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VOL. XXIII. APRIL, 1910. No. 6.

FREEDOM OF PUBLIC DISCUSSION.THE process of continual readjustment between the needs ofsociety and the protection of individual rights is nowheremore conspicuous than in the history of the law of defamation. Ifwe look back to the time when the law defining that offense becamesubstantially settled, we find prevailing a conception of such rela-tive rights which is in many respects the antithesis of that which pre-vails to-day. Yet the law defining the affirmative offense, with itsrigorous presumptions of falsity, malice, and damage, remains prac-tically unchanged. It seems to have been thought that the vast in-crease in facility and area of communication, resulting from the useof the post, the telephone, the telegraph, and the modem printingpress, justified the stringent principles of the law which had been for-mulated before such methods of communication were dreamed of.The development of the law, in accommodation to this vast changein the means of communication, has been in the direction of enlarg-ing the scope of those principles of immunity, or privilege, some per-ception of which was coeval with the beginnings of the law uponthe subject. Certain fundamental considerations have guided thisgrowth. Immunity in defamation implies some freedom in the pub-lication of matter which proves to be mistaken or false. It follows,necessarily, that persons defamed must suffer without remedy. Theplainest principles of justice require, therefore, that immunity shouldbe granted only within such limits as can be justified upon reasonablegrounds. In some cases the possible public benefits of free commu-nication may be equalled or counterbalanced by public evils. In suchcases no immunity is granted, since the private injury would involveno compensating public benefits, save such as were offset by public

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FREEDOM OF PUBLIC DISCUSSION.affairs was accompanied by the realization of a conviction that thelicense of literary criticism should be restrained, and that the personalcharacter of an author had claims to legal recognition as well as thepublic interests of the state. The significance of the gradual approxi-mation of a uniform rule regulating the discussion of these two sub-jects is that freedom of literary criticism, being the first subject ofpublic interest upon which the right to comment was formulated uponrational grounds, has exercised a marked influence on the gradualrecognition of similar freedom of discussion in political affairs.1The interest of private citizens in public affairs requires freedom ofdiscussion rather than immunity in the statement of facts.2 The truthis available at all times to every one. Protection in the communicationof supposed facts, in all those cases where a duty or interest in dis-closure exists, is otherwise provided by the general doctrine of condi-tional immunity or privilege. Discussion, as the term implies, iscomment upon given facts; it is the expression of opinion by way ofinference or conclusion from established facts. In its broadest aspectit is the judgment of acts and things from appearances. As such, itslegal justification depends, not upon its truth in fact, but upon its"fairness" as a deduction from the premises of fact upon which it isbased. Not only may that which is untrue in fact be fair as com-ment,3 but the ultimate public service of discussion is that it affordsa means of combating abuses, or offenses, or insidious corrupting

1 Bower, Code of the Law of Actionable Defamation, 379; Stephen, Hist. Crim.Law of England, ii, 376. The contrast between the points of view from which the sub-jects have been regarded may be indicated by the fact that Chief Justice Ellenborough,who, in i808, in Carr v. Hood, I Camp. 355, formulated the principles of literary criti-cism in terms which are still cited, had, four years before, in Rex v. Cobbett, 29 How.St. Tr. 49, expressly followed the dictum of Lord Holt, then a century old, that "if per-sons should not be called to account for possessing the people with an ill opinion of thegovernment, no government can subsist, for it is very necessary for all governmentsthat the people should have a good opinion of it "; and he told the jury that "if a pub-lication be calculated to alienate the affections of the people by bringing the governmentinto disesteem . . . it is a crime."2 Burt v. Advertiser Newspaper Co., 154 Mass. 238, per Holmes, C. J.3 Speight v. Syme, 2I Vict. L. R. 672. "Fair comment does not negative defama-tion, but establishes a defense to any right of action founded on defamation. To suc-ceed upon the plea of justification the defendant must prove not only that the facts weretruly stated, but also that the innuendo is true. He must justify every injurious impu-tation. Upon fair comment, however, if it be established that the facts stated are true,the defense of fair comment will succeed even if the imputation or innuendo be not jus-tified as true, but be fair and bonafide comment upon a matter of public interest. Walkerv. Hodgson, [1909] I K. B. 239, per Buckley, L. J.

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influences,which lie hiddenby concealmentand perjuryfromjudi-cial investigation. To prohibitcriticism n mattersof publicinterestunless the criticcould vouchthe truthin fact of his commentwouldbe incompatiblewith the principlesof populargovernment. Abusesmight exist; there mightbe misconducton the part of public men;there might be extravaganceand corruption; yet no personwouldventureto speak. Hence the law protectsand encourages he inter-change of opinion so vital to the conduct of populargovernment,even though others may believe, and it may subsequentlyappear,that the imputationwas in fact mistakenand unjust.The overwhelmingweight of authorityholds that protectionex-tends to commentalone. There is some authority,however,for theextension of immunityto statements of fact.1 This view, which,

1 This view has been consistently maintained in Kansas and South Dakota. Cole-man v. MacLennan, 78 Kan. 7II; State v. Balch, 31 Kan. 465; Myers v. Longstaff,14 S. D. 98; Ross v. Ward, 14 S. D. 240; Boucher v. Clark Publishing Co., I4 S. D.72. It appears to be the prevailing rule in Iowa and Maine. Mott v. Dawson, 46 Ia.533; Bays v. Hunt, 60 Ia. 25I; State v. Haskins, Io9 Ia. 656; State v. Keenan, III Ia.286; Klos v. Zahorik, 113 Ia.I16; Cherry v. Des Moines Leader, 114 Ia. 298 (but seeClifton v. Lange, Io8 Ia. 472, and the incidental reference to the doctrine in Morse v.Times-Republican Printing Co., 124Ia. 707); Bearce v. Bass, 88 Me. 521; O'Rourkev. Lewiston Daily Sun Publishing Co., 89 Me. 3Io. See also Marks v. Baker, 28 Minn.162. Other isolated cases give a measure of support to this view. Evening Post Co. v.Richardson, 113 Ky. 641; Burke v. Mascarich, 8i Cal. 302; Crane v. Walters, io Fed.619; Palmer v. Concord, 48 N. H. 2II; Briggs v. Garrett, III Pa. St. 404; Jacksonv. Pittsburgh Times, 152 Pa. St. 406; Ferber v. Gazette, etc. Assn., 212 Pa. St. 367;Express Co. v. Copeland, 64 Tex. 354; Knapp v. Campbell, 14 Tex. Civ. App.99.See also Tawney v. Simonson, 124 N. W. 229 (Minn.). In England, in an early caseinvolving a violent denunciation of a Parliamentary candidate, Sir James Mansfield,C. J., said: "If the words be actionable in themselves, it is quite immaterial whetherthey were spoken of him as a candidate or not. It seems to be supposed that the sit-uation of a candidate for Parliament is such as to make it lawful for any man to sayanything of him. To that proposition I cannot assent; nor is it to be collected fromany of the cases which have been cited. It would be a strange doctrine indeed that,when a man stands for the most honorable situation in the country, any person mayaccuse him of any imaginable crime with impunity." Howard v. Astley, I B. & P.N. R. 47. In the subsequent cases of Dunscombe v. Daniel, I W. W. & H. IoI, andPankhurst v. Hamilton, 3 T. L. R. 500, the privileged occasion in such a case was moreexplicitly conceded, but in both cases there was actual malice. But in George v. God-dard, 2 F. & F. 689, and Wisdom v. Brown, I T. L. R. 412, involving defamatorycharges made against a candidate in a meeting of rate-payers for the election of parishofficers, two successive Chief Justices of England held the occasion to be privileged.There is high authority in Scotland to the same effect. .In Bruce v. Leisk, 19 R. 482,in granting immunity to an elector who had falsely charged a candidate in a municipalelection with having been bankrupt, and having made a disreputable failure, LordPresident Robertson said: "I think that when electors are considering, with laudable

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FREEDOM OF PUBLIC DISCUSSION.of course,renderssuperfluousany distinctionbetweencommentandstatement,has been for the first time thoroughlydevelopedby theSupremeCourt of Kansasin a recent case involvingthe defamationof a candidatefor publicoffice.' The argument s this: The estab-lished doctrineof privilegeprotectsstatementsmade in the perform-ance of a duty or the protectionof an interest. It is of the deepestinterestto the public that they shouldknow facts which go to showthat a candidate or office s unfitto be chosen. Therefore,everyoneshould have the rightto give the publicthe benefitof any informationhe may have affecting he fitnessof a candidate. Can it be possible,it is asked, that public policy will make privilegedan unfoundedchargeof dishonestyor criminalityagainstone seekingprivateservice,when made to the private individual with whom service is sought,and yet will not extend the same protectionto him who in goodfaith informsthe publicof chargesagainst applicants or public ser-vice? Is it not at least as important hat the highfunctionsof publicofficeshouldbe well dischargedas that thosein privateserviceshouldbe faithfuland honest? Or, again, are the moral and social dutiesof great religious, fraternal,or charitableorganizationsto informtheir membersof the misconductof a fellow memberor officeranyhigher or stronger han that of electors to keep the public adminis-trationpure by disclosuresrespectingthe characterand conduct ofcandidatesfor publicoffice?The argument or immunityin the statementof facts concerninga candidatefor an electiveoffice the only occasion on which theclaim seemsto have any weight- maybe put moreforciblywithoutgoingso far afield. In the case of a candidate or an appointiveofficeit may well be urgedthat thereis no necessityfor a generalpublica-tion, inasmuchas the selection rests with a particularofficial or au-thority,to whom alone publicationshould be made; and of courseinterest, who shall be elected, they are quite entitled to state to other people, similarlyconcerned, what they know, or believe they know, upon the delicate subjects which arethen mentioned. That the statements are injurious and invidious is quite true; butthen, unfortunately, that brings us into the region also of the duty of an elector to givedue weight to them, and to communicate them to others whom he is legitimately seek-ing to influence. I do not think that we should thereby be giving any unlimited licenseto slander during an election. We do not lay it down that anybody is entitled to sayanything against a candidate. Our decision is merely that the occasion of the speakingbeing what it was, and the thing said what it was, there is no presumption in law thatthere was malice."

Coleman v. MacLennan, supra.27

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HARVARD LAW REVIEW.the same reasoning applies with particular force to statements affect-ing one who holds an office, in which case charges affecting his fitnessshould be made directly to the official or authority having the powerof removal. Communications so made to the appointing or removingauthority are unquestionably privileged. In the case of a candidatefor an elective office every voter certainly has an interest, if not, in-deed, a duty, in common with every other voter. But in this case it isan interest or duty which the voters themselves can alone protect ordischarge. The choice rests directly and exclusively with them, andthere would seem to be no logical objection to the conclusion that, inaccordance with established principles, a voter should be protectedin making a communication to his fellow voters of facts relating to acandidate for their suffrage.

The answer to this argument has reference to the difference in thearea of defamation. The conditional immunity extended to a state-ment of fact to a master concerning a servant, or one applying forservice, covers a statement to the master only, and the injury, if any,done to the servant's reputation is with the master alone. This is theextent of the sacrifice which the rule compels the servant to suffer inwhat was thought to be, when the rule became law, an importantinterest of society. But if the immunity were to apply generally,then a person who offers himself as a candidate must submit uncom-plainingly to the loss of his reputation, not with a single person, orwith a particularclass of persons, but with the public at large, wheneveran untrue charge is made.1 It is, however, an established principle ofthe law of defamation that, given the common interest or duty whichcreates the privileged occasion, any publication reasonably necessaryto protect that interest or to discharge that duty, is privileged; andthis is the case even though it results in the incidental publication topersons having no duty or interest.2 It would be a radical departurefrom fundamental principles to deny or limit the privilege because ofthe wide area of the interest or duty. Moreover, the cases disclose anarea of publication in cases of unquestioned privilege coextensivewith that under discussion. Charges made against an officer by avoter to his fellow voters assembled in a town or parish meeting havebeen held to be privileged.3 Why, then, should not a statement made

1 Burt v. Advertiser Newspaper Co., I54 Mass. 238; Post Publishing Co. v. Hal-lam, i6 U. S. App. 613. 2 Boxsius v. Goblet Freres, [1894] i Q. B. 842.3 Bradley v. Heath, 12 Pick. (Mass.) 163; Smith v. Higgins, i6 Gray (Mass.) 25I;Bradford v. Clark, 90 Me. 298.

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by a voter in the same meetingconvenedto elect an officerbe gov-ernedby the same rule?However,logic is not necessarily aw. The whole doctrineof im-munityin defamation s baseduponpublic policy,and the only validobjectionto protectingstatementsof fact in relationto candidatesfor elective office restsuponsuch considerations. It is the convictionthat such a doctrinewoulddo the publicservicemoreharmthangood.The dangerthat honorableandworthymen maybe drivenfrompoli-tics and publicserviceby allowingsuch latitudein attacksuponper-

sonal character utweighsanybenefits hatmightaccrue o thepublic.2Such licensewould create a disinclination or public life on the partof honorablemen by makingthem feel that it was incompatiblewithwholesomeself-respectand decentreputation; it would drivemen ofsensibility away from its opportunities n sheer disgust, and leavepublicemployment o callousand self-seekingadventurers. It seemsplain that immunityin fair commentextends the utmost protectionto freecommunicationn mattersof publicinterest hat is compatiblewitha properregard orpersonalrights. This at all eventsis the con-census of opinionamongEnglish-speaking eople.3The distinction is fundamental, then, between comment upongiven facts and the direct assertionof facts. And the significanceofthe distinction is plain. If the facts are stated separately,and thecommentappearsas an inferencedrawn from those facts, any injus-tice that the imputation might occasion is practicallynegatived bySee George v. Goddard and Wisdom v. Brown, supra.2 Post Publishing Co. v. Hallam, i6 U. S. App. 613; Post Publishing Co. v. Maloney,50 Oh. St. 7I; Seely v. Blair, Wright (Oh.) 358, 683; Bronson v. Bruce, 59 Mich. 467;Dodds v. Henry, 9 Mass. 262; Sweeney v. Baker, 13 W. Va. 158; Campbell v. Spot-tiswoode, 3 B. & S. 769; Massie v. Toronto Printing Co., II Ont. R. 362; Brown v.Elder, 27 New Bruns. R. 465.a In a general way, the majority of the American cases professing to discuss thesubject of comment or criticism do not, as we shall see, involve any issue of that kind.

The actual determination was simply that a defamatory statement of fact is not privi-leged merely by reason of the public interest of the subject matter. See cases cited innote 2 on page 432. In a few cases the decision is confined to this issue. Post PublishingCo. v. Hallam, I6 U. S. App. 613; Seely v. Blair, Wright (Oh.) 358, 683; Eviston v.Cramer, 57 Wis. 570; Spiering v. Andrae, 45 Wis. 330; Ullrich v. N. Y. Press Co.,23 N. Y. Misc. I68. But all these cases, as well as those hereafter cited, whichturn upon the distinction between comment and statement of fact, including almostthe whole course of English authority, reject the doctrine that there is any immunityin the publication of false statements of fact merely because the subject matter is ofpublic interest.

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HA RVARD LAW REVIEW.reason of the fact that the reader has before him the grounds uponwhich the unfavorable inference is based. When the facts are truth-fully stated, comment thereon, if unjust, will fall harmless, for theformer furnish a ready antidote for the latter. The reader is then in aposition to judge whether the critic has not by his unfairness or preju-dice libelled himself 1 rather than the object of his animadversion.But if a bare statement is made in terms of a fact, or if facts and com-ment are so intermingled that it is not clear what purports to beinference and what is claimed to be fact, the reader will naturally as-sume that the injurious statements are based upon adequate groundsknown to the writer. In one case, the insufficiency of the facts to sup-port the inference will lead fair-minded men to reject it; in the other,there is little, if any, room for the supposition that the injurious state-ment is other than a direct change of the fact, based upon groundsknown to the writer, although not disclosed by him.2 The distinction

1 This happy expression is used in Popham v. Gilbert, 7 H. & N. 891, and Belk-nap v. Ball, 83 Mich. 583.2 See particularly, Davis v. Shepstone, II A. C. 187; Hunt v. Star Newspaper Co.,[I908] 2 K. B. 309, per Fletcher-Moulton, L. J.; O'Brien v. Salisbury, 54 J. P. 215;Jenner v. A'Beckett, L. R. 7 Q. B. ii, per Lush, J.; R. v. Flowers, 44 J. P. 377; R.v. Carden, 5 Q. B. D. I; South Hetton Coal Co. v. News Assn., [I894] I Q. B. I33;Christie v. Robertson, io New South Wales L. R. I6I; Douglas v. Stephenson, 29Ontario, 6i6."The distinction has been brought out more clearly in England than it hasbeen in our own decisions." Burt v. Advertiser Newspaper Co., 154 Mass. 238,per Holmes, C. J. See, however, Hubbard v. Allyn, 200 Mass. I66; Haynes v. ClintonPrinting Co., 169 Mass. 5I2; Dow v. Long, I90 Mass. 138; Gatt v. Pulsifer, 122Mass. 235; Triggs v. Sun Printing & Pub. Assn., 179 N. Y. I44; Howarth v. Barlow,113 N. Y. App. Div. 5IO; McDonald v. Sun Printing & Pub. Assn., 45 N. Y. Misc.441; Fry v. Bennett, 3 Bosw. (N. Y.) 200; Hallam v. Post Publishing Co., 55 Fed.456; Vance v. Louisville Courier Journal, 95 Ky. 4I; Belknap v. Ball, 83 Mich. 583;Peoples v. Detroit Post Co., 54 Mich. 457; Pfister v. Milwaukee Free Press Co., 121N. W. 938 (Wis.); Sweeney v. Baker, 13 W. Va. 158; Mertens v. Bee Publishing Co.,5 Neb. (Unofficial) 592; La Compagnie de Publication du Canada Revue v. Mgr.Fabre, Que. O. R. 6 S. C. 436.It may be admitted, as asserted in Coleman v. MacLennan, 78 Kan. 711, that"expressions of opinion and judgment frequently have all the force of statements offact, and pass by insensible gradations into declarations of fact." But, keeping inmind the fundamental principle referred to above, it does not follow that "the dis-tinction between comment and statements of fact cannot always be clear to themind."There has been very little legislation on the subject. In Georgia, "comments uponthe acts of public men, in their public capacity, and with reference thereto," andin Texas, "a reasonable and fair comment or criticism of the official acts of publicofficials, and of other matters of public concern published for general information,"

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HARVARD LAW REVIEW.opinions concerningcertainacts, was this what was done? Did they notgo furtheranddo more? They did not statewhatmeasuresweresupported,and their opinionsof that particularconduct, but said generallyand un-qualifiedly,as a fact, that the plaintiff had arrayed himself against themoralinterestsof the community,which, if true, shoulddiscredithim withany voter who shouldbelievethe statement. It appealedaliketo allclasses,. . . [those who took that view, and those who thought otherwise], and itaffordedno one an opportunity ojudgewhetherthe statementwasa properdeductionfrom the facts upon which it was based or not. If one statesthat a candidateis a thief, without qualification,he communicatesa factpertainingto his fitness; but it is a slander, if untrue, whethermade ingoodfaith or not, although,had he stated the exactfacts, and expressed heopinionthat they amounted o stealing,thoughtheydid not technicallycon-stitute the offense of larceny,the commentmightbe privileged. The diffi-culty in this case is that the defendantshave been permittedto limit theirstatementby proofof their intendedmeaning,while the writingitself con-tained no hint of limitation."

It is to be observed, moreover, that although comment, howeverexpressed, is opinion or inference, it may be stated in terms of a fact;and as such it is within the immunity of fair comment so long asit appears to be a permissible deduction or conclusion from otherfacts truly stated.2Comment, criticism, or discussion3 upon matters of public inter-1 A similar situation was presented, but not so clearly solved, in the well-knowncase of Littlejohn v. Greeley, 13 Abb. Pr. (N. Y.) 41, where the imputation was thatthe plaintiff "was prominent in the corrupt legislation of last winter," and the facts uponwhich the imputation was based did not appear in the article but were set forth in theanswer. See also Crows Nest Pass Coal Co. v. Bell, 4 Ont. L. R. 660, and Cham-

pagne v. Beauchamp, 31 L. Can. J. I44. But see Lefroy v. Burnside, 4 L. R. Ir.556, where the case was decided on other grounds on demurrer to a plea setting forththe facts upon which the inference was based.

2 Lefroy v. Burnside, 4 L. R. Ir. 556; Hunt v. Star Newspaper Co., [I908] 2 K. B.309, per Fletcher-Moulton, L. J.; O'Brien v. Salisbury, 54 J. P. 215; Cooper v.Lawson, 8 A. & E. 746; Speight v. Syme, 2I Vict. L. R. 672. An imputation of motiveis a statement of fact. Davis v. Shepstone, ii A. C. 187; Hunt v. Star NewspaperCo., supra.3 Comment is the generic term. Criticism has been most commonly used in con-nection with literary productions, but it has also been incorrectly used in this coun-try for derogatory statements of fact. Since comment, in the law of defamation,implies derogatory comment, this term conveys the meaning attaching to criticism inordinary parlance, and avoids the limitation and error resulting from the latter desig-nation. Discussion is a term broad enough to include all the elements of comment -if, indeed, it is not subject to misconception as including both fact and comment, andthus including too much.

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FREEDOM OF PUBLIC DISCUSSION.est being, therefore, an expression of opinion or judgment, and so in-capable of definite proof, he who expresses it is not required by lawto justify it as true, but is free to express it even though others dis-sent, provided his own expression is "fair," as the English casesinvariably describe it. The constituent elements of the immunity arefew and simple. In the first place, in order to give room for the pleaof fair comment the facts commented upon must be truly stated.'This is little more than a restatement of the distinction upon whichthe immunity is based; the very statement of the doctrine assumesthat the facts commented upon must be ascertained."The errorwhich is usually committedby those who bring themselveswithin the law of libel when commentingon conduct is in thinking thatthey are commentingwhen in point of fact they are misdescribing. Realcommentis merelythe expressionof opinion. Misdescriptions matter offact. If the misdescription s such an unfaithfulrepresentationof a per-son's conductas to induce people to think that he had done somethingdis-honorable,disgraceful,or contemptible,it is clearly libelous. To stateaccuratelywhat a man has done, and then to say that in your opinionsuchconduct is disgracefulor dishonorable,s commentwhichmay do no harm,

1 In the following cases there was an absence or failure of proof of the facts uponwhich the comment purported to be based, and the plea of fair comment was thereforedenied: Thomas v. Bradbury, Agnew & Co., [I906] 2 K. B. 627; Joynt v. Cycle TradePublishing Co., [I904] 2 K. B. 292; South Hetton Coal Co. v. North Eastern NewsAssn., [I894] I Q. B. I33; Merivale v. Carson, 20 Q. B. D. 275; Davis v. Shepstone,ii A. C. 187; R. v. Flowers, 44 J. P. 377; R. v. Carden, 5 Q. B. D. i; Purcell v. Sow-ler, 2 C. P. D. 215; Risk Allah Bey v. Whitehurst, I8 L. T. 615; Harle v. Catherall,14 L. T. 8oi; Hibbins v. Lee, 4 F. & F. 243; Morrison v. Belcher, 3 F. & F. 614;Campbell v. Spottiswoode, 3 B. & S. 769; Popham v. Pickbur, 7 H. & N. 891; Gath-ercole v. Miall, 15 M. & W. 319; Cooper v. Lawson, 8 A. & E. 746; Stuart v. Lovell,2 Stark. 93; Tabart v. Tipper, I Camp. 350; Hubbard v. Allyn, 200ooMass. I66; Burtv. Advertiser Newspaper Co., 154 Mass. 238; Haynes v. Clinton Printing Co., 169Mass. 512; Hay v. Reid, 85 Mich. 296; Belknap v. Ball, 83 Mich. 583; Foster v.Scripps, 39 Mich. 376; Scripps v. Foster, 41 Mich. 742; Martin v. Paine, 69 Minn.482; Cooper v. Stone, 24 Wend. (N. Y.) 434; Fry v. Bennett, 3 Bosw. (N. Y.) 200,5 Sandf. (N. Y.) 54; Bee Publishing Co. v. Shields, 68 Neb. 750; Farley v. McBride,103 N. W. 1036 (Neb.). See also the statement in Vance v. Louisville Courier Jour-nal, 95 Ky. 4I, and Howarth v. Barlow, II3 N. Y. App. Div. 5io; Lefroy v. Burn-side, 4 L. R. Ir. 556; Christie v. Robertson, Io New South Wales L. R. 157; Brownev. M'Kinley, 12 Vict. L. R. 36, 240; Stewart v. McKinley, II Vict. L. R. 802(where the proof was supplied by the plaintiff); Williams v. Spowers, 8 Vict. L. R.(L.) 82; Broadbent v. Small, 2 Vict. L. R. (L.) 121. Smiley v. McDougall, io Up.Can. Q. B. II3. The point is fully discussed in Hunt v. Star Newspaper Co., [1908]2 K. B. 309; Walker v. Hodgson, [1909] i K. B. 239, and Digby v. Financial News,I[907] i K. B. 502.

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HARVARD LAW REVIEW.as every one can judge for himself whether the opinion expressedis wellfoundedor not. Misdescriptionof conduct,on the other hand, only leadsto the one conclusiondetrimentalto the person whose conduct is misde-scribed, and leaves the readerno opportunity or judging himself for thecharacterof the conduct condemned, nothing but a false picture beingpresentedfor judgment."

If it were permissible to invent facts, and then to comment on thefacts so invented in what would be a fair manner on the suppositionthat the facts were true, any discussion of a matter of public interestmight, through fanciful suggestions of all sorts of imaginary miscon-duct by way of pretended illustration, be made the vehicle of themost defamatory allegations without the slightest foundation.2 Butthe law does not permit the absurdity of thus allowing a person to belibelled, and then commented upon.3 If the facts upon which the com-ment purports to be made are not proved or admitted to be true, thefoundation of the plea of fair comment fails.4In the next place, the comment must be susceptible of being aninference or deduction from facts truly stated. That is to say, itmust not introduce new and independent defamatory matter, or drawinferences or conclusions wholly irrelevant, or out of all proportion,to the given facts which supply the basis of the comment. And,above all, it must not attack the character or motives of the author ofthe thing criticized, whether that thing be public conduct or publishedwork, except in so far as such private character or personal motiveshave of necessity, or by the act of the author, become part of thesubject of public interest commented upon; it must not reflect uponhim otherwise than as the author of, or the person responsible for,or concerned in, or connected with the particular conduct, work, orthing which constitutes the subject of the comment.5 Next to mis-

1 Christiev. Robertson, o New SouthWales L. R. I57.2 Lefroyv. Burnside,4 L. R. Ir. 556; Broadbent . Small,2 Vict.L. R. (L.) 121.3 R. v. Carden, 5 Q. B. D. I, per Cockburn, C. J.4 In O'Brienv. Salisbury,54 J. P. 215, it is saidthat commentmaybe "a deduc-tionor conclusion ome to by the speaker romother actsstatedor referredo by him,or in the commonknowledge f the personspeakingand thoseto whomthe wordsareaddressed. Forfutherparticularsoncerninghe justification f the facts uponwhichthe comment s based see Speightv. Syme,21 Vict. L. R. 672. "Whenone personallegesand anothercomments his reason does not apply, especiallywhen the allega-tion, as distinctfromthe comment, s made in a privilegeddocument." Mangenav. Wright, ioo L. T. 960.6 Bower,II7. "It is notbecausea publicwriter ancies hat the conductof a public

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FREEDOM OF PUBLIC DISCUSSION.statementof facts, personal mputation s the principalcause of dan-ger and disasterto criticism, and, as we shall see, it is the sourceofmuch of the confusionwhich exists in the statementof the law.If comment conforms to the foregoing requirementsthe criticbrings himself primd acie within the immunity. But the occasionexists for a well-definedpublic purpose,and if the plaintiffcan provethat the defendant,althoughprimd acie within the immunity,wasneverthelessusing the occasion for some ulteriorand improperpur-pose, he therebydisplacesthe immunity,and the defendant s liable,just as he would have been if he had never broughthimself withinthe right.l Having regard o the reasons orwhichthe occasionexists,the most obvious proof for this purpose would be circumstancestendingto show thattheopinionexpressedn the commentwasnot thedefendant'sgenuineopinion;2 or that he had no opinionat all on theman is open to suspicion of dishonesty, he is therefore justified in assailing his characteras dishonest." Campbell v. Spottiswoode, 3 B. & S. 769, per Cockburn, C. J. In Lefroyv. Burnside, 4 L. R. Ir. 556, it was held on demurrer that the fact that a man hadthe means of committing a crime, and the crime being in fact committed, would notwarrant the inference that he who had the means was the criminal. The same pointis involved in cases which hold that it is not fair comment to assume that a personaccused of crime is guilty. Haynes v. Clinton Printing Co., 169 Mass. 512; Com-mercial Publishing Co. v. Smith, 149 Fed. 704. The following cases illustrate thegeneral rule from various points of view: Joynt v. Cycle Trade Pub. Co., [I904]2 K. B. 292; Hunt v. Star Newspaper Co., [1908] 2 K. B. 309; Dakhyl v. Labouchere,[I908] 2 K. B. 325, n.; R. v. Calthorpe, 27 J. P. 58i; Cooper v. Lawson, 8 A. & E.746; Speight v. Syme, 21 Vict. L. R. 672; Browne v. M'Kinley, I2 Vict. L. R. 36, 240;Broadbent v. Small, 2 Vict. L. R. (L.) 121; Christie v. Robertson, io New SouthWales L. R. I6I; Reade v. Sweetzer, 6 Abb. Pr. N. s. (N. Y.) 79, n.; Edsall v. Brooks,17 Abb. Pr. 21; Farley v. McBride, 74 Neb. 49; Wilcox v. Moore, 69 Minn. 49; Scrippsv. Foster, 41 Mich. 742; Neeb v. Hope, iii Pa. 145.1 That the primafacie protection accorded to fair comment, is, as in the analogouscase of fair reports (Stevens v. Sampson, 5 Ex. D. 53), liable to be displaced by malice,is settled by the judgment of the Court of Appeal in Thomas v. Bradbury, Agnew, &Co., [I906] 2 K. B. 627. Comment is therefore as much a species of conditional im-munity as any of the communications usually described as qualifiedly privileged. "Ifthe analysis be strictly carried out it will be found that the two rights, whatever namethey are called by, are governed by the same rules." The contrary view involves theassertion that comment is absolute and wholly outside the ordinary law of libel. Thomasv. Bradbury, supra; Henwood v. Harrison, L. R. 7 C. P. 606, per Willes, J.; Mc-Quire v. Western Morning News, [I903] 2 K. B. ioo. For statements of that view seeCampbell v. Spottiswoode, 3 B. & S. 769, per Blackburn and Crompton, JJ.; Meri-vale v. Carson, 20 Q. B. D. 275.

2 According to the well-established rule with respect to privileged publicationsthere is no immunity in the publication of statements not believed to be true, or knownto be false; so in the case of fair comment the absence of any genuine belief in the jus-tice of the comment is conclusive proof of malice, for no one can have a proper motive

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426 HARVA'RD LAW REVIEW.subjectof the comment,or otherwisepublished t withoutany beliefthat it was just, and in reckless indifferenceas to whether it wasjust or unjust.1 If, however,such honestbelief in the justiceof thecommentexisted in fact, it is whollyimmaterialwhether, n an intel-lectual sense, it was sound or unsound, convincingor irrational,2unless it can be proved by independentevidence that such belief,though genuinelyentertained,was itself createdby malice.3It is obvious,therefore, hatthe term"fair,"as usedin the Englishcases, merely excludes those elementswhich prevent the commentfromfallingwithin,or take it out of, the immunityarisingfrom theoccasion.4 But in so far as facts are assumedas the basis of the criti-cism, or untrueallegationsof fact are introduced n the courseof it,or personal mputationsare made not arisingout of it, the pretendedcriticism s not criticismat all. It is not a questionof its title to theepithet"fair,"or to any otherepithet; it does not answer to the de-scriptionof comment,and is defamationpureand simple. Where,onthe otherhand,it is provedby the plaintiff hat the comment, houghon the faceof it answering o the description,was nevertheless he ex-for making comments which he does not believe to be warranted. See Thomas v.Bradbury, supra. The malice which actuates comment need not necessarily be directedagainst the plaintiff. Stuart v. McKinley, ii Vict. L. R. 802.1 Morrison v. Belcher, 3 F. & F. 614; Hedley v. Barlow, 4 F. & F. 224; RiskAllah Bey v. Whitehurst, I8 L. T. 6I5.2 "Belief is none the less belief because it is unreasonable. The immunity whichthe law confers in the first instance on certain kinds of publication in certain circum-stances is not displayed by proof of the defendant's folly or stupidity, but only by proofof his bad faith. Unless the protection extends to the blunderer as well as to the sen-sible person, it is no protection at all. The law is the same in the analogous class ofactions known as deceit, where to prove that the defendant made the incriminatedstatement on insufficient grounds is no proof of fraud, and in actions for maliciousprosecution, where the absence of reasonable and probable cause is a distinct elementfrom, and not the same thing in other words as, malice. But, just as in actions of de-ceit the unreasonableness of the belief, if it existed, may be so glaring that a jury is jus-tified in inferring that the alleged belief could never in fact have existed, and, as inactions for malicious prosecution, the irrationality and carelessness of the charge, ifmade in good faith, may be of such an extraordinary nature as to justify a jury in in-ferring that the good faith could never have existed; so, in actions of defamation,the jury are warranted in imputing a certain minimum of intelligence to the defendant,and are at liberty to reject the contention that he believed what he professed to believefrom sheer irrationality, and adopt the other hypothesis that he did not believe it at all."Bower, i65 (f); Clark v. Molyneux, 3 Q. B. D. 237; McQuire v. Western MorningNews, [I903] 2 K. B. Ioo.a Wason v. Walter, L. R. 4 Q. B. 73.4 McQuire v. Western Morning News, [I903] 2 K. B. Ioo.


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FREEDOM OF PUBLIC DISCUSSION.pressionof an opinionwhichthe critic did not in fact entertainor wasotherwiseactuatedby malice, t is sufficient o say that the protectionis lost; thereis no occasion o speakof fairnessor unfairness. Every-thing that is involvedin the rule prescribing airness,wouldequallybe contained n any rule which,omittingthe term altogether,simplyprescribed hat the publicationof any defamatorymatter which iswhollyand solelycommenton the publicconductor publishedworkof another s the subjectof an immunitydefeasibleonly on proofofmalice. It is clear that what is meantby "fairness" is neither morenor lessthan theabsenceof malice,1 nd theburdenbeingonthe plain-tiff to allegeandprovethe existenceof malice,as well as the fact thatit promptedhecomment,and not on thedefendant o allegeandproveits absence,or to negativeany suggestion hat his commentwas actu-ated thereby, he use of a positivewordin connectionwith commentis seen to be not onlyunnecessary, ut mostdeceptive, nasmuchas itimportshenecessarypresenceof anaffirmative ualityasthe conditionof immunity,whereasit is the existence and influenceof its oppositewhich is the necessaryconditionof that immunitybeing displaced.2On a plea of faircomment he burden s on the defendant o proveall the facts necessary o bringthe case within the foregoingrequire-ments. He must satisfythe courtthat the subjectof the comment sa matterof public mportance,and mustestablishthat the matter,onits face, is comment,unadulteratedwith any of those alien elementswhich are sufficient o prevent ts comingwithinthe provinceof faircomment.3 If the plaintiffdesiresto show that the primd acie im-munity, nnocentas it appears o be on thesurface,was in fact actuatedby malice,the burden s on him to provethis.4 Whether he subjectis one of publicinterest,5 nd whether hereis any evidenceof the de-famatorymatterconstitutingor not constitutingfair comment,6are

"The word 'fair' is used with reference to malice." Hedley v. Barlow, 4 F. & F.224, per Cockburn, C. J.2 Bower, 119, 388-390. Mr. Bower's discussions of the terminology of the law ofdefamation are of the highest value.3 Walker v. Hodgson, [1909] i K. B. 239, per Vaughan-Williams, L. J.McQuire v. Western Morning News, [1903] 2 K. B. Ioo.8 Dakhyl v. Labouchere, [1908] 2 K. B. 325, n.6 Dakhyl v. Labouchere, [I908] 2 K. B. 325, n., per Lord Atkinson; Henwood v.Harrison, L. R. 7 C. P. 606, per Willes, J.; South Hetton Coal Co. v. N. E. NewsAssn., [I894] I Q. B. I33, per Lopes, L. J.; McQuire v. Western Morning News,[1903] 2 K. B. oo00;O'Brien v. Salisbury, 54 J. P. 2I5; Cooper v. Lawson, 8 A. & E.746; McBee v. Fulton, 47 Md. 403.

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HARVARD LAW REVIEW.

questions of law.1 All other issues in relation to a plea of fair com-ment are questions of fact.21 There are, therefore, two distinct checks upon the action of a jury in the case offair comment. They are not at liberty to find for the plaintiff because they think thatthe matter was not of public interest, nor are they at liberty to find for the plaintiff onthe ground that the comment is unfair unless the court is first satisfied that there is suffi-cient evidence of unfairness to justify such a finding.

2 If the principles upon which the doctrine of fair comment rests are of generalapplication, it is plain that the question to be decided is, not whether the inferenceseems sound to the jury, but whether it could honestly seem so to the defendant. Butthere has been a marked tendency on the part of judges to avoid the purely negativeaspect of the term "fair," and to make a distinction in kind, rather than in degree,between literary criticism and comment on public acts. In the case of literary criticismit has been made plain that juries have no right to substitute their own opinion forthat of the critic. McQuire v. Western Morning News, [I903] 2 K. B. oo00; Meri-vale v. Carson, 20 Q. B. D. 275. With respect to personal imputations, the moderncases quite generally rely upon the statement made by Cockbur, C. J., in Campbellv. Spottiswoode, 3 B. & S. 769; "I think the fair position in which the law may besettled is this: that where the public conduct of a public man is open to animadversion,and the writer who is commenting upon it makes imputations on his motives which arisefairly and legitimately out of his conduct, so that a jury shall say that the criticism wasnot only honest, but also well founded, an action is not maintainable." This distin-guished judge explained and amplified this statement in several succeeding cases. R.v. Calthorpe, 27 J. P. 581; Morrison v. Belcher, 3 F. & F. 614; Hedley v. Barlow,4 F. & F. 224; Woodgate v. Rideout, 4 F. & F. 202; Hunter v. Sharp, 4 F. & F. 983;Risk Allah Bey v. Whitehurst, I8 L. T. 615, and Wason v. Walter, L. R. 4 Q. B. 93.But only in Morrison v. Belcher did he state the doctrine in unequivocal terms: "Thelaw laid down by the court . . . in Campbell v. Spottiswoode . . . was this: It wasnot because a public writer might not be able to prove to the letter all he had statedthat, therefore, he was liable; but the jury must be of opinion that his observations andinferences were fair and legitimate under the circumstances; or [rather?] that theywere not so unfair as to be reckless, and thus, in law, malicious." The confusion ap-pears in the recent case of Hunt v. Star Newspaper Co., [1908] 2 K. B. 309, wherethe Court of Appeal reversed a judgment because the trial judge had charged the juryin a manner which seemed to imply that that could not be fair comment which im-puted improper conduct. The three judges constituting the court expressed the rulein different ways. According to Cozens-Hardy, M. R., the question was whether thecomment "was fair and such as might, in the opinion of the jury, be reasonably made."As stated by Buckley, L. J., it was whether the comment "was in their opinion beyondthat which a fair man, however extreme might be his views in the matter, might makehonestly and without malice, and which was not without foundation. .. . Whetherthe criticism be upon a literary production or the conduct of a public man, it is for thejury, I think, to find whether the imputation based upon facts truly stated does nothonestly represent the opinion of the person who gives expression to it, and was notwithout foundation." Fletcher-Moulton, L. J., "thoroughly disagreed" with the ar-gument "based mainly upon an application of the language of the judgment in Meri-vale v. Carson to the case of the imputation of corrupt or disgraceful motives to anindividual, and the contention . . . that if, in his comment on facts, a writer attributedsuch motives to an individual, such comment was covered by a plea of fair comment

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FREEDOM OF PUBLIC DISCUSSION.The foregoingstates the force and effectof Englishlaw accordingto modem authority. At the same time, it must be admitted that it

is not in entireaccordwith earliercases,nor are the modemauthori-ties in entireagreement; and it would be idle to say that the subjectis free fromdifficulty. The divergenceof opinion and the difficultyoccurat thepointwherecertaintys most needed- where mputationsof motivearemade. So faras the imputationof motives s concerned,it is obvious that the earlycases of literarycriticism urnisheda mis-leading precedent. In the field of literary and artistic criticism,where the expressionof thoughtand imagination,and not the mani-festation of will and character n action, is the subjectof public in-terest, and where, therefore,there is hardly ever any necessity fordealing with personalityat all, it is of course much easier to drawthe line of demarcationbetween what is and what is not "fair."Althoughin the early historyof literature t was customaryto dis-cuss the personalityof authorsas freelyas theirbooks, it is now rec-ognizedthat such a coursecan rarelybe necessaryorpermissible. Asregardsacts and conduct,on the otherhand,criticism s oftenneces-sarily personal. It is quite possible, in most cases, that the criticshouldonlycriticize heperson ndirectlyn connectionwiththe thing,and that whilst possibly denouncingthe tendency,effect, or policyof a courseof conduct,he should eavethe motives and intentionandcharacterof the individualseverelyalone.' But on someoccasions tmust be recognizedthat the individualhas submittedthe latter tounless the views it expressed could not be held by any fair man, however prejudicedhe might be, and however exaggerated and obstinate his views. . . . The law laiddown by the decision in that case has . . nothing to do with personal libels, suchas the imputation of disgraceful motives to an individual. . . . Comment must not con-vey imputations of an evil sort except so far as the facts truly stated warrant the im-putation. ... In other words, a libelous imputation is not warranted by the factunless the jury hold that it is a conclusion which ought to be drawn from those facts.Any other interpretation would amount to saying that, where facts were only sufficientto raise a suspicion of criminal or disgraceful motive, a writer might allege such motiveas a fact and protect himself under the plea of fair comment. No such latitude isallowed by English law. To allege a criminal intention or a disgraceful motive asactuating an individual is to make an allegation of fact which must be supported byadequate evidence." Compare, also, Joynt v. Cycle Trade Publishing Co., [g904]2 K. B. 292, with Walker v. Hodgson, [i909] i K. B. 239.1 For illustrations of the border line between impersonal and personal criticism,see Paris v. Levy, 9 C. B. N. s. 342; Turnbull v. Bird, 2 F. & F. 508; O'Brien v.Salisbury, 54 J. P. 215; Campbell v. Spottiswoode, 3 F. & F. 42I; Reade v. Sweetzer,6 Abb. Pr. N. s. 79, n.; Boal v. Scottish Catholic Printing Co. (I907), Scotch Ct.Sess. Cas. 1120. See Bower, App. XII, sec. 5.

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HARVARD LAW REVIEW.public discussion. A candidate for an office of public trust, for in-stance, necessarily puts his personal character in issue so far as itpertains to his qualifications for the office he seeks. While this viewhas not met with universal acceptance, it seems clear that the funda-mental error of any other doctrine consists in the assumption that theprivate character of a public officer is something aside from, and notentering into or influencing, his public conduct; that a thoroughlydishonest person may be a just administrator, and that a judge whois corrupt and debauched in other relations of life may still be pureand upright in his judgments; in other words, that an evil tree is aslikely as any other to bring forth good fruit.

"Any such assumption s false to humannature,and contrary o generalexperience; and whatever the law may say, the general public will stillassume thata corrupt ife willinfluencepublicconduct,and that a man whodealsdishonestlywith his fellows as individualswill not hesitate to defraudthem in theiraggregateand corporatecapacity,if the opportunityshall begiven him. They are therefore nterested n knowingwhat is the charac-terof theirpublicservants,and whatsort of personsareoffering hemselvesfor their suffrages. And if this be so, it would seem that thereshould besomeprivilegeof comment; thatthatprivilegecouldonlybe limitedby goodfaith andjust intention; and that of theseit was the provinceof the jury tojudge, in viewof the natureof the chargesmade,and the reasonswhichex-isted for making them."1

In early English cases involving literary criticism it was assertedin broad terms that no personal imputation was permissible, andthis precedent was occasionally followed in similar terms in cases ofcomment on public acts and conduct. But the foundation of themodem law on this, as on so many other details of the general sub-

1 Cooley, Const. Lim. 440. See also Bruce v. Leisk, I9 R. 482 (Sc.), where, inprotecting an elector who had falsely charged a candidate in a municipal election withhaving been bankrupt, and that it was a dishonest and disreputable failure, and thatthe pursuer was in consequence an unsuitable person to represent the electors, LordPresident Robertson said: "It may well be said that a man who has been bankruptonce may become bankrupt again; at all events, that if a person who has not been bank-rupt were standing, he was more eligible than a person who had been. It may be said,also, that the facts indicate a want of success in business not encouraging to electorsasked to entrust a man with their business; and when we come to the most invidiouspart of the statement - that it was a dishonest and disreputable failure - that wouldseem to be highly relevant to the question whether, the office vacant being an office oftrustand high publicresponsibility,he choiceof the electorswouldfitly fall uponapersonwhohadgonethrough hesevicissitudes."

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FREEDOM OF PUBLIC DISCUSSION.ject, is to be found in the decisions of Chief Justice Cockburn, from1862. It had been held as late as 1840, by the Court of Exchequer,1that though some words which are clearly libelous of a private personmay not amount to a libel when written of a person in a public capacity,still, any imputation of unjust or corrupt motives is equally libelousin either case. Six years later the same court perceived a distinctionbetween comments on a man's public and his private conduct, butconfessed that it could "hardly tell what the limits of it are." 2 Inhis first judicial utterance on the subject, however, Chief JusticeCockburn stated the true doctrine in unimpeachable terms."He differedfrom the learned counsel for the plaintiffwhen it was con-tended that under no circumstancescould private conduct form a propersubject of observationfor a public writer. Mr. Seymourdid not occupythe positionof a private ndividual,norwasit as a private ndividualthat hisconduct was made the matter of inquiry. . . . Under these circumstancesit was impossibleto say that he was not a publicman,andthat his conduct,if it had reference o his fitnessto be a public man and to occupy a publicposition,was not a fair subjectof debate. Mr. Seymourheld a positioninwhich integrity, honesty, and honor were essential, and if in his privateconducthe showed himselfdestituteand devoid of thoseessentialqualities,surely it could not be said that it was not a fair matterfor public animad-version,so long as the writerkept within the bounds of truthand the limitsof just criticism."3

Whatever uncertainty may characterize some of the interveningcases, it is now established by recent English cases that "a personalattack may form part of a fair comment upon given facts truly statedif it be warranted by those facts; in other words, if it be a reasonableinference from those facts. Whether the personal attack in anygiven case can reasonably be inferred from the stated facts uponwhich it purports to be a comment is a matter of law for the deter-mination of the judge before whom the case is tried; but if he should

1 Parmiter v. Coupland, 6 M. & W. o05, per Parke, B.2 Gathercole v. Miall, 15 M. & W. 319, per Alderson, B.' Seymour v. Butterworth, 3 F. & F. 614. In Campbell v. Spottiswoode, 3 B. &S. 769, the same judge stated the law to be that "where the public conduct of a publicman is open to animadversion, and the writer who is commenting upon it makes im-putations on his motives which arise fairly and legitimately out of his conduct, so thata jury shall say that the criticism was not only honest, but also well founded, an actionis not maintainable." And in Wason v. Walter, L. R. 4 Q. B. 93, he referred to thefact that "the full liberty of public writers to comment on the conduct and motives ofpublic men has only in very recent times been recognized."

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HAR?VARD LAW REVIEW.rule that this inferenceis capable of being reasonablydrawn, it isfor the jury to determinewhetherin that particularcase it oughtto be drawn."1In this countrythe weightof judicialdicta is undeniablecontraryto the Englishview. In the majorityof the cases commonlycited inthis connectionno distinction between comment and statement offact is made or involvedin the actual determination. They are, al-most without exception,cases involvingdirect statementas distin-guished from comment; or, if involving any comment at all, nobasis for the commentwas proved,and privilegewas claimedsimplyby virtueof the occasionbeing a matterof public interest.2 Thesecases are not, therefore, n oppositionto the English rule, for theywere not cases of commentproperlyso called, and privilegewouldhavebeenequallydeniedunderthat rule. They aresimplyauthorityfor the rule that a direct statementof fact is not privilegedby reasonof the publicityof the occasion.3 The difficultys that thesedecisionshavegenerallygonebeyondthe actual ssue, and,oftenusingthe term"criticism" as synonymouswith derogatorytatementsof fact, haveexpressed hedictum hatcriticism s privileged,or not actionable,solongas it doesnot attacktheprivatecharacter f the personcriticized,or imputeevil motives. In otherwords,while the actualdecisionisgenerallyunimpeachable,he foundation s delusive,i. e., a distinc-tion betweendifferentkinds of imputation,whereasthe true distinc-

Dakhyl v. Labouchere, [1908] 2 K. B. 325, n., per Lord Atkinson; Hunt v.Star Newspaper Co., [I908] 2 K. B. 309; Joynt v. Cycle Trade Publishing Co.,[1904] 2 K. B. 292; Walker v. Hodgson, [I909] I K. B. 239; Odger v. Mortimer,28 L. T. 472; Hunter v. Sharp, 4 F. & F. 983; De Mestre v. Syme, 9 Vict. L. R.(L.) Io.

2 In addition to the cases cited in note i, on page 433, see Murray v. Galbraith, Io9S. W. ioII (Ark.); Martin v. Paine, 69 Minn. 482; Austin v. Hyndman, II9 Mich.615; Owen v. Dewey, 107 Mich. 67; Hay v. Reid, 85 Mich. 296; Belknap v. Ball,83 Mich. 583; McAllister v. Free Press Co., 76 Mich. 338; Wheaton v. Beecher, 66Mich. 307; Baurreseau v. Evening Journal Co., 63 Mich. 425; Bronson v. Bruce, 59Mich. 467; Peoples v. Detroit Post, 54 Mich. 457;. Scripps v. Foster, 41 Mich. 742;Foster v. Scripps, 39 Mich. 376; Farley v. McBride, 74 Neb. 49; Bee Pub. Co. v.Shields, 68 Neb. 750; Mattice v. Wilcox, 147 N. Y. 624; Hamilton v. Eno, 8I N. Y.II6; Fry v. Bennett, 3 Bosw. 200, 5 Sandf. 54; Cooper v. Stone, 24 Wend. 434;Lewis v. Few, 5 Johns. i; Littlejohn v. Greeley, 13 Abb. Pr. 41; San Antonio LightPub. Co. v. Lewy, II3 S. W. 574 (Tex.); Post Publishing Co. v. Hallam, I6U. S. App. 613; Eviston v. Cramer, 57 Wis. 570; Spiering v. Andrae, 45 Wis. 330;Wofford v. Meeks, 129 Ala. 349. See also Munro v. Quigley, 30 Nov. Sco. R. 360.3 And some of them stop there. See Post Publishing Co. v. Hallam, i6 U. S. App.613, and other cases cited in note 3 on page 419.

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FREEDOM OF PUBLIC DISCUSSION.tion is between comment and statement of fact.' While this doctrinerecognizes some latitude in the discussion of matters of public interest,its practical futility is shown by the conflicting and sometimes fancifulideas of the sort of imputations which are held to fall within it.2 But

1 The leading cases are Dauphiny v. Buhne, 96 Pac. 880 (Cal.); Star Pub-lishing Co. v. Donahoe, 58 Atl. 513 (Del.); Jones v. Townsend, 21 Fla. 431;Negley v. Farrow, 60 Md. 158; Hamilton v. Eno, 8I N. Y. 116; Upton v. Hume, 24Ore. 420; Banner Pub. Co. v. State, I6 Lea (Tenn.) 176; Smith v. Tribune Co.,4 Biss. (U. S.) 477; Russell v. Washington Post, 31 App. D. C. 277; Sweeney v. Baker,13 W. Va. 158. This view is also taken in Tanner v. Embree, 99 Pac. 547 (Cal.);Jarman v. Rea, 137 Cal. 339; People v. Fuller, 238 Ill. II6; Rearick v. Wilcox,8I Ill. 77; Luzenberg v. O'Malley, II6 La. 699; Fitzpatrick v. Daily Star Pub. Co.,48 La. III6; Bearce v. Bass, 88 Me. 52I; Wheaton v. Beecher, 66 Mich. 307; Bron-son v. Bruce, 59 Mich. 467; Smith v. Burrus, Io6 Mo. 94; Post Publishing Co. v.Maloney, 50 Oh. St. 7I; Todd v. Publishing Co., 29 Oh. Cir. Ct. Rep. I55; Mayrantv. Richardson, i Nott & McCord (S. C.) 347; Brewer v. Weakley, 2 Overton (Tenn.)I76; Forke v. Homann, 14 Tex. Civ. App. 670; McDonald v. Woodruff, 2 Dillon(U. S.) 244. Many of the Pennsylvania cases seem to take practically the same view.Wallace v. Jameson, 179 Pa. 98; Wood v. Boyle, 177 Pa. 620; Conroy v. PittsburghTimes, 139 Pa. 334; Neeb v. Hope, inI Pa. 145; Barr v. Moore, 87 Pa. 387; Pittockv. O'Neill, 63 Pa. 253. See also Edwards v. San Jose, etc. Co., 99 Cal. 43I; Clifton v.Lange, Io8 Ia. 472; Cotulla v. Kerr, 74 Tex. 89; Byrne v. Funk, 38 Wash. 506;Com. v. Wardwell, 136 Mass. I64; Lent v. Underhill, 54 N. Y. App. Div. 609;Benton v. State, 59 N. J. L. 55I.

2 In Negley v. Farrow, 60 Md. I58, it is asserted that "there is a broad distinctionbetween fair and legitimate discussion in regard to the conduct of a public man, andthe imputation of corrupt motives by which that conduct may be supposed to begoverned." In Sweeney v. Baker, 13 W. Va. 158, the distinction is said to be betweenthe acts and conduct of a candidate for office and his moral character. The usualdistinction is between public acts and private character, and a favorite quotation is apassage from Post Pub. Co. v. Maloney, 50 Oh. St. 7I, to the effect that "a personwho enters upon a public office, or becomes a candidate for one, no more surrenders tothe public his private character than he does his private property." The fitness andqualifications of a candidate, as shown by his acts and conduct, are commonly admittedto be subject to comment and criticism, but not such as impute moral delinquency.Jones v. Townsend, 2I Fla. 431; Upton v. Hume, 24 Ore. 420. "A person cannot beuntruthful, profane, or a libertine in his official capacity. These are attributes of hismoral character as a man, not as an officer, although they may render him unfit tohold the office." Com. v. Wardwell, 136 Mass. 164. "It is true that when a personbecomes a candidate for a public office, his talents and qualifications for the office towhich he aspires may be fully commented on and criticized by any member of the com-munity, by publication or otherwise. His faults and his vices, in so far as they mayaffect his official character, may be freely discussed. He does not, however, by becom-ing a candidate, surrender his private character as a subject for false accusation. Thatcharacter is only put in issue as far as his fitness or qualification for the office he seeksmay be affected by it." Dauphiny v. Buhne, 96 Pac. 880 (Cal.). And yet in this casethe imputation was official corruption. The contradiction is as flat in Tanner v. Em-bree, 99 Pac. 547 (Cal.), Forke v. Homann, I4 Tex. Civ. App. 670, and Wheaton v.Beecher, 66 Mich. 307. In Sweeney v. Baker, 13 W. Va. I58, the court solemnly for-28

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HARVARD LAW REVIEW.this doctrine, so far as it is intelligible, would seem to leave little, ifany, more practical freedom in the discussion of matters of publicinterest than that which is permitted in the discussion of the conductof a private person. It leaves the law very much in the attitude ofsaying, "You have full liberty of discussion, provided, however, yousay nothing that counts."Other and more carefully considered cases are in substantial agree-ment with the prevailing English doctrine.l Perhaps the generalcourse of the development of the law in this country may be best in-dicated by reference to the New York cases. The earliest case 2 onthe general subject arose, in J8o9, out of an address issued by op-ponents of the reelection of Morgan Lewis as governor of the state,charging him, among other things, with political apostasy, familyaggrandizement in his appointments, signing the charter of a bankafter notice that it had been procured by fraudulent practices, pub-lishing doctrines unworthy of a chief magistrate, attempting to destroythe liberty of the press by vexatious prosecutions, etc. The defend-ant demurred to the plaintiffs evidence, claiming a constitutionalprivilege arising out of the occasion of the publication. The demurrerwas very properly overruled, but the court said:

"That electorsshould have a rightto assembleand freely and openlytoexaminethe fitness and qualificationsof candidatesfor public offices,andcommunicate heiropinionsto others, s a positionto whichI mostcordiallyaccede. But there is a wide differencebetween this privilegeand a rightirresponsiblyo chargea candidatewith directand unfoundedcrimes ....Candidateshave rights,as well as electors; and those rightsand privilegesmust be so guardedand protectedas to harmonizeone with the other ....All that is required, n the one case or the other, is, not to transcendtheboundsof truth. If a man has committeda crime,any one has a right tomulates the rule that comment must be confined to mental and physical qualifications.As a whole, these statements are about as luminous as the oracular utterance of theSupreme Court of Missouri in Smith v. Burrus, io6 Mo. 94: "Within the bounds oflegitimate discussion, all that is necessary to say and proper to say respecting the ac-tions and qualifications of candidates or public officers, may legitimately be said."1 Howarth v. Barlow, II3 N. Y. App. Div. 5Io; McDonald v. Sun Printing &Pub. Co., 45 N. Y. Misc. 441; Reade v. Sweetzer,6 Abb. Pr. N. s. 79, n.; Hart v. Towns-end, 67 How. Pr. 88; Eickhoff v. Gilbert, 124 Mich. 353; Dunneback v. TribunePrinting Co., io8 Mich. 75; Belknap v. Ball, 83 Mich. 583; McBee v. Fulton, 47Md. 403; Smith v. Higgins, I6 Gray (Mass.) 25I; Burt v. Advertiser Newspaper Co.,154 Mass. 238; Mertens v. Bee Pub. Co., 5 Neb. (Unofficial) 592.2 Lewis v. Few, 5 Johns. I.

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FREEDOM OF PUBLIC DISCUSSION.chargehim with it, and is not responsible or the accusation; and can anyone wish for morelatitudethan this?"

This view was presented in a still stronger light twenty years laterin a case 1 where a newspaper opposing the reelection of the lieu-tenant-governor of the state, charged him with being intoxicatedwhile presiding in the senate chamber, giving in detail the circum-stances on which the opinion was based. The publishers justified thecharge as true, and produced witnesses, who had been present on theoccasion in question, who testified that the statement was true. Therewas therefore good reason for supposing that the charge was made inthe belief that it was true, and if it was true, there was abundantreason on public grounds for making the statement. But the jury,having been told that the only privilege the defendants had was"simply to publish the truth, and nothing more," found the prepon-derance of the evidence against the truth of the charge. In the Courtof Errors and Appeals, where judgment for the plaintiffs was sus-tained, Walworth, C., said in reply to the defendants' claim ofprivilege:

"If so, the defendantswereunderno obligationto provethe truthof thecharge; and the partylibelledhad no rightto recoverunlesshe establishedmalice in fact, or showedthat the editorsknew the chargeto be false. Theeffect of such a doctrine would be deplorable. Instead of protecting,itwoulddestroythe freedomof the press, if it wereunderstood hat an editorcould publish what he pleased against candidatesfor officewithout beinganswerable or the truthof such publication. No honestman could affordto be an editor; and no man, who had any character o lose, would be acandidate for office. . . . The only safe rule to adopt in such cases is topermiteditorsto publish what they please in relation to the characterandqualificationsof candidates for office, but holding themselvesresponsiblefor the truth of what they publish."2

1 King v. Root, 7 Cow. 613, 4 Wend. II3.2Compare this with Davis v. Duncan, L. R. 9 C. P. 396, where a similar imputa-tion was sustained as fair comment. In Coleman v. MacLennan, 78 Kan. 7II, the fol-lowing allusion is made to this case: "What is a charge of intoxication - an inferencefrom conduct and appearances and therefore fair comment, or the statement of a fact ?What is the difference between the charge of intoxication and the following: 'Havingappearances which were certainly consistent with the belief that they had imbibedrather freely of the cup that inebriates. Their condition in the chapel also led one tosuch a conclusion'? In England this statement is fair comment. Davis v. Duncan,L. R. 9 C. P. 396. In New York, no matter how strongly appearances and conductmay justify the inference, a charge of intoxication made against a public official must

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HARVARD LAW REVIEW.In these two cases no privilege of discussion whatever, as springingfrom the relation of elector and candidate, is conceded in a civil

action;1 they are treated precisely as they would have been if nopublic consideration were in any way involved. It is difficult tounderstand how the privileges of electors, of which they speak, areprotected by such a doctrine. These decisions treat the subject as ifthere were no middle ground between absolute immunity for falsehoodand the application of the same strict rules which prevail in othercases.2

This narrow view of the law was not maintained. In Hamiltonv. Eno,3 although the earlier cases were not overruled, the matter isput upon entirely different grounds, apparently without any real ap-preciation of the departure. In this case it appeared that an assist-ant inspector of the board of health of the city of New York had madean official report recommending a certain kind of street pavement.The defendant thereupon published a statement asserting in effectthat the statements in the report had been dictated by persons finan-cially interested in the pavement, and that the inspector had receiveda reward from them for it. The defendant offered no proof of thecharge, but claimed that, although it was defamatory and untrue, yet,if made without malice, it was privileged.

The court concededthat, "in a qualifiedway, the [privileged]occasionexistswhen there has beenput fortha publicationof generalpublic interest,or thepublication husmade in itselfis one to whichpublicinteresthasbeeninvited. Then there is a right to make comment upon that publication.And like to this are the acts and conduct of public functionaries,and, ofcourse,theirofficialproductions,when madepublicby themselvesor in thedue courseof the publicbusiness. . . . Everycitizenhad a rightto discussthe questionas publiclyas the reporthad done so. So that the time andmode of the publicationof the defendant made the occasion of it thus farbe fully proved. King v. Root, 4 Wend. II3." The answer to this inquiry is obvious.In both cases there was an imputation of intoxication as an inference from facts stated;but in one case the inference was protected as fair comment, while in the other it washeld necessary to justify the inference as a fact.1 In Com. v. Clap, 4 Mass. I63, Chief Justice Parsons had, in 1809, admitted that,in criminal cases, a defendant who could prove the truth of his charges might be pro-tected in some cases where he would not be if the person assailed was not appealingto public favor.

2 See Cooley, Constitutional Limitations, 431 et seq.; Eickhoff v. Gilbert, 124Mich. 353; Express Co. v. Copeland, 64 Tex. 354.3 8I N. Y. 116 (I880).

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FREEDOM OF PUBLIC DISCUSSION.privileged. Such an occasion must, however,be used fairly and in goodfaith, with a view to the publicinterestand good, and withoutevil or mali-cious motive. In the case at hand, there was the reportof the plaintiff,andit was his reportmade officially. It was, therefore,the subject of criti-cism as a work upon a matterof public interest,and also as the act of anofficialperson. As a work,the defendantmight question its statementsoffact and deny them, he might expose misrepresentationsand point outerrors; he might combatits reasoningand show its conclusions ll drawn;and he might do so with satire and ridicule,so long as he directedthosemissilesat the reportand the contentsof it. But he could not attack theprivate characterof the author; to do so would be libellous. (Cooperv.Stone, 24 Wend. 442.) . . . We are of the opinion that the official act of apublic functionarymay be freely criticized,and entire freedomof expres-sion used in argument,sarcasm,and ridiculeupon the act itself; and thatthen the occasion will excuseeverythingbut actualmaliceand evil purposein the critic. We are of the opinionthat the occasionwill not of itselfexcusean aspersiveattack upon the characterand motives of the officer; andthat to be excused,the critic must show the truth of what is uttered ofthat kind."More guardedly worded is the judgment in Mattice v. Wilcox,1 inwhich it appeared that, prior to a charter election for trustees of avillage, the defendant published a circular dealing with general villagetopics, in the course of which he imputed to the plaintiff criminality inhis office of assessor, and incompetence in his professional capacity asattorney for the village. In denying the defendant's broad claim ofprivilege, the court said:

"The defendanthad the right at all times to communicatepublicly byspeech, or in writing, with the citizens of Oneonta regardingthe generalcondition of municipalaffairs. The approachingelection for trustees wasa peculiarlyappropriateoccasionfor it. But the occasion did not excusethe defendant n makinga personalanddefamatory hargeagainstthe char-acter of the plaintiff,nor was such a chargeprivilegedwithin the meaningof the term as alreadydefined. (Hamiltonv. Eno, 6i N. Y. II6.) Thedefendantcouldnot thus attackin an aspersivemanner the privateor pro-fessional character of the plaintiff; certainlynot unless there were somefair or plausiblereason for thus includingand attackingit in the course ofproperand appropriate riticismconcerning he manner n whichthe affairsof the village had been conducted. We do not think the proof or the cir-cumstancesshow therewas any such reason; nor can it fairlyor appropri-1 I47 N. Y. 624 (i895).

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HARVARD LAW REVIEW.ately be foundedupon any or all of the facts proved by the defendant. Ifan individualchooseto attackan officerand chargehim with incompetencyin his professionalcharacterand with criminality n his office as assessor(if the jury should so construehis language),he must be prepared,whenbrought nto court, to provethe truthof his charge."

In Triggs v. Sun Printing & Pub. Assn.,1 in overruling a demurrerto the complaint in a case where an author had been represented as apresumptuous literary freak, and his private life ridiculed, the courtadvanced a step further:

"It is contendedby therespondent hatthe articlespublishedwerea merecommentor criticismof mattersof publicinterestand concern,and, hence,wereprivileged. Whileeveryone has a rightto commenton mattersof pub-lic interest,so long as one does so fairly,with an honestpurpose,and notintemperatelyand maliciously,although the publication is made to thegeneralpublicby meansof a newspaper,yet, what is privileged s criticism,not otherdefamatory tatements,and if a persontakes upon himselfto al-lege factsotherwiseactionable,he will not be privileged,howeverhonesthismotives,if thoseallegationsare not true. It is true that an authorwhen heplaces his work before the public invites criticism,and howeverhostile itmay be, the critic s not liablefor libel,providedhe makesno misstatementsof materialfacts contained n the writingand does not go out of his wayto attack the author. The critic must, however,confinehimself to criti-cism and not make it the veil for personalcensure,nor allowhimselfto runinto reckless and unfair attacks merelyfor the purpose of exercisinghispowersof denunciation. If, underthe pretextof criticizinga literarypro-duction or the acts of one occupyinga public position, the critic takes anopportunity o attack the authoror occupant,he will be liable in an actionfor libel. (Cooperv. Stone, 24 Wend. 434; Mattice v. Wilcox, 71 Hun485, 488; affirmed I47 N. Y. 624; Hamilton v. Eno, 8i N. Y. 116.) . . .The single purposeof the rule permitting air and honest criticism s thatit promotes the public good, enables the people to discern right fromwrong, encouragesmerit, and firmlycondemnsand exposes the charlatanand the cheat, and henceis based upon publicpolicy. The distinctionbe-tweencriticismand defamation s that criticismdealsonlywith such thingsas invitepublicattentionor call for publiccomment,and does not followapublicmaninto his private ife or pryinto his domesticconcerns. It neverattacksthe individual,but only his work."

These three cases constitute a distinct departure from the earliercases in that they recognize a privileged occasion arising out of the1 179 N. Y. 144 (I904).

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FREEDOM OF PUBLIC DISCUSSION.public nterest n thesubjectmatter. But in thefirstcasethecourt,notcontent with decidingthat a direct defamatorycharge is not privi-leged merelybecauseof its public interest,and withoutappreciatingthe distinctionbetween statementand comment,follows the dictumof the majorityof the Americancases in making an untenabledis-tinction between personal and impersonalcriticism. Manifestly,however,nothing could be more relevantor more importantto thepublic interestthan the fact, if therewere any groundsfor such aninference, hat a publicofficerhas been recreant o his trust. In thetwo succeedingcases a wider atitudeof comment s merelysuggestedand then practicallydenied.For the final stage of legal development n the directionof thetrue solutionof the problemrecoursemust be had as yet to recentdecisionsof lowercourts. In the case of McDonald v. Sun Printing& Pub. Assn.,1 t appeared hat the plaintiffhad soughtto securetheestablishmentby Congressof a "laboratory or the study of the ab-normalclasses,"in furtherance f which he publisheda book entitled"Girls who AnswerPersonals,"giving the resultof his communica-tion with young womenwho had given him accounts of their lives.The defendantcharacterizedhe conductof the plaintiffand thebookas shameless,prurient,and a scandal. The trialjudgesent the caseto the juryon the questionwhether he inferencesof fact drawnby thedefendantwerereasonablypossible,and, therefore,permissible.

"Any one who publishesa book, or does any public act, challengesdis-cussionand criticism. Everyone has therightto indulge n such discussionand criticism reelyandfully, and to draw nferencesandto expressopinionson thefactsin the sameway. . . . In thepresentcasetheplaintiff s chargedwith pruriency, scandal, and shamelessness. This affects his personalcharacter. If his book and his conductlay him open to the charge,the de-fendant did not go outside the realm of criticism,and is not liable."

In Howarthv. Barlow,2t appeared hat the clerk of a boardof vil-lage trusteespresentedto the trusteesfor paymenta numberof billsagainstthe village,amongwhichone of the trusteesdiscovereda billforlumberpurchasedby the clerk for his individualuse. This trusteeplacedthematterbefore hetaxpayers'association f thevillage,whichappointedhimand thedefendanta committee opresent t to thegrandjury. The defendantdiscussedthe matterwith the presidentof the

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1 45 N. Y. Misc. 442 (I904). 2 II3 N. Y. App. Div. 5Io (90o6).


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HARVARD LA W RE VIEW.village, concluding with the statement, "Well, you see the intent.You should call for his resignation, and if he will resign there will beno further trouble." Reversing a judgment for the plaintiff, the courtsaid:

"The plaintiff'swhole official conduct in the matter was open to thefullest criticism,and the defendantand all other personshad the right todraw from it and expressany opinionsor inferencesthat could be drawnfrom it, althoughcontrary,and it may be, morereasonableones, could bedrawn from it. That such opinions or inferencesare far-fetched, high-strung, or severelymoral, or contraryto other opinionsor inferencesthatseem morereasonable,does not matterso long as therebe a basis for themin the acts or wordsof the personwho is the subjectof such criticism. Themajorityor prevailing opinion is not the test of whethersuch opinionsorinferencesbe permissible. The prevailingor majorityopinionis often thewrongone. For that reason the law gives full latitude to the expressionofany and all opinionson thingsof generalconcern. It does not matterthatthe opinionsor inferencesexpressedare not the most charitableor reason-able ones, or that they are the wrongones, providedthey be based on thefacts and the facts are capable of them. This is the rule and latitude ofdiscussionand criticismof the conduct of every one who holds a publicoffice,orwritesa book,or does anyact by which he invitespublic attentionand criticism. The peopleare not obligedto speakof the conductof theirofficials n whispersor with bated breathin a free government,but only ina despotism. On the contrary, they have a right to speak out in opendiscussion and criticismthereof, the only test being that they make nofalse statement; and this is the great safeguardof free government,andof pure government." Van Vechten Veeder.

NEW YORE.

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