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

| the utmost consequence that the peo-
pie should discuss the character and
qualifications of candidates for their
| suffrages. The Importance to the state
! and to society of such discussions is
! SO vast and the advantages derived are
4 so great that they more than counter
| balance the inconvenience of private
| persons whose conduct may be fnvolv-
ed, and occasional injury to the repu-
/ tations of individuals must yield to the
| public welfare, although at times such
] injury may be great. The public bene-
| fit from publicity is so great and the
! chance of injury to private character
| so small that such discussion must be
| privileged.
The law of libel which the constitu-
| ton takes for granted gives express
| sion to and room for the operation of
| these fundamental principles of public
policy and the bill of rights must be
| interpreted accordingly.
Section IL of the bill of rights sets off
the inviolability of liberty of the press
from the right Of all persons freely to
speak, write or publish their senti-
mentS on all subjects, and this fact has
given rise to claims on the part of
newspaper publishers of special privi-
leges not enjoyed in common by all.
Whether such claims are just need not
be decided in order to determine the
rights of the parties to this litigation.
So far they have been rejected by the
courts and the present consensus of
| judicial opinion is that the press has
no more. The basis of the contention
for a more liberal indulgence lies in the
modern conditions which govern the
collection of news items and the insist
ent popular expectation that neWspa-
pers Will expose, and the popular de-
mand that they shall expose, actual
and suspected fraud, graft, greed, NAL
feasance and corruption in public af-
fairs and questionable conduct on the
part of public men and candidates for
office, without stint, leaving to the peo-
pie themselves the final verdict as to
whether charges made or opinions ex-
pressed were justified
Neither is 1t necessary in this case
to define the word Sentiment used
in section IL of the bill of rights: II
that word means no more than
thoughts, Judgments, opinions or mo-
tions, and the section does not protect
freedom to make assertions or fact,
still a more liberal libel law would
not violate it, The constitution guar
antees to the individual a minimum Of
liberty. Other law is not forbidden to
secure a larger measure.
There is great diversity of opinion
regarding the extent to which discus
sions of the fitness of candidates for
office may go. In England and can
ada the limit is dxed at criticism and
comment, which. however, may be Sc
Vere if fair, and may include the in
ferring of motives for conduct in fact
exhibited if there be foundation for
the inference. In some of our own
states the rule is more liberal while |
in others it is more narrow. Accord
ing to the greater number of authori- |
ties the occasion giving rise to con-
ditionaI privilege does not justify
statements which are untrue in fact, |
although made in good faith, without
malice and under the honest belief |
that they are true. A minority allows
the privilege under such clrcum-
stances. The district court instructed !
the jury according to the latter view |
ms
sanction of previous decisions OF TINS |
court.
In the case of kirkpatrick VS..
Eagle Lodge, 26 Kan. 3S4, report |
was made to a grand lodge of Odd |
Fellows by a special committee to |
which was referred q petition respect
ing the expulsion OF member of the /
order, stating that the officers OF a |
ton had been presented were of the
opinion that the sworn statements or
the petition were UNANIMOUSLY untrue.
This report was received, ADOPTED,
and distributed among the members
of the order for whom it was intend
ed The court held that the occasion
for the publication prevented the IN
ference of malice and afforded quail
flied defense depending upon the alb
sence of actual malice. the opinion
distinguishes between absolute and
qualified privilege and says;
fully sustained by the authorities, the
publication complained of is only con-
ditionally privileged and as the aver
ments in the petition are. that the IN
furious publication is false ana man,
cious, and that the defendants, Wen
knowing it's falsity, maliciously pub
lished it for the purpose OF bringing
the plaintiff into public scandal, IN
fanny and disgrace, the petition states
a cause of action but no recovery can
be had thereon without proof of ex-
press malice on the part of the de-
PENDANTS, though the charge Imputed
in the publication be without tounoa-
ton"
In the case of Redgate VS.. Roush,
81 Kan. 4S0, two paragraphs of the
syllabus read as follows:
Where the officers of a church up
on inquiry, find that their pastor is
and unfit for his office, and
thereupon in the performance of what
they honestly believe to be their duty
toward other members and churches
of the same denomination, publish, in
good faith, in the church papers the
result of their inquiry, and there is
occasion for such publica-
ton, it will be deemed to be priVileg-
ed, and protected under the law
''In such case, and where the plain
tiff seeks damage it devolves on him
to establish actual malice, and where
his own testimony disproves malice,
the court is justified in taking the case
from the jury upon demurrer to the
evidence"
In the course of the argument Of
the opinion it is said:
'The publication is defamatory in
character, and naturally would large
ly deprive the plaintiff of the conf
dence of the members of his church
throughout the country.
If it was false in fact and maliciously
made, the plaintiff is entitled to re-
cover to the extent of the injury suf-
fered, unless the relations of the par