DAVIDSON, Appellant, v. ROGERS et al, Respondents.
(No. 77 1804, SC 25266)
Supreme Court of Oregon
Arguеd at Eugene November 4, 1977, affirmed February 8, 1978
574 P2d 624
William F. Frye, of Frye, Speer & Smith, Eugene, argued the cause and filed a brief for appellant. Randall E. Thwing, of Thwing, Atherly & Butler, Eugene, argued the cause and filed a brief for respondents. Before Denecke, Chief Justice, Holman, Tongue, Bryson, Lent and Linde, Justices, and Gillette, Justice Pro Tempore.
Linde, J., concurred and filed opinion in which Gillette, Justice Pro Tempore, joined.
Lent, J., dissented and filed opinion in which Tongue, Justice, joined.
Plaintiff brought an action for libel based upon a magazine article published by defendants.1 Only general damages were requested. Defendants’ demurrer to the complаint was sustained upon the basis that the facts stated were insufficient to constitute a cause of action for general damages because it was not alleged that a retraction had been requested of defendants and refused by them as required by
Plaintiff concedes that under our present decision in Holden v. Pioneer Broadcasting Co. et al, 228 Or 405, 365 P2d 845 (1961) he cannot maintain his action. However, he urges us to reconsider that decision and to hold that the statute is unconstitutional as being in violation of that part of
We see no reason to depart from this court‘s prior decision upon the subject. The language of the constitution does not specify that the remedy need be the same as was available at common law at the time of the adoption of the constitution; and the statute, while restricting the remedy, does not abolish the cause of action. Even though a retraction is not requested, the
In addition, the legislature has made available a retraction as a substitute for the remedy which the law would otherwise have provided. Holden v. Pioneer Broadcasting Co. et al, supra at 415. As a practical matter, retraction can come nearer to restoring an injured reputation than can money, although neither can completely restore it.
If the specific remedies available at common law were frozen at the adoption of Oregon‘s Constitution, the legislature would have been helpless to enact limitations upon actions such as those provided by the Workmen‘s Compensation Law and the guest passenger statute, or to concern itself with other similar matters about which it is usual for legislatures to take action.
The judgment of the trial court is affirmed.
LINDE, J., concurring.
In joining the court‘s opinion I do not endorse everything that was said in Holden v. Pioneer Broadcasting Co., 228 Or 405, 365 P2d 845 (1961). Some of the points made by the dissenters in that case and by Justice Lent today are well taken. But I think the question whether retraction of a defamatory statement is an “alternative remedy” that can satisfy
The guarantee in
But the validity of
We need not pursue here the question how far the legislature must retain money damages as a constitutionally required remedy for noneconomic injuries when they existed at common law. Defamation is a special case, addressed by more than one provision of
Gillette, J., pro tem., joins in this concurring opinion.
LENT, J., dissenting.
The sole issue presented upon appeal is whethеr the decision of this court rendered in Holden v. Pioneer Broadcasting Co. et al, 228 Or 405, 365 P2d 845 (1961), should be overruled insofar as it held
The concept that those who defame others should be held accountable is neither new nor peculiar to Anglo-American jurisprudence. History discloses that publishers of libels in ancient Greece and Rome were held accountable for their excesses. Although he was chiefly concerned with an attack upon the infamous “Printing Ordinance” of June 1643,2 John Milton, in his
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“In Athens where Books and Wits were ever busier then in any other part of Greece, I finde but only two sorts of writings which the Magistrate car‘d to take notice of; those either blasphemous and Atheisticall, or Libellous. Thus the Books of Protagoras were by the Judges of Areopagus commanded to be burnt, and himselfe banisht the territory for a discourse begun with his confessing not to know whether there were gods, or whether not: And against defaming, it was decreed that none should be traduc‘d by name, as was the manner of Vetus Comoedia, whereby we may guesse how they censur‘d libelling: And this course was quick enough, as Cicero writes, to quell both the desperate wits of other Atheists, and the open way of defaming, аs the event shew‘d. * **
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“And yet at the same time Naevius and Plautus the first Latine comedians had fill‘d the City with all the borrow‘d Scenes of Menander and Philemon. Then began to be consider‘d there also what was to be don to libellous books and Authors; for Naevius was quickly cast into prison for his unbridl‘d pen, and releas‘d by the Tribunes upon his recantation: We read also that libels were burnt, and the makers punisht by Augustus. The like severity no doubt was us‘d if ought were impiously writt‘n against their esteemed gods. Except in these two points, how the world went in Books, the Magistrat kept no reckoning. * * *
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“And as for regulating the Presse, let no man think to have the honour of advising ye better then your selves have done in that Order publisht next before this, that nо book be Printed, unlesse the Printers and the Authors name, or at least the Printers be register‘d. Those which otherwise come forth, if they be found mischievous and libellous, the fire and the executioner will be the timeliest and most effectuall remedy, that mans prevention can use. ***”
“* * * * *” Areopagitica, A Speech for the Liberty of Unlicenc‘d Printing, as found in The Tradition of Freedom, 1957.
“A good name is rather to be chosen than great riches.” [Proverbs 22:1]
“I would to God thou and I knew where a commodity of good names were to be bought.” [Shakespeare: I Henry IV I.ii.]
“Good name in man and woman, dear my lord, Is the immediate jewel of their souls; Who steals my purse steals trash; ‘tis something, nothing; ‘Twas mine, ‘tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.” [Shakespeare: Othello III, iii.] Dictionary of Quotations, Bergen Evans, Delacorte Press 1968, p 284.
In American jurisprudence the judicial preservation of constitutionally mandated accountability for libel is well described by the Michigan court:
“There is no room for holding in a constitutional system that private reputation is any more subjeсt to be removed by statute from full legal protection than life, liberty, or property. It is one of those rights, necessary to human society that underlie the whole social scheme of civilization. * * *
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“It is not competent for the Legislature to give one class of citizens legal exemptions from liability for wrongs not granted to others; and it is not competent to authorize any person, natural or artificial, to do wrong to others without answering fully for the wrong * * *” Park v. Free Press Co., 72 Mich 560, 566-67, 40 NW 731 (1888).
Some background concerning the statute in Holden may be of assistance to the reader in understanding why both the majority opinion and this dissent are relatively short when the issue is so important. What was (and is) cоdified as
It is apparent, of course, that this was a rewriting of the 1955 law by the 1957 Senate Judiciary Committee, which would have resulted in some modification of the almost absolute immunity to publishers granted by the 1955 law. In the House the proponents of outright repeal were so confident that the 1955 law would be delcared unconstitutional, however, that they rejected the substitute which passed the Senate. As a result, the bill died in committee in the House.
Holden was decided by a sharply divided court in a four-to-three decision.3 Justice O‘Connell authored the
No justice presently a regular member of this court or before whom this case is heard was on the Holden court.4 Neither Justice Holman for the majority nor I in this dissent have chosen to rehash the opinions of the Holden court. I acknowledge I cannot state the position for unconstitutionality better than did the Holden dissenters.5 To reword their thought and thereby to iterate it in the official report of the case at bar should not be necеssary to this attempt to persuade my brothers that the dissent has the better of the conflict. I forego iteration of the thought of the Holden dissenters only in the firm belief that I am entitled to assume that the members of the majority of the present court have not cast their ballot for constitutionality without first carefully reading all three opinions of the Holden court. I assume that like considerations have been, at least in part, responsible for the brevity of Justice Holman‘s opinion for the majority.
Before proceeding to the specific bases for the Holden opinion, I would point out its concession that it was taking an overwhelmingly minority position among courts which had had occasion to pass upon the validity of similar legislation.
“The constitutionality of statutes of a similar nature has been passed upon in other states. In a majority of the cases in which the question has been raised the courts have held, or stated in dicta, that the denial of the
remedy of general damages for defamation is unconstitutional. The contrary view is taken in Allen v. Pioneer Press Co., 40 Minn 117, 41 NW 936 (1889) and Werner v. Southern California Associated Newspapers, 35 Cal2d 121, 216 P2d 825, 13 ALR2d 277 (1950), appeal dismissed, 340 US 910, 71 S Ct 290, 95 L Ed 657 (1951). The cases are collected in 13 ALR2d 277.” 228 Or 410.
The dissenters found eleven6 jurisdictions which had either declared such statutes unconstitutional or had saved their constitutionality by construing them to allow recovery of general damages despite legislative attempts to restrict the plaintiff to “actual damages” оr similarly named categories of damages. It does not appear that the split of authority has quantitatively changed except for the Holden decision since the annotation appearing at 13 ALR2d 277. See Later Case Service.
Since the majority opinion, in effect, says nothing more than that Holden was decided rightly, I propose to state briefly what I conceive to be error in both cases.
Both majority opinions assert that
“* * * It cannot be said that the legislature had no foundation for concluding that retraction was an adequate substitute for general damages.” 228 Or 416.
The quoted material may be interestingly compared with another expression appearing earlier in the same paragraph:
“* * * The harm to a plaintiff is likely to be irreparable either by way of money recovery or through retraction. It is a pure speculation to say that the one remedy is more reparable than the other. * * *” 228 Or 416. (Emphasis added).
Does “pure speculation” afford a valid basis for the statutory substitution for the remedy “by due course of law” for injury to reputation known to those who adopted the Oregon Constitution almost a century before passage of this statute? More importantly, is it “due course of law“? The Holden dissenters well answered the last question as follows:
“The meaning of due course of law was explained by Daniel Webster in his celebrated argument in Dartmouth College v. Woodward, 17 US (4 Wheaton) 518, 581, 4 L Ed 629 (1819):
“* * * By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. * * * If this were [not] so, acts of attainder, bills of pains and penalties, acts
of confiscation, acts reversing judgments, and acts directly transferring one man‘s estate to another, legislative judgments, decrees and forfeiturеs, in all possible forms, would be the law of the land * * *’ The principles found in the Dartmouth College case are relied upon in Hanson v. Krehbiel, 68 Kan 670, 75 P 1041, 64 LRA 790. And see the discussion in 2 Cooley, Constitutional Limitations, supra, 733-741, and Griffin v. Mixon, 38 Miss 424, supra.
“The retraction statute affords the plaintiff no individual hearing or trial to determine the adequacy of a remedy in any case. Whether the retraction has restored a reputation or further beclouded it remains a mystery. The ‘remedy’ rather operates automatically to close the doors of the court. The legislature has arbitrarily declared that a decision to retract, rendered by the tortfeasor, shall be the exclusive remedy. The retraction is not ‘given’ by the statute; it is merely converted from a defense in mitigation to a defense in bar.” 228 Or 423, 424.
The Holden majority held that the statute did not violate
“* * * Although the statutes and constitutional provisions dealt with in the Werner and Allen cases are not precisely the same as ours, the basic constitutional problems presented are the same. [footnote omitted] We agree with the courts’ analysis in these cases and adopt it as dispositive of the case at bar.” 228 Or 411.
That the Holden majority could find those two cases to be dispositive can best be described as curious.
When Allen is read together with the later Minnesota case, Thorson v. Albert Lea Publishing Co., 190 Minn 200, 215 NW 177 (1933), it is readily apparent
Insofar as the Holden majority‘s reliance on Werner is concerned, I must borrow from Lewis Carroll‘s Alice‘s Adventures in Wonderland: “Curiouser and curiouser!”
As Justice O‘Connell conceded, thе California constitutional provision was “not precisely the same as ours.”
“‘Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. . . .‘” 35 Cal2d 124.
This provision of the California Constitution might fairly be considered comparable to
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
To say that
Since the only two cases which the Holden majority declared dispositive of the issue in this case are clearly not in point and their reasoning inapposite, the result reached by the Holden court should be overruled.
I deem that the constitutional guarantee of remedy by due course of law, аt the least, should provide the defamed person with a judicial hearing on the merits. Only in that way may it be determined whether retraction has in fact been efficacious in making the plaintiff whole rather than merely aggravating the injury suffered as a result of the publication. I cannot accept the legislative judgment that the publisher‘s option to retract makes every person defamed by the mass media8 whole. When I say I cannot accept it, it is not because I personally disagree with that legislative judgment; rather, I conceive
“* * * Legislative objеctives, however worthy, do not provide a constitutional basis for sacrificing the plaintiff‘s right to a hearing. It is no answer to say that juries can not be trusted, nor that rascals might profit from the jury system, nor that any significant number of persons who see one television program [or hear one radio program] will probably see [hear] another with its remedial retraction, so there is no harm in denying one a day in court. Due process of law [remedy by due course of law] is not so easily ignored.” 228 Or 434.
Neither can I accept the statement in the majority opinion:
“* * * As a practical matter, retraction can come nearer to restoring an injured reputation than can money, although neither can completely restore it.”
The majority opinion observes that if common law-remedies were frozen by the Adoption of
I cannоt honestly say how I might have decided the constitutionality of our Oregon workmen‘s compensation scheme in an attack under
If I have quoted too extensively from Justice Goodwin‘s dissent in light of my earlier expression that iteration of the Holden dissent should not be necessary, since it already appears in the official reports of this court, I trust my brothers and the reader will forgive me. I have not quoted from Justice Sloan but would now do so in bringing this dissent to its conclusion:
“For it must be remembered that when the legislature abolishes а cause of action to benefit a favored few it must be taken to be because the courts have failed to protect the rights of the few. It is a recognition that the courts have allowed fraud or partiality to warp the course of justice. When the courts sustain the [legislative] act it is a tacit acknowledgment not only of the failure to dispense justice but also an admission that the courts cannot remedy the wrong, if one exists. If the courts sustain legislative negation of established judicial process by applying only the test of a conceivable rational reason for the legislation, then the way is open for the legislature to nullify any form of judicial due process. If judicial due process is worthy of its keep it should not be so readily surrendered.” 228 Or 448.
In my opinion, the Holden decision and the majority decision here are not consonant with either
I dissent.
Tongue, J., joins in this dissent.