The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-11-09


ments of fact concerning public men,
| and charges against them, are unduly
guarded or restricted; and yet the rule
complained of is the law in many OF
| the states of the union and in Eng
| land"
Here, the rule by which privilege is
| to be measured is correctly stated, as
| in Wason V. Walter, the balance OF
public good against private hurt. The
argument of counsel is then answered
and the statement is made that can
didate ought not suffer loss In reputa-
ton with the whole public for the pub
lie good. That is the question to be de-
eided and not a reason why 1t should
be so decided. Then the sole reason for
the decision is stated-that honorable
and worthy men will be driven from
politics. Then the consequences or the
decision are commented upon: Free
dom of the press will not be endanger-
ed-an assertion-as shown by the
manner in which public men are hand
led by the press at the present time
an appeal to experience for proof.
The single reason upon which the
HaIIam decision is based is also in the
nature of a prediction, and is not new;
1t was advanced in this country IN lSUo
by Chief Justice Parsons Common
wealth " Clapp Mass. 1883 and by
Chancellor Walworth in 1929 in the case
of King V. Root, Wend. ia. speaking
in opposition to the liberal doctrine the
chancellor said:
eft is however insisted that this libel
was a privileged communication. If so,
the defendants were under no oonsa-
ton to prove the truth of the charge'
and the party libeled had no right 70
recover unless he established malice IN
fact or showed that the editors knew
the charge to be false. The erect OF
such a doctrine would be deploraole-
Instead of protecting 1t would destroy
the freedom of the press, II 1t We're un-
derstood that an editor could pubnsh
what he pleased against candidates TOT
office, without being answeraole 1or the
truth of such publications NO honess
man could afford to be an editor. ana
no man, who had any character to lose.
would be a candidate for office under
such a construction of the law OF libel
The only safe rule to adopt in sucn
cases is to permit editors to puonsh
what they please in relation to the
character and qualifications of candl-
dates for office, but holding them re-
sponsibIe for the truth of what they
publish"
These predictions call to mind that OF
Lord Thurlow who, when protesting
against the passage of the Fox noel
act. said it would result in the con-
fusion and destruction OF the law OF
England" MAY Const. History of Eng
land, Vol. 2, p. 1929 The actual re-
suits of the struggle ending in the en-
actment of that law are stated by the
author cited as follows:
The press was brought
into closer relations with the state.
It's functions were elevated. and its
responsibilities increased. Statesmen
now had audience of the people, Tney
could Justify their own acts to the
world The falsehoods and misrepre-
sensations of the press were exposed.
Rulers and their critics were brought
public opinion. The sphere of the
press was widely extended. Not
writer's only, but the first minds OF
the age,-men ablest In council ana
debate-were daily contributing to the
instruction of their countrymen. News
papers promptly met the new require
ments of their position Several we're
established during this period, whose
high reputation and influence have
survived to our own time; and by full
ness and rapidly of intelligence, ire.
uuency of publication, and literary
ability, proved themselves worthy OF
their honorable mission to instruct the
people,
In opposition to the high authority
of King VS.. Root and the Hallam case
may be placed Thomas NJ. Cooley, VINO
must be reckoned with in the discus
sion of any question upon which he
has deliberately expressed himself.
Commenting on the foregoing quota
ton from King VS.. Root, he says:
Notwithstanding the deplorable
consequences here predicted from too
great license to the press, 1t is matter
of daily observation that the press, IN
it's comments upon public events and
public men, proceeds in all respect as
though it were privileged; public
opinion would not sanction prosecu-
lions by candidates for office for pub
locations amounting to technical ltbels,
but which were nevertheless published
without malice in fact; and the man
who has Character to lose presents
himself for the suffrages of his fellow
citizens in the full reliance that de-
traction by the public press Will be
corrected through the same instru-
mentality, and that unmerited abuse
n
favor Meantime the press is grad
ually becoming more just, liberal and
dignifed in its dealings with political
opponents, and vituperation is much
less common, reckless and bitter now
than it was at the beginning of the
century, when repression was more
often resorted to as remedy
CConst. Lin. 7th ed. 644n.)
This statement of the results OF
Judge Cooley's observation is In full
accord with our own local experience.
without speaking for other states IN
which the liberal rule applied In
Rafch's case prevails, 1t may be said
that here at least men of unimpeach-
able character from all political par
candidates in SUFFICIENT numbers to fill
the public offices and manage the pup
lie institutions, and the conduct OF the
press is as honest, clean and free from
abuse as it is in states where the mar
row view of privilege obtains.
The fact that the public welfare has
been promoted in England bv liberal
izing the law Of libel is freely ac-
knowledge in Wason VS.. Walter.
"Our view of libel has, in many re-
spects only gradually developed into
anything like a satisfactory and settled
form. The full liberty OF puohc
WRITER'S TO comment on the conduct
and motives of public men has only In
verv recent times been recognized
on government, on minis
ters and officers of state, on members
If both houses of parliament, on