McBee v. Fulton

Miller, J., delivered the opinion of the Court. The appellant sued the appellees, the editors and proprietors of a daily newspaper, called “The Baltimore American and Commercial Advertiser,” published in Baltimore City,,for the following alleged libel upon him, which appeared in that paper on the 25th of September, 1875, under the heading, “a ruffian caged.” “For several weeks past the police of the North-western District have been endeavoring to make the arrest of a man named Wm. McBee, who has occasioned considerable trouble in various neighborhoods. It appears he is a low character who habitually frequents the streets and always seeks to throw himself in the way of school girls, often insulting them with indecent remarks and actions.

In some instances he would wait around the schools until the dismissal of the pupils, and then would exhibit the greatest importunity in pressing his company upon them. This man and his reputation became so extensively known ⁴¹⁵ in many of the female schools that he was feared by the scholars, and numerous precautions adopted to protect the girls from his insults. For several days past he had been visiting the locality of a well known and fashionable school, and created the greatest annoyance to the young ladies by his persistent familiarities and vulgar insults. The police were notified and yesterday succeeded in arresting him.

He was given a hearing in the afternoon, when a number of young ladies who had been approached testified as to the facts as above narrated. Justice McCaffray committed him for the action of the grand jury.” The defendants pleaded 1st, not guilty, and 2nd, that said alleged defamatory writing set out in the declaration is true, and the case was tried upon issues joined on these pleas. In the course of the trial, several exceptions were taken to the rulings of the Court, and these present for our determination one or two questions of interest and importance. 1st. The plaintiff offered in evidence the libellous publication declared on, and two substantial repetitions of the same, after suit brought, one published on the 8th of January, 1876, and the other on the 29th of March, 1877, in the same newspaper.

He then further offered evidence tending to show that he was a laboring man, a mechanic, having a large family to support by his labor ; the wealth and position of the defendants; the extent of the circulation of the newspaper in which the libellous publications appeared, and that the defendants were the editors, publishers and proprietors thereof, and there rested his case. The defendants then, to sustain the issue on their part, offered evidence tending to prove that the plaintiff was arrested and taken before Justice McCaffray upon a charge of indecent exposure of his person, that an investigation and hearing was had upon that charge before the justice and witnesses examined thereat, but none were produced ⁴¹⁶ or examined on the part of the plaintiff, and that at the termination of this examination the justice committed the plaintiff for the action of the grand jury. They further offered evidence tending to prove that the justice, at the termination of this examination, narrated the facts as they had been given in evidence before him, to the reporter of the newspaper, and that the narrative of facts elicited'upon such examination as set out in the supposed libel, so far as the same appears to be a narrative thereof, is a substantially true summary of the facts as detailed to him by the committing magistrate, and that this narrative was prepared and published in the paper by the reporter as agent for the defendants, from the information thus furnished to him by the justice as and for a correct narrative thereof. They also further offered evidence ténding to prove that they had no acquaintance with or any knowledge of the existence of the plaintiff prior to this publication.

The most important question in the case is, was the Court right in allowing this offered testimony to go to the jury, and in instructing them that if they find from the evidence that the several matters of fact narrated in the alleged libel were published by the defendants, and that the same are a correct account of the charges preferred against the plaintiff in the course of an official inquiry before a justice of the peace, and shall further find that the commentaries upon these matters of fact contained in this publication are a fair commentary upon the same, assuming them to be true, then the alleged libel was a privileged communication, and the plaintiff is not entitled to recover unless they shall further find the defendants were actuated by express malice towards the plaintiff. Without going at large into the general question as to what communications the law protects from a civil action or criminal prosecution for libel, it is sufficient for the purposes of this case to say, that the adjudications both in ⁴¹⁷ .England and in this country, have now clearly settled that there are: 1st. Some communications which on grounds of public policy are absolutely privileged. What these are need not be specified. 2nd.

Communications to which, on grounds of public benefit a qualified privilege is given, or those which are privileged by the occasion, if fair, bona fide and impartial, though defamatory of individuals and published to the world at large. Under this head are included newspaper and other reports of the proceedings of Courts of ¡justice: and on the same grounds of public benefit and advantage, and within the same limits, the privilege extends to newspaper and other reports of debates and proceedings in Parliament or Legislative bodies in this country. Folkard’s Starkie on Slander and Libel, (Amer. Ed.,) sec. 688.

The precise question presented by the rulings now under consideration is, whether the publication of a report of proceedings before a justice of the peace of this State, in in the course of a preliminary inquiry upon a charge of an indictable offence, resulting in holding the party to bail or committing him for the action of the grand jury, is entitled to the qualified privilege which attaches to the reports of the proceedings of Courts of justice ? At one time the preponderance of judicial opinion, at least, in England may be conceded to have been against according this privilege to reports of such proceedings before the magistrates of that country. The case most strongly supporting that view is that of Duncan vs. Thwaites, 3 Barn. & Cress., 556, decided in 1824. In that case the judgment of the Court was delivered by Chief J. Abbott, and all the then decisions and opinions of Judges having any bearing on the question, were referred to in argument on the one side or the other.

The case cited which approached nearest to sustaining the privilege was Currie vs. Walter, 1 Esp., 456, which his Lordship admitted was a case of great authority in itself and derived an additional ⁴¹⁸ weight from the manner in which it was mentioned by Mr. Justice Lawrence, in Rex vs. Wright, 8 Term, Rep., 293, but he said it had not received the sanction of subsequent Judges, and it differed in some important facts from the case he was considering. Among the differences which he pointed out was that in Currie vs. Walter there was an account of a proceeding in the Court of King’s Bench, a Court instituted for final determination as well as preliminary inquiry, whose doors are, as they ought to be, open to so many of the public as can be conveniently accommodated within its walls, whereas the proceeding in the case before him was before justices of the peace, and was of a kind which they may lawfully conduct in private whenever they think fit to do so. Afterward in 1848, two Acts of Parliament were passed, consolidating and amending the several statutes relating to the duties of justices of the peace. The first (11 & 12 Vic., ch. 42,) prescribes their duties with respect to persons charged with indictable offences, and confers power to issue warrants of arrest, to make preliminary examinations, to hold to bail, or commit for trial, similar in most particulars to the powers possessed and exercised by justices of the peace in this State.

But by one of its sections it is declared that “ the room or building ” in which the justices shall make such preliminary investigations, “shall not be deemed an open Court for that purpose,” but whenever they consider it proper, they may conduct the examination in private. The second (11 & 12 Vic., ch. 43,) relates to their duties in cases of summary convictions and orders, and this statute confers powers not possessed by our justices. It also declares that “the room or place” in which they shall sit to try such cases, ‘ ‘ shall be deemed an open and public Court, to which the public generally may have access, so far as the same can conveniently contain them,” and that the party accused shall be allowed to make his full answer and defence, and have witnesses examined and ⁴¹⁹ cross-examined by counsel: and it further appears that final judgments given under this statute are subject to appeal. Afterwards, in 1858, the case of Lewis vs. Levy, (96 Eng.

C. L. Rep., 535,) was decided in the King’s Bench, in which the privilege was sustained. It was an action for three separate libels, published in a newspaper on three several days, each professing to give a report of what had taken place on different days before a magistrate, upon a charge of perjury preferred against the plaintiff. The magistrate acted under the first statute above cited, and after several adjournments and examining all the witnesses brought before him, dismissed the summons. The judgment was delivered by Lord Campbell, C. J., and it is important we should notice some of the views of the Court expressed in that opinion.

After stating the general proposition that it is a good defence to an action for libel, that it consists of a fair and impartial (though not verbatim) report of a trial in a Court of justice, they refer to the contention of the plaintiff’s counsel, that this privilege must be confined to the proceedings of the superior Courts of law and equity, and entirely repudiate it, saying that “ on such a question the dignity of the Court cannot be regarded : we must look only to the nature of the alleged judicial proceeding which is reported, and for this purpose no distinction can be made between a Court of pie poudre and the House of Lords sitting as a Court of justice.” They then refer to the contention that in no case have the reports of proceedings before magistrates any privilege, and to this general proposition refuse assent, and affirm that proceedings under Statute 11 & 12 Vic., ch. 43, in cases of summary convictions and orders, are strictly of a judicial nature, for the reason among others, that the place in which such proceedings are held is an open Court. Coming then to the proceedings before them (which as we have seen were under Statute 11 & 12 Vic., ch. 42,) and to the case of Duncan vs. Thwaites, which ⁴²⁰ was relied on as having determined the general doctrine that a report of such proceedings cannot be justified, they say that in that case the libel contained the highly colored statement of the reporter, evidently insinuating the guilt of the accused, and that much stress was laid by Lord Tenterden in delivering the judgment of the Court, upon the fact that the proceedings terminated in the first instance by holding the accused to bail for trial, whereas in this case, the examination terminated in the dismissal of the summons. The opinion then proceeds: “We are not prepared to lay down for law that the publication of preliminary inquiries before magistrates is universally lawful, but we are not prepared to lay down for law, that the publication of such inquiries is universally unlawful; although there are numerous dicta there is no decision to that effect.” His Lordship then cites with marked approval the case of Currie vs. Walter, where the alleged libel consisted of a report in the Times of an application in the Court of King’s Bench for a rule to show cause why a criminal information should not be filed against magistrates for a conspiracy corruptly to refuse a license to a public house. The rule was refused on technical grounds and the report truly set out the contents of the affidavits making the charge.

The case was tried before O. J. Eyre, who told the jury that though the matter contained in the paper might be very injurious to the character of the magistrates, yet that being a true account of what took place in a Court of justice, which is open to all the world, the publication •of it was not unlawful, and on a rule nisi for a new trial, all the Judges of the Common Pleas were clearly of opinion the action could not be maintained. The opinion then affirms that that case “has been often criticized but never overturned, and often acted upon; ” that it received the unqualified approbation in Rex vs. Wright, of that great Judge, Mr. Justice Lawrence, who observed that, though the publication of such proceedings may be to the ⁴²¹ disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of justice should be universally known, and that the general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to private persons, whose conduct may be the subject of such proceedings ; and that the decision of Chief 'Justice Eyre rests f‘on sound legal principles, and is now almost universally approved of.” Then after showing that the only difference to be relied on between that case and the one before them was in the tribunals, we have this positive and emphatic expression of opinion on that subject: But although a magistrate upon any preliminary inquiry respecting an indictable offence may, if he thinks fit, carry on the inquiry in private, and the publication of any such proceedings before him would undoubtedly be unlawful, we conceive that while he continues to sit foribus apertis, admitting into the room where he sits as many of the public as can be conveniently accommodated, and thinking that this course is best calculated for the investigation of truth and the satisfactory administration of justice, (as in most cases it certainly will be,) we think the Court in which he sits is to be considered a public Court of justice.” And finally, while declining to give an opinion in favor of the general legality of publishing reports of such proceedings, where the accused has been committed or held to bail for an indictable offence, the Court yet say “ but we cannot join in the sweeping condemnation of police reports, pronounced obiter before the benefit arising from those reports had been fully experienced ; we believe that they often lead to the detection and punishment of crime, and that they sometimes assist in the vindication of character,” and against the severe denunciation of such reports by several eminent Judges, they place the opinion of Lord Denman, C. J., delivered before a committee of the House of Lords, in 1843 on the ⁴²² law of libel, in which his Lordship said <fI have no doubt that police reports are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties interested in unravelling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence ; they know that such proceed-' ings are only in course of trial and they do not form their opinion until the trial is had. Perfect publicity of judicial proceedings is of the highest importance in other points of view, but in its effects upon, character I think it desirable.” Erom the views thus expressed by Lord Campbell, it is plain the.reports of such proceedings were then regarded by English Judges much more favorably than they were in 1824 when Duncan vs. Thwaites was decided.

But in 1868, ten years after Lewis vs. Levy, the case of Wason vs. Walter, (4 Law Rep. Q. B., 73,1 was decided in the same Court. The admirable judgment delivered by C. J. Cockburn, in that case has received the approval of this Court in Snyder vs. Fulton, 34 Md., 128 , as well for the soundness of the legal propositions therein stated, as for the clear and forcible manner in which they are expressed. There the alleged libels consisted of a report in the Times of a debate in the House of Lords, in which the plaintiff was charged with falsehood and malignity, and of an editorial article in the same paper containing comments unfavorable to the plaintiff founded on this debate.

Eor the first time the question was directly presented for adjudication, whether reports of debates in parliament were entitled to the qualified privilege to which we have adverted, and the Court held that the analogy between such reports, and those of proceedings of Courts of justice, is in every respect complete, and that the privilege with its limitations which attaches to the one necessarily ⁴²³ attaches to the other. And this exception to the general law of libel in both cases is rested upon the broad principle that the advantage to the community from publicity being given to such proceedings, is so great that the occasional inconvenience to individuals arising from it must yield to the general good. “If,” say the Court, “the principles which are the foundation of the privilege in the one case are applicable to the other, we must not hesitate to apply them. Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adopt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied. Our law of libel has in many respects onty gradually developed itself into anything like a satisfactory and settled form.

The recognition of the right to publish the proceedings of Courts of justice has been of modern growth. Till a comparatively recent time the sanction of the Judges was thought necessary even for the publication of the decisions of the Courts upon points of law. Even in quite recent days Judges in holding publication of the proceedings of Courts of justice lawful, have thought it necessary to distinguish what are called ex parte proceedings as a probable exception from the operation of the rule. Yet ex parte proceedings before magistrates, and even before this Court, as for instance our applications for criminal information, are published every