Year: 1873

Judge Freedman, of New York, in the case of libel against an insurance paper, has given long opinion ln the case. In it he reviews carefully the his tory 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. titline 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 a 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 out of the latter's mouth the truth of the charge, which, however, has been denied in several instances, 1t certainly should not be extended, ex- cept in clear and absolute necessity, be- yond the rule laid down in Marsh vs. Davison, where it was said that in order that Q defendant in libel suit, may have discovery to aid his defense, he must state good defense and then show the materiality of the discovery. It Is claimed, however, that whatever the rule may be it should be relaxed whenever it is made to appear that the defendant published the libel in the course of the publication of Q news paper, and the suggestion was made that such is the fact in the case before me. Although there is no evidence to this effect, I have, nevertheless, con- sidered the point. In this connection will state that am 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 the abnormal condition of the body polite that all evils arising from an un- restrained expression of opinion must be attributed and not to the unrestrain- ed expression itself. Under sound social regime and it's accompanying content1nent nothing is to be feared from the most uncontrolled utterance of thought and feeling. That which is really contemptible ought, therefore, to be exposed 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 Macchiavellian position that it is right for the Legislature to be an imposture, an organized hypocrisy that it is nec- essary for Q nation to be cheated by the semblance of virtue when there is nc reality; that public opinion ought to be in error rather than in truth, or that it is we'll for the people to believe lie. For these reasons it is my profound conviction that the freedom of the press the right of journalists to discuss mat. ters 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 to per form. But in order to accomplish sucl mission the press must not only remain fearless and independent, but on the 4 side of truth and justice. A publica

 tion on subject which, though public affects the character and good name of { citizen must be fair criticism. If it il such the publication will be held to be long to the class of conditionally privi legged communications. By this mea1 to say that the prima facie presumption of malice which would exist from tn. language used, but the occasion of sucl

 use is rebutted. But this privilege il qualified and conditional. It can no be used for purposes of revenge nor tt gratify personal spite. It is privileg' to make statement which the publishe

 does not believe to be true and if h, volunteers to defame another in mat ter in relation to which he has no dut, nor interest as legitimate part of hi

 business to furnish the news of curren events, such officious defamation ough to be presumed false and malicious til he proves its truth, and such is the law l No benefit can accrue from any of thes considerations. For these reasons tn ) order and summons heretofore issue, must be vacated with $1O costs t plaintiff"