Front Page Titles (by Subject) § 22.: Criticism of officers and candidates for office.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1
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§ 22.: Criticism of officers and candidates for office.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Criticism of officers and candidates for office.—
When a man occupies an official position, or is a candidate for office, the people whom he serves, or desires to serve, are interested in his official conduct, or in his fitness and capacity for the office to which he aspires. It would seem, therefore, that, following out the analogy drawn from cases of private communications, affecting the reputation of persons, in whom the parties giving and receiving the communications are interested, any candid, honest, canvass of the official’s or candidate’s character and capacity would be privileged, and the party making the communication will not be held liable, civilly or criminally, if it proves to be false. But here, as in the case of private communications, one or the other of the parties, who were concerned in the utterance of the slander or publication of the libel, must have been interested in the subject-matter of the communication. In the case of officials and candidates for office, in order to be privileged, the criticism must be made by parties who are interested personally in the conduct and character of the official or candidate. The subject-matter of the communication must, therefore, relate to his official conduct, if the party complained of be an officer, and, if he be a candidate for office, the communication should be confined to a statement of objections to his capacity and fitness for office. Not that in either case the man’s private conduct cannot be discussed under a similar privilege, although such a distinction is advocated in an English case.1 In this case, Baron Alderson says: “It seems there is a distinction, although I must say I really can hardly tell what the limits of it are, between the comments on a man’s public conduct and upon his private conduct. I can understand that you have a right to comment on the public acts of a minister, upon the public acts of a general, upon the public judgments of a judge, upon the public skill of an actor; I can understand that; but I do not know where the limit can be drawn distinctly between where the comment is to cease, as being applied solely to a man’s public conduct, and where it is to begin as applicable to his private character; because, although it is quite competent for a person to speak of a judgment of a judge as being an extremely erroneous and foolish one,—and no doubt comments of that sort have great tendency to make persons careful of what they say,—and although it is perfectly competent for persons to say of an actor that he is a remarkably bad actor, and ought not to be permitted to perform such and such parts, because he performs them so ill, yet you ought not to be allowed to say of an actor that he has disgraced himself in private life, nor to say of a judge or of a minister that he has committed a felony, or anything of that description, which is in no way connected with his public conduct or public judgment; and, therefore, there must be some limits, although I do not distinctly see where those limits are to be drawn.” Judge Cooley, in criticising this opinion,1 says: “The radical defect in this rule, as it seems to us, consists in its assumption that the private character of a public officer is something aside from, and not entering into or influencing his public conduct; that a thoroughly dishonest man may be a just minister, and that a judge, who is corrupt and debauched in private life, may be pure and upright in his judgments; in other words, than an evil tree is as likely as any other to bring forth good fruits. Any such assumption is false to human nature, and contradictory to general experience; and whatever the law may say, the general public will still assume that a corrupt life will influence public conduct, and that a man who deals dishonestly with his fellows as individuals will not hesitate to defraud them in their aggregate and corporate capacity, if the opportunity shall be given him.”
Where the private character would indicate the possession of evil tendencies, which can manifest themselves in, and influence, his official conduct to the detriment of the public, it would seem but natural that the same privilege should be extended to such a communication concerning a candidate for office, as if the same evil tendency had been manifested by some previous public or official conduct. In both cases, the conduct is brought forward as evidence of the same fact, his unfitness for the office to which he aspires. But a candidate for office may possess defects of character, which cannot in any way affect the public welfare by influencing or controlling his official conduct, and inasmuch as the privilege is granted, if at all, for the sole purpose of promoting a free discussion of the fitness of the candidate for office, such an object can be attained without opening the floodgates of calumny upon a man, and depriving him of the ordinary protection of the law, because he has presented himself as a candidate for the suffrages of the people. Thus while vulgarity of habits or speech, unchastity, and the like, may be considered great social and moral evils, they can hardly be considered to affect a candidate’s fitness for any ordinary office. Integrity, fidelity to trusts, are not incompatible with even libertinism, which is attested by the acts and lives of some of the public men of every country.1 Whereas dishonesty, in whatever form it may manifest itself, blind bigotry, and the like, do enter largely into the composition of one’s official capacity, and consequently the discussion of any acts which tend to establish these characteristics would come within the privileges, although these acts may be of private nature. But, although it may be justifiable in charging a candidate with vulgarity or unchastity, and the like, if they are true, there is no reason why they should be privileged, because they do not enter into the determination of the candidate’s fitness for office, and only raises a question of preference.
Where the party is holding an office instead of being a candidate for office, the only public interest to be subserved in the establishment of a privilege is the faithful performance of his official duty, and where the office is one, the incumbent of which can only be removed for malfeasance in office, only those communications should be held to be privileged, which criticise his public conduct. If, however, the office is appointive, and the incumbent is removable at the pleasure of the appointive power, the privilege should be as extensive as that which should relate to candidates, as already explained.
The foregoing statement presents what it is conceived should be the law. An investigation of the authorities, however, reveals a different condition of the law. The cases which fall under the subject of this section are naturally, as well as by the variance in the authorities, divided into two classes: First, where the office is one of appointment, and the criticism is contained in a petition or address to the appointing or removing power; and, secondly, where the office is elective, and the criticisms appear in publications of the press, or are made in speeches at public meetings, and are intended to influence the votes of the electors at large, who will be called upon to pronounce for or against the candidate. In the cases of the first class, it has been very generally held that the communications are privileged as long as they are bona fide statements, and the burden of establishing malice in their utterance is thrown upon the plaintiff. The Supreme Court of New York characterizes a contrary ruling in the court below, as “a decision which violates the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government, rights necessarily connected with the relation of constituent and representative, the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority against the abuse of official functions.”1 Not only are these petitions privileged when they are presented, but also when they are being circulated for the purpose of procuring signatures.2
This privilege is not confined to communications, in the form of petitions, which relate to the incompetency, and call for the removal, of public officials. It is applied also to similar cases arising in the management and government of other and private bodies, whether incorporated or unincorporated. Thus all communications to church tribunals in reference to the moral character of its members, both lay and clerical, are protected by this privilege so as not to be actionable, if they were not prompted by malice.3 The same privilege protects a communication to the lodge of some secular organization, preferring charges against a member.1 In all these cases the privilege only extends to the communication or petitions, which are presented to the body or person, in whom the power of appointment and removal is vested, and if a petition is prepared, but never presented to the proper authority, any other publication of it would not be privileged.2
There is apparently no rational difference, so far as the justification of the privilege is concerned, between those cases, in which there is a remonstrance or petition to the body or person having the power of appointment and removal, and the cases of appeal or remonstrance to the general public, pronouncing the candidate for an elective office unfit for the same, either through incompetency or dishonesty, and one would naturally expect such a privilege. The electors, and the public generally, are interested in knowing the character and qualifications of those who apply for their suffrages; and the public welfare, in that regard, is best promoted by a full and free discussion of all those facts and circumstances in the previous life of the candidate, which are calculated to throw light upon his fitness for the office for which he applies. Where the statements respect only the mental qualification of the candidate, it has been held that they are privileged. “Talents and qualifications for office are mere matters of opinion, of which the electors are the only competent judges.”3 But where the communication impugns the character of the candidate, it appears that the privilege does not cover the case, and the affirmant makes the statement at his peril, being required by the law to ascertain for himself the truth or falsity of it. And the same rule applies to the deliberations of public meetings, as well as to the statements of an individual. In the leading case on this subject1 the court say: “That electors should have a right to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others, is a position to which I most cordially accede. But there is a wide difference between this privilege and a right irresponsibly to charge a candidate with direct, specific, and unfounded crimes. It would, in my judgment, be a monstrous doctrine to establish that, when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of any imaginable crime with impunity. Candidates have rights as well as electors; and those rights and privileges must be so guarded and protected as to harmonize one with the other. If one hundred or one thousand men, when assembled together, may undertake to charge a man with specific crimes, I see no reason why it should be less criminal than if each one should do it individually at different times and places. All that is required in the one case or the other is, not to transcend the bounds of truth. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the accusation; and can any one wish for more latitude than this? Can it be claimed as a privilege to accuse ad libilum a candidate with the most base and detestable crimes? There is nothing upon the record showing the least foundation or pretense for the charges. The accusation, then, being false, the prima facie presumption of law is, that the publication was malicious, and the circumstance of the defendant being associated with others does not per se rebut this presumption.” This position of the New York court has not only been sustained by later cases in the same State, but it has been followed generally by the other American courts, and it may be considered as the settled doctrine in this country.1
Gathercole v. Miall, 15 Mees. & W. 319.
Cooley Const. Lim. 440.
But the retirement from public life during the present year (1886) of a prominent English statesman on account of his conviction of the act of adultery, would indicate that public sentiment is changing in this regard, and at no distant day will require that the private character of public men shall be as pure as their public character.
Thorn v. Blanchard, 5 Johns. 508. In Howard v. Thompson, 21 Wend. 319, it was held in order that plaintiff may sustain his action in such a case, he must not only prove actual malice, but also show the want of probable cause, the action being considered by the court of the nature of an action for malicious prosecution. See, generally, in support of the privilege, Bodwell v. Osgood, 3 Pick. 379 (15 Am. Dec. 228); Bradley v. Heath, 12 Pick. 163; Hill v. Miles, 9 N. H. 9; State v. Burnham, 9 N. H. 34 (31 Am. Dec. 217); Howard v. Thompson, 12 Wend. 545; Gray v. Pentland, 2 Serg. & R. 23; Van Arnsdale v. Laverty, 69 Pa. St. 103; Harris v. Huntington, 2 Tyler, 129 (4 Am. Dec. 728); Reid v. DeLorme, 2 Brev. 76; Forbes v. Johnson, 11 B. Mon. 48; Whitney v. Allen, 62 Ill. 472; Larkin v. Noonan, 19 Wis. 82. In George Knapp & Co. v. Campbell (Tex. Civ. App.), 36 S. W. 765, it was held that the publication in a newspaper of false accusations against a candidate for an appointive Federal office, was not privileged.
Vanderzee v. McGregory, 12 Wend. 545; Street v. Wood, 15 Barb. 105.
Kershaw v. Bailey, 1 Exch. 743; Farnsworth v. Storrs, 5 Cush. 412; Remington v. Congdon, 2 Pick. 310; York v. Pease, 2 Gray, 282; Fairchild v. Adams, 11 Cush. 549; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rep. 698); Haight v. Cornell, 15 Conn. 74; O’Donaghue v. McGovern, 23 Wend 26; Wyick v. Aspinwall, 17 N. Y. 190; Chapman v. Calder, 14 Pa. St. 365; McMillan v. Birch, 1 Binn. 178 (2 Am. Dec. 426); Reid v. DeLorne, 2 Brev. 76; Dunn v. Winters, 2 Humph. 512; Lucas v. Case, 9 Bush, 562; Dial v. Holter, 6 Ohio St. 228; Kleizer v. Symmes, 40 Ind. 562; Servatius v. Pichel, 34 Wis. 292.
Streety v. Wood, 15 Barb. 105; Kirkpatrick v. Eagle Lodge, 26 Kan. 384. A report by officers of a corporation to a meeting of its stockholders falls under the same rule. Philadelphia, etc., R. R. Co. v. Quigley, 21 How. 202.
Fairman v. Ives, 5 B. & Ald. 642; Woodward v. Lander, 6 L. & P. 548; State v. Burnham, 9 N. H. 34; Hosmer v. Loveland, 19 Barb. 111; Cook v. Hill, 3 Sandf. 341.
Mayrant v. Richardson, 1 Nott & McCord, 348 (9 Am. Dec. 707); Commonwealth v. Clapp, 4 Mass. 163 (3 Am. Dec. 212); Commonwealth v. Morris, 1 Va. Cas. 175 (5 Am. Dec. 515); Sweeney v. Baker, 13 W. Va. 158 (31 Am. Rep. 757); Mott v. Dawson, 46 Iowa, 533. But see Robbins v. Treadway, 2 J. J. Marsh. 540 (19 Am. Dec. 152); Spiering v. Andree, 45 Wis. 330 (30 Am. Rep. 744).
Lewis v. Few, 5 Johns. 1, 35.
See King v. Root, 4 Wend. 113 (21 Am. Dec. 102); Powers v. Dubois, 17 Wend. 63; Hunt v. Bennett, 19 N. Y. 173; Hamilton v. Eno, 81 N. Y. 116; Thomas v. Crosswell, 7 Johns. 264 (5 Am. Dec. 269); Tillson v. Robbins, 68 Me. 295 (28 Am. Rep. 50); Hook v. Hackney, 16 Serg. & R. 385; Sweeney v. Baker, 13 W. Va. 158 (31 Am. Rep. 757); Foster v. Scripps, 39 Mich. 376 (33 Am. Rep. 403); Wilson v. Noonan, 35 Wis. 321; Gottbehuet v. Hubachek, 36 Wis. 515; Gove v. Bleehen, 21 Min. 80 (18 Am. Rep. 380), Rearick v. Wilcox, 81 Ill. 77; Russell v. Anthony, 21 Kan. 450 (30 Am. Rep. 436). See Barr v. Moore, 87 Pa. St. 385 (30 Am. Rep. 367).