Cowley v. Pulsifer

• Decision Date: 27 June 1884
• Citation: 137 Mass. 392
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles Cowley v. Royal M. Pulsifer & others

137 Mass. 392

Charles Cowley v. Royal M. Pulsifer & others

Supreme Court of Massachusetts

June 27, 1884

Middlesex.

Exceptions sustained.

C Cowley, pro se.

S Lincoln, for the defendants.

Holmes, J. Devens & Colburn, JJ., absent.

OPINION

Holmes, J.

This is an action against the owners and publishers of the Boston Herald for a libel printed in that newspaper. The alleged libel was a report of the contents of a petition for the removal of the plaintiff, an attorney at law, from the bar. The report was fair and correct, but the petition included allegations which would be actionable unless justified. In their answer the defendants rely upon privilege; and the main question raised by the plaintiff's exceptions is whether the publication was privileged, as ruled by the court below.

The petition had been presented to the clerk of the Supreme Judicial Court for the county of Middlesex in vacation, had been marked by him, "Filed February 23, 1883," and then or subsequently had been handed back to the petitioner, but it did not appear that it ever had been presented to the court or entered on the docket.

We are of opinion that the foregoing circumstances do not constitute a justification, and that the defendants do not bring themselves within the privilege admitted by the plaintiff to attach to fair reports of judicial proceedings, even if preliminary or ex parte.

No binding authority has been called to our attention which precisely determines this case, and we must be governed in our conclusion mainly by a consideration of the reasons upon which admitted principles have been established.

We begin by recalling the familiar distinction between the privilege of the petitioner in respect of filing his petition, and the privilege of the same or any other person in respect of subsequently printing it in the newspapers, or otherwise publishing it to strangers who have no interest in the matter. This distinction, we believe, has always been recognized, both before and since the case of Lake v. King, 1 Saund. 120, 133; S. C. 1 Lev. 240. Weston v. Dobniet, Cro. Jac. 432. Rex v. Creevey, 1 M. & S. 273, 280. M'Gregor v. Thwaites, 3 B. & C. 24, 31, 35. Flint v. Pike, 4 B. & C. 473, 481. Commonwealth v. Blanding, 3 Pick. 304, 317. We therefore lay on one side all cases which only tend to show that the petitioner incurred no liability by handing his petition to the clerk, and by whatever publication that involved, and we shall assume, for the purposes of this case, that he incurred no liability by so doing.

The privilege set up by the defendants is not that which attaches to judicial proceedings, but that which attaches to fair reports of judicial proceedings. Now what is the reason for this latter? The accepted statement is that of Mr. Justice Lawrence in Rex v. Wright, 8 T. R. 293, 298: "Though the publication of such proceedings may be to the 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. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings." See also Davison v. Duncan, 7 El. & Bl. 229, 231; Wason v. Walter, L. R. 4 Q. B. 73, 88; Commonwealth v. Blanding, 3 Pick. 314.

The chief advantage to the country which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice. It used to be said sometimes that the privilege was founded on the fact of the court being open to the public. Patteson, J., in Stockdale v. Hansard, 9 A. & E. 1, 212. This, no doubt, is too narrow, as suggested by Lord Chief Justice Cockburn in Wason v. Walter, ubi supra; but the privilege and the access of the public to the courts stand in reason upon common ground. Lewis v. Levy, El., Bl. & El. 537, 558. It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

If these are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity. See Sanford v. Bennett, 24 N.Y. 20, 27; Lewis v. Levy, ubi supra; Barber v. St. Louis Dispatch Co. 3 Mo.App. 377.

We waive consideration of the tendency of a publication like the present to create prejudice, and to interfere with a fair trial. Barrows v. Bell, 7 Gray 301, 312 316. In re Cheltenham & Swansea Railway Carriage & Wagon Co. L. R. 8 Eq. 580. Tichborne v. Mostyn, L. R. 7 Eq. 55, n. Read & Huggonson's case, 2 Atk. 469; S. C. nom. Roach v. Garvan, 2 Dick. 794. Neither shall we discuss the question what limitations there are, if any, to the requirement that the proceeding must have been acted on and decided. Barrows v. Bell, ubi supra. Delegal v. Highley, 3 Bing. N. C. 950, 963. For apart from the distinction between what takes place in open court and the contents of papers filed in the clerk's office, it might be said that these considerations apply with equal force to a report of proceedings in court published from day to day as they take place, and that nevertheless it has been held that reports might be so published, and that it is not necessary to wait until a trial is completed. Lewis v. Levy, ubi supra. See Usill v. Hales, 3 C. P. D. 319, 325. The practice of publishing reports in this manner is universal with us, and we may concede that it might happen...