criminal trials (and not merely in the comparatively small number in
which they are themselves the instigators of the criminal proceedings)
is that they often make fair play an impossibility. The days and weeks
that are now not infrequently given to selecting jurors in important
criminal cases are spent in large measure by counsel in examining
talesmen in an endeavor to find, if possible, twelve men in whose minds
the accused has not been already “tried by newspaper” and condemned or
acquitted. When the public feeling in a community is such that it will
be impossible for a party to an action to obtain an unprejudiced jury, a
change of venue is allowed to some other county where the state of the
public mind is more judicial. It is a significant fact that nearly all
applications for such change in the place of trial from New York City
have been for many years based mainly upon complaints of the
inflammatory zeal of the sensational press.
The courts in Massachusetts (where judges are not elected by the people,
but are appointed by the governor) have been very prompt in dealing in a
very wholesome and summary way with editors of papers publishing matter
calculated to affect improperly the fairness of jury trials. Whether it
be from better principles or an inspiring fear of jail, the courts of
public justice in that state receive little interference from
unwarranted newspaper stories. Some of the cases in which summary
punishment has been meted out from the bench to Massachusetts editors
will impress New York readers rather curiously. For example, just before
the trial of a case involving the amount of compensation the owner of
land should receive for his land taken for a public purpose, a newspaper
in Worcester informed its readers that “the town offered Loring [the
plaintiff] $80 at the time of the taking, but he demanded $250, and not
getting it, went to law.” Another paper published substantially the same
statement, and both were summarily punished by fine, the court holding
that these articles were calculated to obstruct the course of justice,
and that they constituted contempt of court. During the trial of a
criminal prosecution in Boston a few years ago against a railway
engineer for manslaughter in wrecking his train, the editor of the
_Boston Traveler_ intimated editorially that the railway company was
trying to put the blame on the engineer as a scapegoat, and that the
result of the trial would probably be in his favor. The editor was
sentenced to jail for this publication. The foregoing are undoubtedly
extreme cases, and are chosen simply to show the extent to which some
American courts will go in punishing newspaper contempts. All of these
decisions were taken on appeal to the highest court of the state and
were there affirmed. The California courts have been equally vigorous in
several cases of recent years, notably in connection with publications
made during the celebrated Durant murder trial in San Francisco.
The English courts are, if anything, even more severe in this class of
cases, a recent decision of the Court of King’s Bench being a noteworthy
illustration. During the trial of two persons for felony, the “special
crime investigator” of the _Bristol Weekly Dispatch_ sent to his paper
reports, couched in a fervid and sensational form, containing a number
of statements relating to matters as to which evidence would not have
been admissible in any event against the defendants on their trial, and
reflecting severely on their characters. Both of the defendants referred
to were convicted of the crime for which they were indicted, and
sentenced to long terms of imprisonment. Shortly after their conviction
and sentence the editor of the _Dispatch_ and this special crime
investigator were prosecuted criminally for perverting the course of
justice, and each of them was sentenced to six weeks in prison. Lord
Alverstone, who rendered the opinion on the appeal taken by the editor
and reporter, in affirming the judgment of conviction, expresses himself
in language well worth repeating. He says:[8]—
Footnote 8:
1 K. B. (1902), 77.—G. W. A.
“A person accused of crime in this country can properly be convicted in
a court of justice only upon evidence which is legally admissible, and
which is adduced at his trial in legal form and shape. Though the
accused be really guilty of the offense charged against him, the due
course of law and justice is nevertheless perverted and obstructed if
those who have to try him are induced to approach the question of his
guilt or innocence with minds into which prejudice has been instilled by
published assertions of his guilt, or imputations against his life and
character to which the laws of the land refuse admission as evidence.”
In the state of New York the courts have permitted themselves to be
deprived of the greater portion of the power which the courts of
Massachusetts, in common with those of most of the states, exercise of
punishing for contempt the authors of newspaper publications prejudicial
to fair trials. Some twenty-five years ago the state legislature passed
an act defining and limiting the cases in which summary punishment for
contempt should be inflicted by the courts. Similar legislation has been
attempted in other states, only to be declared unconstitutional by the
courts themselves, which hold that the power to punish is inherent in
the judiciary independently of legislative authority, and that, as the
Supreme Court of Ohio says, “The power the legislature does not give, it
cannot take away.” But while the courts of Ohio, Virginia, Georgia,
Indiana, Kentucky, Arkansas, Colorado, and California have thus resisted
legislative encroachment upon their constitutional powers, the highest
court of New York has submitted to having its power to protect its own
usefulness and dignity shorn and curtailed by the legislature. The
result is that while by legislative permission they may punish the
editor or proprietor of a paper for contempt, it can be _only_ when the
offense consists in publishing “a false or grossly inaccurate report of
a judicial proceeding.” The insufficiency of such a power is apparent
when one considers that the greater number of the cartoons and comments
contained in publications fairly complained of as prejudicing individual
legal rights are not, and do not pretend to be, reports of judicial
proceedings at all, but are entirely accounts of matters “outside the
record.” If the acts done, for example, in any of the cases cited as
illustrations above, had been done under similar circumstances in New
York, the New York courts would have been powerless to take any
proceeding whatever in the nature of contempt against the respective
offenders. The result is that in the state which suffers most from the
gross and unbridled license of a sensational and lawless press the
courts possess the least power to repress and restrain its excesses. A
change of law which shall give New York courts power to deal summarily
with trial by newspaper is imperatively needed.
To the two examples which have just been given of the direct influence
which counting-house journalism seeks to exert upon judges and jurors,
might be added others of equal importance, would space permit. But all
improper influences upon legislators or other public officials, or upon
judges or jurors, which these papers may exercise or attempt to
exercise, are as naught in comparison with their systematic and constant
efforts to instill into the minds of the ignorant and poor, who
constitute the greater part of their readers, the impression that
justice is not blind but bought; that the great corporations own the
judges, particularly those of the Federal courts, body and soul; that
American institutions are rotten to the core, and that legislative halls
and courts of justice exist as instruments of oppression, to preserve
the rights of property by denying or destroying the rights of man. No
greater injury can be done to the working people than to create in their
minds this false and groundless suspicion concerning the integrity of
the judiciary. In a country whose political existence, in the ultimate
analysis, depends so largely upon the intelligence and honesty of its
judges, the general welfare requires, not merely that judges should be
men of integrity, but that the people should believe them to be so. It
is this confidence which counting-house journalism has set itself
deliberately at undermining. It is not so important that the people
should believe in the wisdom of their judges. The liberty of criticism
is not confined to the bar and what Judge Grover used to call “the
lawyer’s inalienable privilege of damning the adverse judge—out of
court.” There is no divinity which hedges a judge. His opinions and his
personality are proper subjects for criticism, but the charge of
corruption should not be made recklessly and without good cause.
It is noticeable that this charge of corruption which yellow journalism
makes against the courts is almost invariably a wholesale charge, never
accompanied by any specific accusation against any definite official.
These general charges are more frequently expressed by cartoon than by
comment. The big-chested Carthaginian labeled “The Trusts,” holding a
squirming Federal judge in his fist, is a cartoon which in one form or
another appears in some of these papers whenever an injunction is
granted in a labor dispute at the instance of some great corporation.
Justice holding her scales with a workingman unevenly balanced by an
immense bag of gold; a human basilisk with dollar marks on his clothes,
a judge sticking out of his pocket, and a workingman under his foot;
Justice holding her scales in one hand while the other is conveniently
open to receive the bribe that is being placed in it—these and many
other cartoons of similar character and meaning are familiar to all
readers of sensational newspapers. If their readers believe the
cartoons, what faith can they have left in American institutions? What
alternative is offered but anarchy if wealth has poisoned the fountains
of justice; if reason is powerless and money omnipotent? If the judges
are corrupt, the political heavens are empty.
There is no occasion to defend the American judiciary from charges of
wholesale corruption. They might be passed over in silence if they were
addressed merely to the educated and intelligent, or to those familiar
by personal contact with the actual operations of the courts. That there
are many judicial decisions rendered which are unsound in their
reasoning may be readily granted. That some of the Federal judges are
men of very narrow gauge, and that, during the recent coal strike for
example, in granting sweeping, wholesale injunctions against strikers
they have accompanied their decrees at times with opinions so
unjudicial, so filled with mediæval prejudice and rancor against
legitimate organizations of working people as to rouse the indignation
of right-minded men, may be admitted. But prejudice and corruption are
totally dissimilar. There is always hope that an honest though
prejudiced man may in time see reason. This hope inspires patience and
forbearance. Justice can wait with confidence while the prejudiced or
ultra-conservative judge grows wise, and the principles of law are
strongest and surest when they have been established by surmounting the
prejudice and doubts of many timid and over-conservative men. But
justice and human progress should not and will not wait until the
corrupt judge becomes honest. To thoughtful men the severest charge yet
to be made against this new journalism is not merely the influence it
attempts to exert, and perhaps does exert, in particular cases, but
that, wantonly and without just cause, it endeavors to destroy in the
hearts and minds of thousands of newspaper readers a deserved confidence
in the integrity of the courts and a patient faith in the ultimate
triumph of justice by law.
THE CRITIC AND THE LAW
BY RICHARD WASHBURN CHILD
I
A recent prosecution by the People of New York, represented by Mr.
Jerome, of a suit for criminal libel, attracted the attention of the
entire nation. The alleged libel set forth in the complaint had appeared
in _Collier’s Weekly_, stating the connection of a certain judge with a
certain unwholesome publication. The defense to this action was that the
statement was true; and, somewhat to the joy of all concerned, excepting
the judge, the unwholesome publication, and those who were exposed in
the course of trial as being its creatures, the jury were obliged to
find that this defense was sound.[9] From a lawyer’s point of view it
was surprising to find that even professional critics and editorial
writers looked upon this case as involving that part of the Common Law
which prescribes the limits of criticism. It only needs to be pointed
out that the statement relied upon as defamation was a statement of
fact, to show that the case against the Collier editors involved no
question of a critic’s right to criticise or an editor’s right to
express his opinion. If the suit had been founded on the criticism of
the contents of the unwholesome publication which had been offered to
the public for those to read who would, then the law of fair comment
would have controlled. No doubt, however, even the trained guides to the
public taste seldom realize the presence of a law governing their
freedom of comment. Such law is in force none the less, and, though the
instinct to express only fair and honest opinion will generally suffice
to prevent a breach of legal limits, it is evident that the
consideration of the law upon the subject is important, not only to the
professional critic, but to any man who has enough opinion on matters of
public interest to be worth an expression.
Footnote 9:
The verdict for _Collier’s Weekly_, the defendant, was rendered on
January 26, 1906. Cf. _Collier’s Weekly_, February 10, 1906, vol. 36,
p. 23.—ED.
It is public policy that the free expression of opinion on matters of
public interest should be as little hampered as possible. Fair comment,
says the law, is the preventive of affectation and folly, the educator
of the public taste and ethics, and the incentive to progress in the
arts. Often fair comment is spoken of as privileged. But privilege in
its legal sense means that some statement is allowed to some particular
person on some particular occasion—a statement that would be libel or
slander unless it came within the realm of privilege. On the other hand,
fair comment is not the right of any particular person or class, or the
privilege of any particular occasion; it is not exclusively the right of
the press or of one who is a critic in the sense that he is an expert.
Doubtless the newspaper or professional critic is given a greater
latitude by juries, who share the prevalent and not ill-advised view
that opinion expressed by the public press is usually more sound than
private comment. The law, however, recognizes no such distinction. Any
one may be a critic.
In civil actions of defamation, truth in a general way is always a
defense; whether the person against whom the suit is brought has made a
statement of fact or opinion, if he can prove his words to be true, he
is safe from liability. Such was the defense of the Collier editors in
the criminal case mentioned above. Fair comment, however, does not need
to be true to be defended, for it is, if we may use the phrase, its own
defense. Then what is fair comment?
The right to comment is confined to matters which are of interest to the
public. To endeavor to give a list of matters answering this requirement
would be an endless task; even the courts of England and this country
have passed upon only a few. Instances when the attention, judgment, and
taste of the public are called upon are, however, most frequent in the
fields of politics and of the arts. Such are the acts of those entrusted
with functions of government, the direction of public institutions and
possibly church matters, published books, pictures which have been
exhibited, architecture, theatres, concerts, and public entertainments.
Two reasons prohibit comment upon that which has not become the affair
of the public nor has been offered to the attention of the public:—the
public is not benefited by the criticism of that which it does not know,
and about which it has no concern, and the act of the doer or the work
of the artist against which the comment is directed cannot be said to
have been submitted to open criticism.
The requirement, which seems right in principle, and which has been laid
down many times in the remarks of English judges, was perhaps overlooked
in Battersby vs. Collier, a New York case. Colonel Battersby, it
appeared, was a veteran of the Civil War, and for six years had been
engaged in painting a picture representing the dramatic meeting of
General Lee and General Grant, at which Colonel Battersby was present.
This painting was intended for exhibition at the Columbian Exposition.
Unfortunately, a few days before Christmas, a young woman of a literary
turn of mind had an opportunity to view this immense canvas, and was
less favorably impressed with the painting than with the pathos
surrounding its inception and development. Accordingly she wrote a story
headed by that handiest of handy titles, _The Colonel’s Christmas_, but
she did not sufficiently conceal the identity of her principal
character. Colonel Battersby sued the publishers, and for damages relied
upon the aspersions cast upon his picture, which in the story was called
a “daub.” More than that, there occurred in the narrative these words:
“What matters it if the Colonel’s ideas of color, light, and shade were
a trifle hazy, if his perspective was a something extraordinary, his
‘breadth’ and ‘treatment’ and ‘tone’ truly marvelous, the Surrender was
a great, vast picture, and it was the Colonel’s life.” The court held
that this was a fair criticism; but it does not plainly appear that
Colonel Battersby had yet submitted his six-year painting to the
attention of the public, or that it had at the time become an object of
general public interest; and if it had not, the decision would seem
doubtful in principle.
On the other hand, in Gott vs. Pulsifer there was involved the “Cardiff
Giant,” which all remember as the merriest of practical jokes in rock,
which made Harvard scientists rub their eyes and called forth from one
Yale professor a magazine article to prove that the man of stone was the
god Baal brought to New York State by the Phœnicians. The court said
that all manner of abuse might be heaped on the Giant’s adamant head.
“Anything made subject of public exhibition,” said they, “is open to
fair and reasonable comment, no matter how severe.” So you might with
impunity call the Cardiff Giant, or Barnum’s famous long-haired horse, a
hoax; they were objects of general public interest, and any one might
have passed judgment upon them.
Letters written to a newspaper may be criticised most severely, as often
happens when Constant Reader enters into a warfare of communication with
Old Subscriber; and so long as the contention is free from actionable
personalities, and remains within the bounds of fair comment, neither
will find himself in trouble. Nor is the commercial advertisement immune
from caustic comment, if the comment is sincere. The rhymes in the
street cars, the posters on the fences, the handbill that is thrust over
the domestic threshold, and the signboard, that has now become a factor
in every rural sunset or urban sunrise, must bear the comment upon their
taste, their efficiency, and their ingenuity, which by their very nature
they invite. In England a writer was sued by the maker of a commodity
for travelers advertised as the “Bag of Bags.” The writer thought the
commercial catch-name was silly, vulgar, and ill-conceived, and he said
so. The manufacturer in court urged that the comment injured his trade;
but the judges were inclined to think that an advertisement appealing to
the public was subject to the public opinion and its fair expression.
What is of interest to the general public, so that comment thereon will
be a right of the public, may, however, in certain cases trouble the
jury. A volume of love sonnets printed and circulated privately, and the
architecture of a person’s private dwelling, might furnish very delicate
cases.
In a time when those who desire to be conspicuous succeed so well in
becoming so, it is rather amusing to wonder just what may be the
difference between the right to comment on the dancer on the stage, and
on the lady who, if she has her way, will sit in a box. Both court
public notice—the dancer by her penciled eyebrows, her tinted cheeks,
her jewelry, her gown, and her grace; the lady in the box, perhaps, by
all these things except the last; both wish favorable comment, and
perhaps ought to bear ridicule, if their cheeks are too tinted, their
eyebrows too penciled, their jewelry too generous, and their gowns too
ornate. A more sober view, however, will show that the matter is one of
proof. The dancer who exhibits herself and her dance for a consideration
necessarily invites expressions of opinion, but it would be difficult to
show in a court of law that the gala lady in the box meant to seek
either commendation—or disapproval.
A vastly more important and interesting query, and one which must arise
from the present state and tendency of industrial conditions, is whether
the acts of men in commercial activity may ever become so prominent, and
so far-reaching in their effect, that it can well be said that they
compel a universal public interest, and that public comment is impliedly
invited by reason of their conspicuous and semi-public nature. It may be
said that at no time have private industries become of such startling
interest to the community at large as at present in the United States.
At least a few have had an effect more vital to citizens, perhaps, than
the activities of some classes of public officials which are open to
fair comment, and certainly more vital than the management of some
semi-public institutions, which also are open to honest criticism.
As to corporations, it would seem that, as the public, through the
chartering power of legislation, gives them a right to exist and act, an
argument that the public retains the right to comment upon their
management must have some force; in the case of other forms of
commercial activity, whose powers are inherent and not delegated, the
question must rest on the determination of the best public policy—a
determination which in all classes of cases decides, and ought to
decide, the right of fair comment.
II
When once the comment is decided to be upon a matter of public interest,
there arises the question whether or not the comment is fair. The
requirement of the law in regard to fairness is not based, as might be
supposed, upon the consideration whether comment is mild or severe,
serious or ridiculing, temperate or exaggerated; the critic is not
hampered in the free play of his honest opinions; he is not prohibited
from using the most stinging satire, the most extravagant burlesque, or
the most lacerating invective.