State v. Anonymous (1976-8)

Citation6 Conn.Cir.Ct. 751,360 A.2d 909
CourtCircuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
Decision Date01 October 1971
PartiesSTATE of Connecticut v. ANONYMOUS (1976-8) * . . JACOBS, Judge. The defendant was convicted in the Circuit Court upon information of violating § 53-174 1 of the General Statutes. The finding, which has not been attacked, discloses these facts: The defendant was the editor of a student newspaper published on a weekly basis at a local university. Prior to a presidential election, the newspaper contained considerable material concerning the forthcoming election. A particular issue of the publication 'contained a drawing depicting a semi-clenched fist with the middle finger in an up-raised position and the tip of said up-raised finger pofrtraying the end of a penis. Underneath that drawing was the name of a presidential candidate. The newspaper was distributed and circulated within the city in which the university was located. The court concluded that the drawing was offensive, abusive, and indecent; that it was directed at the named presidential candidate; that the stae was not required to allege that the defendant acted with malice; and that malice was implied from the fact that the drawing was published. The information was in the short form and complied with the requirements of Practice Book § 493(a). See State v. Davis, 141 Conn. 319, 320, 106 A.2d 159. 'This section provides that an offense may be charged by using the name given to it by the common law or by a statute, or by stating so much of the definition of the offense as is sufficient to give the court and the accused notice of what offense is intended to be charged.' State v. Whiteside, 148 Conn. 208, 210, 169 A.2d 260, 261, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33. Had there been any question in the mind of the defendant as to what offense he was being called on to defend against, he could have filed a motion for a bill of particulars. Practice Book § 495. This he did not do. The defendant assigned as error the trial court's ruling that malice may be implied from the act of publi

JACOBS, Judge.

The defendant was convicted in the Circuit Court upon information of violating § 53-174 1 of the General Statutes. The finding, which has not been attacked, discloses these facts: The defendant was the editor of a student newspaper published on a weekly basis at a local university. Prior to a presidential election, the newspaper contained considerable material concerning the forthcoming election. A particular issue of the publication 'contained a drawing depicting a semi-clenched fist with the middle finger in an up-raised position and the tip of said up-raised finger pofrtraying the end of a penis. Underneath that drawing was the name of a presidential candidate. The newspaper was distributed and circulated within the city in which the university was located. The court concluded that the drawing was offensive, abusive, and indecent; that it was directed at the named presidential candidate; that the stae was not required to allege that the defendant acted with malice; and that malice was implied from the fact that the drawing was published.

The information was in the short form and complied with the requirements of Practice Book § 493(a). See State v. Davis, 141 Conn. 319, 320, 106 A.2d 159. 'This section provides that an offense may be charged by using the name given to it by the common law or by a statute, or by stating so much of the definition of the offense as is sufficient to give the court and the accused notice of what offense is intended to be charged.' State v. Whiteside, 148 Conn. 208, 210, 169 A.2d 260, 261, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33. Had there been any question in the mind of the defendant as to what offense he was being called on to defend against, he could have filed a motion for a bill of particulars. Practice Book § 495. This he did not do.

The defendant assigned as error the trial court's ruling that malice may be implied from the act of publication, that the state was not required to allege that the defendant acted with malice, and that the drawing in question was offensive, abusive, and indecent. Further, the defendant challenged the statute, both on its face and as applied to him, as violating the liberty of speech and of the press guaranteed as against the states by the first amendment and the due process clause of the fourteenth amendment. With the view we take of this case, it becomes necessary to examine only the defendant's contention that the trial court erred in ruling that malice may be implied from the act of publication. Hence we decline to reach the very significant constitutional questions raised.

I

Hardly any branch of the English law has had a longer or more interesting history than the law of criminal libel the development of which has reflected the changes in public attitude toward the value and necessity of free speech. See 2 Stephen, 'A History of the Criminal Law of England' (1883 Ed.), p. 299. The theory of criminal libel ever since De Libellis Famosis, 5 Coke Rep. 125(a), 77 Eng.Rep. 250 (1609), has been that the government has the right to punish certain utterances because they inevitably lead to breaches of the peace. 'Any publication which has a tendency to disturb the public peace or good order of society is a libel by the common law, and is indictable as such.' Newell, 'The Law of Slander and Libel' (3d Ed.), pp. 3, 15-17. It is clear that the tendency of the utterance to create breach of the peace is at least nominally the basis of the crime. The crime is not defined in terms of its tendency to create violence and its possible effect on the public; rather, it is formulated in terms of the substantial character of the utterance, the assumption being that, given certain speech, violence may be conclusively presumed to result. With the passage of them, however, there has been an effort to expand and alter somewhat the original, narrow meaning of criminal libel. The emphasis is no longer on the effect of the libel on the public peace, but on the tendency of the publication to damage the individual. Thus, focus has shifted from the tendency of the utterance to create disorder to its tendency to harm individual reputation. 2

II

The libel of which the defendant stands convicted in the present case falls within a rather unusual category. Unlike virtually all other cases of libel, the defendant's cartoon does not consist of a statement, inference, or opinion of facts. And unlike the few reported cases involving libel by means of political cartoons (see Newby v. Times-Mirror Co., 173 Cal. 387, 160 P. 233; Randall v. Evening News Assn., 79 Mich. 266, 44 N.W. 783), the drawing in this case bore no caption or other graphic display from which any inference of fact might possible be drawn.

Judge Learned Hand recognized this rate type of libel in Burton v. Crowell publishing Co., 82 F.2d 154 (2d Cir.). There the publication of a picture which held the plaintiff up to ridicule was ruled actionable notwithstanding the fact that the picture did not assume to state a fact or an opinion. In coming to that conclusion, Judge Hand observed that defamation was not a favored cause to action at common law and that any 'excuse' pleaded by the defendant might defeat recovery. Significantly, he considered truth to be only one of the available 'excuses.' In that case, he stated (p. 156): 'In all wrongs we must first ascertain whether the interest invaded is one which the law will protect at all; that is indeed especially important in defamation, for the common law did not recognize all injuries to reputation . . .. But the interest here is by hypothesis one which the law does protect; the plaintiff has been substantially enough ridiculed to be in a position to complain. The defendant must therefore find some excuse, and truth would be an excuse if it could be pleaded. The only reason why the law makes truth a defense is not because a libel must be false, but because the utterance of truth is in all circumstances an interest paramount to reputation; it is like a privileged communication, which is privileged only because the law prefers it conditionally to reputation. When there is no such countervailing interest, there is no excuse.'

III

That there is a countervailing interest and, hence, an excuse in this case is clear from the opinion of the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254 p. 270, 84 S.Ct. 710, p. 271, 11 L.Ed.2d 686, wherein it was observed: '(W)e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'

In holding that an Alabama police commissioner could not recover damages from the New York Times for a partially false and allegedly defamatory editorial advertisement appearing in the newspaper, the court formulated what has come to be called the New York Times rule: 'The constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it...

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