Negley v. Farrow

Stone, J., delivered the following dissenting opinion: I am unable to agree with the majority of the Court, that the publication complained of in this case is, in itself, libellous. If it is so, then the defendants are criminally, as well as civilly, liable. They are not only liable in damages to the party injured, but are subject to punishment at the hands of the State- There are, in fact, but three things stated in this publication. 1st. That the plaintiff voted against the nominee of the political party to which he belonged. 2ndly, That the opposite political party had given him a valuable contract; and, 3rdly, That his vote was the result of and caused by that contract.

The senator had the right to vote as he pleased, and it was not a libel to state that ho voted for a particular person. The senator was also a citizen, and he had the unquestioned right to engage in the business of furnishing stone to the canal, and it was not a libel to state that he was a contractor for that purpose. Nor can I perceive ¹⁸⁴ in the statement that the vote of the senator was the result of that contract a charge either of bribery or corruption. Intimate business or social relations do constantly influence votes and voters, without any disparagement to their honesty and integrity, although such votes are given against their party affiliations, and I am not prepared to-say that such charges are libellous per se.

The whole aim and scope of the article was, in my opinion, an attack on the political, and not on the personal character of the plaintiff. The plaintiff represented his-county in the Senate of Maryland, and the defendants were his constituents. His votes were the proper subjects of the fullest and freest criticism among his constituents. The defendants were public journalists, and it was their duty to the readersjof their paper to inform them of the political acts of their senator.

If upon reasonable inquiiy they, the defendants, believed that the senator had voted as the article indicated, then it was their right and their duty so to say, and if, upon the same reasonable inquiry, they honestly believed that the votes so complained of proceeded from certain business intercourse with the opposing political party, it was, I think, their undoubted right to say so, unless they were actuated by malice toward the plaintiff; and whether such malice did exist or not should have been left to the jury. Taking into consideration the relative conditions of the parties, one a representative and the others constituents, and all the facts surrounding the publication, and the article itself, I cannot think that the publication was such an abuse of the freedom of the press as is contemplated by the 40th Article of the Bill of Eights of this State. Robinsoít, J., delivered the opinion of the Court. This is an action of libel against the defendants, now • appellants, editors and proprietors of a newspaper.

Without setting out the alleged libel at length, it is sufficient ¹⁷⁵ to say, it charges the plaintiff, elected, as a republican senator from Washington County, with being under the influence and control of a corrupt democratic ring — with having participated in the republican caucus in nominating Mr. Pratt as Treasurer, and afterwards with having voted for Mr. Compton, the democratic ring candidate— with having aided the ring senators in defeating the bill for repealing the Act authorizing the publication of the laws in newspapers, and by so doing, had proved false to his political obligations and a traitor to his party, and had brought dishonor upon the republicans of Washington County, who had elected him to the Senate. It further charges him with having a contract to furnish stone to the canal, which was given to him by its president, Mr. Gorman, the head and front of the democratic ring, because he was a senator, and “had a vote to give in the Senate,” and for no other reason. The article then concludes by saying, “The fruits of the ■'contract to furnish stone to lengthen lochs on the canal are iappealing. Look out for more.” The question presented by the demurrer is, whether a publication making such charges as these in regard to the •official conduct of the plaintiff is in law a libel ?

Tt is well settled that any publication which tends to injure one’s reputation, and expose him to hatred or con-tern])!, if made without lawful excuse, is libellous. It can hardly be necessary to say that such charges as these, against the official conduct of the plaintiff, and the imputation of the base and sordid motives by which such conduct was governed, were calculated to injure his reputation and expose him to the contempt of all honorablo men. Independent altogether of the innuendoes, the article on its face shows that these charges were made against the plaintiff, and we have no hesitation, therefore, in saying that the publication is in itself libellous. If so, the question then is, whether it was published without lawful excuse ?

And in this behalf it is insisted ¹⁷⁶ the defendants, as proprietors of a newspaper, had the right to criticise and censure the official acts and conduct of the plaintiff as senator, and if the article in question was published in good faith and without malice, honestly believing it to he true, they are not liable for damages. In other words, as proprietors of a newspaper they have the right to say whatever they please in regard to the official conduct of a public man, however false and libellous it may be, and impute to him corrupt and unworthy motives, provided they do so in good faith, and without malice, honestly believing it to he true. No such privilege is recognized by law. The liberty of the press guaranteed by the' Constitution is a right belonging to every one, whether proprietor of a newspaper or not, to publish whatever he pleases, without the license, interference or control of the government, being responsible alone for the abuse of the privilege.

It is a right which, from the introduction of the printing press down to the year 1694, did not in England belong to the subject. On the contrary, no one was allowed to publish any printed matter without the license and supervision of the government, and it was against such interference on the part of the government, and in favor of the right of the citizen, that this provision found its way into our Bill of Rights. It has only been within recent years, says an eminent Judge, that the law of libel has gradually developed itself into anything like a satisfactory and settled form, and the full liberty to criticise the conduct and motives of public men, and the measures and policy of government now recognized as lawful, would, half a century ago, have exposed the author to fine and punishment. Cockburn, C. J., Wason vs. Walter, Law Rep., 4 Q. B., 15.

No one denies the right of the defendants to discuss and criticise boldly and fearlessly the official conduct of the plaintiff. It is a right which, in every free country belongs to the citizen, and the exercise of it, within lawful ¹⁷⁷ and proper limits, affords some protection at least against official abuse and corruption. But there is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man, and the imputation of corrupt motives, by which that conduct may be supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril: and must either prove the truth of what he says, or answer in damages to the party injured.

The fact that one is the proprietor of a newspaper, entitles him to no privilege in this respect, not possessed by the community in general. The law recognizes no duty, imposed on him, arising from his relations to the public;, to defame and libel the character of any one, and if lie does, it is no answer to say, he did so in good faith, and without malice, honestly believing it to be true. Malice in one sense may be said to be an essential element in an action for libel, but not malice in the ordinary sense of hatred or ill will against the person, of whom the defamatory words are spoken. If the publication be in itself libellous, the law in all such cases implies malice ; in other words it says, you have no right to libel another, whatever may have been the motive or intention.

In Campbell vs. Spottiswoode, Law Rep., 8 Law Times, N. S., 201, this privilege was claimed by the editor of the Saturday Review as a bar to the action, but Blackburn, J., said: “A writer in a newspaper stands in no other position than, any other of the Queen’s subjects. Then it was said that., according to the authorities, an honest belief in the truth of the libel was an answer. But that is not so.” ( ’rompton, J. “ It is said that there is a privilege in newspaper writers to publish comments on public matters, if. they write honestly and believe their comments to be true. 1 am at a loss to see how any one has any right to go beyond ¹⁷⁸ fair comment 01* discussion, and impute base motives, merely because he believes them to be true.” And such we understand to be the settled law on the subject. And there was no error in overruling the defendants’ demurrer to the declaration, and in sustaining the demurrer to their second and third pleas. - These pleas being out of the way, the case was tried on the general issue plea of not guilty, and under this issue, all the law applicable to the case was fairly submitted to the jury.

The article being per se libellous, and its publication being established, the only question before the jury, was the amount of damages, which, under all the circumstances, the plaintiff was entitled to recover. In estimating these, they were to consider whether it