Sillars v. Collier, 151 Mass. 50

Sillars v. Collier

151 Mass. 50 | Mass. | 1890

C. Allen, J.

We are ready to assume in favor of the plaintiff, that by the declaration it is intended to aver that he was a member of the House of Representatives, and that the words set forth were spoken of him with reference to his official position. This being so, no averment of special damages was necessary, provided the words are defamatory, and to make them defamatory it is not necessary that they should import a charge of crime. It would be sufficient if they imported such misconduct as would expose him to expulsion, or even to censure, from the House, and we are inclined to think also that it would be sufficient if they imported such conduct as would, by the general sense of the community, be deemed immoral, or discreditable in such a way as clearly to impair his influence and lessen his position and standing as a public man, and thus to affect him injuri-ously as a member of the Legislature. But in applying this last suggestion, it is obvious that some caution is necessary, since freedom of speech and of the press is guaranteed by the Constitution, (U. S. Const., Amendment I.; Const. Mass., Arts. XVI. and XIX., Declaration of Rights,) and “ entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favor, is deemed essential to the judicious .exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of the United States.” 2 Kent Com. IT. Bearing this in mind, it is not unreasonable to hold that, in order to be defamatory of one in respect to his public office, the spoken words must go at least so far as to impute to him some incapacity or lack of due qualification to fill the position, or some positive past misconduct which will injuriously affect him in it, or the holding of principles which are hostile to the maintenance of the government.

Looking at the words set forth in the plaintiff’s declaration in the light of the extrinsic facts which he avers, we do not find them fairly capable of the meaning which the plaintiff ascribes to them, or of any meaning which is defamatory within the sense above expressed. We are not to travel into the region of conjecture, but must confine ourselves to the words themselves, with the other facts contained in the declaration. There is in them *54no suggestion that the plaintiff has changed his vote, or that he has voted at all, upon the question of the division of the town of Beverly, or made any speech in the Legislature or elsewhere, or taken any public action, or solicited any other member of the Legislature to favor a particular side, or, in short, that he has done anything whatever by way of action or of promise of action in support of the measure for dividing the town. The whole charge in relation to his change of heart relates merely to what was in his heart, — that is, to what he was capable of doing, or at most to what he had a purpose of doing, in the future. And the statement that “ sometimes a change of heart comes from the pocket ” does not, when fairly considered, import that the plaintiff’s change of heart had come from any actual bribery or pecuniary inducements already received, or indeed anything further than that in the speaker’s opinion the plaintiff would change his conduct on account of an expectation of a future pecuniary benefit to himself. The words do not fairly imply any actual fact which has happened at the time of speaking them, and which involves corruption on the plaintiff’s part, but only at most that in the speaker’s opinion the plaintiff is corrupt in his heart, and open to pecuniary inducements. To get out of them anything beyond this, one must travel beyond the words themselves, and the facts set out in the declaration.

The expression of the defendant’s opinion that the plaintiff as a member of the Legislature is of such a disposition, wavering in mind, and open to change his course from improper motives and inducements, is not actionable, without averment and proof of special damages. It is one of the infelicities of public life, that a public officer is thus exposed to critical and often to unjust comments; but these, unless they pass the bounds of what the law will tolerate, must be borne for the sake of maintaining free speech. In the various cases which have been cited to us, or which have come under our observation, where under such circumstances actions have been maintained, the words have been considered to contain a charge of positive misconduct. Such, for instance, were Wilson v. Noonan, 23 Wis. 105; Powers v. Dubois, 17 Wend. 63; and Littlejohn v. Greeley, 13 Abb. Pr. 41. But where the words spoken have simply *55amounted to the opinion of the speaker, however strongly expressed, as to the disposition of the public officer, the actions have been held not to be maintainable. Onslow v. Horne, 3 Wils. 177. Hogg v. Dorrah, 2 Port. (Ala.) 212. In like manner, words conveying a suspicion that a person, not a public officer, has committed a crime, are not actionable. Simmons v. Mitchell, 6 App. Cas. 156.

The plaintiff further avers in his declaration, that it is for the interest and true dignity of the Commonwealth that the scandal of magnates shall not be permitted, and relies on the old doctrine of scandalum magnatum to support his declaration. Mr. Odgers, in his work on Libel and Slander, says that he believes no such action has been brought (in England) since 1710. In Townshend on Slander and Libel, (4th ed.) § 138, it is said that, scandalum magnatum is not known in the United States. In Hogg v. Dorrah, ubi supra, the plaintiff’s counsel expressly disclaimed relying upon this doctrine. The plaintiff has cited no decision or textbook to support his contention that this special remedy exists in this country, and we are of the opinion that it has never been adopted in Massachusetts. See also Reeves v. Winn, 97 N. C. 246.

Judgment for defendant affirmed.