84 Tenn. 176 | Tenn. | 1885
delivered the opinion of the court..
The indictment in this ease charges the defendants with libel. There are three defendants, the Banner Publishing Company (a corporation), A. L. Landis, Jr., and G. H. Baskette. The article on which the indictment is based, was published in the Nashville Banner on January 26, 1885, and at that time Landis and 'Baskette were the editors and publishers of the newspaper. The alleged defamatory article is entitled' “The Tennessee Tewksbury,” and deals with the State prison and its management. There are four counts in the indictment. The first charges the publishing company with libeling Jas. E. Carter, E. S. Harris, and Deering J. Roberts, they being, respectively, the superintendent, warden and physician of the penitentiary.
The second count charges defendants Landis and Baskette with a like offense.
The third count charges the publishing company with libeling Deering J. Roberts; and the fourth charges Landis and Baskette with a like crime.
The jury returned a verdict of guilty against all the defendants, and assessed their fine at fifty-one dollars. His Honor, Judge McConnell (sitting by interchange with Judge Allen), overruled the motions in arrest of judgment and for new trial, and entered judgment, and defendants bring the case to this court in the usual mode.
If the charge of the court is correct, it is not seriously insisted that the verdict is not sustained by the evidence. It is therefore not necessary to refer
His Honor ruled that no- evidence could be introduced as to abuses existing in the prison prior to the terms of the officials incumbent when the publication was made. This he did for the reason that the article was written in the “present tense/’ and showed on its face that it was leveled against existing abuses. Under these circumstances, he thought the line should be drawn with the beginning of the terms of the incumbent officials; that they were, in no sense, responsible for acts occurring under their predecessors; that if the line was not drawn somewhere, evidence could be introduced of what occurred from the origin of the penitentiary. These incumbents, Carter, Harris and Roberts, had been officers of the prison about two years when this publication was made, one of them something less than that time. Defendants insist that this ruling was erroneous, but we do not see that his Honor committed any error in this respect, The publication was addressed to abuses then existing, or alleged to exist, and in justification of the publication, it certainly would not be relevant to prove what existed many years before, under some admin-
It is argued by the counsel of defendants, that the .-court erred in charging the jury that if they found, from the proof, certain things to be true, then the ¡publication would be prima facie a libel. The court ¡told the jury that they would examine all the proof .-and ascertain whether the publication meant the pros-ecuting witnesses, and if it did it would be prima facie .a libel. As an illustration of the character of the charge on this subject, we quote from it. After telling the jury they must look to all the proof to ascertain who was meant, etc., his Honor adds: “If it means to impute cruelty and inhumanity to the prosecuting witnesses, then you are to consider it, with all the rest of the article, in determining whether defendants are guilty. To charge them with having murdered the convicts, and with not treating them as human beings, would be prima facie libelous.” This quotation furnishes a fair sample of the other portions of the charge bearing upon this question, and there is no error in this instruction. It is generally laid down in the authorities, that it is the province of the court to tell the jury whether a publication is prima facie libelous or not; to determine the construction of the .language published, and say whether or not, upon its face, it is actionable or indictable per se: Townsend on Slander and Libel, sec. 286, and authorities there cited; Palmer v. Concord, 48 N. H., 216; Lynn v.
It is the duty of the court, as a general rule, to construe any written or printed instrument or paper - offered in evidence. This was expressly so held by this court, at its present term, in the case of Gallatin Turnpike Company v. The State, 16 Lea, 36. In that case, the controversy was, whether a certain bridge was within or without the territorial limits of the town of Gallatin. The circuit judge had left the fact to-the jury, without construing the act defining the limits of file town. It was holden that he should have construed the act and told the jury where it fixed the-boundaries of the town.
But the main point urged by defendants for a reversal is, that the publication in question, as a matter of law under the facts, was privileged, and that the
The nineteenth section of our bill of rights is this: “That the printing presses shall be free to every person to examine the proceedings of the Legislature, or of any branch or office of the government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of men, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, the truth thereof may be given in evidence, and in all indictments for libel, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other criminal cases.”
Whatever rights and privileges are reserved and secured to the citizen under this provision of the organic
The law of libel on the subject of privileged communications, is involved in considerable uncertainty. There is more of conflict and doubt than on many other questions affecting personal rights. It is very easy to determine that certain communications are-privileged, as it is called, but we soon reach a point where doubt and uncertainty begin, and here we must proceed with caution and due deliberation, lest we-declare what is fallacious in principle, and establish precedents destructive of individual rights and injurious-to the public welfare.
In this State, we have no decision directly upon-the point at issue in the case before us, and we are left to adopt whatever rule (within the limits of the-
In the law of libel we find the expressions “ privilege,” “absolute privilege,” “conditional privilege,” in reference to communications. We note that these expressions are rarely coupled with the word publication. We will not attempt to define, fully, all that is reasonably meant by these different expressions. If a man has the right, under the established law, to make-a communication, then it is “privileged;” and, usually, he does not incur liability, civil or criminal, per se, for defamatory matter contained therein. Often this privi'ege is conditional upon the communication being made bona fide and without malice, and upon probable cause, and there must be proper occasion for the communication. If there is bad faith and malice, and the occasion does not call for the communication, liability ensues in this class of cases said to be conditionally privileged. If the communication is one of absolute privilege no liability ensues, even if there is express malice and bad faith. But the tendency of the law, at present, is to narrow the right of absolute privilege, and to make all such communications conditionally privileged, but with varying conditions, according to the exigencies of the case: Rucks v. Baker, 6 Heis., 397; Saunders v. Baxter, 6 Heis., 370.
The litigants in a law-suit are privileged to speak freely as to their rights, without incurring liability.
These instances are given as fair illustrations of the doctrine of privileged communications. It is urged that this doctrine is applicable to publications in the press concerning public officers, whether appointed or elected by the popular vote, the officers' of the State prison above named, under the law, being appointed by the Governor of the State.
It is admitted that the conductor of a public journal has, in this respect, no more rights than the private citizen, the authorities all sustaining this view. As the facilities of the press for the dissemination of its publications are so great, and its power so extended, it seems reasonable that its rights in this regard should, .at least, be bounded by the same limits as are the rights of individuals.
Comparatively few direct authorities can be found sustaining the view, in all its breadth, contended for by defendants. We have been furnished, by counsel, with the full report of only one case of a newspaper publication sustaining, substantially, the position insisted
As the case referred to of Briggs v. Garrett is greatly relied on by defendants, we desire to notice-it further. Briggs was an associate judge of the court of common pleas for the county of Philadelphia, and a candidate for re-election. Garrett was a member of the “committee of one hundred,” a voluntary association formed to prevent abuses in the city government. Before this committee, and in the presence-of reporters for the press and others, Garrett read a letter from a “ reputable citizen ” named Laregrove containing this statement: “ The Hart Creek sewer steal of $200,000 was only made possible by Judge Briggs’ charge to the jury. See the charge and reflect. on the facts.” It turned out that Judge Briggs did not preside in the trial of the cause referred to;, that it was not even tried in his court-. It is stated.
It is to be noted that in this case of Briggs v. Garrett, three of the seven members of the court, including the Chief Justice, refused to concur in the decision of the majority, and filed a dissenting opinion.. It is, in few instances, that the courts have been disposed to give the doctrine of privileged communications so wide an application as in the case above referred to. What are the just limits of this doctrine?’ The freedom of the press must be preserved, but is-it the lawful right of the press to publish incriminatory and defamatory utterances of public officials- or candidates for office, and then to say to the aggrieved party, “ we are privileged to do this. If you-think we have defamed your character you can sue us in the civil courts, or prosecute us for crime, and-if you can show that we had no probable cause for-publishing this libel, then we are amenable, and only then. When you institute such proceeding we will show on what ground we based our defamation.” If'
If such an application of the law would best sub- •• serve the public welfare, then we should not hesitate "to so apply it. But if the contrary is true, this application of the principle should be refused. To the "thoughtful man, it is evident that a new epoch is upon '-us. No one can correctly divine the future. Just what phases may present themselves in the future life •of the State, it is not given us to know. The principle we are asked to accept and apply, would be, if •so applied, one of far reaching importance. The public good demands that the demerits of aspirants for office should be made known, and that dishonesty and ■corruption in public places should be unsparingly exposed. It likewise demands that the purest and ablest men should be attracted to the public service, and that
The Pennsylvania court reasons that if a suitor may libel another in a court, and then exonerate himself by proving that he had probable grounds for the-
A party will not often be willing to incur the expense and trouble of a suit, brought without probable cause, and merely to vent his malice. If he becomes a prosecutor in a State ease, and it is developed that the prosecution is malicious or frivolous, he is at once taxed with ’ the cost. If he wrongfully institutes a civil suit, the costs are adjudged against him. This penalty he has to pay, as well as take the risk of his victim bringing an action for malicious prosecution. And the bringing of a suit is naturally a matter of deliberation. A party is not likely to take such a step hurriedly and inconsiderately, and often a little .judicious reflection will turn the currents of rashness or malice into more pacific channels. And then the occasions furnishing pretexts for malicious suits would not be so frequent. These reasons, or most of them, would not apply to defamatory publications. Another reason for the difference, which seems conclusive to the writer, is this: it is absolutely necessary to keep the courts open to suitors, and we can not deny this privilege, because some suitor may mistake his ground of action. All these reasons, we think, clearly show the fallacy of the position of the Pennsylvania court .(whose opinion is urged upon our consideration), that because a man may solemnly libel another in a suit in court, and then justify upon probable grounds, that a like right should be accorded to parties publishing defamatory articles concerning candidates and
It is urged that the charge of his Honor below, on the point being considered, does not recognize the progress of the age in the law of libel,' and is fashioned upon antiquated rules. We are aware of the fact that the law of libel has not always kept pace with other branches of the science, and that in the latter part of the last century it tasked the eloquence and genius of Erskine and Fox to establish needed reformations. But we fdl to perceive that there exists now such glaring defects, or crying abuses, as were patent them. Indeed, it seems to us, that the liberty of the press is not narrowly restricted. Public officials fully appreciate its power. The truth of a defamatory charge can be shown in justification. This did not become the law of England until the act of 6 and 7 Victoria, and then with restrictions, and Fox, in his speech on his libel bill, said he was not ready to say that this should be the law. In a criminal case, on a plea of justification, practically the defendant is acquitted if he can prove that there exist probable grounds to believe the publication true, for this is sufficient to generate a reasonable doubt of the defendant’s guilt. 'The law was so charged, in substance, in this case, .and in this respect- the charge is consistent with the principles laid down in the case of Dove v. State, 3 Heis., 367, and Coffee v. State, 3 Yer., 283.
If a publication is made bona fide and without malice, even though the truth can not be shown, our •courts and juries are not disposed to be severe with
We do not see that his Honor below committed any error of which the defendants can complain, and the judgment must be affirmed.