124 Mich. 353 | Mich. | 1900
Lead Opinion
The defendants are members of an organization called the “Good Government League,” in the city of Detroit, which professes to have for its object the election of worthy men to office, and the promotion of good order and honest administration of city affairs. The plaintiff, having attended one session of the legislature in the capacity of representative, was a candidate for re-election. This action is for libel, alleged to have consisted of three publications over the names of the defendants. One, for convenience called the “White Circular,” was addressed to the voters, and contained in parallel columns the names of several candidates whom the electors were advised to vote for or against. The portion applicable to the plaintiff was as follows:
“VOTE
“For
Harry C. Barter for representative, because he represents all that is good in his opponent, and-does not represent the objectionable. He is the champion of labor and arbitration.
Against
Henry Eikhoff for representative, because in the last legislature he championed measures opposed to the moral interests of the community.”
Another, called the “Pink Circular,” contained the following :
“Read and Reflect Before You sYo™-
“The executive council of the Good Government League has carefully examined the record of each candidate for office. Where opposing candidates are equally bad or equally good, we make no recommendations. The following suggestions are made in the hope that they may aid you in the discharge of your duty as a citizen, and that righteousriess may prevail in public as well as in private affairs:
“ ‘The liquor interests of the city are likely to have something to say in the convention. Lou J. Burch, editor of-, is their candidate.’ October 29, 1898.
“ ‘Here and there could be seen the burly forms of chicken-fed preachers, arrayed in long, dark frock coats, with hair pompadour, and smile urbane as the harvest moon, moving about among the female portion of the flock, thinking what a snap they had. It was' a veritable Eden for them, and it was full of ripe, luscious apples, and no snakes. A preacher is never so near his heaven as when in charge of a menless audience or convention.’ January 22, 1898.
“Speaking editorially of one of Woodward avenue’s most prominent and popular ministers, the sheet says:
“ * * He is either crazy, a fool, or both; and that, at best, he is a weak, narrow-minded bigot, without religion or sense.’ May 7, 1898.
“ Referring to deaconesses and other Christian workers, Burch’s paper says:
“ ‘ The front row of chairs was occupied by as interesting a bunch of short-haired, long-nosed women, of doubtful age, as one would meet in a long search.’ October 1, 1898.
‘ ‘ Referring to prominent pastors and church workers who were at police court recently,' Burch’s paper says they were ‘as fine a looking lot of spies and sneaks as ever put powder to a safe.’ October 1, 1898.
“ ‘And still these awful good and pious old ladies can never see
‘ ‘ In commenting upon the discharge in the recorder’s court of a saloonist, Burch’s paper says:
“ ‘The outcome of all these cases should be the same as this first one, and probably will be. Mathews was defended by Navin & Sheehan.’ October 15, 1898.
“Burch’s paper spoke as follows concerning the effort to close the Capitol-Square Theater:
* * Agitating against the Capitol-Square Theater with the intention of closing it, but without success, for the simple reason that there is no excuse for such an outrageous procedure.’ April 2, 1898.
“After the evidence upon which the theater was closed was in, Burch’s paper said:
“ ‘As the investigation now stands, there can be but one result, —the complete vindication of Dr. Campbell.’ April 9, 1898..
‘“Republican politicians about town are wondering which side of the fence Charlie Joslyn will be found upon in the Pingree and anti fight this year. Pingree bought Charlie with a §5,000 per year job two years ago, but there is a rumor that the foxy Charlie is looking for a raise this year.’ April 16, 1898.
‘ ‘ ‘ Should Stay Away.
“ ‘ Negroes must Realize that There is a Line.
“ ‘The question of the color line has arisen in Detroit once more. A negro claims that he was discriminated against at Stock’s Riverside Park. This statement is denied, however. He had no business there. Negroes must realize the fact that white people will associate with them more or less in business, but will certainly refuse to be on equal terms with them socially. Knowing the objection there is for their company, why does the negro force it ? No gentleman would. White men would be forcibly ejected from any place where they made themselves half as obnoxious as do most colored people. It has since transpired that the negro, anxious for a case, made no complaint to Mr. Stock, but straightway rushed into court. Mr. Stock is a very fair-minded gentleman, and is willing, and always used Detroit citizens liberally, and there is no doubt they will support him against the arrogance of Detroit’s colored population.’ May 28, 1898.
“‘The ladies of the W. C. T. U. have been having sixteen fits each all the week over a showbill in which a man is depicted in the
“Burch probably desires the repeal of the minor law. Judge from the following:
“ ‘TO Fathers and Mothers:
“ ‘Fathers and mothers of Michigan, has it ever occurred to you that the doors of the saloon are barred against your minor sons and daughters, while they can enter a drug-store with seeming propriety, and sip intoxicating drinks issued from a soda fountain ? Which of the two institutions is the more likely to start innocent youth on the downward path ? Do you think it fair and just to continually persecute the licensed saloonkeeper, who executes a large bond guaranteeing the proper conduct of his place, and wink at the unlicensed whisky-selling druggist ? Pause and consider.’ June 4, 1898.
“For several weeks Burch’s paper has carried the following in display type:
‘ ‘ ‘ Below are the names of the 39 men who not only voted against this particular bill, but used their influence against the liquor interests during the entire session. Don’t wait for the election this fall, but be on hand at the caucuses and the conventions, and see to it that these 39 men get just what they gave you, — the dump.’ September 24, 1898.
“By your vote do you desire to ask the State to bear the expenses and pay the expenses and pay the salary of the saloonkeepers’ lobbyist? That your vote may be effective,- we ask all who may refuse to vote for Burch to concentrate their votes upon Alex. W. Blain.
“For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff, candidate for representative, and for Harry C. Barter.”
There was a third, but it is unimportant. The declaration alleged that the effect and meaning of the pink circular was to charge and impute by inference and intent, upon the plaintiff, all of the wrongful, indecent, immoral, wicked, and scandalous acts charged against said Burch. The court excluded the pink circular as not libelous, and directed a verdict for the defendants upon the other counts.
‘ ‘ The conclusion of the article, and the views as expressed by the defendants in that article, must of necessity, under the circumstances of the case, be termed a deduction from his record in the case. It is a question upon which men may differ. It probably will be very difficult to determine with any unanimity as to whether such measures were against the moral interests of the community. It is a question of judgment, in other words, based, in my opinion, upon his record in the legislature. Whether it is for the moral interests of the community is an open question. In my judgment, it was such a criticism upon his acts as might legitimately be made by any voter to the voting population of the State or of the county from which he asked to receive the suffrage of the people. If it were true that those acts were against the moral interests of the community, he would have no case here. If they were false, then the question of qualified privilege, as we say in law, would arise. There are certain things' which persons, may say under certain circumstances which are called privileged in the law, — qualifiedly privileged, — and it depends upon the occasion as to whether an utterance or publication is privileged. I charge you that in this case this was a privileged occasion. If they had the right to criticise the acts of this man, being a man running for public office, and one who asked to receive the trust and confidence of the people to perform the duties of that public office, they had a right to criticise him; and, though it was false, it would not be actionable, unless it was published with malice or in bad faith. I do not think in this case there is any evidence of malice outside of the publication itself, — -any positive proof, — which,
The language of the white circular, unexplained, unequivocally charged the plaintiff with having championed legislation opposed to the moral interests of the community. This charge is an attack upon his moral character, and would be likely to bring him into public contempt and disgrace. It is, therefore, libelous per ■ se. The defense made was: First, that the statement was true; and, second, that, if it cannot be said to be true, the proven acts were subject to criticism, and defendants had the right to express their opinion as to their effect, — in other words, that the language was privileged.
The defendants had a right to discuss the fitness of the plaintiff for the office to which he aspired, and might lawfully communicate to the electors any facts within their knowledge concerning his character or conduct, and express their' opinions upon them, and their inferences deduced from them, so long as they stated as facts only the truth, and as opinions and inferences therefrom only honest belief. The fault here, if there be one, is that opinions and inferences were not stated as such, but as facts. The defendants sought to justify the statement made, viz., that the plaintiff championed measures opposed to the moral interests of the community, by pi’oving that he supported the two measures stated. To the minds of some, that would be sufficient to establish the truth of the charge. Others would think otherwise. It is manifest, therefore, that we cannot say, as a legal proposition, that
The difficulty in this case is that the defendants have been permitted to limit their statement by proof of their intended meaning, while the writing itself contained no hint of limitation. The case of Ellis v. Whitehead, 95 Mich. 115 (54 N. W. 757), is in point. It was there said:
“The fourth request should not have been given. It makes the slander depend entirely upon the intention of the defendant, and, in effect, says that vituperation is not slander when provoked, though it transcend the bounds of
We are of the opinion that the court erred in saying that the words were privileged. Not being privileged, it should have been left to the jury to say whether the evidence showed that plaintiff’s support of these measures was opposed to the moral interests of the community as a matter of fact; in other words, to determine the truth of the charge.
It is hardly necessary to cite authorities in support of the doctrine that a candidate for office has a right of action for aspersions upon his character, and cannot be subjected to unwarranted and untruthful charges. In New York no distinction seems to be made between a public man and a private citizen. Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613, 4 Wend. 113 (21 Am. Dec. 102); Hamilton v. Eno, 81 N. Y. 116. A leading case will be found in Com. v. Clap, 4 Mass. 163 (3 Am. Dec. 212). See, also, Curtis v. Mussey, 6 Gray, 261; State v. Schmitt, 49 N. J. Law, 579 (9 Atl. 774); Hunt v. Bennett, 19 N. Y. 173; Pierce v. Ellis, 6 Ir. C. L. 55; Simpson v. Downs, 16 Law T. R. (N. S.) 391; Duncombe v. Daniell, 8 Car. & P. 222. In this last case Lord Den-man said: “However large the privilege of electors may be, it is extravagant to suppose that it can justify the
The court excluded all proof in relation to the “Pink Circular,” upon the ground that it was not libelous. After charging that Burch is a self-avowed candidate for the liquor dealers, and desires to go to the legislature to work in the interest of saloons, that he edits a scurrilous newspaper, that he is the champion of saloon lawlessness and vulgar theaters, and quoting at length from his writings, as already shown, the pink circular concludes as follows, viz.: “For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff.” The count alleges under innuendoes that the meaning of this circular was that the plaintiff was an indecent and immoral man, and equally as unworthy of support as "Burch. We are "of the opinion that this comparison with Burch cannot mean less than that the plaintiff was a man as unworthy of support as Burch, for reasons not given, except as they may be implied by the charges made against Burch. Some of the charges against Burch were libelous per sej e. g., that he is the champion of saloon lawlessness and vulgar theaters. Thus the pink circular itself furnishes implications throwing light upon the meaning of the words used about plaintiff, and justifying the claim made, viz., that he was represented to be a man of bad morals, and unworthy of support for that reason. We think this also was libelous per se, and should have been admitted, leaving the defendants to prove the truth of the charge.
The judgment is reversed, and a new trial ordered.
Dissenting Opinion
(dissenting). I cannot concur in the opinion of my Brother Hooker. The right of citizens to criticise the character, acts, and record of a candidate for public office is involved. The principles of law governing such cases are not in dispute. They have often been stated in the decisions of this court, and the distinctions between justifiable criticism and charges of criminal and degrading conduct pointed out. Belknap v. Ball, 83 Mich. 583 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622); Dunneback v. Printing Co., 108 Mich. 75 (65 N. W. 583); Owen v. Dewey, 107 Mich. 67 (65 N. W. 8); Howard v. Dickie, 120 Mich. 238 (79 N. W. 191). The other cases will be found cited in the above, and cover the entire field of discussion upon the question now before us.
1. I think the court correctly ruled out the “Pink Circular.” This circular makes grave charges against Burch, and urges the electors to vote for his opponent, Mr. Blain. It then says: “For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff, candidate for representative, and for Harry C. Barter.” If the circular had read “for reasons which we consider good,” it would not be contended that the words would be libelous. Citizens certainly have the right to declare that they have good reasons for .opposing a candidate, though they do not state them, without subjecting themselves to an action of libel or slander. • It follows that this article is not libelous per se, and cannot be made libelous by innuendoes, unless it can naturally be construed into charging plaintiff with the same or similar acts as charged upon Burch. It does not charge plaintiff with the offenses charged upon Burch. They do not imply that plaintiff is guilty of the same or similar offenses. On the contrary, the plain inference is that the reasons are not the same, but, in the opinion of the writers, “equally as good.” The language speaks for itself.
2. The “White Circular ” reads: “Take this to your voting booth, and, whatever your party preferences may be, remember that you should vote against Henry Eikhoff for representative, because in the last legislature he championed measures opposed to the moral interests of the community.” This statement refers to the public record of plaintiff as a member of the legislature. It does not charge him with crime, or criminal or scandalous conduct. It means no more than this: That, in the opinion of the writers, measures were introduced into the legislature which were opposed to the moral interests of the community. These measures were designed to accomplish the removal of some restrictions now placed upon the liquor traffic by providing for the repeal of the provisions of the law for the removal of screens and blinds from saloon fronts, and for closing on certain holidays, and during certain hours on election days. It may be true, as the circuit judge said in directing a verdict: “It probably will be very difficult to determine with any unanimity as to whether such measures were against the moral interests of the community.” But the defendants certainly had the right to condemn them as opposed to the moral interests of the community, and to urge electors to vote against candidates who would support them. The evils of the liquor traffic are matters of common knowledge. How it is regarded by the courts will appear in Kurtz v. People, 33 Mich. 279, in an opinion written by Justice Campbell, and concurred in by the entire court; and in the case of Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. 13), in an opinion written by Mr. Justice Field, and concurred
“The continuance of lounging and drinking into the late hours of the night is equally known as peculiarly dangerous. Men or boys can escape observation more readily by night than by day. When they have once become engaged in the pleasures and temptations of such resorts, it is but too sadly manifest to all who do not shut their eyes to what is going on around them that, after drinking has once begun by those who are in danger of excess (if there are any that are not), it is apt to be kept up much longer than may have been thought of or intended. ‘Midnight revels’ would never have become a popular phrase unless they had been a well-known reality. Unless the annals of crime are strangely distorted, the amount of mischief due to the indulgence of late drinking is much beyond its proportion in any other part of the day.”
In the latter the following language is used:
“ It is urged that, as the liquors are used as a beverage, and the injury following them, if taken in excess, is voluntarily inflicted, and is confined to the party offending, their sales should be without restrictions; the contention being that what a man shall drink, equally with what he shall eat, is not properly matter for legislation. There is in this position an assumption of a fact which does not exist, — that, when the liquors are taken in excess, the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But, as it leads to neglect of business, and waste of property, and general demoralization, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dramshop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in. this way has therefore been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. Not only may a
If the eminent men and jurists then composing those courts may thus characterize the liquor traffic, declare that its evils are matters of common knowledge, and recognize the propriety and necessity of sustaining stringent regulations in the conduct of the business, it certainly is not very far from the truth to say that measures designed to open the saloon at night or on holidays, when men are idle, are opposed to the moral interests of the community. There are those whose lives are otherwise above suspicion, who advocate the wide-open saloon, and who even advocate the licensing of houses of prostitution. The prevailing sentiment, however, among respectable people is against them. If to say of a member of the legislature who supports such measures that he is supporting measures opposed to the moral interests of the community is an attack upon his moral’character, it is an attack for which the law provides no remedy; otherwise,citizens and newspapers would be prevented from criticising any act of the legislature, or any proposed measure, as injurious to the moral interests of the community. I Isubmit, however, that such criticisms are not attacks (upon a man’s moral character. The statement that a man I supports measures which may generally be conceded to be against the moral interests of the community is not charg
“My opinion in regard to the opening of the saloons on holidays is that the tendency would be to an increase of drunkenness, and consequent immorality. In regard to the screen law, I think the taking down of the screens keeps out of the saloon very many young men who would be led by shame not to expose themselves publicly.”
The people of this State, through their legislature, have for 20 years held that it was for the moral interests of the people to restrict the liquor traffic. The law could not be sustained on any other basis. When, therefore, any member of the legislature introduces or champions a bill for the removal of any of these restrictions, citizens have a right to condemn his conduct as antagonistic to' the moral interests of the community, and to urge that as a reason for preventing his election. Such right is unquestioned. This is all there is to the “White Circular.” Had defendants specified the measures referred to, it is not claimed that the article would be libelous. If one publishes of a candidate that he is or has been a gambler, may he not allege and show in his defense specific acts of gambling ? or that he has been convicted of crime, may he not in defense allege and prove a record of conviction ? or that he is immoral, may he not allege and show specific acts of immorality ? I find no authority which holds so technical a rule as to require one to state the facts upon which he makes the charge, even in communications not privileged. In Samuel v. Bond, Litt. Sel. Cas. 158, the slander was, “Bond is a thief, and has stolen corn;” plea, “The plaintiff is a thief, and this defendant is ready to verify.” Held insufficient; he should have specified the acts upon which he based the charge that he was a thief; citing Craft v. Boite, 1 Saund. 244, note 6; 2 Chit. Pl. 503. See, also, Wright v. Lindsay, 20 Ala. 428, where the slander consisted in charging plaintiff with stealing whisky. Vaughan v. Havens, 8 Johns. 109; Newell,
The measures and his support of them were matters of public record upon the journals of the legislature. When one becomes a candidate for public office, his previous official record is before the electors for criticism. There was no misrepresentation of any act of the plaintiff. The article necessarily referred readers to his record. It made no charge outside of that. Parties had the right to critiicise his public conduct generally or specially. No case is / cited holding that it is libelous to say that one supported I measures opposed to the moral interests of the community. * Would it have been libelous to publish of a member of Congress who supported the fugitive slave law and other proslavery measures that he supported measures, in Congress opposed to the interests of humanity and the moral interests of the country ? So long as the criticism is based solely upon his official record, the article is privileged. When the facts are truthfully stated or referred to, criticisms thereof and inferences drawn therefrom are not libelous. Parties upon the hustings, in newspapers, or private speech may freely criticise a candidate’s official acts, either generally or specially, without subjecting themselves to an action of libel or slander. The occasion was privileged. The publication was also within the rule of qualified privilege. In these cases the onus probandi is upon the plaintiff to show both falsehood and malice. Edwards v. Chandler, 14 Mich. 475 (90 Am. Dec. 249); Howard v. Dickie, 120 Mich. 238 (79 N. W. 191); State v. Balch, 31 Kan. 465 (2 Pac. 609); Marks v. Baker, 28 Minn. 162 (9 N. W. 678); Neeb v. Hope, 111 Pa. St. 145 (2 Atl. 568); Chaffin v. Lynch, 84 Va. 884 (6 S. E. 474); Briggs v. Garrett, 111 Pa. St. 404, 414 (2 Atl. 513, 56 Am. Rep. 274); Clark v. Molyneux, 3 Q. B. Div. 237. Baron Parke said:
Plaintiff admits he supported these measures. There is no distortion or misstatement of facts. How, then, is he libeled ? There is no intrinsic evidence of malice upon the 'face of the publication. There is no extrinsic evidence. On the contrary, the record shows that the defendants acted in the utmost good faith, and without any malice towards the plaintiff. Only one of the defendants had ever met him. They are honest, .reputable, and influential citizens of Detroit. Their purpose, namely, the enlightenment of electors as to the character of a candidate for public office, was laudable. It is certainly the right, if not the duty, of good citizens to enlighten not only themselves, but their neighbors, as to the qualifications of candidates. In doing this, freedom of speech cannot be confined within narrow limits. I find nothing in this record to show that these defendants exceeded the privilege which must be accorded to every citizen of the State, if honest and reputable men are to be elected to office.
Briefly stated, the plaintiff’s contention is this: If defendants had set forth in their circular these measures which plaintiff had introduced and championed, and had denounced them as against the moral interests of the community, and denounced him for supporting them, there would have been no libel. But in an action of libel based upon the general statement that he had supported such measures, without specifying them, it is no defense to set out in the plea what those measures were, and prove them, and that he supported them, without submitting to the jury the question whether the measures were in
I think the judgment should be affirmed.
