The democrat. [volume] (Weston, W. Va.) 1868-1874, 1873-03-31
The Law Of Libel.

Judge Freedman, Of New York, in
the case Of libel against m insurance
paper, has given long opinion in the
case. In it he reviews carefully the
history Of the right to examine parties
before trial, and after discussing the
present law in view Of that history,
holds that the defendant has not
brought himself within the rules en-
titling him to such examination, and
then continues
Courts protect character, and there.
fore they will not assist in giving in.
creased publicity to scandalous matter,
except when absolutely necessary for
the promotion OF justice. A man who
publishes libel should be in condi-
ton to prove it. Consequently, if the
doctrine exists at all that party may
first publish libel and then examine
the person injured for the purpose OF
proving ont Of the latter's mouth the
truth Of the charge, which, however,
Inns been denied in several instances, it
certainly should not be extended, OK.
cept in clear and absolute necessity, he
yond the rule laid down in Marsh VS..
Dawson, where i was said that in
order that defendant in a libel suit,
may have discovery to aid his defense,
he must state good defense and then
show the matcriality OF tho discovery.
1t is claimed, however, that whatever
the rule may DO it should DO relaxed
whenever it is made 10 appear that the
defendant published the libel in the
course Of the publication Of news
paper, and tho suggestion was made
that such is the fact in the case before
mo. Although there is no evidence to
this effect, l have, nevertheless, con-
sidered the point. In this connection
l will state that nm not one OF those
who believe that unlimited liberty OF
speech or OF the press is improper be-
cause productive, in certain states Of
society, Of disastrous results. It is to
tho abnormal condition OF tho body
polite that all evils arising from an I'M.
restrained expression OF opinion must
be attributed and not to the nnrestrain.
ed expression itself. Under sound
social regime and its accompanying
content.nent nothing is TO be feared
from the most uncontrolled utteranco
OF thought and feeling. That which is
really contemplate ought, therefore, to
beexposcd to contempt, and consequent
ly derogatory charges of public i'm.
portance ought to have full publicity.
To argue otherwise is to take up the
NTacchiavellian position that it is right
for the Legislature to DO mn imposture,
MI organized hypocrisy that It is nec-
essary for n nation to be cheated by the
semblance OF virtue when there is no
reality; that public opinion ought to
be in error rather than in truth, or that
it is well for tho people to believe lie.
For these reasons II is my profound
conviction that the freedom Of the press,
the right Of journalists TO discuss mat
tiers or public concern, can hardly be
too zealously guarded, and that in this
country more than in any other the
public press has great mission 10 per-
form. But in order to accomplish such
mission the press must not only remain
fearless and Independent, but on the
side OF truth and justice. A publica-
ton on q subject which, though public,
affects the character and good name Of n
citizen must be fair criticism. II it is
such the publication will be held to be.
long to the class Of conditionally privi-
legged communications. By this 1 mean
to say that the prima facie presumption
Of malice which would exist from the
language used, but the occasion of such
use is rebutted. But this privilege is
qualified and conditional. 1t can not
be used for purposes Of revenge nor to
crafty personal spite. 1t is q privilege
to make statement which the publisher
does not believe to DO true and il he
volunteers 10 defame another in mat.
ter in relation to which he has no duty
nor interest ms n legitimate part OF his
business to furnish the news OF current
events, such ofIlcious defamation ought
to be presumed false and malicious till
lie proves its truth, and such is the law.
No benefit can accrue from any of these
considerations. For these reasons the
order and summons heretofore issued
must DO vacated with go costs to
plaintiff"