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Subject Area: Law
Topic: The American Revolution and Constitution

§ 23.: Publications through the press.— - 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 [1900]

Edition used:

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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§ 23.

Publications through the press.—

It has been often urged in favor of the press, that a general and almost unrestricted privilege should be granted the proprietors of newspapers for all statements that might be received and printed in their paper in good faith, which subsequently prove to be false and injurious to some individual, provided it pertain to a matter in which the public may justly be supposed to be interested. This view has of late met with a strong support in Judge Cooley. In criticising an opinion of the New York court to the contrary,2 he says: “If this strong condemnatory language were confined to the cases in which private character is dragged before the public for detraction and abuse to pander to a depraved appetite for scandal, its propriety and justice and the force of its reasons would be at once conceded. But a very large proportion of what the newspapers spread before the public relates to matters of public concern, in which, nevertheless, individuals figure, and must, therefore, be mentioned in any account or discussion. To a great extent also, the information comes from abroad; the publisher can have no knowledge concerning it, and no inquiries which he could make would be likely to give him more definite information, unless he delays the publication, until it ceases to be of value to his readers. Whatever view the law may take, the public sentiment does not brand the publisher of news as libeler, conspirator or villain, because the telegraphic dispatches transmitted to him from all parts of the world, without any knowledge on his part concerning the facts, are published in his paper, in reliance upon the prudence, care and honesty of those who have charge of the lines of communication, and whose interest it is to be vigilant and truthful. The public demand and expect accounts of every important meeting, of every important trial, and of all the events which have a bearing upon trade and business, or upon political affairs. It is impossible that these shall be given in all cases without matters being mentioned derogatory to individuals; and if the question were a new one in the law, it might be worthy of inquiry whether some lines of distinction could not be drawn which would protect the publisher when giving in good faith such items of news as would be proper, if true, to spread before the public, and which he gives in the regular course of his employment, in pursuance of a public demand, and without any negligence, as they come to him from the usual and egitimate sources, which he has reason to rely upon; at the same time leaving him liable when he makes his columns the vehicle of private gossip, detraction and malice.”1 We believe that the law should “protect the publisher when giving in good faith such items of news as would be proper, if true, to spread before the public.” But the difficulty is experienced in determining what is proper to be published in an ordinary newspaper. It seems to us that whenever an event occurs in which the public generally is justified in demanding information, the published accounts will be covered by the ordinary privilege which is granted to the injurious and false statements of private individuals, when they are made to those who have a legitimate interest in the subject-matter.1 But there is no reason why any special protection should be thrown around the publisher of news. Any such special protection which cannot in reason be extended to the “village gossiper,” would in the main only serve to protect newspaper publishers in the publication of what is strictly private scandal. Except in one large class of cases, in which we think both the press and the individual are entitled to the protection asked for, viz.: in criticisms upon public officials and candidates for office, the general demand of Judge Cooley may be granted, indeed is now granted by the law which denies “that conductors of the public press are entitled to peculiar indulgences and have special rights and privileges.”2 But the demands of the press extend beyond the limits set down by Judge Cooley. The privilege they ask for is intended to furnish protection for all those thrilling accounts of crime and infamous scandal, the publication of which appears to be required by a depraved public taste, but which the thoughtful citizen would rather suppress than give special protection to the publisher. The only two cases in which a change in the existing law of privilege would perhaps be just and advisable, are, first, the public criticism of public officials and political candidates, and, secondly, the reports of failures or financial embarrassments of commercial personages. In the second case, the privilege is granted to individuals, and even to those well-known mercantile agencies, when they make private reports to their subscribers of the financial standing of some merchant;1 but the privilege does not appear to extend to the publication of such items in the newspapers.2 Recently, laws have been passed in several States, which prohibit the harassment of debtors by the publication of their names as bad debtors; and, in one case, the constitutionality of the law was contested, but unsuccessfully.1 United States statutes also prohibit the writing of “dunning” communications to debtors on postal cards.

The principal inquiry that concerns us in the present connection is, to what extent privileged communications remain so, when they are published through the public press. The privilege does not extend beyond the necessity which justifies its existence. Thus, for example, the law provides for the legal counsellor and advocate a complete immunity from responsibility for anything he says in the conduct of a cause. The privilege rests upon the necessity for absolute freedom of speech, in order to insure the attainment of justice between the parties. A publication of his speech will not aid in the furtherance of justice, and hence it is not privileged. But the law favors the greatest amount of publicity in legal proceedings, it being one of the political tenets prevailing in this country, that such publicity is a strong guaranty of personal liberty, and furthers materially the ends of justice. Hence we find that fair, impartial accounts of legal proceedings, which are not ex parte in character, are protected and are recognized as justifiable publications.2 The publication is privileged only when it is made with good motives and for justifiable ends.3 Observations or comments upon the proceedings do not come within the privilege.1 Nor, it seems, do the defamatory speeches come within the privilege thus accorded to the publication of legal proceedings.2 But ex parte proceedings, and all preliminary examinations, though judicial in character, do not come within the privilege, and are not protected when published in the newspaper. In one case, the court say: “It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends, that every man is presumed innocent of crimes charged upon him, until he is proved guilty. But the circulation of charges founded on ex parte testimony, of statements made, often under excitement, by persons smarting under real or fancied wrongs, may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of trial comes, the rule has been reversed, and the presumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be utterly groundless. If every preliminary ex parte complaint, which may be made before a police magistrate, may with entire impunity be published and scattered broadcast over the land, then the character of the innocent, who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down without any malice on the part of the publisher. The refutation of slander, in such cases, generally follows its propagation at distant intervals, and bring often but an imperfect balm to wounds which have become festered, and perhaps incurable. It is not to be denied that occasionally the publication of such proceedings is productive of good, and promotes the ends of justice. But in such cases, the publisher must find his justification, not in privilege, but in the truth of the charges.”1 .

But the English courts have lately shown an inclination to depart from this doctrine, particularly in relation to the publication of police reports. In a late case,2 Lord Campbell indorses and acts upon the following quotation from an opinion of Lord Denman, expressed before a committee of the House of Lords in 1843: “I have no doubt that (police reports) are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties in unraveling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence; they know that such proceedings are only in the course of trial, and they do not form their opinions until the trial is had. Perfect publicity in judicial proceedings is of the highest importance in other points of view, but in its effect upon character, I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels an interest, probably in an exaggerated form, and the imputation may often rest upon the wrong person; both these evils are prevented by correct reports.” The publication of police reports, or of any other preliminary proceedings of a judicial nature, will bring the news to the ears of countless numbers of strangers, who, not knowing the party accused, will not likely be prejudiced in his favor, and certainly would not have heard or have taken any interest in the rumor of the man’s guilt, but for the publication. The readers of these reports, who are inclined to receive them in the judicial frame of mind, suggested by Lord Denman, are not numerous, and very few will dismiss from their minds all suspicions against the innocence of the accused when there has been a failure to convict him of the charge. Even when there has been a trial of the defendant, and the jury has brought in a verdict of acquittal, the publication of the proceedings is calculated to do harm to the reputation of the defendant. But the public welfare demands the freest publicity in ordinary legal proceedings, and the interest of the individual must here give way. On the other hand, there is no great need for the publication of the preliminary examinations. In only a few cases can the publication prove of any benefit to the public. The public demand being small, the sacrifice of private interest is not justified.

Not only is the publication of the proceedings of a court of law privileged; but the privilege extends to the publication in professional and religious journals of proceedings had before some judicial body or council, connected with the professional or religious organization, which the publishing paper represents.1 And so likewise would be privileged the publication of legislative proceedings, and the proceedings of congressional and legislative investigating committees.2

SECTION24.Security to reputation—Malicious prosecution.
25.Advice of counsel, how far a defense.

[2]Hotchkiss v. Oliphant, 2 Hill, 510-513, per Nelson, Ch. J.

[1]Cooley Const. Lim. *454.

[1]See Commonwealth v. Nichols, 10 Met. 259; Mason v. Mason, 4 N. H. 110; Carpenter v. Bailey, 53 N. H. 590; Lewis v. Few, 5 Johns. 1; Andres v. Wells, 7 Johns. 260 (5 Am. Dec. 257); Dale v. Lyon, 10 Johns. 447 (6 Am. Dec. 346); Marten v. Van Shaik, 4 Paige, 479; Sandford v. Bennett, 24 N. Y. 20; Hampton v. Wilson, 4 Dev. 468; Parker v. McQueen, 8 B. Mon. 16; Fowler v. Chichester, 26 Ohio St. 9; Cates v. Kellogg, 9 Ind. 506; Farr v. Rasco, 9 Mich. 353; Wheeler v. Shields, 3 Ill. 348; Cummerford v. McAvoy, 15 Ill. 311; Hawkins v. Lumsden, 10 Wis. 359; Beardsley v. Bridgman, 17 Iowa, 290.

[2]“The law recognizes no such peculiar rights, privileges or claims to indulgence. They have no rights but such as are common to all. They have just the same rights that the rest of the community have, and no more. They have the right to publish the truth, but no right to publish falsehood to the injury of others with impunity.” King v. Root, 4 Wend. 113 (21 Am. Dec. 102).

[1]Lewis v. Chapman, 16 N. Y. 369; Ormsby v. Douglass, 37 N. Y. 477.

[2]Thus, the reports of a mercantile agency, published and distributed among its subscribers, have been held not to be privileged. Giacona v. Bradstreet, 48 La. Ann. 1191; Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188 (7 Am. Rep. 322). It may be assumed that if any one, having an interest in knowing the credit and standing of the plaintiffs, or whom the defendants supposed and believed to have had such interest, had made the inquiry of the defendants, and the statement in the alleged libel had been made in answer to the inquiry in good faith; and upon information upon which the defendants relied, it would have been privileged. This was the case of Ormsby v. Douglass, 37 N. Y. 477. The business of the defendant in that case was of a similar character to that of the present defendants; and the statement complained of was made orally, to one interested in the information, upon personal application at the office of the defendant who refused to make a written statement. There was no other publication, and it was held that the occasion justified the defendant in giving such information as he possessed to the applicant.

“In the case at bar, it is not pretended that but few, if any, of the persons to whom the 10,000 copies of the libelous publication were transmitted, had any interest in the character or pecuniary responsibility of the plaintiffs; and to those who had no such interest there was no just occasion or propriety in communicating the information. The defendants, in making the communication, assumed the legal responsibility which rests upon all who, without cause, publish defamatory matter of others, that is, of proving the truth of the publication, or responding in damages to the injured party. The communication of the libel, to those not interested in the information, was officious and unauthorized, and, therefore, not protected, although made in the belief of its truth, if it were in point of fact false.” Judge Allen in Sunderlin v. Bradstreet, supra.

[1]State v. McCabe, 135 Mo. 450.

[2]Lewis v. Levy, E. B. & E. 537; Hoare v. Silverlock, 9 C. B. 20; Torrey v. Field, 10 Vt. 353; Stanley v. Webb, 4 Sandf. 21; Fawcett v. Charles, 13 Wend. 473; McBee v. Fulton, 47 Md. 403 (28 Am. Rep. 465); Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548. The privilege is also extended to the publication of investigations ordered by Congress. Ferry v. Fellows, 21 La. Ann. 375.

[3]Saunders v. Baxter, 6 Heisk. 369.

[1]Stiles v. Nokes, 7 East, 493; Clark v. Binney, 2 Pick. 112; Commonwealth v. Blanding, 3 Pick. 304 (15 Am. Dec. 214); Pittock v. O’Neill, 63 Pa. St. 253 (3 Am. Rep. 544); Scripps v. Reilly, 38 Mich. 10; Storey v. Wallace, 60 Ill. 51.

[2]Saunders v. Mills, 6 Bing. 213; Flint v. Pike, 4 B. & C. 473. See Stanley v. Webb, 4 Sandf. 21.

[1]Stanley v. Webb, 4 Sandf. 21. See Usher v. Severance, 21 Me. 9 (37 Am. Dec. 33); Matthews v. Beach, 5 Sandf. 259; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548; Duncan v. Thwaites, 3 B. & C. 556; Charlton v. Watton, 6 C. & P. 385.

[2]Lewis v. Levy, E. B. & E. 537.

[1]Burrows v. Bell, 7 Gray, 301; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rev. 698).

[2]Terry v. Fellows, 21 La. Ann. 375.