| Mass. | May 17, 1911
These exceptions were taken at the trial of three indictments, all growing out of publications of alleged libels in the Somerville Evening Sun, a newspaper published in Somerville. The person alleged to have been libelled was John M. Woods, then the mayor of Somerville and a candidate for reelection. An important question is raised by the exceptions in reference to the extent of the qualified privilege enjoyed by voters in discussing the character and qualifications of a public officer who is a candidate for re-election.
One of the defendant’s requests for rulings was as follows: “Assuming that the John M. Woods named in the indictment was a candidate for re-election to the office of Mayor of Somerville on or about December 10, 1909, then the printing and publication of the charges as alleged in the indictment was privileged and no conviction can be had of either defendant if the jury are satisfied that he believed said charges and had reasonable ground for his belief in them and acted in good faith in uttering them, unless actual malice is proved.” The charges alleged in the indictment were of misconduct, of intoxication, and of maladministration of office, and were plainly defamatory. The subject to which they purported to relate, namely, the fitness of Woods to hold the office of mayor, was one of public interest, and was especially of interest to the" voters of the city of
In this Commonwealth it has been decided that false statements of fact in regard to the conduct of a public man are not privileged, merely because the manner in which he performs his public duties is a matter of general interest to the people whom he was chosen to serve, while comment and fair criticism are permissible, even though they are very disparaging. This distinction is pointed out and affirmed in Burt v. Advertiser Newspaper Co. 154 Mass. 238" court="Mass." date_filed="1891-06-29" href="https://app.midpage.ai/document/burt-v-advertiser-newspaper-co-6423866?utm_source=webapp" opinion_id="6423866">154 Mass. 238, and is reasserted in Dow v. Long, 190 Mass. 138" court="Mass." date_filed="1906-01-04" href="https://app.midpage.ai/document/dow-v-long-6429192?utm_source=webapp" opinion_id="6429192">190 Mass. 138, 141, and in Hubbard v. Align, 200 Mass. 166" court="Mass." date_filed="1908-11-24" href="https://app.midpage.ai/document/hubbard-v-allyn-6430415?utm_source=webapp" opinion_id="6430415">200 Mass. 166, 170. The only question upon this part of the case that is not covered by our decisions, is whether the rule limiting privilege to fair comment and criticism, as distinguished from erroneous statements of fact, made honestly, shall be applied to publications in regard to candidates for a public office, as it is applied to publications in regard to the conduct of public men, and other ordinary matters of public interest. While there are dicta in our books that would furnish 0 some ground for an answer in the negative, we are of opinion that the weight of reasoning and authority requires us to answer in the affirmative.
Most publications in regard to candidates for office are general, and reach a large number of persons besides those who are interested as electors. Moreover, many of the charges touching conduct and private character affect only remotely the fitness of the candidate for the performance of the duties of a particular office, while, if false, they may be exceedingly damaging. These and other considerations, make it proper to limit the privilege as to
As to all the charges alleged to be libellous, the jury were instructed that if they were true, the defendant should be acquitted. R. L. c. 219, § 8.
The defendant Bayliss’ twenty-first request for an instruction was rightly refused because it did not refer to the possibility of conviction on the ground of express malice. We are also of opinion that this and his twenty-second request and other similar requests were rightly refused, because the charges relied on by the Commonwealth were all of matters of alleged fact and none of them purported to be made as reasonable criticism or comment upon the real acts of Woods, or the consequences likely to follow from his acts. The requests were, therefore, inapplicable to the evidence.
The instruction that the truth, if proved, was a justification of the statements, in the absence of express malice, sustains so much of the defense as was applicable to these charges under the law. If the charges as to matters of fact were shown to be true, there was complete justification, as there was nothing else left that was libellous. If they were not true, there was no part of the defamatory language that was a fair criticism and reasonable comment on facts. The defendants were not injured by the failure of the judge to instruct the jury as to the law of qualified privilege.
The defendant Bayliss contends that there was no evidence that would warrant the jury in finding him legally responsible for the libels, or any part of them. We are of opinion that the judge was right in leaving to the jury the question whether he arranged to state libellous matter to a person representing the newspaper,
Exceptions overruled.