Burt v. Advertiser Newspaper Co.

• Decision Date: 29 June 1891
• Citation: 154 Mass. 238,28 N.E. 1
• Parties: BURT v. ADVERTISER NEWSPAPER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 238

28 N.E. 1

BURT v. ADVERTISER NEWSPAPER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1891

This was an action of tort for libels upon four counts, brought by James Burt against Advertiser Newspaper Company. The libelous matter of each count was as follows:

"A PLAGUE SPOT.

"[First Count.]

COUNSEL

R.M Morse, Jr., and F.J. Stinson, for plaintiff.

A Hemenway and Blackman & Sheldon, for defendant.

OPINION

HOLMES J.

In this case there must be a new trial. We shall state the grounds on which we come to this conclusion, and shall discuss such of the rulings as dealt with questions which are likely to come up again. Some matters not likely to recur we shall pass over. The first question which we shall consider is raised by the presiding judge's refusal to rule that the articles were privileged. The requests referred to each article as a whole. Each article contained direct and indirect allegations of fact touching the plaintiff, and highly detrimental to him, charging him with being a party to alleged frauds in the New York custom-house. Some or all of these allegations we must take to be false. Therefore the ruling asked was properly refused.

We agree with the defendant that the subject was of public interest, and that in connection with the administration of the custom-house the defendant would have a right to make fair comments on the conduct of private persons affecting that administration in the way alleged. But there is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest and the privilege existing in the case, for instance, of answers to inquiries about the character of a servant. In the latter case a bona fide statement, not in excess of the occasion, is privileged, although it turns out to be false. In the former what is privileged, if that is the proper term is criticism, not statement; and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libelous, he will not be privileged if those facts are not true.

The reason for the distinction lies in the different nature and degree of the exigency and of the damage in the two cases. In these, as in many other instances, the law has to draw a line between conflicting interests, both intrinsically meritorious. When private inquiries are made about a private person, a servant, for example, it is often impossible to answer them properly without stating facts, and those who settled the law thought it more important to preserve a reasonable freedom in giving necessary information than to insure people against occasional unintended injustice, confined, as it generally is, to one or two persons. But what the interest of private citizens in public matters requires is freedom of discussion rather than of statement. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood is much greater than in the other case.

If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer. Sheckell v. Jackson, 10 Cush. 25, 26.

The distinction to which we have referred has been brought out more clearly in England than it has been in our own decisions. Thus in Davis v. Shepstone, L.R. 11 App.Cas. 187, 190, Lord HERSCHELL says: "It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. In the present case the appellants, in the passages which were complained of as libelous, charged the respondent, as now appears, without foundation, with having been guilty of specific acts of misconduct, and then proceeded, on the assumption that the charges were true, to comment upon his proceedings in language in the highest degree offensive and injurious. Not only so, but they themselves vouched for the statements by asserting that, though some doubt had been thrown upon the truth of the story, the closest investigation would prove it to be correct. In their lordships' opinion there is no warrant for the doctrine that defamatory matter thus published is regarded by the law as the subject of any privilege." Popham v. Pickburn, 7 Hurl. & N. 891, 898; Lefroy v. Burnside, 4 L.R.Ir. 556, 565, 566; Campbell v. Spottiswoode, 3 Best. & S. 769, 779; Walker v. Brogden, 19 C.B. (N.S.) 65; Reg. v. Flowers, 44 J.P. 377, 378; Negley v. Farrow 60 Md. 158 See Hamilton v. Eno, 81 N.Y. 116; State v. Schmitt, 49 N.J.Law, 579, 586, 9 Atl.Rep. 774; Eviston v. Cramer, 57 Wis. 570, 15 N.W. 760; Scrippe v. Foster, 41 Mich. 742, 746, 3 N.W. 216; Sheckell v. Jackson, 10 Cush. 25, 26.

The foregoing language is applicable to the case at bar. The defendant in all the articles makes statements of fact on its own behalf, and in the second fairly may be understood to intimate that the private sources of information alleged by words, "we say this on authority," apply, not merely to the existence of corruption in the New York custom-house, but to the plaintiff's connection with it. The articles published by the defendant, so far as they contained false statements, were not privileged.

We should add, however, with reference to another trial, that there was evidence that some of the charges in the articles were true, and so far as the jury might find them to be so, inasmuch as the matter under discussion was a matter of public concern, the defendant would be justified not only in making those charges, but in free and open comment and criticism in regard to them.

The next question, the first which is raised by the bill of exceptions, is whether the court below rightly excluded a letter from the secretary of the treasury of the United States, and an ex parte report on the same subject, made to the treasury department, containing similar charges against the plaintiff, coupled with evidence that the writer of the articles had these documents before him, and believed the statements contained in them. The evidence was offered to show that the defendant acted in good faith, and, as it is commonly said, to negative express malice, in support of its plea of privilege, also as bearing on damages, and generally for any purpose for which it might be admissible.

We already have considered how the defendant stands in respect of privilege. It is said that the report tended to prove that the defendant had reasonable cause to believe the charges to be true, and that it tended to show that the plaintiff was less damaged than he otherwise would have been by reason of the fact that similar charges had been made and published before. As to the former of these suggestions, it is enough to say that it is not a justification that the defendant had reasonable cause to believe its charges to be true. A person publishes libelous matter at his peril. Watson v. Moore, 2 Cush. 133, 140; Parkhurst v. Ketchum, 6 Allen, 406; Clark v. Brown, 116 Mass. 504, 507.

Then as to damages. The damages recovered are measured in all cases by the injury caused. Vindictive or punitive damages are never allowed in this state. Therefore, any amount of malevolence on the defendant's part, in and of itself, would not enhance the amount the plaintiff recovered by a penny, and reasonable cause to believe the charges or absolute good will would not cut it down. Watson v. Moore, Parkhurst v. Ketchum, and Clark v. Brown, ubi supra. Apart from the statute, (Pub.St. c. 167, § 80,) and possibly from privilege, the defendant's motives and intent are totally immaterial. Its liability is the...