194 Iowa 835 | Iowa | 1922
Lead Opinion
—I. The defendant is a newspaper publisher, and was charged in the petition with the publication of a libelous writing concerning the plaintiff. Three published writings were put into the record, and may as well be set forth here. Each writing’ was published upon the date indicated. They were the folknving:
“Dec. 16, 1915.
“Takes Spite Out on Lyon County’s Fair.
“W. B. Fey, of Rock Rapids, Sought to have State Aid Withheld.
“W. B. (Billy Sunday) Fey, of Rock Rapids, whose morals were so grievously shocked during the county fair when he saw some of the best known people in the county buying paddles in an effort to secure a novelty doll that he had straightway determined to invoke the aid of the law in an underhanded, roundabout way, and incidentally square up a few of his personal grudges, has been let down by the state authorities in a no uncertain manner. He appeared last week before the Des Moines state officials and protested against the state allowing Lyon County’s fair the $750 to which it is honestly and legally entitled, and they decided there Avas no foundation to his allegations, and voted to alloAV this sum. Mr. Fey announced to the newspaper men present that he would try to secure an injunction, but there is no doubt that he is regarded as a crank, and Avill receive scant consideration, should he apply for one. Rock Rapids people are incensed at his actions. They regard him as an interloper, and question his motives. They claim that he isn’t even a taxpayer, and that his only desire is to satisfy personal selfishness and grudges. * * * Regardless of his personal dislikes, it would seem that his efforts to cripple a county’s fair deserve condemnation. No loyal citizen of the county would be guilty of trying to cripple a public institution merely because some features or some of its management were objectionable to him. ’ ’
“Correction Due Fey in the Fair Protest.
“Rock Rapids Man Didn’t Go About This in Underhand Manner.
“A correction is due W. B.' Fey, of Rock Rapids, whose manner of bringing' about the protest in the matter of allowing the Lyon County Fair the sum of $750 was open and aboveboard, so far as we have learned. Mr. Fey went about it openly, and it was known that he was going to protest the matter. Hence, the correction -which is justified by the facts and in fairness should be made, and the writer of the article last week had no malicious intent in the matter. Mr. Fey also says he acted without any spite whatsoever, and was actuated solely by a desire to enforce the law. His protest against the alleged law violation at the time,, and his subsequent protest to the board of agriculture, bear out his denial of any underhand methods in the fight to have the fair’s claim disallowed. The fair management last year shut down the doll lottery when Mr. Fey protested, and called up the Sheldon fair management, and the latter stated they had an opinion from the attorney-general’s office that the sale of lead pencils and awarding of dolls was not gambling and therefore the management decided to let the doll men continue their business. The state auditor now says, or he did last week-end, that he would not issue a warrant except on the advice of the attorney-gen eral. Some say that, if the fair is debarred from receiving the $750 due, it will act as a stay against any future state aid. To cause the fair to lose this sum looks unnecessary, when the best thing would have been to have had the men arrested, and thus threshed the matter out in court. The fair management believed it was in the right, and with an opinion from the attorney-general’s office to back it up, acted in good faith. The fight against the allowance of the $750 has a tendency to injure the fair, and Rock Rapids business men as a rule are not in sympathy, and do not indorse the move. ’ ’
“Jan. .6, 1916.
“Attorney-General Rules Against Fair.
“Offers an Opinion that Lyon Isn’t entitled to State Aid.
“The attorney-general of Iowa has offered an opinion to
The first of the foregoing articles furnishes the basis of this action. The second was a purported retraction, made upon demand of the plaintiff. The third was offered in evidence for the plaintiff on the trial, and objection thereto was sustained. Error is assigned on such ruling. The contention for the plaintiff is that the publication charged in the petition was libelous ;per se, and that he was, therefore, entitled to a verdict for damages in some amount. This contention is based upon the assumed legal proposition that any publication concerning a person which tends to provoke him to wrath or expose him to public hatred or ridicule or to deprive him of public confidence and social intercourse is libelous per se. If such legal proposition be sound, then plaintiff is entitled to a reversal. But the proposition is essential to plaintiff’s success; and if it cannot be sustained, the plaintiff cannot prevail.
The action is predicated upon Section 5086 of the Code, which is as follows:
“A libel is a malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse; * * * ”
This is a definition of criminal libel, for which the offender may be prosecuted and punished by the state. It does not purport to supersede civil liability at common law for libel other than criminal, where special damages are shown to have resulted. It is doubtless true that a criminal libel, if proven and not justified, must be deemed libelous per se. It is not true that Section 5086 “makes any printing a libel if it tends to provoke
The crime of libel consists of two elements: (1) Malicious defamation of a person; (2) publication of such defamation “by any printing’, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of th# benefits of public confidence and social intercourse.” Code Section 5086.
Both of these elements must concur, in order to constitute stalutory libel. Defamation is not criminally libelous, unless published in the manner indicated. Publication is not criminally libelous, unless the matter published be defamatory. Some of our cases seem to assume that the subject-matter of a publication may be rendered defamatory by the publication itself, where such publication tends to provoke the injured person to wrath or to subject him to ridicule. But the publication of nondefamatory matter will not render such matter defamatory, however provocative to wrath or ridicule it may seem to be. The first requisite of statutory libel is that the published matter) be defamatory, in a legal sense. If it is not defamatory in such; sense before publication, it does not become so by publication/ If it be defamatory, then the method of publication which wall render it libelous is sweeping and comprehensive. It need not be by printed words. It may be by cartoon, caricature, effigy, or sign, provided that the method adopted does tend to provoke to wrath and to subject to ridicule or to public hatred and contempt.
“Defamation,” like “fraud,” has no concise definition. Broadly speaking, it is an attack upon the reputation of another. “Reputation” is also a broad and indefinite term; but in the law of libel, reference is had thereby in general to the integrity and moral character of the injured party. If one were to assail the good reputation of another as a skillful golfer, it would not be defamation, and could not be libelous under the statute; and this is so even though the attack were contemptuous,
/‘Defamatory words, to be libelous per se, must be of such a nature jfhat the court can presume as matter of law that they will tend to disgrace and degrade the party or hold him up to public hatred, contempt, or ridicule or cause him to be shunned and avoided^ The imputation must be one tending to affect a party in a society whose standard of opinion the court can recognize. In many cases, moreover, words charging plaintiff with the commission of acts permissible in law, although they may lack public approval, have been held not to expose plaintiff to hatred, contempt, ridicule, or disgrace in the sense or to the degree required by the law of libel; as, for instance, charge ing one with setting up the statute of limitations, or the illegality of a contract, as a defense. To accuse one of being deficient in some quality which the law does not require him as a good citizen to possess is not libelous per se. Mere general abuse and scurrility, however ill-natured and vexatious, is no more actionable when written than when spoken, if it does not convey a degrading charge or imputation.” 25 Cyc. 253, 254, 255.
In Hollenbeck v. Hall, 103 Iowa 214, the publication complained of by plaintiff included the following:
“Having no other defense, he cowardly slinks behind that of statutory limitation. Such a course is not exactly in accordance with our idea of strict integrity. So far as we are concerned, we would prefer not to be connected in- an official capacity with a corporation giving employment to men of this character. ’ ’
It was contended for the plaintiff that the publication of such matter tended to provoke the plaintiff to wrath, and to bring him into disrepute and ridicule. This was manifestly so. We held, however, that it was not defamatory, in that he was accused only of doing that which he had a right, under the law,
To so hold would reduce Section 5086 to the following form:
“Libel is the publication of any hostile statement concerning another which tends to provoke him to wrath or expose him to ridicule.”
By such construction we would destroy half of the statute. The membership of the court has not been in harmony of view as to the proper construction of this statute, and this accounts for some of the confusion which has crept into our utterances. The case of Jones v. Register & Leader Co., 177 Iowa 144, is
“As to the second count, we dissent from the holding of the court that the article published is libelous per se, for the reason that it is not sufficient that its publication disturb the mental equanimity of the party against whom it is published, or that it provoke him to wrath. It must be defamatory in order to be actionable per se. * * * A violation of this statute [Section 5086] is a violation of an inhibition enacted for the purpose of protecting a citizen from being defamed, and is actionable per se only when defamatory. * * * Many things can be said in public print about a man which may provoke him to wrath, may ex-' pose him to ridicule in a certain sense, and yet not reflect upon his integrity as a man, or his standing as an honorable, upright
It will be seen from the foregoing that five justices of the court refused their concurrence to the proposition that “any printing” is a libel, if it tends to provoke to'wrath or to expose to public hatred or ridicule, or to deprive one of the benefits of public confidence or social intercourse; and that the same five justices agreed in the pronouncement that defamation is an essential element of criminal libel.
Turning now to the plaintiff’s petition and its exhibit: Whát was the nature of the attack upon plaintiff’s character thereby disclosed? The substance of the publication and its inferences were that the county fair authorities had permitted at the county fair a mild form of gambling or a species of lottery, which, under the law, forfeited their right to state aid; that loyalty to the local community by the residents thereof required that there should be no divulgenee of such fact to the higher authorities; that the plaintiff, notwithstanding, had made such divulgenee, and had interested himself in enforcing the forfeiture ; that such conduct on his part was disloyal and dishonorable towards the community of which he was a part, and towards the management of the county fair. Whatever epithets were applied to the plaintiff were predicated upon such conduct. The article not only disclosed the plaintiff as being zealous in enforcing the penalty for permitting gambling at the county fair, but it disclosed also the lower level of defendant’s own ideal of the duties of a citizen. Whether consciously and intentionally or not, the defendant put himself upon a lower plane-of character in the eyes of the law-abiding public than he put the plaintiff. What the plaintiff was represented as doing was what
In the case before us, we are required to hold that the article published against the plaintiff was not defamatory, in that all its vituperation was predicated upon acts Avhieh the plaintiff had a lawful right, and even a duty, to do. In defeating him, we do not decry him, nor do we espouse his adversary.
II. The second assignment of error relates to the ruling of the court in refusing admission in evidence of the third article above set forth. This was offered in evidence by the plaintiff, supposedly on the theory that it. was an admission of the jus
For the reasons stated in the first division hereof, the judgment below is — Affirmed.
Dissenting Opinion
(dissenting.) I cannot concur in the opinion prepared by Mr. Justice Evans. Though not so declaring, it effectually overrules at least a dozen of our own decisions, and puts us out of harmony with the courts of all our sister jurisdictions in the United States.
I. This radical departure is sought to be justified by framing a definition of libel which has no support in precedent or in the statute. If any question can ever be regarded as settled by legislative act and uniform judicial interpretation, it is that in this state, libel, whether in civil or criminal proceedings, is just what the statute quoted by the majority declares it to be: Any “malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.” Code Section 5086.
The vice of the argument by the majority in this case is not in any express denial of the authority of the statute, but in limiting its effect to cases in which the alleged libel “impugns the integrity or moral character” of the complaining party, and
“Any words that tend to lower the plaintiff in the estimation of his friends or in the common estimation of citizens, or that tend to injure his social character or status, or to destroy the confidence of his neighbors in his integrity, are libelous per se.”
The authorities to this effect are exceedingly numerous, and practically without question. The reasonableness and justice of the rule are well stated in our own case, Hughes v. Samuels Bros., supra, where it is said:
“Every written publication, maliciously made, defamatory of another; which tends to any of the consequences set out in the statute, is a violation of the inhibitions of the statute. It is, therefore, a wrong done to a citizen in violation of the statute.
II. The discussion by the majority is based upon an entire misconception of the nature >of plaintiff’s complaint, as well as of the applicable law. The opinion assumes that the alleged libel has reference to the charge or allegation that plaintiff had interfered with certain alleged gambling practices at a county fair, and that, as such activities were admittedly within his legal rights as a citizen, the publication could not reasonably be considered injurious,to the plaintiff, or entitle him to a recovery
Though largely declaratory of the common law, it should not be overlooked that the subject is one of-which the legislature has taken cognizance. The statute has had frequent judicial consideration, and its effect has been settled by practically unvarying construction. Its amendment or modification should be left 'to the authority which enacted it. The judgment here appealed from should be reversed.