The Law of Libel. What Every Newspaper Man is Expected to Know About It. How to Guard Against Libel Suits and How to Be Prepared to Defend Them When Brought 9780231895071

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THE LAW OF LIBEL W H A T EVERY NEWSPAPER MAN IS EXPECTED TO KNOW ABOUT IT H O W TO GUARD AGAINST L I B E L SUITS AND H O W TO BE P R E P A R E D TO DEFEND T H E M W H E N BROUGHT

BY

HENRY WOODWARD SACKETT OF THE NEW YORK BAR LECTURER ON THE LAW OF LIBEL IN THE SCHOOL OF JOURNALISM COLUMBIA UNIVERSITY

New York COLUMBIA UNIVERSITY

1929

PRESS

F O R E W O R D

T h e School of Journalism of Columbia University has adopted and reprinted for its students this brief treatise on the L a w of Libel, because it has stood the test of more than thirty-five years as a practical guide to reporters and editors. Originally prepared in 1885 by Mr. Sackett for the instruction of employes of the NEW YORK TRIBUNE, it has been several times reprinted, not only by THE TRIBUNE, but by other newspapers, and is now issued by the School of Journalism for use in connection with the course given by Mr. Sackett in the L a w of Libel. No newspaper can entirely escape libel suits, but every newspaper rightly demands that the members of its staff shall not carelessly and in ignorance of the law invite such actions, and shall hold themselves in position to defend their work in case legal proceedings do arise from it. In the shortest possible space, free from legal technicalities, yet full and authoritative on every point concerning which the journalist needs information for his daily work, this guide sets forth the principles that must rule every writer and editor of newspaper copy who would meet this essential requirement of his publisher. JOHN W .

Columbia University January, 1922.

CUNLIFFE

PREFACE T O REPRINT OF

1916

This little pamphlet was written more than thirty years ago, to indicate to members of the staff of the NEW YORK TRIBUNE the most important things for them to know about the law of libel, in the briefest practicable form and in language free from legal technicalities. Whitelaw Reid, who thought it had efficiently served its purpose, had it reprinted in 1899 and also consented to its use by various other newspapers in different parts of the country. T h e text has never been revised or changed. The question of re-writing it has at times been considered, but always the author has been deterred by one controlling consideration— the fear that the chief merit of the little work, its brevity, would be lost by a revision. Even in the light of thirty years' additional experience in the defense of libel suits, the author finds no errors in the original statement of the law. It contains all that is essential for the newspaper man to know of the law and yet it is so brief that he can quickly familiarize himself with the whole of it. If any revision were attempted, the temptation might prove irresistible unduly to expand the size and so defeat one of the main objects in view. Nevertheless, in making this reprint the author does think it worth while to give one additional and earnest word of caution to the makers of headlines. Accept it as a fundamental rule that no headline should impute unchastity to a woman or a crime to any person. T h e utmost that headlines can properly do is to indicate that charges of unchastity or crime have been made or sustained in privileged cases, that is, in "judicial, legislative or other public and official proceedings." Out of an experience of more than thirty-five years, the author does not hesitate to say that a large proportion of the difficulties encountered in the defense of libel suits has arisen from violations of this rule. H.W.S.

N e w Y o r k , January, 1916.

THE LAW OF LIBEL W H A T NEWSPAPER M E N SHOULD K N O W ABOUT IT T h e following general statement of some of the fundamental principles governing the law of Libel is intended to serve a double purpose, namely: ( 1 ) T o enable the newspaper writer to guard against the publication of indefensible libelous matter ; and (2) In the event of libel suits being brought to insure to the publishers of the newspaper complete and ready means of defense. T h e intention is to state the rules and principles, as far as possible, without legal technicalities, and to include only such portions of the law on the subject as may be necessary or essential for the accomplishment of the double object desired. DEFINITION OF LIBEL

F o r the purposes of the newspaper writer, libel may be defined as malicious defamation, either written or printed, charging upon or imputing to another that which renders him liable to imprisonment, or tends to injure his reputation in the common estimation of mankind, or to hold him up as an object of hatred, scorn, ridicule or contempt. Attention is directed to the Appendix ( P p . 21-23) containing additional definitions of libel in civil actions by text writers and judges, the N e w Y o r k statutory definition of criminal libel, and general maxims for the guidance of newspaper writers and copyreaders in detecting libelous matter. Slander distinguished from Libel.—Slander is malicious defamation by speech or oral language; hence the newspaper writer has no especial concern for the law relating to it, further than to remember one general principle—that the law of Libel 7

is much stricter than the law of Slander. Thus, one may apply to another orally words of personal vituperation and abuse that would not render him liable in a suit for slander, but which if published of another in a newspaper would be libelous and actionable. For instance, to say orally of a man that he is a "rogue," or "scoundrel," or "vagabond," or "blackleg," or "bastard," or "adulterer," is held not to be slander; but to publish it in a newspaper would be libelous. JUDICIAL DICTA AS TO W H A T CONSTITUTES LIBEL

The above definition of libel is broad enough to cover all the experiences of the newspaper office. But the character of defamatory publication that is brought within its scope is best shown by the language of the courts in individual instances. Language in writing has been held to be actionable per se which "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 upon his character";—which "imputes something disgraceful to him";—which "throws contumely and odium upon him"; —which "tends to vilify him";—which "tends to injure his character or diminish his reputation";—which is "injurious to his character" or "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." ILLUSTRATIONS OF LIBELOUS TERMS

Each of the following terms charged upon 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 au8

thor or the publisher of a libel or slander;—that he was a "libellous 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";—of "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. Wherever quotation marks are used above, they indicate the exact language used in the respective publications complained of on which suit was brought. The following published charges have been held to be actionable, namely: Want of chastity (as applied to women, at all events) or adultery (charged upon 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 grovelling 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 (this point is amplified in what follows under the head of "Criticism"). The illustrations of this character might be multiplied indefinitely, but the above cover the general range of libelous expressions when personally applied to an individual. ALLEGORY OR IRONY

Imputations upon character in allegory or irony may amount to a libel. 9

Illustrations from reported cases.—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." AS TO TRADE, BUSINESS, ETC.

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. Illustrations.—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 any one in public office a charge of malfeasance or want of capacity to fulfill its duties. So also personal criticism upon 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. CRIMES

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. io

CASES OF "SPECIAL DAMAGE"

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 the exact character and manner of the loss and the amount of dollars and cents must be proved, and the verdict cannot exceed such amount. This is a class of cases which gives the publisher least concern; for while the utmost vigilance and care cannot prevent the publication of articles that result in "special damage," the bringing of such suits upon such publications is rare, because of the difficulty in proving substantial loss. It might almost be said that the recovery of any considerable verdicts in such cases is never heard of in our courts. 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. He is obliged to specify and prove each specific instance in which he has lost a customer from this cause and the amounts of profits which he would have realized in each case. And his recovery would be limited to such proof. DEFENSES

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 cornil

plained 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. O f course, if it was not false, it would not be legally malicious. The defenses to libel suits, therefore, are three, namely: ( 1 ) T o prove the published charge to be true. This is called a "justification." ( 2 ) T o show that the publication was "privileged." ( 3 ) T o 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." J U S T I F I C A T I O N , OR T H E T R U T H AS A DEFENSE

T o prove that the defamatory publication complained of is true is an absolute and complete defense. T h e old maxim of the English criminal law, " T h e 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 12

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. In order to justify they would have to show that the defamatory charge was true, i. e., 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 statute on this subject reads as follows: "An action, civil or criminal, cannot be maintained against a reporter, editor, publisher, or proprietor of a newspaper, for the publication therein of a fair and true report of any judicial, legislative, or other public and official proceedings, without proving actual malice in making the report." 13

This provision, however, is qualified by another section, which deserves especial mention. It reads : "The last section does not apply to a libel, contained in the heading of the report; or in any other matter, added by any person concerned in the publication; or in the report of anything said or done, at the time and place of the public and official proceedings, which was not a part thereof." Many libel suits have been sustained which were based alone upon the libelous headings of articles, where the articles themselves were completely protected by the first statute quoted above. Illustration: A wife seeks a separation from her husband on the ground of his cruel treatment. The first day of the trial damaging testimony is produced against the man which is properly reported. But it is published with the heading "A Brutal and Inhuman Husband." The next day the husband produces his opposing testimony, gets a verdict in his favor from the jury, and afterwards brings a libel suit against the newspaper publishers because of the above libelous heading. The publishers in defense could not plead that the heading was "privileged," but in order to make a complete defense would find it necessary to prove it true that it was true that the complainant was "a brutal and inhuman husband";—an undertaking which in view of the contrary verdict of the jury might be an awkward and disastrous thing to attempt. It may not be amiss to add another suggestion in this connection. 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 papers had yet been served or filed. Here there would be no privilege. The same would be true of an affidavit charging crime upon 14

a person which had not before the publication of it been presented to and judicially recognized by the committing or police magistrate. NEWSPAPER CRITICISM

ITS LEGAL SCOPE A N D LIMITATIONS

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, and none of the States is more liberal than New York in this respect. The Constitution of the United States provides : "Congress shall make no law abridging the freedom of speech or of the press." The Constitution of New York State 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 criminal prosecutions or indictments for libel the truth may be given in evidence to the j u r y ; 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 the party shall be acquitted ; and the jury shall have the right to determine the law and the fact." But the right to criticize 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. JUDICIAL DICTA CONCERNING

CRITICISM

" I n 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 reelection or reappointment of an incompetent officer." "No one can doubt the importance," is the language of IS

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." 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 criticized 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 cannot 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 "criticized." 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 upon men's actions or upon the products of their hands or brains as criticism, it is essential that the acts or things so criticized should have actual existence. For instance—a newspaper comments with great severity upon 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 be held liable for pub16

lishing 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. DEFENSES " i N MITIGATION OF DAMAGES"

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. H o w 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. T h e 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 rumors to the same effect as the libelous publication had long been prevalent and generally believed in the community and never contradicted by the accused or his friends. ( 3 ) That the libelous article was copied from another newspaper and believed to be true. (4) That the complainant's general character is bad. ( 5 ) That the publication was made in heat and passion, provoked by the acts of the plaintiff. (6) That the charge published had been made orally in the presence of the plaintiff before publication, and he had not denied it. ( 7 ) That the publication was made of a political antagonist in the heat of a political campaign. (8) That as soon as the defendant discovered that he was in error he published a retraction, correction or apology. (9) 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. T h e principle underlying all the above defenses is that they tend to show an absence of actual malice. Many other circum17

stances, 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 in every one. SUGGESTION AS TO PRACTICAL APPLICATION OF FOREGOING PRINCIPLES

T h e successful defense of libel suits depends largely upon having clear and trustworthy proof of the facts sought to be sustained promptly at hand as soon as the suit is brought. T h e " A n s w e r " that the publisher finds it necessary to make to a complaint for libel differs from ordinary pleadings in this important respect—it must set forth in detail the facts that the defendant expects to prove. For instance.—The newspaper has called X . a blackmailer; X . brings a libel suit against the publishers. They seek to " j u s t i f y . " It will not be sufficient for them in their answer to allege that "it is true, as charged, that X . is and was a blackmailer," and then wait until the trial to bring forward proof of it. But X . has a right to know from the answer what the facts are upon which the publishers rely to establish the justice of the epithet "blackmailer" as applied to him. Or, if the answer disclosed a defense "in mitigation of damages," as for example that the plaintiff's personal conduct was such as to induce any reasonable person to believe him guilty of the offense charged in the publication complained o f , any particular instances of such conduct on the plaintiff's part that the publishers expect to prove on the trial must be set forth explicitly in the same manner. The putting in of a "good" answer is therefore frequently more than half the legal battle and sometimes the whole of it. A n y 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. T h e publisher's concern in that particular is a double one—that whatever of that nature is pub18

lished in his newspaper should be true or privileged and that there should be clear proof of the truth or privilege. E v e r y newspaper writer frequently finds himself called upon to deal with such matter. If it is the report of a trial in court, or if the writer finds that it is "privileged" under the statute in any other way, he need have regard, so far as his report is concerned, to three points: ( i ) that the judicial or official proceedings have been already begun; (2) that his report of the testimony, etc., or synopsis of the sworn papers is fair and impartial ; and ( 3 ) that he knows where he can put his hands upon the official records to sustain the privilege at any time. 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 upon 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. T h e 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. I f , 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.

19

APPENDIX DEFINITIONS OF LIBEL DEFINITIONS

APPLICABLE FOR

TO

CIVIL

ACTIONS

DAMAGES

DEFINITIONS BY TEXT WRITERS

( 1 ) "Any printed or written words are defamatory which impute to the plaintiff that he has been guilty of any crime, fraud, dishonesty, immorality, vice or dishonourable conduct, or has been accused or suspected of any such misconduct; or which suggest that the plaintiff is suffering from any infectious disorder; or which have a tendency to injure him in his office, profession, calling or trade. And so, too, are all words which hold the plaintiff up to contempt, hatred, scorn, or ridicule, and which, by thus engendering an evil opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse and society."—Odgers on Libel and Slander. (2) "Any publication, expressed either by printing or writing or by signs, pictures or effigies or the like, which tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame or disgrace upon him, or which tends to hold him up to scorn, ridicule or contempt, or which is calculated to render him infamous, odious or ridiculous, is prima facie a libel, and implies malice in its publication."—Newell on Slander and Libel. (3) " A libel is any published defamation."—American Encyclopedia. (4) " A publication is a libel which tends to injure one's reputation in the common estimation of mankind, to throw contumely or reflect shame or disgrace upon him, or hold him up as an object of hatred, scorn, ridicule and contempt, although it imputes no crime liable to be punished with infamy ; or which tends to prejudice him in his employment. So every publication by 21

writing, printing or painting, which charges or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous or odious or ridiculous, is prima facie a libel."—ι Hilliard on Torts, 254. ( 5 ) " A l l publications injurious to private character or credit of another are libelous."—Addison on Wrongs. (6) " W o r d s or pictures which expose a person to hatred or contempt; which tend to injure him in his profession or trade or cause him to be shunned by his neighbors ; which impute to him any crime, dishonesty or immorality, or unfitness for any office or position which he fills or aspires to fill; want of skill or knowledge requisite for his profession; or which impute to a merchant insolvency or embarrassment, past, present, or probable."—Sell's Dictionary of the World's Press. DEFINITIONS BY JUDGES

( 7 ) " T h e test of any article which is claimed to contain a defamatory charge is whether a man of average intelligence, reading the article as a man of average intelligence reads, would believe that such a charge had been made."—Lehman, J. ( N e w Y o r k Supreme Court), in Higgins v. Press Publishing Company. (8) " E v e r y publication by writing, printing or painting which charges or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, odious or ridiculous, is prima facie, a libel, and implies malice in the publisher."—Daniel, J., in White v. Nicholls, 3 How. ( U . S.) 266. (9) " A libel is a malicious publication in printing, writing, signs or pictures, imputing to another something which has a tendency to injure his reputation, to disgrace or degrade him in society, and lower him in the esteem and the opinion of the world, or to bring him into public hatred, contempt or ridicule." — B o o t h , C. J., in State v. Jeandell, 5 Harr. (Del.) 4 7 5 ; Morey v. Morning Journal Ass'n, 123 Ν . Y . 207; 9 L . R. A . 621 ; 20 A m . St. Rep. 730. 22

( i o ) "Any publication the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred or ridicule, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society, is a libel."— Story, J., in Dexter v. Spear, 4 Mason, 115 ; Fed. Cas. No. 3867. GENERAL MAXIMS FOR T H E GUIDANCE OF NEWSPAPER WRITERS A N D COPY READERS I N DETECTING LIBELOUS MATTER

( 1 ) Every newspaper publication is libelous that imputes unchastity to a woman or a crime to any person. (2) A newspaper publication is libelous of any person, if its obviously natural effect is to make those who read it think worse of that person. CRIMINAL STATUTORY DEFINITION,

NEW

LIBEL YORK P E N A L LAW,

§I34-0

"A malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their business or occupation, is a libel." ALEXANDER HAMILTON'S DEFINITION

In the famous case of People v. Crosswell (3 Johnson's Cases, 337), Alexander Hamilton repeated the statement of Lord Camden, that he had not been able to find a satisfactory definition of a (criminal) libel. Mr. Hamilton in continuing said that "he would venture, however, but with much diffidence, after the embarrassment which that great man had discovered, to submit to the court the following definition. A libel is a censorious or ridiculing writing, picture or sign, made with a mischievous and malicious intent toward government, magistrates or indimduals." 23