"denies to a man the possession of some such worthy quality as every man
is _a priori_ to be taken to possess"; "which _tends_ to bring a party
into public hatred or disgrace"; which "tends to degrade him in
society"; which "tends to expose him to hatred, contempt or ridicule";
which "reflects on his character"; which "imputes something disgraceful
to him"; which "throws contumely and odium on him"; which "tends to
vilify him"; which "tends to injure his character or diminish his
reputation"; which is "injurious to his social character"; which "shows
him to be immoral or ridiculous"; which "induces an ill opinion of him";
which "detracts from his character as a man of good morals"; which
"imputes to him a bad reputation" or "degradation of character" or
"ingratitude," and "_all defamatory words injurious in their nature_."
Each of the following terms charged on one personally in writing or in
print has been adjudged in one or more reported cases to be libelous and
actionable, namely:
That he was a "villain"; "liar"; "rogue"; "rascal"; "swindler";
"drunkard"; "informer"; that he was the author or the publisher of a
libel or slander; that he was a "libelous journalist"; "a hypocrite, and
using the cloak of religion for unworthy purposes"; "an imp of the
devil"; "a miserable fellow it is impossible for a newspaper article to
injure to the extent of six cents"; and "that the community can hardly
despise him worse than they do now"; that he had paid money to procure
an appointment to an office; that he had received money for offices;
that he had been "deprived of the ordinances of the church"; that he was
"thought no more of than a horsethief and a counterfeiter"; that he had
infringed a patent; that he had been guilty of falsehood; of
"dishonesty"; or "moral obliquity"; of "smuggling"; of "blasphemy"; of
"false swearing"; that he was "insane"; that he was "fit for a lunatic
asylum and unsafe to go at large"; that he had been guilty of gross
misconduct in insulting females, etc. Where quotation marks are used,
they indicate the exact language used in the respective publications
complained of on which the suit was brought.
OBJECTIONABLE PUBLISHED CHARGES
The following published charges have been held to be objectionable,
namely:
Want of chastity (as applied to women, at all events) or adultery
(charged on either man or woman); the publication of the obituary of a
person known to the writer to be living; a charge that a member of
Congress was a "misrepresentative" and a groveling office-seeker; that a
juror agreed with another juror to rest the determination of the damages
in a case upon a game of checkers; characterizing a verdict of a jury as
"infamous" and charging the jurors with having done injustice to their
oaths; stating in the criticism of a book that the motives of the author
are dishonorable or disreputable.
The illustrations of this character might be multiplied indefinitely,
but these cover the general range of libelous expressions when
personally applied to an individual.
Imputations on character in allegory or irony may amount to a libel.
Imputing to a person the qualities of a frozen snake in the fable;
_heading_ an article in regard to a lawyer's sharp practices, "An Honest
Lawyer."
The general rule is that it is libelous _per se_ to impute to a person
in his official capacity, profession, trade or business any kind of
fraud, dishonesty, misconduct, incapacity or unfitness--any imputation,
in fact, which would _tend_ to prevent him deriving that pecuniary
reward from a _legitimate_ business which otherwise he would have
obtained.
It has been held actionable to publish of a _butcher_ that he used false
weights; of a _jeweler_ that he was a "cozening knave" who sold a
sapphire for a diamond; of a _brewer_ that he makes and sells
unwholesome beer or uses filthy water in the malting of grain for
brewing; of a _tradesman_ that he adulterates the article he sells; of a
_schoolmaster_ that he is an "ignoramus" on the subject he pretends to
teach; of a _clergyman_ that he is immoral, or "preaches lies" or is a
"drunkard" or "perjurer"; of an _attorney_ that he offered himself as a
witness in order to divulge the secrets of his client, or that he
"betrayed his client," or "would take a fee from both sides," or that he
"deserves to be struck off the roll"; of a _physician_ that he is an
"empiric," or "mountebank," or "quack," or "vends quack medicines"; of a
_mechanic_ that he is ignorant of his trade; of a _judge_ that he lacks
capacity and has abandoned the common principles of truth; and of anyone
_in public office_ of a charge of malfeasance or want of capacity to
fulfill its duties.
So also personal criticism of an _author_ might go so far as to injure
him in his business as an author and come within the rule. And so of any
other occupation from which the injured person derives pecuniary
benefit.
CHARGING WITH A CRIME
It is hardly necessary, except for completeness, to add that to charge a
person with _any crime_ brings the publication within the definition of
libel.
If matter libelous _per se_ is published falsely concerning a person he
is _presumed_ to have suffered loss without proving the specific amount
or the manner of loss, the amount of damages being found by the jury in
accordance with the circumstances of the case and various legal rules.
If the language complained of does not come within the foregoing
definitions and limitations, and is not therefore libelous _per se_,
still, if untrue, it may furnish the basis for a libel suit _where it
has resulted in pecuniary loss or the loss of other material advantage_.
"Any false words are actionable," say the courts, "by which the party
has sustained _special damage_."
But special damages have to be proved. That is to say, in such case,
excluding general damages arising from a _per se_ libel, the character
and manner of the loss and the amount in dollars and cents must be
proved, and the verdict should not exceed such amount.
A single illustration will be sufficient for this class.
A newspaper _falsely_ publishes that a man has died of the smallpox at a
certain hotel. The proprietor brings a libel suit, claiming loss of
custom by way of special damage. His recovery would be limited to such
special damages as he could fairly show.
Libel has been defined above as "_malicious_ defamation," etc. But it is
not generally necessary that the injured complainant should prove actual
malice. If the defamatory matter complained of is _false_, the law
_presumes_ that the publication was malicious, unless it can be shown
either that it was "privileged" by statute or otherwise, or the
presumption of malice is overcome by actual proof. That is to say, if
the publisher claims that, although false and not privileged, the
defamatory publication was not malicious, he must prove it.
Of course, if it was not false, it would not be legally malicious.
THE THREE DEFENSES
The defense to libel suits, therefore, are three, namely:
(1) To prove the published charge is true. This is called a
"justification."
(2) To show that the publication was "privileged."
(3) To prove circumstances connected with the publication tending to
show that it was not malicious, or was provoked and excused by the
conduct of the complainant. This is called a defense "in mitigation of
damages."
To prove that the defamatory publication complained of is _true_ is an
absolute and complete defense.
The old maxim of the English criminal law, "The greater the truth the
greater the libel," frequently quoted erroneously in this connection,
has no application to actions in the civil courts, and at the present
time would scarcely be invoked even in any of the criminal courts of
this country, except under the most extraordinary circumstances.
But it is not enough that the writer of defamatory articles himself
knows that they are true, unless he is able to produce, when required,
_competent legal proof of their truth_. What he himself has witnessed
is, of course, competent evidence as far as it goes; when such proof can
be strengthened by official records or other documentary proof, and by
the evidence of other persons who can testify of their personal
knowledge to the truth of the publications, a defense of the strongest
character is presented.
But one distinction should be observed carefully, a misconception in
regard to which has given rise to many libel suits that have been
difficult to defend. When it is said that "the truth is a complete
defense," the literal truth of the published statement is not meant;
_but the truth of the defamatory charge_.
_To illustrate_: A prominent official, say a judge, during the progress
of a political campaign, either in the course of an interview or of a
public speech, makes the charge against a candidate for an important
office that he (the candidate) obtained his naturalization papers either
through perjury or subornation of perjury. A newspaper publishes the
interview or the speech, giving the speaker's name and the exact
language he used. If the candidate referred to should sue the newspaper
for libel because of this publication, it would be no defense for the
publishers to show that it was _true_ that the speaker had said just
exactly what the newspaper represented him to have said. To justify they
would have to show that the defamatory charge was true, that the
candidate had been guilty of perjury or subornation of perjury in
obtaining his naturalization papers.
In other words, no publishers or writers can escape responsibility for
defaming a man's character by showing that it was on the authority of
some other individual.
The same principle applies to defamatory accusations republished from
another newspaper, whether the name of the newspaper from which they
are copied is given or not.
PRIVILEGED PUBLICATIONS
There is a certain class of publications concerning official proceedings
which, although they be defamatory in character, public policy demands
that publishers should be protected in making, entirely regardless of
the question whether the defamatory matter be true or false. These are
termed "privileged publications" and are defined by law.
The mere fact that a paper is _entitled_ as being in a certain suit or
that _its contents are sworn to_ does not necessarily make it a part of
any "judicial, legislative or other public and official proceedings."
Such proceedings must actually and legally have been instituted before
it becomes entitled to the privilege.
_An instance_ would be the publication of libelous statements taken from
a complaint or affidavit that had been sworn to in a suit but before
_the paper had been actually introduced in the trial of the case_. Here
there would be no privilege.
The same would be true of an affidavit charging crime on a person which
had not before the publication of it been presented to and judicially
recognized by the committing or police magistrate.
Criticism is also privileged in a limited degree. Nowhere else in the
world, not even in England, is so great freedom of legitimate criticism
allowed and protected by law as in the United States.
The Constitution of the United States provides: "Congress shall make no
law abridging the freedom of speech or of the press."
The Constitution of Michigan provides: "Every citizen may freely speak,
write and publish his sentiments on all subjects, being responsible for
the abuse of that right; and no law shall be passed to restrain or
abridge the liberty of speech or of the press. In all prosecutions for
libel the truth may be given in evidence to the jury; and if it shall
appear to the jury that the matter charged as libelous is true and was
published with good motives and for justifiable ends, accused shall be
acquitted."
But the right to criticise is general, and belongs quite as much to any
other individual as to the newspaper writer, editor or publisher.
The _actions_ of individuals are always legitimate subjects of
discussion and criticism.
"In this country," says Judge Smith, of the New Hampshire Supreme Court,
"every citizen has the right to call the attention of his
fellow-citizens to the maladministration of public affairs or the
misconduct of public servants, if his real motive in so doing is to
bring about a reform of abuses or to defeat the re-election or
reappointment of an incompetent officer."
"No one can doubt the importance," is the language of Judge Story, "in a
free government of the right to canvass the _acts_ of public men and the
tendency of public measures--to censure boldly the conduct of rulers and
to scrutinize the policy and plans of government."
The language of the English courts is nearly as broad.
"God forbid that you should not be allowed to comment on the _conduct_
of all mankind, providing you do it justly and honorably," says Baron
Alderson.
Chief Justice Cockburn said: "It is of vast importance that criticism,
so long as it is fair, reasonable and just, should be allowed the utmost
latitude, and that the most unsparing censure of works which are fairly
subject to it should not be held libelous."
CRITICISM DOES NOT EXTEND TO PERSON
But the privilege of criticism extends only to the _actions_ or _works_
of an individual; it does not extend to the _person_. In the case of an
author, his _works_ may be criticised as severely as the occasion
demands. "Every man who publishes a book commits himself to the judgment
of the public," says an eminent English judge; but this can not be made
the excuse for personal abuse of the author himself.
The author, the artist, the architect, who produces a book, a painting
or a building, is in this respect in the same position as the maker or
producer of a watch, a piano or a carving-knife.
The thing produced in either case may be "criticised." But if the
_person_ who produces it is defamed, this must be defended, if at all,
upon some other ground than that it is _criticism_.
Moreover, to justify such comment on men's actions or on the products of
their hands or brains _as criticism_, it is essential that the acts or
things so criticised should have actual existence.
_For instance_, a newspaper comments with great severity on certain
occurrences which it publishes as the official acts of a mayor of its
city. Before these strictures can be defended as _criticism_, it must
appear that such official acts really occurred.
Again, newspaper proprietors might well be held liable for publishing a
ridiculing criticism of language pretended to be quoted from the book
which the critic is reviewing, but which language the author of the book
had not actually used.
If the publishers who are defendants in a libel suit are unable to show
that the defamatory publication is _true_ or that it is _privileged_,
then the injured plaintiff is entitled to a verdict _in some amount_.
How small this sum shall be will depend upon how good a case the
defendants can make out _in mitigation of damages_. The range of
defenses that may be interposed for this purpose is very broad. The
following may be enumerated as the most important:
(1) That the general conduct of the plaintiff gave the defendant
"probable cause" for believing the charges to be true.
(2) That the complainant's general character is bad.
(3) That the publication was made in heat and passion, provoked by the
acts of the plaintiff.
(4) That the charge published had been made orally in the presence of
the plaintiff before publication, and he had not denied it.
(5) That the publication was made of a political antagonist in the heat
of a political campaign.
(6) That as soon as the defendant discovered that he was in error he
published a retraction, correction or apology.
(7) That the defamatory publication had reference not to the plaintiff,
but to another person of a similar name, concerning whom the charges
were true, and that readers understood this other individual to be
meant.
ABSENCE OF ACTUAL MALICE
The principle underlying all the above defenses is that they tend to
show an absence of _actual malice_. Many other circumstances, too
numerous and varied to be classified, and which properly could be used
in the same manner and for the same reason to reduce damages, will
readily suggest themselves to every one.
The successful defense of libel suits depends largely on having clear
and trustworthy proof of the facts sought to be sustained promptly at
hand as soon as the suit is brought.
Any metropolitan newspaper that deserves the name finds itself compelled
every day to publish matter that is defamatory in character. Otherwise
there would be no journalistic records of crimes or of a large portion
of the other occurrences in which the public is interested. The
publisher's concern in that particular is a double one--that whatever of
that nature is published in his newspaper should be _true_ or
_privileged_ and that there should be clear _proof_ of the truth or
privilege.
Every newspaper writer frequently finds himself called upon to deal with
such matter. If it is the report of a trial in court, he need have
regard, so far as his report is concerned, to four points: (1) that the
judicial or official proceedings have been already begun in open court;
(2) that his report of the testimony, etc., or synopsis of the sworn
papers is fair and impartial; (3) that he knows where he can put his
hands on the official records to sustain the privilege at any time; and
(4) that both sides are similarly published.
If the matter is defamatory and not privileged in any way, then the
utmost care before publication with regard to the proof of its truth
will be the only safeguard against libel suits.
The publication of such matter on the authority of any person's mere
word, however truthful, trustworthy and careful that person may be
believed to be, will always be attended with danger. The statements may
be entirely true, and yet the giver of the information when called upon
may not be able to furnish the proof. If he is, probably he could
furnish it as well before as after publication.
The only absolutely certain way for any newspaper writer to avoid all
risk of this sort is for him to furnish for publication such defamatory
matter only as he can sustain by his own testimony as an eye-witness, or
such as he has seen the proofs of before writing the article.
The almost certain result will be to prevent the bringing of a libel
suit--the first consideration in this connection. If, on the other hand,
a libel suit should be brought, the writer would be able to furnish the
publishers with the best means of defense, namely, proof of the truth of
the publication--which is of next importance.
PRECISION, SIMPLICITY, EUPHONY
Adams Sherman Hill, professor of rhetoric at Harvard University for
nearly 30 years, gives these three rules for good writing:
Precision: Of two forms of expression which may be used in the same
sense, that one should be chosen which is susceptible of only one
interpretation. Observance of this rule tends to give each word a
meaning of its own.
Simplicity: Of two forms of expression which may be used in the same
sense, the simpler should be chosen. The simpler a word or phrase, the
more likely it is to be understood, and simplicity in language, like
simplicity in dress or manners, belongs to the best society.
Euphony: Of two forms of expression which may be used in the same sense,
that one should be chosen which is the more agreeable to the ear. It is
of course wrong to give undue weight to considerations of euphony, but
when no sacrifice is involved it is desirable to avoid an expression
that is unusually difficult to pronounce or to substitute for an
extremely disagreeable word one that is agreeable to the ear.
FIRST THREE YEARS OF THE WAR
June 28, 1914--Archduke Francis Ferdinand, heir to throne of
Austria-Hungary, and wife shot by Gavrio Prinzip, a Bosnian, at
Sarajevo, Bosnia.
July 28--Austria declares war on Serbia.
Aug. 1--Germany declares war on Serbia.
Aug. 4--Great Britain declares war on Germany.
Germany proclaims state of war between Germany and Belgium.
Wilson proclaims U. S. neutrality.
Aug. 6--Austria-Hungary declares war on Russia.
Aug. 7--Montenegro declares war on Austria.
Aug. 8--British troops land in France.
Aug. 12--Great Britain declares state of war with
Austria-Hungary.
Aug. 19--Germans occupy Louvain.
Aug. 20--Germans occupy Brussels.
Aug. 23--Japan declares war on Germany.
Aug. 31--St. Petersburg becomes Petrograd.
Sept. 1--After seven days' battle Russians take Lemberg.
Sept. 3--French capital transferred to Bordeaux.
Sept. 4--Germans occupy Rheims.
Sept. 10--Joffre reports five-day battle at the Marne a victory.
Sept. 28--Japanese invest Tsing-Tau.
Oct. 9--Antwerp surrenders.
Oct. 13--Seat of Belgian capital moved from Ostend to Havre.
Oct. 21-31--First battle of Ypres.
Nov. 5--Great Britain and France declare war on Turkey.
Nov. 10-12--Second battle of Ypres.
Dec. 2--Austrians capture Belgrade.
Dec. 8--British sink German fleet off Falkland islands.
Dec. 14--Serbians force evacuation of Belgrade.
Dec. 20--Germans evacuate Dixmude.
Jan. 24, 1915--Naval battle in North Sea.
Feb. 4--Germany declares war zone about England and Ireland
after Feb. 18.
Feb. 25--Allied fleet reduces four forts at Dardanelles
entrance.
March 22--Austrian fortress of Przemysl surrenders to Russians.
April 22--Gas first used in war by Germans at Ypres.
May 1--American steamer Gulflight sunk.
May 7--Lusitania sunk by German submarine off Ireland; 1,149
lost, 707 rescued.
May 23--Italy declares war on Austria-Hungary.
June 3--Teutons recapture Przemysl.
June 8--Bryan resigns.
June 22--Russians driven out of Lemberg.
Aug. 6--Germans occupy Warsaw.
Sept. 9--U. S. asks recall by Austria-Hungary of Ambassador
Dumba.
Sept. 18--Germans capture Wilna.
Oct. 5--King Constantine of Greece won't support Allies and Premier
Venizelos resigns.
Allies land at Saloniki.
Oct. 11--Bulgaria enters war by sending army into Serbia.
Dec. 4--Ford peace party sails.
Dec. 19--Allies evacuate Gallipoli.
Jan. 17, 1916--Montenegro surrenders to Austria-Hungary, first
belligerent to withdraw.
Jan. 26--Compulsory service measure passes final reading in
British House of Lords.
Feb. 23--Germans open Verdun offensive.
March 8--Germany declares war on Portugal.
March 15--Von Tirpitz resigns as German minister of marine;
succeeded by Admiral von Capelle.
April 24--Sinn Feiners' revolution breaks out in Dublin.
April 28--British besieged in Kut-el-Amara, Mesopotamia,
surrender.
May 25--King George signs compulsory bill, applicable to all men
from 18 to 41.
May 30--Battle of Jutland.
June 5--Lord Kitchener drowned.
July 9--German submarine Deutschland arrives at Baltimore.
Aug. 27--Rumania enters the war on side of Allies.
Nov. 10--First great air battle; 67 airplanes brought down.
Nov. 21--Francis Joseph, Emperor of Austria and King of Hungary,
dies; 86.
Dec. 6--Germans occupy Bucharest.
Feb. 3, 1917--U.S. severs diplomatic relations with Germany.
Feb. 26--Cunard liner Laconia sunk.
Feb. 27--Wilson asks authority to arm merchantmen; declares
sinking of Laconia is overt act.
March 11--British take Bagdad.
March 15--Czar Nicholas II abdicates in favor of his brother,
Grand Duke Michael Alexandrovitch.
April 2--American steamer Aztec sunk.
April 6--U. S. declares state of war with Germany. April
7--Cuba declares war on Germany.
April 11--Brazil severs diplomatic relations with Germany.
May 18--Wilson signs selective conscription bill for army of
500,000.
June 5--Americans register for draft.
June 8--Gen. Pershing in England.
June 12--King Constantine abdicates.
June 15--American mission reaches Russia.
June 26--First U. S. troops arrive in France.
June 29--Greece severs relations with Germany and her allies.
July 2--Chinese empire re-established for three days.
July 14--Chancellor von Bethmann-Hollweg resigns, Dr. George
Michaelis succeeding.
July 22--Kerensky made dictator in Russia.
Aug. 28--U. S. rejects pope's peace proposal.
Sept. 3--Germans capture Riga.
Sept. 16--Kerensky proclaims Russia a republic.
Oct. 6--Peru severs diplomatic relations with Germany.
Oct. 7--Uruguay severs diplomatic relations with Germany.
Oct. 19--U. S. transport Antilles torpedoed.