The New York herald., 1869-02-22
NEWSPAPER PRIVILEGES.

NEWSPAPER PRIVILEGES.
The Right OF Journalists 20 Discuss Matters
Of Public Concern-Ims sorfnnt Judicial De-
cision.
ln the libel suit OF J. II. Lawrence N. Halstead
ana Others proprIetors OF the Cincinnau CDnlnser-
cid trial last week that city, Judge Taft, of
the Superior Court gave decision upon the ques-
ton raised to the burden OF proof which Is Of
more than ordinary interest. It is as foilows;-
THE QUESTION STATED.
inc petition In the present Case alleges that tho
plaintin was q member OF the Board OF Oity I'm
provemenis and states the character OF hts duties
by the attendants OF winch ne complains.
the publications relate to tho Improvement
present, and the manner IN which contracts
Tor pavenents have been made and carried out,
anu contain comments on she manner In which these
missloners, and refer TO the plaintiff IN connection
with the seventh street Nico.son pavement, and,
pl0lntln alleges, charge abuses anu corruption on
the part OF the platinum in the supernlendcnce and
acceptance OF the work. The peutlon also alleges
that these publications were made naIiciously TO hs
rue defendant answers and admits the publica-
tons but AYERS that I'm so FAR as they referred to
the plamtlr they were made b. defendants as public
journalists Of the plaintiff ~ pubc officer In re-
gard TO matters q public concern connected also
publications were made honestly, upon information
Which tile defendants then believed ana SUN believe
without malice against the plaIntlif."
The palntiIl has proceeded to oner In evidence tho
made Afterwards 10 show malice; and now the ques-
ton raised and has been eaooratey argued
whether 1t Is incumbent on the painiin 70 proceed
vita MS evidence to show the falslty ma ice OF
tie statements OF the defenuans in the publications
complained OF or whether they shal DC presumed To
be false aud malicious without proof on the part OF
the pIa.nur.
THE GENERAL RULE-
Faschood and malice IN these publications are cs-
A " ".
words are published OF man which are libelous pr
against lis character the law, wnic presumes all
men honest and OF good character I'LL tho contrary
appears by proof, prcsumes tnlt the libel IL false
and neiicous without any evidence on the part OF
htn against whom II has been paolished; and this ~
FAIR presumption, whenever has volun-
tecred to pubisn or utter words deiamatory OF
another without any snch OCCASION OF seii-protecton
or duty rs 10 make u necessary OF pertinent FOR him
10 speak.
But there Ia GLASS OF cases whca form exceptions
to the general rule, aud are essentially different from
those to which ! have referred. hey are cases IN
which the language published woasd Ue lbcllons AMI
subject To the presumption ol hsseaood and malice,
but Tor the occasion upon which AZ was used. II such
language has been used "ln the discharge OF some
puolic orprvute duty, whether lega or moral, or III
The conduct Of his own aiars ~ matters where his
interest Is concerned "Lhe OCCASION prevents the
inference of malice which the law draws from unau-
thorized communications and afocaa qualified de-
fence, depending on the absence OF actual malice"
ILLUSTRATION.
If man who has lost goods BY theft goes to the
house OF the person whom he believed to be guilty.
theft and demands that the house DO searched, snch
q Charge though made In the presence OF other per-
more emphasis and vehemencc lnaa was warranted,
and though untrue has been held 10 DO privileged
honestly made.
This class OF cases Is admitted. But tt II denied
that the present case falls within the exception re-
ferred to- or that the circumstances OF the present
case furnish any occasion for these publications.
have examined these words ol the defendants on
when this action IL founded and they appear to mo
a n.
che defendants as we'll - other citizens OF Cincinnati
nad an Interest; IN commen.ng upon u tney were
discuss matter In which taoy had not evena pecu-
MARY interest
cept0ns to the general rule u founded, and Of tho
preccdcnts, far aa . brief opportunity has per-
mttted me to examine them, my conclusion IL that
the communications complained oi Ia this petition
belong to the class which are property denominatcd
s ts ssn wc 'nss ans
exist nom the language used, but for this occasion,
Is rebutted. These presuInptons are not arbitrary
or unreasonable but they are ioandci In the nature
or the case II u man volunteers TO delame another
In matter In relation to which he has no duty nor
interest, such olclous defamation ought to be pre-
sumed false ana malicious TIL he proves its truth.
aud such u the law.
TnE JOURNALISTS RIGHTS TUE SAME AS THOSE or
OTHER rAxrAyRas.
But the important public Interest involved In the
any taxpayer OF the CITY; and the fact that any clt
II found discussing 1t IA not open 20 unfavorable
inicrcnces because It is legitmata part Of hts own
his private property, YET ~ Is right, II It v
not duty. for him 70 interest hlrnseI in i.
HOW rIE PRIvILE0E ~ TO BE USED.
But this privilege In qualified and conditional. He
cannot use II for purposes VI revenge nor to crafty
neccssary YIN ia snca discss,on G ns case is no better
than n hc were dealing with = matter wholly un-
privileged. hnt tno Question whether ne has 80
abused this conditional privilege u to be determined
BY the jury. not by the court.
This privilege IL not great I'm q defence
against libel suit. IL IL no privilege TO crafty per-
sOnal pquc 10 state anything hc does not believe
to be true. to be careless IN stsging that lls
publication being on subject which, though public.
afIccts the character ana good name og citizen he
must be fair. lilo Is, In short, oniy entitled 10 the
benefit OF the ordinary presumptions oy which the
law protects every man while he'is attending 10 his
own business; that he ID innocent t he IL shown To
be guilty.
TlIs BURDEN or rRoop oS TIM rLANrirP
The consequence In that ON the lrst issue made by
the peadings the plaintiff has t,a burden OF proof;
and although the defendant has the burden OF proof
on tine second issue, vlz:-0n hls plea of Iustidca
ton, by avcrring the truth of the articles yet the
plaintir must 20 forward ani prolace the evidence
on which Nc Claims recovery. llc case cannot DO
divided.
InE ORDER or TESTIMONY Nor IMPORTANT.
BIt the order In which tnc evidence shall bo
exhibited do not regard OF much importance,
nor the fact OF the platinum assuming the buriel OF
proof ~ 2, case % % ss tae present ter after al ine
fair prependerance OF evidence wili control The
decision Of the Jury.
Judge Caldwell desired 20 know whether this de-
cislon would require the plantn - prfscnt nil ths
derstood the defence proposed ;, 80 intD an EXON
niation OF the manner IN which tbs seventh street
Nicolson pavement was constructal, to which they
should object; but n u should be- raj "a proper sub
Ject OF Inquiry he desired TO know whether the
paiutin would he required % tax, tnc Initiative on
subject
the Court thought II was proper for the plaintiff 10
proceed and orer all the testimony he mad TO support
his case. IL the defence broush oii new matter Tho
right 10 rebat would certainly rcuis.l.
-. ~.... - -. ...~.,.