made by au0. Erg. Journal Co., 43 N. J. L. 488, thority of law, it would seem that the on what is not a report of a judicial privilege to publish must be as broad proceeding. The report of judicial as the privilege to speak. In Louisi: proceeedings to be privileged must ana it is held that a newspaper is not only be fair, but made in good privileged in publishing the testimony faith and without malice, Stevens o. taken before a Congressional commitSampson, L. R. 5 Ex. D. 53.
tee. Terry o. Fellows, 21 La. Ann. *Per ELLENBOROUGH, Ch. J., in 375. There is no privilege in publishRex 0. Fisher, 2 Camp. 603. See ing a slander uttered by a murderer Duncan v. Thwaites, 3 B. & C. 556; at the gallows. Sanford o. Bennett, Flint o. Pike, 4 B. & C. 473; Charlton 24 N. Y. 20. Nor merely because the 0. Watton, 6 C. & P. 385; Behrens o. publication relates to a matter of pubAllen, 3 Fost. & Fin. 135; Huff o. lic interest. Wilson o. Fitch, 41 Cal. Bennett, 4 Sandf. 120; Stanley 0. 363. Webb, 4 Sandf, 21; Matthews 0. 2 See Barrows o. Bell, 7 Gray, 301. Beach, 5 Sandf. 256; Usher o. Seve. • Barnes o. Campbell, 59 N. H. 128; rance, 20 Me.
But if the result of Pratt ». Pioneer Press Co., 30 Mind. an ex parte proceeding is that the ac- 41; Mallory v. Same, 34 Minn. 521. cused party is discharged, the pro- See Bronson 0. Bruce, 59 Mich. 467; ceeding, it seems, may be published. Negley o. Farrow, 60 Md. 158. Curry o. Walter, 1 B. & P. 525; Lewis 4 Daily Post Co. 0. McArthur, 16 0. Levy, El. Bl. & El. 537; Usill o. Mich. 447; Perrett 0. New Orleans Hales, L. R. 3 C. P. D. 319. A Times, 25 La. Ann. 170; Scripps e. member of a legislative body, it is Reilly, 35 Mich. 371; Gibson o. Cinsaid in England, is not privileged in cinnati Enquirer, 5 Cent. L. Jour. 380. publishing the words of a speech
duct and *motives of those who are believed to be dis- [*220] loyal, or to threaten the peace of the State; and the fair and honest discussion of matters of public interest is always privileged.
Repeating Slanders and Libels. There is no privilege in repeating defamatóry publications. Therefore it is no defense that the defendant only repeated what had been told him by another whose name he gives, or copied into his newspaper a charge originating elsewhere, or published it as an advertisement or communication. Sometimes the fact may mitigate damages, but it cannot excuse the publication.' Neither is it a defense that a report was current and generally believed that the plaintiff was guilty of what was imputed to him, or that the publication professed to give a rumor merely."
Kinyon o. Palmer, 18 Iowa, 377. see, Cook 0. Howe, 77 Ind, 442. The result of a trial may be given as That he repeats the story will not an item of news. Whitney o. Janes. shield one unless at the time of the ville Gazette, 5 Biss. 330. Matters repetition he gives the plaintiff an acbeld not to come within rule as to tion against the original author. public interest. Atkinson o. Detroit Johnson v. St. Louis &c. Co., 65 Mo. &c. Co., 46 Mich. 341; Tryon o. Erg. 539. It is not a repetition for one to News Assn., 39 Mich. 636. An inter- say to another “A. said all she wanted view on a matter of public interest to about P.” Pauley 0. Drain, 6 S. "must be made upon a proper occa- W. Rep. 329 (Ky.) sion, from a proper motive and must Moberly o. Preston, 8 Mo. 462; be based on reasonable or probable Knight v. Foster, 39 N. H:576; Cade cause." Press Co. o. Stewart, 14 Atl. 0. Redditt, 15 La. Ann. 492; Clarkson Rep. 51 (Peno.)
o. M'Carty, 5 Blackf. 574; Johnston * Rex 5. Newman, 1 El. & Bl. 268; 0. Lance, 7 Ired. 448; Perrett v. Times Parker 8. McQueen, 8 B. Mon. 16; Newspaper, 25 La. Ann. 170. Hampton 0. Wilson, 4 Dev. 468;
4 Wheeler o. Shields, 3 Ill. 348; MaKeney 6. McLaughlin, 5 Gray, 3; son 0. Mason, 4 N. H. 110. See Evans e. Smith, 5 T. B. Mon. 363; Thompson o. Bowers, 1 Doug. (Mich.) Hotchkiss 0. Oliphant, 2 Hill, 510; 321; Treat o. Browning, 4 Conn. 408; Sheahan o. Collins, 20 Ill. 325; Mc- State o. Butnam, 15 La. Ann. 166. Donald e. Woodruff, 2 Dill. 244; Sans Giving with the publication the name
. Joerris, 14 Wis. 663; Funk 0. of the author is no protection. Dole Beverly, 13 N. E. Rep. 573 (Ind.) o. Lyon, 10 Johns. 447; Cates 0. KelNo excuse that at the time he ex- logg, 9 Ind. 306; Haines o. Welling, presses a doubt of its truth, nor that 7 Ohio, 253; Fowler 0. Chichester, 26 be repeats it to get advice whether Obio, (N. 8.) 9; Cummerford v. McAlperson affected should be informed voy, 15 Ill. 311; Inman v. Foster, 8 of it, when there is no confidential Wend. 602. Nor is it a defense that relation existing between them. Bran- a rumor existed previous to the publistetter e. Dorrough, 81 Ind. 527. But, cation to the same effect. Haskins o.
Slander of Property. A person may be as seriously injured by misrepresentation of his property as by the slander of himself in respect to his business; and, indeed, the two often go together. But there may be misrepresentation in respect to particular articles of property not connected with one's business, and where the injury will concern the property alone. Such mis
representation is actionable, provided it is malicious [*221] and *damaging; but malice will not be presumed, and
damage must be alleged and proved.'
Slander of Title. An action lies for maliciously slandering the title to the plaintiff's property ; but here, as in slander of property, it is necessary to aver and prove both malice and damage. The action rests upon the general principle that when one injures another by any wrongful and malicious conduct, he is liable in an action on the special case. It is of course never wrongful for one to assert a title in himself to property, or to seek to establish it by judicial proceedings, provided this is done in good faith ; and good faith must be presumed while the proceedings are pending; but we have seen that after they are disposed of, an action may lie, if malice and want of probable cause be made out.'
Lumsden, 10 Wis. 359; Knight o. Foster, 39 N. H. 576: Carpenter o. Bailey, 53 N, H. 590; Skinner 0. Powers, 1 Wend. 451; Beardsley o. Bridgman, 17 Iowa, 290. But the fact
miti. gate damages. Farr o. Rasco, 9 Mich. 353.
* Gott o. Pulsifer, 122 Mass. 235; S. C. 23 Am. Rep. 322. If the falsity of the representations is proved, and injury resulting therefrom, it is said malice is to be presumed. Swan 0. Tappan, 5 Cush. 104.
2 Malachy o. Soper, 3 Bing. (N. C.) 371. In this case and in Bigelow's notes thereto, Lead. Cas. 54-59, the authorities are fully collected.
• See ante. p. *180. The action is founded on malice. Walkley o. Bostwick, 49 Mich.374; Meyrose o. Adams, 12 Mo. App. 329; Dodge o. Colby, 37 Hun, 515. An action for slander of title to letters patent will lie. Andrew o. Deshler, 45 N. J. L. 167; Meyrose 0. Adams, 12 Mo. App. 329. And to a trademark and it survives. Hotchard o. Mège, L. R., 18 Q. B. D. 771. If the words are spoken by & stranger the law implies malice; otherwise if by one interested in it and for his own protection. Andrew 0. Deshler, 45 N. J. L. 167.