CHAPTER XXXVIII.

FREEDOM OF SPEECH AND THE PRESS.

211. References.

J. Story, Constitution, §§ 1880-1892; T. M. Cooley, Constitutional Limi tations, ch. xii; J. R. Tucker, Constitution, 669, 670; T. M. Cooley, Constitutional Law, ch. xiv, § 5; H. C. Black, Constitutional Law, §§ 235-242; T. M. Cooley, Torts, ch. vii; E. A. Jaggard, Torts, ch. viii; M. L. Newell, Slander&Libel; W. Blackstone, Commentaries, III, 123-126, IV, 150153; Ex parte Jackson (1877, 96 U. S. 727) ; In re Rapier (1892, 143 U. S. 110; McClain's Cases, 478; Thayer's Cases, 732).

212. Constitutional Provisions as to Expression of Opinion.

The state constitutions usually contain guaranties of freedom of speech and the press similar to those found in the federal constitution, that "Congress shall make no law . . . abridging the freedom of speech and of the press " (Amend. I). But it is not intended by such prohibitions to guarantee the right, without restraint or liability, to utter or publish matter which may be injurious to individuals or detrimental to public peace and tranquillity. By the common law of England, which has been fully recognized in this respect in the various states, libel, that is, the publication of defamatory matter by printing or writing, is punishable criminally; and injurious utterances, whether in writing or in print or by spoken word, have also been recognized as a ground of action for the recovery of damages by the person thereby injured.

The object of the constitutional guaranties as to freedom of speech and the press seems to be to prevent the exercise of the power of the government in the regulation beforehand of what shall be published and the suppression of publications on account of their supposed injurious consequences. In European countries supervision over publication is exercised to some extent

by public officials charged with determining what is likely to be injurious to the government or the people, and the power is also exercised of suppressing newspapers and books which are deemed to be harmful to tranquillity or good morals. Similar powers had been exercised by the government of England prior to the independence of the colonies, and had been the subject of much discussion and discontent; and the effect of the constitutional guaranties is rather to deny to the government any such power of supervision than to relieve persons from civil or criminal liability for wrongful and injurious publication.

In other words, under our constitutional system freedom of speech and of the press is, like any other civil right, subject to regulation by law in the exercise of the general police power, and may be enjoyed only so far as it is not thus prohibited, and each person exercises this freedom subject to the same general restrictions which are by law imposed upon the exercise of· freedom in any other respect. It will therefore be necessary to notice some of the general restrictions which are imposed by law in order to understand the extent and nature of freedom of speech and the press. These restrictions are found in the statutory or common-law rules relating to slander and libel.

213. Slander and Libel.

One may do injury to another in his property rights, in his feelings, and in his reputation, by making to others false and defamatory statements about him. Such statements made by word of mouth, and not in writing, in print, by caricature, or in some other tangible form, are denominated slander; and the person injured is entitled to maintain an action against the wrong-doer to recover damages for the injuries suffered. There is in general no criminal punishment for slander; but spoken words may be criminally punishable on other grounds, as amounting to blasphemy, or being obscene, or calculated to disturb the public peace, and the like; that is, in general, spoken words are not the subject of criminal punishment on account of injuries to individuals, but only on account of some harm to the public. In a civil action for slander the truth of the words

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Libels.

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spoken is a defence, for the injured party is not to be heard to say that he has been damaged by the speaking of the truth concerning him. Even where the words are untrue they may have been spoken without malice and upon a proper occasion, so as not to constitute an actionable wrong.

In a general sense libel may be said to be publication by written or printed language or caricature, or some tangible method of conveying thought or information of matter which is defamatory and injurious in its character. Such matter may be considered with reference to its injurious effect upon the government, its tendency to disturb the public peace or impair the public morals, its tendency to injure the individuals directly concerned, thus impairing the security of property and reputation, and its actual injurious consequences as affecting the particular individuals injured such as to entitle them to recover damages. In some of these respects libel constitutes a crime; in others it forms a basis for the recovery of damages in a civil action.

214. Libels on Government and Injurious Publications. In England publications tending to bring the government into contempt, or to impair its authority, were at one time punishable criminally; but the theory of our system of government is that it exists only for the benefit of the people, and therefore that it is unwise to restrain full discussion and criticism of its acts and policies. Therefore, prosecutions for libels on the government, whether state or federal, are practically unknown. Defamatory statements as to the acts or conduct of a public official might be such as to be punishable criminally, or to form a basis for an action for civil damages sustained by him as an individual; but neither criminally nor civilly could the persons responsible for the defamatory publication be called to account for the wrong as a specific injury to the government itself. Censorship of the press by the government in its own interests and for its own protection is not regarded as a proper exercise of authority, either with reference to publications threatened or anticipated, or as to those actually made. This liberty of persons in respect to the government may be sometimes

exercised for improper purposes and with injurious consequences; but the general public good is on the whole promoted by this absolute freedom of discussion, and the resulting advantages are deemed to outweigh any possible injurious consequences.

The publication of defamatory matter may, however, be productive of disturbance and disorder, and in that sense may be a public wrong punishable as a crime. In this form of libel the injury sought to be avoided is that to the public peace and tranquillity. For the protection of the public morals it may be made criminal to publish obscene or scandalous matters; and for similar reason the federal government prohibits the sending of obscene publications through the mails. The public morals as well as the public health are regarded as proper subjects for legislation in the promotion of the general welfare of the people.

215. Defamation of Individuals.

The security of individuals against defamation calculated to injure them in their property rights, or in their feelings or their reputation, is a proper matter for consideration by the law; and it is therefore generally regarded as criminal to publish any matter calculated to bring individuals into contempt, or subject them to ridicule, or to destroy their good reputation. Such a wrong is regarded as a public injury in the same sense as wrongful appropriation or destruction of the property of individuals; and while the individual concerned may be alone directly damaged, it is for the protection of the public in general against similar injuries that such acts are treated as crimes. Moreover, the publication with reference to individuals of defamatory matter is calculated to cause disorder and is in that sense a public wrong.

It is evident that the publication of defamatory matter may be objectionable from the point of view of the public tranquillity and security, although it is in fact true; and therefore in prosecutions for libel as a crime, the truth of the defamatory matter published is not necessarily any defence. But there may well

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be just occasion for publishing defamatory matter which is true, as, where it relates to the conduct of a public officer or the character of one who is a candidate for office; and it is usually provided in state constitutions in some form of language that in criminal prosecutions for libel the truth of the defamatory matter may be shown and will constitute a defence if it appears that the publication was with good motives and for justifiable ends.

In many state constitutions it is also provided that in criminal prosecutions for libel, the jury shall be judges of the law as well as of the facts. This modification of the ordinary rule as to jury trials, that the court determines questions of law and leaves only the facts to be determined by the jury, is due to a peculiarity of the English law, in accordance with which judges were in the habit of instructing juries that the fact of publication of the alleged defamatory matter was alone to be determined, it being for the court to say whether the publication was in fact defamatory, or whether it was privileged. There seems to be no substantial difference, however, under such a constitutional provision, between a prosecution for libel and a prosecution for any other crime; the judge directs the jury as to the law, and the jury determines whether the facts are such as to constitute a crime as defined by the court.

A person may be directly damaged in his property rights or in his feelings or reputation by defamatory publications made concerning him; and for such damage he is entitled to recover compensation in a civil action brought against the person wrongfully causing injury to him. In such action the truth of the defamatory matter may be shown by way of defence, for here, as in the case of slander referred to in a preceding section, the policy of the law is not to recognize as a civil injury the detriment suffered from the publication of the truth.

216. Privileged Publications.

It has been said in the preceding section that in a criminal prosecution for libel the defendant may show the truth as a defence if the publication was with good motives and for justifi