able ends. Such a publication is said to be privileged; and the ends which will justify publishing defamatory matter which is true are various. Not only is it justifiable in the public interest to publish the truth as to the conduct of public officers, and as to the character of those who are candidates for office so far as their character is a subject for proper consideration in determining their fitness for the office; but in general the truth may be published although injurious to individuals if it in any way concerns matters of proper public interest.

For a better understanding of the reasons which underlie the doctrines of privilege, not only as relating to criminal prosecutions, but also as affecting liability in civil suits for damages, it will be convenient to divide cases of privilege into those which are absolute and those which are qualified. There are some subjects as to which it is necessary to make statements in writing or print, which are of such nature that the public interest requires that no one shall be held accountable for them unless they are maliciously made for the purpose of causing injury. Thus, the attorneys for the parties in judicial proceedings are required to set forth the facts which they rely upon as constituting the cause of action or the defence; and the proper administration of justice renders it essential that they be allowed to do so without danger of being called to account for the untruth of the statements made. The truth of the statements is to be determined by the court as affecting the rights of the parties in the proceeding. Therefore, the written pleadings as well as the records made by judicial officers in a case in court are publications which are absolutely privileged, and no prosecution or civil suit can be predicated on statements thus made, unless, perhaps, where it can be shown that they were not made in good faith for the purposes of the case, but were maliciously and wantonly made with the object of doing injury to others. For like reasons the publication in newspapers of the actual proceedings in a court is privileged, for such proceedings are public in their nature. Members of a legislative body should be at liberty to discuss fully any question properly coming before such body for discussion; no member can be called to

§ 216]

Privileged Publications.

307 account otherwise than by the body itself for what is said or published by him in the discharge of his office; and a newspaper publication of the proceedings of such bodies is likewise absolutely privileged.

Freedom of the press involves also a full discussion of matters of public concern. One who expresses his views as to such matters on a proper occasion and in a proper way, with good motives, should not be held accountable in a criminal or a civil proceeding, although other persons may be injuriously affected. Thus it is lawful to discuss the conduct of public officers and the character of candidates for office, to comment on judicial proceedings, to criticise books and pictures, to publish the news in the ordinary course of business, and otherwise to attempt to enlighten the public as to the affairs in which they have an interest. With reference to these matters, which are subject to qualified privilege, the requirements are that the publication be in good faith and not for the purpose of maliciously injuring others, and also so far as the publication purports to state facts, that it be true; for while good motives and justifiable ends will relieve from liability for the publication of matter which is truthful, they will not relieve from liability for injury actually inflicted by the publication of matter which is untrue, even though there be reasonable grounds to believe it to be true. The reasonable belief as to the truth of the matter may relieve from liability for what are called punitive or vindictive damages in a suit, but not for actual damage done.

There are occasions, however, when it may be justifiable or even obligatory to give information not in the public interest, but in private interests; and here there is no liability if the statements are made in good faith and with reasonable ground to believe that they are true. Thus an agent who is under obligation to communicate to his principal what he believes to be facts as affecting such person's interests, cannot be held accountable to third persons for statements made, even though they are false, if reasonably believed to be true, and such as it was proper to make. Likewise in the family relations, communications between husband and wife or parent and child

cannot be complained of by others if, when made, they were believed to be true, and such as it was proper under the circumstances to make. It is not purposed here to discuss in full the law of libel, but only the extent to which the constitutional guaranties of freedom of speech and of the press have been applied as affecting criminal and civil liability.

It may be added that the federal statutes prohibiting the sending of obscene matter, lottery advertisements, etc., through the mails are not an infringement of freedom of the press (Ex parte Jackson and In re Rapier) but are properly within the power given as to post-offices and post-roads. (See above, § 104-)

CHAPTER XXXIX.

RIGHTS OF ASSEMBLY AND PETITION.

217. References.

J. Story, Constitution, §§ 1893-1895; T. M. Cooley, Constitutional Limitations, * 349; J. R. Tucker, Constitution, 671; F. Lieber, Civil Liberty and Self-Government, ch. xii; T. M. Cooley, Constitutional Law, ch. xiv, § 3; H. C. Black, Constitutional Law, § 243; United States v. Cruikshank (1875, 92 U. S. 542; McClain's Cases, 31).

218. Peaceable Assembly.

It may be true that the prohibition in the federal constitution as to abridgment of "the right of the people peaceably to assemble and to petition the government for redress of grievances" (Amend. I), and similar prohibitions in the state constitutions, primarily had reference to assemblies for political purposes. Nevertheless, the right guaranteed is not to be regarded as a mere political privilege, but one just as fundamental as that of freedom of speech and the press, or freedom of contracting, or any other phase of liberty recognized by our constitutional system. Assemblies may be held, not only for political purposes, but also for religious, social, and business purposes; and regardless of the object, if it be lawful, and the method, if it be timely and orderly, the exercise of the right is to be recognized and protected. The government may properly, in the preservation of peace and order, suppress or disperse assemblies made for an unlawful purpose or cause, or which by reason of the time, place, or manner, are illegal, dangerous, or turbulent. No doubt the right to assemble for political purposes in connection with the selection of presidential electors or congressmen, or for the purpose of petitioning the federal government, is a privilege of United States citizenship, but the general right to assemble for lawful pur

poses, and in proper and orderly places and manner, is a civil right, to be protected like other civil rights by the states. It is not granted by constitutions, but by them is recognized and protected.

219. Right to Petition.

So far as the clause of the federal constitution, last above quoted, relates to the right of petition, it evidently contemplates a petition by many persons addressed to some public officer or body.

Petitioning may be a political privilege or a privilege of citizenship, but it is broader than that in its scope and was undoubtedly intended as one of the guaranteed civil rights. Those subject to law ought to have the opportunity, if they desire, to avail themselves of this right, in order to urge upon legislative bodies reformations or changes in the law, and upon the executive department the administration of the law in such a way as to protect personal and property rights. However, as no method of presenting or securing the consideration of such petitions is provided for, the duty to receive and consider is to be discharged in the exercise of discretion on the part of the legislative body or executive officer, and the right to petition will not justify violence or disorder or interference with the proceedings of any duly constituted body or authority.