We quote from an opinion by the Supreme Court of New York, in a case where a publisher of a newspaper was prosecuted for libel, and where the position was taken by counsel that the publication was privileged: "It is made a point in this case, and was insisted upon in argument, that the editor of a public newspaper is at liberty to copy an item of news from another paper, giving at the same time his authority, without subjecting himself to legal responsibility, however libellous the article may be, unless express malice is shown. It was conceded that the law did not, and ought not, to extend a similar indulgence to any other class of citizens; but the counsel said that a distinction should be made in favor of editors, on the ground of the peculiarity of their occupation. That their business was to disseminate useful information among the people; to publish such matters relating to the current events of the day happening at home or abroad as fell within the sphere of their observation, and as the public curiosity or taste demanded; and that it was impracticable for them at all times to ascertain the truth or falsehood of the various statements contained in other journals. We were also told that if the law were not thus indulgent, some legislative relief might become necessary for the protection of this class of citizens. Undoubtedly if it be desirable to pamper a depraved public appetite or taste, if there be any such, by the republication of all the falsehoods and calumnies upon private character that may find their way into the press, to give encouragement to the widest possible circulation of these vile and defamatory publications by protecting the retailers of them,—some legislative interference will be necessary, for no countenance can be found for the irresponsibility claimed in the common law. That reprobates the libeller, whether author or publisher, and subjects him to both civil and criminal responsibility. His offence is there ranked with that of the receiver of stolen goods, the perjurer and suborner of perjury, the disturber of the public peace, the conspirator, and other offenders of like character." And again: "The act of publication is an adoption of the original calumny, which must be defended in the same way as if invented by the defendant. The republication assumes and indorses the truth of the charge, and when called on by the aggrieved party, the publisher should be held strictly to the proof. If he chooses to become the indorser and retailer of private scandal, without taking the trouble to inquire into the truth of what he publishes, there is no ground for

complaint if the law, which is as studious to protect the character as the property of a citizen, holds him to this responsibility. The rule is not only just and wise in itself, but, if steadily and inflexibly adhered to and applied by courts and juries, will greatly tend to the promotion of truth, good morals, and common decency on the part of the press, by inculcating caution and inquiry into the truth of charges against private character before they are published and circulated throughout the community."1

If this strong condemnatory language were confined to the cases where private character is dragged before the public for detraction and abuse, to pander to a depraved appetite for scandal, its propriety and justice and the force of its reasons would be at once conceded. But a very large proportion of what the newspapers spread before the public relates to matters of public concern, but in which, nevertheless, individuals figure, and must therefore be mentioned in any account. To a great extent, also, the information comes from abroad; the publisher can have no knowledge concerning it, and no inquiries which he could make would be likely to give him more definite information, unless he delays the publication until it ceases to be of value to his readers. Whatever view the law may take, the public sentiment does not brand the publisher of a newspaper as libeller, conspirator, or villain, because the telegraph despatches transmitted to him from all parts of the world, without any knowledge on his part concerning them, are published in his paper, in reliance upon the prudence, care, and honesty of those who have charge of the lines of communication, and whose interest it is to be vigilant and truthful. The public demand and expect accounts of every important meeting, of every important trial, and of all the events which have a bearing upon trade and business, or upon political affairs. It is impossible that these shall be given in all cases without matters being mentioned derogatory to individuals; and if the question were a new one in the law, it might be worthy of inquiry whether some line of distinction could not be drawn which would protect the publisher when giving in good faith such items of news as would be proper, if true, to spread before the public, and which he gives in the regular course of his employment, in pursuance of a public demand, and without any negligence, as they come to him from the

1 Hotchkiss v. Oliphant, 2 Hill, 513, per Nelson, Ch. J. And see King v. Root, 4 Wend. 138, per Walworth, Chancellor.

usual and legitimate sources, which he has reason to rely upon; at the same time leaving him liable when he makes his columns the vehicle of private gossip, detraction, and malice.

1

The question, however, is not new, and the authorities have generally held the publisher of a paper to the same rigid responsibility with any other person who makes injurious communications. Malice on his part is conclusively inferred, if the communications are false. It is no defence that they have been copied with or without comment from another paper; or that the source of the information was stated at the time of the publication; 2 or that the publication was made in the paper without the knowledge of the proprietor, as an advertisement or otherwise; or that it consists in a criticism on the course and character of a candidate for public office; or that it is a correct and impartial account of a public

Hotchkiss v. Oliphant, 2 Hill, 510. Even though they be preceded by the statement that they are so copied. Sanford v. Bennett, 24 N. Y. 20.

Dole v. Lyon, 10 Johns. 447; Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Wend. 602; Hotchkiss v. Oliphant, 2 Hill, 514.

Andres v. Wells, 7 Johns. 260; Huff v. Bennett, 4 Sandf. 120; Same case, 6 N. Y. 337; Marten v. Van Schaick, 4 Paige, 479; Commonwealth v. Nichols, 10 Met. 259.

4 King v. Root, 4 Wend. 113. The action was for a libel, published in the New York American, reflecting upon Root, who was candidate for lieutenant-governor. We quote from the opinion of the chancellor : "It is insisted that this libel was a privileged communication. If so, the defendants were under no obligation to prove the truth of the charge, and the party libelled had no right to recover, unless he established malice in fact, or showed that the editors knew the charge to be false. The effect of such a doctrine would be deplorable. Instead of protecting, it would be destroying the freedom of the press, if it were understood that an editor could publish what he pleased against candidates for office, without being answerable for the truth of such publications. No honest man could afford to be an editor, and no man who had any character to lose would be a candidate for office under such a construction of the law of libel. The only safe rule to adopt in such cases, is to permit editors to publish what they please in relation to the character and qualifications of candidates for office, but holding them responsible for the truth of what they publish." Notwithstanding the deplorable consequences here predicted from too great license to the press, it is matter of daily observation that the press, in its comments upon public events and public men, proceeds in all respects as though it were privileged; public opinion would not sanction prosecutions by candidates for office for publications amounting to technical libels, but which were nevertheless published without malice in fact; and the man who has a "character to lose" presents himself for the suffrages of his fellowcitizens in the full reliance that detraction by the public press will be corrected through the same instrumentality, and that unmerited abuse will react on the

meeting,1 or of any proceedings in which the public have an interest, unless they were legislative or judicial in their character, and where both parties had opportunity to be heard.2 Criticisms on

public opinion in his favor. Meantime the press is gradually becoming more just, liberal, and dignified in its dealings with political opponents, and vituperation is much less common, reckless, and bitter now than it was at the beginning of the century, when repression was more often resorted to as a remedy.

1 Dawson v. Duncan, 7 El. & Bl. 229.

⚫ Sanford v. Bennett, 24 N. Y. 20. Bennett was sued for publishing in the New York Herald the speech of a person convicted of murder, made upon the scaffold as he was about to be executed, and reflecting upon the counsel who had defended him. The principal question in the case was, whether a statute of the State, passed after the publication but before the trial, was applicable. The statute privileged any fair and true report in a newspaper, of a judicial, legislative, or other public official proceeding, or statement, speech, argument, or debate in the course of the same. The court held the statute not applicable, both because it was not retrospective in its provisions, and therefore could not apply to publications previously made, and also because this was not any such proceeding as the statute contemplated. Upon the question whether the publication was not privileged, independent of, the statute, Denio, J., says: "The want of legal connection between the words spoken and the proceeding which was going forward at the same time and place, which has led me to the conclusion that the statute does not apply, shows that it is not within the reason upon which the commonlaw rule is based. That rule assumes that the public may have a legitimate interest in being made acquainted with the proceedings of courts of justice and of legislative bodies. The free circulation of such intelligence is of vast advantage in every country, and particularly here, where all reforms in legal or administrative polity must proceed from the people at large. But neither the reason of the rule, nor, as I believe, the rule itself has any application to a proceeding in which neither forensic debate nor legislative or administrative deliberations or determinations have any place. Where the proceeding is a mere act, with which neither oral nor written communications have anything more than an accidental or fortuitous connection, there is no room for the application of the doctrine of privilege to whatever may be spoken or written at the time and place where and when it is transpiring. Such transactions are subject to be reported, described, and published in newspapers or otherwise, like other affairs in which individuals and communities feel a curiosity, and with the same liability attaching to the publisher to answer for any injury which may happen to the character of individuals if, in the course of such publications, libellous imputations are applied to any one. It is of course perfectly lawful to publish all the circumstances attending a public execution, including the dying speech of the malefactor; but it is a necessary condition of that right, that if scandalous imputations are used by the culprit or any one else which are untrue, he who publishes them afterwards must be responsible for the wrong and injury thereby occasioned to the person attacked." Mason, J., in the same case gives a reason for concurring in the conclusion of the court, which seems to us to possess some force, independent of the question of privilege. It is

works of art and literary productions are allowable, if fair, reasonable, and temperate; but the artist or author is not to be criticised through his works, and his personal character is not made the property of the public by his publications. For further privilege it would seem that publishers of news must appeal to the protection of public opinion, or to the legislature for such modification of the law as may seem important to their just protection.

The publisher of a newspaper, however, though responsible for all the actual damage which a party may suffer in consequence of injurious publications in his paper, cannot be properly made liable for exemplary or vindictive damages, where the article complained of was inserted in his paper without his personal knowledge, and he has been guilty of no negligence in the selection of agents, or of personal misconduct, and is not shown habitually to make his paper the vehicle of detraction and malice.2

Publication of Legislative Proceedings.

Although debates, reports, and other proceedings in legislative bodies are privileged, it does not seem to follow that the publication of them is always equally privileged. The English decisions do not place such publications on any higher ground of right than any other communication through the public press. A member of Parliament, it is said, has a right to publish his speech, but it must not be made the vehicle of slander against any individual, and if it is, it is a libel. And in another case: "A member of that the provisions of law then in force, requiring capital executions to be within the walls of the prison, or in an adjoining inclosure, and excluding all spectators with limited exceptions, must be regarded as indicating a legislative policy adverse to the publicity of what passes on such occasions.

The libel suits brought by J. Fennimore Cooper may be usefully consulted in this connection. Cooper v. Stone, 24 Wend. 434; Cooper v. Barber, 24 Wend. 105; Cooper v. Greeley, 1 Denio, 347; Stone v. Cooper, 2 Denio, 293. As to criticisms on public entertainments, see Fry v. Bennett, 5 Sandf. 54, and 28 N. Y. 324; Dibdin v. Swan, 1 Esp. 28; Green v. Chapman, 4 Bing. (N. C.) 92. As to how far sermons, preached but not otherwise published, form a proper subject for comment and criticism by the public press, see Gathercole v. Miall, 15 M. & W. 318.

Daily Post Co. v. McArthur, and Detroit Free Press v. Same, 16 Mich. 447. Rex v. Lord Abington, 1 Esp. 226. In this case the defendant was fined, imprisoned, and required to find security for his good behavior, for a libel contained in a speech made by him in Parliament, and afterwards published.