Post Pub. Co. v. Peck

• Decision Date: 09 August 1912
• Docket Number: 950.
• Citation: 199 F. 6
• Parties: POST PUB. CO. v. PECK.
• Court: U.S. Court of Appeals — First Circuit

199 F. 6

POST PUB. CO. v. PECK.

No. 950.

United States Court of Appeals, First Circuit.

August 9, 1912

James Thomas Pugh, of Boston, Mass. (Elder, Whitman & Barnum, on the brief), for plaintiff in error.

Clarence A. Barnes, of Boston, Mass. (Charles D. Francis, on the brief), for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

ALDRICH District Judge.

This is an action of tort for alleged libel based upon a publication in the Boston Sunday Post of July 24, 1910, which has reference to a book written by Prof. Harry Thurston Peck, and published by Dodd, Mead & Co.

The alleged harmful matter consists of words, pictures, and drawings.

The defense in this case, as finally defined, was not what is called justification, in the strict sense of the ordinary libel suit, but one based upon a denial of malice and of the innuendoes and an assertion that the publication complained of was merely a matter of news published in good faith with reference to legitimate public interests, and that what was done only involved reasonable comment and criticism and as such was privileged.

The plaintiff in his declaration proceeded upon the idea that the printed words and the things done were libelous, and that what the Post said about Mr. Peck and his publication together with what was brought in about the woman Quinn, her breach of promise case, and what she said about the book in question and its author, and what was done by the Post's staff of authors and artists, taken altogether, operated to bring the book, Mr. Peck, and his other literary works into disgrace and ridicule, and under such circumstances as to entitle him to recover damages.

According to the record, the plaintiff, at the time of the alleged wrongful publication, had for a long time sustained important relations with Columbia University, was a professor in the classics, had written and published several books and many magazine articles, was at the time of the alleged libel engaged upon a 'History of Classical Philology' for the Macmillan Company of New York and London, upon a number of articles and reviews for magazines, under contract to become the literary editor of Smith's Magazine, under contract with the American Philological Association to write a series of articles on pure literature in Europe and America, and under contract with the trustees of Columbia University to lecture as Anthon professor of Latin; and it is alleged that by reason of the wrongful publication he suffered financial loss, injury to personal and professional reputation, and was subjected to mental anguish.

It is quite true the plaintiff in his declaration, in speaking of the publication as a whole, characterizes it as a malicious libel, and alleges that the defendant in publishing and circulating the statements and pictures in question intended to convey and did convey the idea that the outline of a head which included obscene pictures, was the outline of the plaintiff's head, and that the plaintiff was a licentious person, and a moral pervert with a degenerate mind.

But the answer does not put the defense upon the common-law ground of justification through alleging the truth, but upon the ground of the right of justifiable, legitimate, fair, and reasonable comment.

And it thus follows that, while the declaration was one of libel the whole situation was practically changed by the answer, which presented substantially different issues and substantially different questions from those existing in the ordinary common-law libel suit, and it is apparent that the presiding judge in the last analysis wisely submitted the case to the jury on the lines of common sense instructions, not only practically and legally applicable to the substantial issues involved, but upon such general and comprehensive lines as, under the particular circumstances, were necessary for the proper determination of the real questions at issue, and, the case being exceptional in the sense that the actual question under the answer and upon the trial was in substance one of fair criticism and reasonable comment rather than one of strict libel, it seems not out of place to set out pretty fully the way in which the case was finally submitted to the jury, to the end that, further on, the importance or lack of importance, the applicability or inapplicability, of the various points raised in the course of the trial may be better understood and appreciated.

The learned judge, after reminding the jury that it was the province of the court to state the law, and that the questions of fact involved would be passed upon by them, proceeded to explain the questions of fact which they were to determine under the peculiar circumstances of the case before them, and among other things said:

'It is my duty to submit to you the questions of fact upon which you are to pass, to point them out to you, and to give you such instructions regarding the law as may be necessary to enable you to arrive at a verdict. This I will try to do, using as few and as simple words as possible. It will, in view of the length of the trial, however, be inevitably necessary for me to occupy some little time. * * *

'This, gentlemen, as you know, is what is called a suit for libel, in which the plaintiff complains of damage done by the defendant to his reputation. He complains of injury to reputation, personal or professional reputation. I need not dwell upon the fact, so well realized by every one of you, that to every man his reputation is of value. Anything wrongfully done, which tends to injure his reputation, is a wrong which the law will redress. Anything wrongfully done, which tends to make people shun or avoid or have a less good opinion of the plaintiff, or to hold him in contempt or in ridicule, of course it is obvious is an injury to reputation of that general character which the law will redress.

'The plaintiff complains in this case that he has been injured in his reputation, personally and professionally, by a publication made in the Boston Post which has been shown to you, and which has been read to you, the Boston Post of Sunday, July 24, 1910. There is no dispute in this case that the article of which the plaintiff complains was published by the Post, published in the Sunday issue of July 24, 1910. There is uncontradicted evidence as to the number of copies of that Sunday paper circulated. It is undisputed that the article of which the plaintiff complains referred to a book called The New Baedeker, to which frequent references have been made before you. There is no dispute that the plaintiff had, previously to the publication of the Post's article, written and published the book which I have mentioned; and there is no dispute that I have heard that the plaintiff is a literary man by profession, and a teacher, an educator, as it has been called, a professor, a part of whose daily business it is to write books or to write articles.

'Now, the object of this action on the part of the plaintiff is to get compensation in money for injuries which he says this article did to his professional and personal reputation. The damages claimed in his writ are stated to be $100,000; but that, gentlemen, as I may say to you again, is no index of any consequence regarding the amount of damages, if you give any damages, which you should give in this case. The plaintiff in a suit is allowed to insert, when he comes to stating the amount of damages which he claims, any sum which he pleases.

'Now, in order to recover in this case, the plaintiff must satisfy you, by fair preponderance of the evidence, that this publication by the Post did in fact cause an injury to his reputation in some of the ways that I shall endeavor to indicate to you. Of course, injuries to his reputation caused by something else do not entitle him to recover in this action against the Post for publishing this article. The plaintiff must satisfy you by a fair preponderance of the evidence that the publication of this article was the cause of an injury to him in his reputation and in his business, before he can expect you to find a verdict in his favor for that, and award him any damages. Now, if you should be satisfied that this publication was the cause of injuries to his reputation, the plaintiff then has the burden of satisfying you what is a fair compensation in money for the injuries which you find he sustained. That, and only that, has he any right to recover in this case.

'You will find in this article published by the Post, and complained of by the plaintiff here, statements of two kinds. A good deal of what is said in that article, perhaps the most of it, consists of statements about the book supposed to be under criticism; but some of the things in it, as we have heard, are references, not to the book, but directly to the plaintiff himself; and these are complained of, and they need consideration by themselves. In some respects they stand on a different ground from the ground on which the statements made in criticising the book merely rest. Now, I will consider these first. As to them, I instruct you that the defendant, in reviewing books written by the plaintiff, has a right to make only fair, truthful, and reasonable criticism of the book reviewed. It is bound to confine itself to such criticism of the book, and it has no right to make an attack on the plaintiff personally, or on him in his profession as an author. I mean that it has no right to make a wrongful attack on the plaintiff personally, or on him in his profession as an author. If any statements are made directly by a reviewer not based on the text of the book or warranted by it, then those statements are to be tested by the ordinary rules of law applying to

...