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


| puDllc institutions. e0uCaI1Onal, Cndrll-
able and penal; to the conduct of all
| corporate enterprises affected with
! public nterest-transporta bank
| ing, lnsurance-and to innumerabie
welfare. Will the liberty of the press
be endangered if the discussion of such
| matters must be confined to state
| ments of demonsIrable truth and to
| fair criticism and comment. VIII
| free discussion of the subjects indi-
] Gated be smothered If the newspapers
understand that they must respond in
| damages for deducing and stating a
| wrong conclusion of fact from strong
| cirCumstantial evidence indicating
| fraud, corruption or other conduct in
furious to the public welfare?
The case of Atkinson VS.. Detroit
Free Press, Is Mich. BAL, was decided
upon question of pleading and a
question of evidence. The opinion of
| the court did not treat the subject of
| took occasion to express himself upon
| the point now under consideration as
| follows:
1.-The beneficial ends to be subserved
| by public discussion would in large
| measure be defeated If dishonesty must
| be handled with delicacy and fraud
| spoken of with such circumspect1on
| and careful and deferential choice OF
| words as to make it appear in the
discussion a matter of Indifference.
| If such a discussion of a matter OF
| lawful act, and the author were obng-
ed to justify every statement by evil
dence of its literal truth. the liberty OF
public discussion would be unworthy
of being named as a privilege of value
1t would be better to restore the cen
sorship of a despotism than to assume
to give a liberty which can only be &C
cepted under a responsibility that is
always threatening and may at any
time be ruinous. A caution in advance
after despotic methods would be less
Objectionable than a caution in dam
ages after in good faith the privilege
had been exercised. No public discus
sion of important matters involving the
conduct and motives of individuals
could possibly be at the same time val
liable and safe under the rules tor
which the plaintiff contends 1t is
plausible suggestion that strict rules
of responsibility are essential to the
perfection of reputation, but 1t is most
deceptive, for every man of common
| discernment who observes what is tax
ing place around him, and what int1u-
ences control public opinion. cannot fall
to know that reputation is best pro-
tected when the press is free. Impose
shackles upon it and the protection
fails when the need is greatest. Who
would venture to expose a swindler or
a blackmailer, or to give in detail the
facts of q bank failure or other cor
porate defalcation if every word and
sentence must be uttered with judi
cial calmness and impartiality as be-
tween the swindler and his victims, ana
every fact and every inference be JUS
titled by unquestionable legal evidence!
The undoubted truth is that honesty
reaps the chief advantages of free dis
cussion; and fortunately is 1t honestly
also that is least liable to suffer serious
injury when the discussion incidentally
affects it uniustly.
In what I say in this case 1 ad-
vance no new doctrines, but JUSTIFY
every statement of principle on APPROX
r. will he l.
mitted that there are decided cases
from which different argument may
be constructed, but it is affirmed that
they are no longer deserving of credit
beneficial modification of the law of
libel is shown in Wason VS.. Walker,
L. r. Q. B. 49, and insofar as 1t
has been modified it has been made
consistent with just reason. While it
is admitted that the public press is Of
ten corrupt and often reckless in deal
ing with private regulations, it is at the
same time affirmed that the duty of
its conductors to abstain from such
misconduct is no palmer than is the
obligation of the authorities to refuse
to impose penalties when in the exer-
else of just independence they make
use of their columns for the exposure
of public wrong-doers to public con-
demnation. The law. justly interpre-
ted is not chargable with the incon-
sistency of tempting conductors of the
erty, and then Furnishing them in dam
ages if they act upon the assumption
that the liberty is genuine"
If it be said that this argument
contains an element of prophecy it may
be replied that it will support the lib
eral rule as we'll as the same kind of
prophecy in the Hallam case supports
the narrow rule.
The HaIlam case quotes the follow
ing discrimination of the two rules
made by Lord Chancellor Herschel in
Davis VS.. Shepstone, II App. Cas-. 1877.
There is no doubt that the public
acts of public man may lawtully De
made the subject of fair comment or
criticism not only by the press but by
all members of the public But the
distinction cannot be too clearly borne
in mind between comment or criticism
and allegations of fact such as that dis
graceful acts have been committed or
discreditable language used. 1t is one
thing to comment upon or criticise,
even with severity, the acknowledged
or approved acts of a public man. and
quite another that he has been guilty of
particular acts of misconduct"
This statement is one of education
merely and furnishes no reason for a
choice between the rules. 1t may be
observed, however, that the decisions
in England are in great conflict upon
the question whether fair comment is
branch of the law OF privilege Only
last year writer in the Law Quarterly
Review (Vol. %, p. SD called atten-
ton to this fact and expressed the
hope that the case of Thomas VS.. Brad
bury, Agnew & Co., Limited, L. R. 2
X B. 627 Q9O6) might be taken to the
house of lords so that the defense of
fair comment might be reviewed and
placed upon some logical basis. 1t may
be observed further that the distinc-
ton between comment and statements
of fact cannot always be clear to the
mind. Expression of opinion and judg
ment frequently have all the force of
statements of fact and pass by insensi-
ble gradations into declarations of fact.
In England fair comment includes the