The Style Book of The Detroit News Part 19

But special damages have to be proved. That is to say, in such case, excluding general damages arising from a _per se_ libel, the character and manner of the loss and the amount in dollars and cents must be proved, and the verdict should not exceed such amount.

A single ill.u.s.tration will be sufficient for this cla.s.s.

A newspaper _falsely_ publishes that a man has died of the smallpox at a certain hotel. The proprietor brings a libel suit, claiming loss of custom by way of special damage. His recovery would be limited to such special damages as he could fairly show.

Libel has been defined above as "_malicious_ defamation," etc. But it is not generally necessary that the injured complainant should prove actual malice. If the defamatory matter complained of is _false_, the law _presumes_ that the publication was malicious, unless it can be shown either that it was "privileged" by statute or otherwise, or the presumption of malice is overcome by actual proof. That is to say, if the publisher claims that, although false and not privileged, the defamatory publication was not malicious, he must prove it.

Of course, if it was not false, it would not be legally malicious.

THE THREE DEFENSES

The defense to libel suits, therefore, are three, namely:

(1) To prove the published charge is true. This is called a "justification."

(2) To show that the publication was "privileged."

(3) To prove circ.u.mstances connected with the publication tending to show that it was not malicious, or was provoked and excused by the conduct of the complainant. This is called a defense "in mitigation of damages."

To prove that the defamatory publication complained of is _true_ is an absolute and complete defense.

The old maxim of the English criminal law, "The greater the truth the greater the libel," frequently quoted erroneously in this connection, has no application to actions in the civil courts, and at the present time would scarcely be invoked even in any of the criminal courts of this country, except under the most extraordinary circ.u.mstances.

But it is not enough that the writer of defamatory articles himself knows that they are true, unless he is able to produce, when required, _competent legal proof of their truth_. What he himself has witnessed is, of course, competent evidence as far as it goes; when such proof can be strengthened by official records or other doc.u.mentary proof, and by the evidence of other persons who can testify of their personal knowledge to the truth of the publications, a defense of the strongest character is presented.

But one distinction should be observed carefully, a misconception in regard to which has given rise to many libel suits that have been difficult to defend. When it is said that "the truth is a complete defense," the literal truth of the published statement is not meant; _but the truth of the defamatory charge_.

_To ill.u.s.trate_: A prominent official, say a judge, during the progress of a political campaign, either in the course of an interview or of a public speech, makes the charge against a candidate for an important office that he (the candidate) obtained his naturalization papers either through perjury or subornation of perjury. A newspaper publishes the interview or the speech, giving the speaker's name and the exact language he used. If the candidate referred to should sue the newspaper for libel because of this publication, it would be no defense for the publishers to show that it was _true_ that the speaker had said just exactly what the newspaper represented him to have said. To justify they would have to show that the defamatory charge was true, that the candidate had been guilty of perjury or subornation of perjury in obtaining his naturalization papers.

In other words, no publishers or writers can escape responsibility for defaming a man's character by showing that it was on the authority of some other individual.

The same principle applies to defamatory accusations republished from another newspaper, whether the name of the newspaper from which they are copied is given or not.

PRIVILEGED PUBLICATIONS

There is a certain cla.s.s of publications concerning official proceedings which, although they be defamatory in character, public policy demands that publishers should be protected in making, entirely regardless of the question whether the defamatory matter be true or false. These are termed "privileged publications" and are defined by law.

The mere fact that a paper is _ent.i.tled_ as being in a certain suit or that _its contents are sworn to_ does not necessarily make it a part of any "judicial, legislative or other public and official proceedings."

Such proceedings must actually and legally have been inst.i.tuted before it becomes ent.i.tled to the privilege.

_An instance_ would be the publication of libelous statements taken from a complaint or affidavit that had been sworn to in a suit but before _the paper had been actually introduced in the trial of the case_. Here there would be no privilege.

The same would be true of an affidavit charging crime on a person which had not before the publication of it been presented to and judicially recognized by the committing or police magistrate.

Criticism is also privileged in a limited degree. Nowhere else in the world, not even in England, is so great freedom of legitimate criticism allowed and protected by law as in the United States.

The Const.i.tution of the United States provides: "Congress shall make no law abridging the freedom of speech or of the press."

The Const.i.tution of Michigan provides: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be pa.s.sed to restrain or abridge the liberty of speech or of the press. In all prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, accused shall be acquitted."

But the right to criticise is general, and belongs quite as much to any other individual as to the newspaper writer, editor or publisher.

The _actions_ of individuals are always legitimate subjects of discussion and criticism.

"In this country," says Judge Smith, of the New Hampshire Supreme Court, "every citizen has the right to call the attention of his fellow-citizens to the maladministration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses or to defeat the re-election or reappointment of an incompetent officer."

"No one can doubt the importance," is the language of Judge Story, "in a free government of the right to canva.s.s the _acts_ of public men and the tendency of public measures--to censure boldly the conduct of rulers and to scrutinize the policy and plans of government."

The language of the English courts is nearly as broad.

"G.o.d forbid that you should not be allowed to comment on the _conduct_ of all mankind, providing you do it justly and honorably," says Baron Alderson.

Chief Justice c.o.c.kburn said: "It is of vast importance that criticism, so long as it is fair, reasonable and just, should be allowed the utmost lat.i.tude, and that the most unsparing censure of works which are fairly subject to it should not be held libelous."

CRITICISM DOES NOT EXTEND TO PERSON

But the privilege of criticism extends only to the _actions_ or _works_ of an individual; it does not extend to the _person_. In the case of an author, his _works_ may be criticised as severely as the occasion demands. "Every man who publishes a book commits himself to the judgment of the public," says an eminent English judge; but this can not be made the excuse for personal abuse of the author himself.

The author, the artist, the architect, who produces a book, a painting or a building, is in this respect in the same position as the maker or producer of a watch, a piano or a carving-knife.

The thing produced in either case may be "criticised." But if the _person_ who produces it is defamed, this must be defended, if at all, upon some other ground than that it is _criticism_.

Moreover, to justify such comment on men's actions or on the products of their hands or brains _as criticism_, it is essential that the acts or things so criticised should have actual existence.

_For instance_, a newspaper comments with great severity on certain occurrences which it publishes as the official acts of a mayor of its city. Before these strictures can be defended as _criticism_, it must appear that such official acts really occurred.

Again, newspaper proprietors might well be held liable for publishing a ridiculing criticism of language pretended to be quoted from the book which the critic is reviewing, but which language the author of the book had not actually used.

If the publishers who are defendants in a libel suit are unable to show that the defamatory publication is _true_ or that it is _privileged_, then the injured plaintiff is ent.i.tled to a verdict _in some amount_.

How small this sum shall be will depend upon how good a case the defendants can make out _in mitigation of damages_. The range of defenses that may be interposed for this purpose is very broad. The following may be enumerated as the most important:

(1) That the general conduct of the plaintiff gave the defendant "probable cause" for believing the charges to be true.

(2) That the complainant's general character is bad.

(3) That the publication was made in heat and pa.s.sion, provoked by the acts of the plaintiff.

(4) That the charge published had been made orally in the presence of the plaintiff before publication, and he had not denied it.

(5) That the publication was made of a political antagonist in the heat of a political campaign.

(6) That as soon as the defendant discovered that he was in error he published a retraction, correction or apology.

(7) That the defamatory publication had reference not to the plaintiff, but to another person of a similar name, concerning whom the charges were true, and that readers understood this other individual to be meant.