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 thе removal of the plaintiff, an attorney at law,
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 uрon 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 privilеge 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. Lobniet, 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,
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
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 оf 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 cоntents 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 оf 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 preрared 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.
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,
For the purposes of the present case, it is enough to mark the plain distinction between what takes place in open court, and that which is done out of court by one party alone, or more exactly, as we have already said, the contents of a paper filed by him in the clerk’s office. This distinction, althоugh not established by them, derives an indirect sanction from the cases which have turned on the question whether the proceeding — for instance, the examination of a bankrupt — took place in a public court. Ryalls v. Leader, L. R. 1 Ex. 296. Lewis v. Levy, ubi supra. See also Fleming v. Newton, 1 H. L. Cas. 363, 378.
It is further to be noticed that the language of Chief Justice Shaw in Barrows v. Bell, ubi supra, clearly implies that the privilege claimed by the defendants does not protect them.
We have placed only a qualified reliance on the cases cited, because some of them were decided too early to be conclusive, and those on the question оf contempt have been placed on grounds not perhaps convincing with regard to the present question. But they lend strong support to our decision.
It may be objected that оur reasoning tacitly assumes that papers properly filed in the clerk’s office are not open to the inspection of the public. We do not admit that this is true, or that the reаsons for the privilege accorded to the publication of proceedings in open court would apply to the publication of such papers, even if all the world hаd access to them. But we do not pause to discuss the question, because we are of opinion that such papers are not open to public inspection. A different сonclusion might be drawn from a hasty reading of the Pub. Sts. c. 37, § 13, but the county records or files, which are there ordered to be open for public inspection and examination, and of which any рerson may take copies, are the records and files of the county, not of the courts of the Commonwealth within and for that county. We see no reason to suppose that the
We have assumed, for the purposes of this discussion, that the petition was rightly filed, and that the defendants were entitled to any benefit which they might derive from that circumstance. But we do not mean to intimate any opinion one way or the other upon the question. Exceptions sustained.