*1 ALL PAY SHALL RESPONDENT IT IS SO ORDERED. COURT, THIS COSTS, BY THE CLERK OF TAXED AS TRANSCRIPTS, PURSU- ALL OF COSTS INCLUDING 16-715, SUM FOR WHICH RULE ANT MARYLAND TO THE ATTOR- OF IN FAVOR IS ENTERED JUDGMENT S. MELDON AGAINST NEY COMMISSION GRIEVANCE HOLLIS, JR. A.2d 230 TELNIKOFF Ivаnovich
Vladimir Vladimir MATUSEVITCH. 3, Sept. Term, 1996.
Misc. No. Appeals Maryland. Court of Nov. Chasanow, J., opinion. dissented filed *3 DC, Hainline, III, for Washington, Appellant. Forrest A. (Patrick Carome, Wilmer, Cutler & Siegel Arnon D. J. Wardell, Struve, brief), Polk & on Pickering, Guy Miller Davis DC, Washington, Appellee. (Lankenau Handman, Outten, Kovner Kurtz &
Laura R. DC, L.L.P., brief), for Amicus Curiae. Washington, Balin, brief, York for Amicus City, D. on the New Robert Curiae. ELDRIDGE, MURPHY, C.J.,* and before
Argued KARWACKI,* CHASANOW, BELL and RODOWSKY, RAKER, JJ.
ELDRIDGE, Judge. question certified case is wheth- this presented
The issue under the circum- judgment, libel er a particular Maryland contrary public policy presented, stances under recognition principles denied so that it should be comity.
I. resident, Matusevitch, was bom now Vladimir City in New York Jewish descent parents Belarusan to Russia where he re- In Matusevitch moved and received Norway he defected to mained until 1968 when 1969 and Matusevitch worked asylum. Between political Europe/Ra- for Radio Free journalist countries as a several (RFE/RL), corpora- American Liberty publicly-funded dio Europe in Eastern and coun- to listeners tion that broadcasts presently control. Matusevitch under formerly tries Soviet in the District of headquarters corporate at works RFE/RL’s Columbia. Telnikoff, citizen, in Lenin- was born an
Vladimir emigrat- there until when he in 1937 and remained grad working as a following year, began Telnikoff ed to Israel. Broadcasting for the British freelance writer and broadcaster (BBC) in London. In Telnikoff became Corporation Munich, Germany. journalist as a employed RFE/RL *4 13, 1984, by article Telnikoff was February an written On Daily Telegraph, “Selecting headed in the London published Tune in 'to Russia.” The article Wavelength to Right part as follows: pertinent stated * retired, Karwacki, J., J., hearing participated Murphy, now in the C and Court; members of this after of this case while active and conference 3A, Constitution, IV, they being pursuant Article Section recalled opinion. adoption of this participated in the decision and the also becoming still, gradually three decades of
“But after broadcasting, language significance of the Russian aware has never been set general concept I BBC’s] believe [the confusion of the reflect the fatal It continues to right. it is threat- West, clarify to to itself whether yet which has fail to understand by by Russia or Communism. We ened national religious alien to the that Communism is as any as those of other people of the Russian aspirations nation. in the policy manifests itself
“This confusion further other services for the Russian Service. While recruitment exclusively from those who share are staffed almost broadcast, they origin people of the whom ethnic entirely recruited from Russian- Russian Service is almost empire, and has national minorities Soviet speaking them- something per like 10 cent of those who associate religiously peo- or with Russian ethnically, spiritually selves integrity of that high the standards ple. However having no more in this than a Greek majority logic there is cent recruited from the Greek- per service which is community Cyprus. Turkish speaking countries, European East broadcasting “When other outside, from and better recognize we them be enslaved alien, Russian, through Communism our able to withstand spirit own national and traditions. How- assertion their ever, Euro- flirting leaves room for with approach this (non-Russian) a human face’ communism ‘socialism with alternative, further and well suits the Left as desirable the West. en-
“Resisting ideological advance of Communism is of obvious value -with couraging feelings anti-Russian less Making synonymous a Russian audience. ‘Russian’ with It sympathetic ‘Communist’ alienates the Russian listeners. against social in others the Russians. up stirs resentment synonymous sympathy also makes Making those word support system.” Russian into for the Communist Matusevitch, “Qualifi- In a letter written entitled response, Russia,” in the Broadcasting published cations for *5 It was as follows February Daily Telegraph in original): (emphasis to Tune Right Wavelength
“Sir—Having ‘Selecting read 18) (Feb shocked, by the particularly I in Russia’ of the BBC’s Russian Service alleged inadequacies part on policies. recruitment are other services says: Telnikoff While
“Mr. Wadimir share the ethnic exclusively from those who almost staffed broadcast, they the Russian to whom origin people Russian-speaking from entirely almost is recruited Service empire.’ of the Soviet national minorities majority aware that the certainly must “Mr. Telnikoff grew up, who people from Russia are emigres of new their Russia, have Russian as who studied and worked one culture—Russian. only and have tongue mother never their veins were “People with Jewish blood equal authorities to feel themselves by the Soviet allowed of life. way culture and language, of the same people with situation, desper- this paranoiac Insulted and humiliated (anti-Semitic) policies racialist ate victims these Soviet opportunity emigrate. took the Service, similar as well as other “Now the BBC’s Russian Russia, broadcasting stations of other Western services (natives), employ staff members are interested new who proce- common democratic people those accordance with and not dures, professional qualifications in their interested applicants. in the blood of the more in the interest of demands that “Mr. Telnikoff of the BBC’s Russian management effective broadcasts blood testing to a professional from Service should switch test. by claiming stressing recipe his racialist
“Mr. Telnikoff is integrity ‘of high the standards that no matter how be, might they should Russian staff ethnically people alien’ be dismissed. Daily Telegraph reject any would
“I am certain of lack of racial suggestions purity similar article with *6 normal section of the British media. any writer spreading that of racialist views expect “One could newspaper.”1 in a British unacceptable would be letter, subsequently published reply Daily Telegraph Telnikoff's 1. The Broadcasters,” April Employment Russian entitled "BBC 1984: my response regret lateness for unavoidable reasons of "Sir—I (Feb. 18) completely Vladimir Matusevitch which to the letter of Mr. my broadcasting article about to the Soviet Union. misconstrued attempt to do is to draw attention to the fatal "What I in fact yet clarify the West which has to itself whether it is confusion of by Russia or Communism. threatened understanding spread nurtures the of Communism "This lack of many globally has shown itself in failures of the West. To and terms, that, broadcasting the fact illustrate this confusion in I refer to contrary general recruiting policy of the BBC's External Services, employs only 'something per Russian Service like 10 spiritually ethnically, cent of those who associate themselves people.’ religiously Russian with whereby price meeting we “The is to hinder that vital of minds dummies, people, appeal Russian not their Soviet and without ideologically. impossible oppose which it is Communism "From this Mr. Matusevitch concludes that I am 'racialist' and 'the should switch from claims that I demand BBC's Russian Service professional testing to a blood test.’ justify "To the fact that the BBC’s Russian Service is almost entirely speaking of the recruited from Russian national minorities Empire, says majority Soviet Mr. Matusevitch that ‘the of new em- igres Russia, people grew up, from Russia are who studied and worked in mother-tongue only who have Russian as their and have one culture—Russian.’ “Here, himself, unwittingly, highlights major misconception he concerning people of the West Russian and Soviet. The he refers to Union, emigrated grew up, from the Soviet studied and worked in the Union, and, self, retaining Soviet while their their culture is ethnic exception, rejects with rare Soviet—which its definition Russian people religion. their and circumstances, culture, becoming "Under the one of Russian al- task, though impossible, easy particularly is no for non-Russian emigres, very since its fabric is woven on the loom of the Russian yes, Church. And those who choose to associate themselves with may people Russian have much to contribute. my specify any particular "While in article I had no wish to involved, minority singled emigres Mr. Matusevitch out Jewish present tried to me as anti-Semitic. February his for apologize refused to After Matusevitch action Matusevitch letter, against a libel Telnikoff filed 18th Division, in London. Justice, Queen’s Bench High Court trial on for the October was absent Matusevitch 65,000 amount of him against entered judgment was set aside High of Justice Court Subsequently, pounds. set a new by Matusevitch and a motion judgment upon 22,1989. May trial “natural trial, argued Telnikoff May
At the 22nd in Matusev contained meaning of the words ordinary” (1) the use Telnikoff advocated implied that itch’s letter in the BBC policy recruitment blood-testing part as (2) of the BBC Services, employees the dismissal Russian (8) racial discrimina grounds, and Russian on racial Service *7 that the Matusevitch denied anti-semitic behavior. tion and the that ground and defended on defamatory was letter intere public a matter of comment” on “fair letter constituted however, not, truth as a defense.3 assert Matusevitch did st.2 defense, Telnikoff “fair comment” Matusevitch’s reply In by express actuated “had been that Matusevitch asserted "Furthermore, complete assimilation of this proclaiming the believe, is, policy. minority, well in tune with Soviet he I national he, too, them emigres thank him if denies "Surely will not Jewish identity.” their own national law, defense under is аn affirmative "fair comment” 2. Under "comment,” alleged libel was prove that the which a defendant must honestly it could objectively "fair” or that “comment” was and that the later in this person. See the discussion been said an honest have was "fair claimed that his letter opinion, infra, Part III D. Matusevitch public of "the view upon interest because a matter comment” necessary qualifications broad- for expressed by as to the the Plaintiff inadequacies alleged of the particular casting Russia and in Service.” process of the BBC Russian recruitment "justification” is under law affirmative defense 3. A second false, defendant Defamatory presumed and thus the words are "truth.” defamatory alleged proving the "truth” of the burden of carries prove pleads truth as a who but fails a defendant words. Because not to aggravated damages, Matusevitch chose may be liable for defense plead truth as a defense. malice.”4 trial, of Justice High
At conclusion of the Court a matter of judgment motion for a as Matusevitch’s granted find that the Holding jury” that a “reasonable would law. “comment,” explained: the court alleged was libel letter, I of the think that “Read in the context the rest the com- doing was no more than to make [Matusevitch] that, if as stated in his article were s] ments views [Telnikoff to, then the outcome would be that the given logical effect would, interviewing applicants join when the Rus- BBC Service, origins appli- concentrate on sian the ethnic I expertise cant rather than their as broadcasters. think it of a using suggestion is clear that was [Matusevitch] way suggesting in a and in no metaphorical blood test sense actually in his article had demanded that a [Telnikoff] sample anyone---- should be taken from Mr. Telni- blood any existing staff koff had not demanded his article that dismissed; actually claiming that 90% of should but service, I think it existing staff were unsuitable state, comment rather than a of fact to as bare statement letter, the defendant did in his that Mr. Telnikoff was suggesting that those unsuitable staff should be dismissed.” High Court went on to rule that Matusevitch’s comment “fair,” objectively consisted of “a matter of inter est,” and that no showing express there was malice.5 Appeal judgment
The Court of affirmed High Court’s *8 malice,” ill-will, "Express spite, injure, in the sense of or an intent to law, infra, will under defeat a defense of “fair comment.” See Part III D. trial, argued 5. At the Telnikoff had that the comment was malicious letter] because "Matusevitch’s dominant motive ... was to [in injure give personal spite vent ill-will [him] to his and towards and/or "published complained and that Matusevitch the words of with [him]” recklessly, say no honest belief as to their truth that is to that he and/or held, genuinely falsity.” indifferent as to their The court truth however, express that "there was no evidence of malice.” of Lords to the House appealed 1990.6 Telnikoff May part, affirmed in reversed which, on November rulings affirming the case. While and remanded part malice, Lords set aside the the House of regard to below with comment.” “pure letter was that Matusevitch’s holdings below that, in House of Lords reasoned Kinkel for the Lord Keith of fact, jury comment or the letter was determining whether not in context with by itself and the letter should examine Lords remand the House of Accordingly, Telnikoffs article.7 decide jury for a Court of Justice High the case to the ed letter consist- and 7 of [Matusevitch’s] paragraphs “whether Appeal agreed the trial court that with appeal, the Court of 6. On very hyperbolic were at the least figurative and words "Matusevitch’s fact, comment, with Telnikoffs considered in context not whether Lloyd stated: for the court by itself.” Lord Justice article or should [the BBC] demands that the statement ‘Mr. Telnikoff "Take Contrary testing to what professional to a blood test.’ switch from claim, [Mr. appear particulars in the statement might from the be a blood test is not to the reference to concedes that Telnikoff] reading the letter as literally.... Any maun fair-minded taken by the author from the an drawn regard would it as inference whole ... letter.” "an honest-minded the letter was "fair”—that court then held that The on the facts on honestly stated as comments might hold the views man made,” that there was no malice were those comments which Rather, Matusevitch "be- court concluded that part. Matusevitch’s [Telnikoff] passionately [H]e the evil of anti-semitism.... lieved jury could strangers. circumstances no reasonable In those were total injure [Telni- motive was to dominant [Matusevitch's] have held that koff], misguided if views.” express his own honest rather than follows: House of Lords as Kinkel wrote for the 7. Lord Keith of The on its own. my opinion, letter must be considered "In number of included a substantial must have readers of the letter it, who, they did had read read the article or if persons who had not persons fully the letter in mind. If to such have its terms (6) (7) fact about what statements of appeared paras to contain article, already which as I have plaintiff written in his had case, persons eyes those might then in the well be the indicated cannot turn on the clearly defamed. The matter plaintiff would having read the article. of the letter otherwise of readers likelihood or subject matter many of a criticism of some cases readers In some very few subject in other cases may matter but be familiar with be, speech subject delivered example, matter is may where that in either principle must be the same to a limited audience. case.” *9 they defamatory comment or whether contained pure ed of fact.” statements remand, jury instructed the on High
On Court Justice 10, jury a trial March 1992.8 The commencing this issue at 240,000 Telnikoff, finding a verdict in favor of pound returned conveyed: that Matusevitch’s letter inciting “1. That had made statements racial [Telnikoff] discrimination; [and] hatred racial and/or 2. That was a racialist and anti-semite [Telnikoff] /or supporter proponent a of doctrines of racial and/or and/or superiority purity.” or racial Subsequently, judgment a was entered into Telnikoffs favor jury’s for the amount of the verdict. unsuccessfully
Telnikoff attempted judgment have his against April enforced Matusevitch in the United States.9 On 20, 1994, present by filing Matusevitch commenced the action complaint a in the District for the District United States Court of Maryland, seeking declaratory judgment a that the judgment “repugnant” was to the First and Fourteenth Constitution, Amendments to the United to Article 40 States pre-trial hearing, High rejected 8. After a Court Matusevitch's plea "justification” amended to assert the affirmative defense of “truth,” relying delay "hardship anxiety" on the overall and the plea “justification” present stage. which a could at this The denial Appeal. was later affirmed Court procedure by 9. There is some confusion as to the initial which Telnikoff sought judgment to enforce the in the United States. On December Montgomery County, Telnikoff filed in the Circuit Court for 370,- Maryland, English judgment $ the аuthenticated in the amount of plus judgment interest. The was recorded the circuit court’s April Superior docket book. In Telnikoff filed in Court for copy the District of Columbia a of the docket sheet obtained from the Telnikoff, Montgomery County According Circuit Court. the docket Matusevitch, represented Maryland "judgment” sheet favor. his hand, "judgment” against on the other claims that a was never entered Maryland filing improper Maryland him in because the under law. that, motion, The record reveals on Matusevitch’s the District of Colum- November, Superior bia Court dismissed Telnikoffs action On October 17 Telnikoff and Matusevitch filed in the Circuit Montgomery County stipulation dismissing Court for the "action” in that court. Maryland Rights, Declaration Maryland public law Telnikoff counter- policy. common *10 claimed, English judgment enforcement of his seeking was parties, the the case Maryland. Upon stipulation District transferred the United District Court for the to States of Columbia. 27, 1995, the United States District Court January
On Matusevitch, judgment for the District of Columbia entered the underlying English that cause of action libel holding the judgment “repugnant public policy the the State” Maryland’s Foreign-Money the Uniform meaning within Act, (1974, Repl. Judgments Recognition Maryland Code 10-704(b)(2) Yol.), Proceedings § of the Courts and Judicial Article, foreign under recognition judgment and that public policies to the principles comity repugnant “would the and the States.” Matusev Maryland State of United (D.D.C.1995). 1, 8, F.Supp. Alterna Telnikoff, itch v. recognition held that tively, the United States District Court English the judgment and enforcement of the would violate to the United Con First Fourteenth Amendments States stitution, id. 4-6.10 Appeals
Telnikoff to the United States Court of appealed After oral hearing for the of Columbia District Circuit. certified, argument, Appeals pursu- Court of the United States Act, Questions ant to the Certification of of Law Uniform favor, summary judgment United granting In in Matusevitch’s distinguished English between libel law and Amer- States District Court light principles, concluding that ican libel law in of First Amendment country. English Specifically, would have failed in this libel action Kingdom, recognized the defendant "[i]n the court that the United defamatory proving allegedly true” bears the statements burden requires plaintiff prove whereas in the United States "the law Moreover, explained court that "in that the statements were false.” States, which courts look to the context the statements the United determining question” appeared that the when First Amendment but jury jury "judgment was based on instructions which asked ignore Finally, Id. at 4-5. the court concluded that "since context.” appears proof plaintiff made the with there to be no statements malice, enjoys protection for plaintiff the constitutional actual figures.” speech against public Id. at 5. directed (1974, §§ through 12-601 RepLVol., Supp.), Code Article, Proceedings 12-609 of the Courts and Judicial this following question to Court: of Telnikoff s recognition foreign judgment “Would be re- pugnant public policy Maryland?” question We shall answer the in the affirmative.
II.
argues
Telnikoff
that the
is
judgment
libel
entitled
Matusevitch,
recognition
principles
“comity.”
under
hand,
English judgment
repug-
the other
asserts that the
nant to
public policy
of the United States and of
and, therefore,
recognition.
should be denied
*11
recognition
foreign judgments
governed by
of
is
principles
comity.
of
Societe Nat. Ind. Aero. v.
Dist.
U.S.
Court,
522,
27,
2542,
27,
482 U.S.
543 n.
107
2555 n.
96
S.Ct.
461,
(1987);
L.Ed.2d
483-484 n. 27
Banco Nacional de Cuba v.
Sabbatino,
398, 411-412,
923, 931-932,
376
11
U.S.
84 S.Ct.
804,
(1964);
113, 16
L.Ed.2d
159
Guyot,
813-814
Hilton v.
U.S.
139,
(1895);
168,
Wolff, Md.App.
S.Ct.
The United States of Court discussed 163-164, 16 comity Guyot, Hilton v. 159 at supra, U.S. S.Ct. 143, 108, 40 L.Ed. at where Gray Justice wrote Court: effect, force, any beyond
“No law has of its own the limits of the sovereignty authority from which its is derived. The nation, extent to which put the law of one as force within order, act, its territory, by legislative whether executive decree, judicial or by operate shall be allowed to within the nation, depends dominion of another what our upon greatest jurists have been comity content to call ‘the of nations.’ criticized, Although phrase has been often no satisfacto- ry suggested. substitute has been sense, matter of
“‘Comity,’ legal is neither a hand, and courtesy on the one nor mere obligation, absolute will, which recognition other. But it is the good upon territory legislative, one nation allows within its nation, having acts another due judicial executive or convenience, and and duty both to international regard persons of other who are rights of its own citizens or protection of its laws.” under Gum Philadelphia Chewing Limited v. Somportex See also (3rd Cir.1971) (comity principle is a 453 F.2d Corp., convenience, more Although expediency. “of and practice, accommodation, does not comity mere and courtesy than Rather, it is imperative obligation. an or achieve the force of which expression understanding nation’s demonstrates and and to regard duty both to international convenience due laws”); Black’s Law rights persons protected by its own ed.1990) (6th Dictionary (defining “comity” princi- as “the which the courts of one state accordance with ple judicial decisions jurisdiction give will effect the laws another, out of deference obligation, as a matter but respect”). judgments degree are to a foreign entitled
Although comity, under doctrine of courts will respect deference foreign those deny recognition nonetheless and enforcement to public policies which are inconsistent with the judgments Malik, Md.App. the forum state. Malik (“where (1994) ... foreign] judgment A.2d [a our given ... it will not effect against public any policy *12 courts”). As in Hilton v. by Supreme the Court explained 164-165, 16 144, at 40 L.Ed. at supra, 159 S.Ct. Guyot, U.S. Laws, 28, 109, § Story, quoting of Conflict “ ‘[comity] necessarily variety on a of circum- depend must rule; any to that stances which cannot be reduced certain to with no nation will suffer the laws of another interfere citizens; they to of her that do injury her own the whether country must on the in which depend or not condition enforced, foreign sought particular the law is to be the her the of her legislation, policy, nature of her character conflict institutions; it must often the of laws that, prevail; matter of doubt which should whenever a exist, court, decides, prefer which will the doubt does ” stranger.’ to that of country laws of its own Earle, 519, 589, Augusta Bank v. 13 Pet. L.Ed. See (1839), Taney where Justice out that the pointed Chief ... “comity voluntary thus extended other nations offered; which by act of the nation it is and is inadmissible contrary policy, prejudicial when to its to its interests.”11 justification for public policy exception The foreign judgments by articulated recognition Unit- Appeals for the District of Columbia ed States Court Sabena, Airlines, in Laker v. Airways Belgian Circuit World (D.C.Cir.1984), 731 F.2d as follows: comity. “There are limitations to the application When foreign inherently act is with the policies inconsistent underlying comity, domestic could tend recognition either retaliation, legitimize encourage the aberration or to under- cutting thе realization of the served goals comity. No unremitting obligation nation is under an to enforce foreign interests which are fundamentally prejudicial those of the Thus, times, domestic forum. from the earliest authorities recognized obligation comity expires have that the when the strong public policies of the forum are vitiated foreign act.” also, (4th
See
Andes v.
e.g.,
Corp.,
Versant
policy exception, have been codified in the Uniform Act, (1974, Foreign-Money Judgments Recognition Code §§ 10-701 et RepLVol.), seq. of the Courts and Judicial Pro- aspects "comity” 11. There are several to the doctrine of in addition to foreign judgments recognized the matter of whether should be however, appears, judicial greater scrutiny enforced. There to be foreign judgments falling concept than of other matters within the Sabbatino, comity. See Banco Nacional de Cuba 376 U.S. 408- 923, 930-933, 804, 812, 84 S.Ct. 11 L.Ed.2d *13 576 Wolff, supra,, See Wolff Md.App.
ceedings Article. Ward, 413-422; Guinness PLC v. 170-176, A.2d at (4th Cir.1992); Corp., supra, Andes v. Versant F.2d 875 at 149-150. F.2d 10-704(b)(2) Act states that a specifically
Section
not
if’ the “cause of
“foreign judgment
recognized
need
judgment
is based is
to the
repugnant
action on which the
recently
This
public policy
provision
the State....”12
Court of
for the Fourth
applied by
Appeals
the United States
Corp., supra,
Circuit in Andes v. Versant
F.2d
In
147.
considered,
that
the Fourth
under the
case
Circuit
Act,
Foreign Money-Judgments
Recognition
judgment
secondary
which
a claim of
precluded
based on an
law
party
litigation
was not a
to the
liability against one who
This law
against
primary obligor.
provided
the
the basis
English judgment holding
corporate guarantor
an
liable
on
shielding
secondarily
parties
a loan while
two
liable
ground
they
parties
were not made
entirety
Specifically,
provides
§
the Act
in its
follows:
10-704 of
as
"(a)
foreign judgment
A
is not conclusive if:
(1)
system
judgment
under a
which
The
was rendered
does
provide impartial
procedures compatible
tribunals or
with the re-
law;
quirements
process
of due
(2)
personal jurisdiction
foreign
have
The
court did not
over
defendant;
(3)
jurisdiction
subject
foreign
over
The
court did not have
matter; or
(4)
judgment
The
was obtained
fraud.
(b)
recognized
foreign judgment
A
need not be
if:
(1)
proceedings
foreign
The defendant in the
in the
court did not
proceedings
receive
in sufficient time to enable him to
notice
defend;
(2)
repug-
judgment
The cause of action on which the
is based is
State;
public policy of
nant to the
(3)
judg-
judgment
conclusive
The
conflicts with another final and
ment;
(4)
contrary
proceeding
foreign
agree-
to an
in the
court was
parties
dispute
ment
under which the
was to be settled
between
court;
out of
service,
(5)
jurisdiction
only
personal
In the
based
case
seriously
foreign
inconvenient forum for the trial of the
court was a
action.”
obligor. Refusing enforce
primary
proceeding against
*14
Maryland,
the United States Court
judgment
ment of the
is so much at
“English
preclusion
held that the
rule
Appeals
litigation
American notions of
that Ameri
odds with normal
no
it.” Andes v.
jurisdiction
readily
can
would
embrace
Versant
A. issue, In resolving public policy important this it is is not before this Court. The certified to emphasize what question does not ask us to decide whether the Free Press of Maryland Clause the First Amendment or Article 40 of the of Rights14 directly precludes Maryland recogni Declaration .
tion or English judgment, enforcement of the and we do not those decide issues.15 Rights
14. Article 40 of the Declaration of states: press speech. "Article 40. Freedom of and liberty press ought inviolably preserved; "That the of the to be that every ought speak, citizen of the State to be allowed to write and publish subjects, being responsible his sentiments on all for the abuse privilege.” of that Although obviously part the Constitution of the United States is of State,” Maryland the "Law of the see Article 2 of the Declaration of Rights, Maryland Questions nevertheless the Uniform Certification of Act, (1974, Repl.VoL, Supp.), through §§ Law Code 1995 1996 12-601 Article, Proceedings 12-609 Courts and Judicial does not autho- questions rize this Court to decide of federal constitutional law in a
579
upon
our decision
this case
we shall rest
While
nonethe
Maryland public policy,
ground
non-constitutional
appropriate
it is
less,
ascertaining
public policy,
requirements
history, policies,
rely upon
examine
and Article 40 of
Declaration
the First Amendment
law,
principles
determining
In
non-constitutional
Rights.
reflected
policies
requirements
rely upon
often
courts
See,
Bally’s
v.
Park
Kramer
e.g.,
provisions.
in constitutional
Marchesi v.
(1988);
Place,
387, 396,
466,
535 A.2d
470
311 Md.
Franchino,
1129,
131, 137-139,
A.2d
1132-1133
387
283 Md.
Piskor,
165, 171, 352
v.
Corp.
Motors
(1978);
277 Md.
General
State,
638,
v.
(1976);
Md.
648-
Dorsey
810,
276
814-815
A.2d
Co. v. Sin
Jacron Sales
(1976);
659,
665,
350 A.2d
671-678
(1976);
591-597,
688,
580,
694-698
dorf, 276 Md.
350 A.2d
159,
442, 468, 497 A.2d
County, Md.App.
Leese v. Baltimore
(1985) (“We
denied,
106,
can
cert.
172,
land that an subjected individual should not be to sex-based discrimination”). Similarly, in arriving at non-statutory prin ciples, courts often look to the policies requirements and See, Place, e.g., Bally’s statutes. Kramer v. Park supra, 311 392-396, 468-470; Md. at 535 A.2d at v. Kelley R.G. Indus tries, Inc., 124, 141-155, 1143, 304 Md. 497 A.2d 1151-1158 (1985); McCabe, 308, 314, 318, McCabe v. 210 Md. 123 A.2d 447, 450-451, 452 (1956); Tehama, v. County Ortland 1470 (E.D.Cal.1996). F.Supp. it
Consequently, appropriate to examine some of the history, policies, requirements and press the free clauses the First Amendment and Article 40 of the Declaration of Rights, as well as present between relationship those provisions and defamation in Maryland.16 actions
B. American and Maryland history reflects a public policy in favor of a much protective broader and more freedom the press than ever provided under law. Judge dissenting opinion present Chasanow’s in the case asserts that, "prepared dispatched by because Matusevitch’s letter was a private person,” “published by newspaper as a letter to the editor," allegedly regardless newspa- and was "libelous of whether the it,” "[fjreedom per reprint press implicated” chose to of the is not Court, however, this This press case. has accorded to freedom of the Thus, scope Judge Negley much wider than Chasanow would. Farrow, (1883), 60 Md. liberty the Court stated that "[t]he press guaranteed by right belonging every the Constitution is a one, not, proprietor newspaper whether publish of a whatever he license, pleases, government without the interference or control of the Negley publication ...” The Court went on in to indicate that the "any printed implicates press matter” the free clause of "our Bill of Comm., Rights.” Sports Daily Ibid.See also Howard v. Public Service 355, 361, 179 Md. 18 A.2d Hughes Supreme Griffin, Chief Justice for the Court in Lovell v. 444, 452, 666, 669, (1938), U.S. emphasized S.Ct. 82 L.Ed. liberty press newspapers "[t]he is not confined to periodicals,” press compre- and that "[t]he in its historic connotation every publication hends sort of which affords a vehicle of information opinion."
(1) but the England introduced Printing was press publications the control over pervasive Crown’s through Henry of VIII and continued reign under the began period. the The and much of Stuart period out Tudor the of containing of lists royal proclamations control took the form monopolies privi or granting the prohibited publications,17 by Privy orders Council leges printers,18 to certain state allegedly into seditious investigations by the Council by prosecutions ments and decrees publications,19 libel,”20 and a for “seditious court the Star Chamber Star Chamber licensing system.21 Under the comprehensive (with 23,1586, of law exception books “[a]ll Decree June printer) required were printed by queen’s books and books Canterbury and the by Archbishop licensed be licensed Bishop of London. Law books were Siebert, Fredrick Seaton Freedom the Press in Justices.” (1952). U76-1776, England at 61-62 Although King’s authority during was circumscribed 1640’s, early and the Star Chamber was abolished Parliament, 14, 1643, on June press censorship continued. which regulating printing, enacted an ordinance under “all possession publications punishable prohibited 17. Distribution fine, imprisonment, persons or execution. Numerous executions of distributing prohibited publications during ocсurred the sixteenth cen- Siebert, tury. England See Fredrick Seaton Freedom the Press 1476-1776, at 45 30-40, 64-87, 18. Id. at 127-141. record) (the "Beginning
19. in 1542 date of the first continuous the acts report against long proceedings line of individuals for Council worddes,” words,” words,” 'unfitting 'unsemely opin- 'seditious or 'evil ’’ ions.” Id at 29. pointed has Star “[t]he 20. Id. at 116-126. One historian out Chamber, Council, judicial offshoot of the was the instrument most employed press frequently in the control of the in the later sixteenth pro- century, Privy frequently but the Council itself interfered.” ceedings were in secret and torture was sometimes used. Id. at 29. 47-63, Id. at 141-146. *18 books, pamphlets, papers required were to licensed by persons appointed by Parliament and to in be entered Register at Stationers’ Hall.” Id. at addition, In 187. Parlia- action, regularly by committee, ment took usually a to investi- gate publications” “obnoxious or “whenever a particularly Id. at 189. The irritating publication appeared.” suppression publications during continued period Commonwealth through various enactments and orders. For example, Crom- well in 1655 into August put effect orders “to suppress prosecute printers,” suppress all unlicensed “to all news-books Council,” those except by licensed the Protector or his “to hawkers,” Id. at 231. execute the suppressing acts street etc. Restoration, King by royal After the both the proclamations Thus, press. and Parliament acted to control the “one of the (13 first acts of Charles II was to issue a proclamation August 1660) in and calling suppressing two books written John Id. Printing Milton.” at 238. The Act of 1662 continued comprehensive licensing system, and contained numerous oth- Id. at 238- provisions regulation er for the of publications. See also David S. The Origins Freedom Bogen, 257. Press, 429, Speech and (1983); Md. L.Rev. 442-443 Ber- Schwartz, Freedom the Press nard Act of Printing expired by its own terms in 1694, expiration, and with its press licensing system pointed ended. As out this Court over one hundred Farrow, Negley v. years (1883), in ago 60 Md. liberty press guaranteed by of the “[t]he Constitution one, Maryland] right belonging every is a to [of whether not, proprietor newspaper of a to publish whatever he license, pleases, without interference or control of the government, being responsible alone for the abuse of the which, privilege. right It is a from the introduction of the printing press year down to the in England did not belong subject. the contrary, On no one was allowed publish any matter printed super without the license and government, vision of the and it was against such interfer ence on the part government, right and in favor of the Bill way our citizen, found its into provision that this Rights.” licensing expired and statuto Although system ended, the Gov theoretically prior direct restraint ry Queen Anne control the attempted press. still ernment through issued numerous from 1704 during period of false ordering publication that “the royal proclamations stop.” kind Frederick particular or of books of’ “is news 1176-1776, Siebert, Press England Freedom the Seaton message to a response Parliament supra, Anne, adver Queen imposed upon newspapers taxes from purpose ‘“That the main of these taxes was tisements. objection of comments and criticisms suppress publication *19 ** * [Tjhese to does not admit of doubt.’ able the Crown taxes—commonly knowledge—were called taxes on resisted century, they more a and constituted one and evaded for than aroused American important of the factors that the colonists of home protest against taxation for the the purposes Co., 285, 273, government.” Baltimore v. A.S. Abell 218 Md. 111, (1958), 145 A.2d 117 v. American Press quoting Grosjean Co., 233, 246, 444, 660, 447, 297 U.S. 56 S.Ct. 80 L.Ed. 666 of press through The control the taxation continued the England century. well into nineteenth See Frederick H76-1776, Siebert, Seaton Freedom the Press In England of at supra, 305-322.
Moreover, imposition the of taxes not the method only employed eighteenth century England suppress publica- (David Bogen tions. has stated S. The Bogen, Professor Press, supra, and 42 Origins Speech Freedom Md. of of 443-444): L.Rev. at restraints,
“The licensing system prior death of the ended signal it end of punishment speech but did for for offensive to the authorities. Prosecutions seditious libel and of and proceedings by the House Commons the House against publishers parliamentary of Lords of breach major of privilege suppression during were vehicles eighteenth century.” Co., Supreme Grosjean
The Court v. Press American 447, supra, 297 U.S. S.Ct. at L.Ed. at made point: the same century
“For more than a prior adoption Amendment—and, indeed, for many years [First] thereaf- ter—history persistent discloses effort on the of the part government prevent British abridge expres- the free any opinion sion of criticizé which seemed to or exhibit an light, truly, agencies unfavorable however opera- the government.” tions of signing Independence, the Declaration of the adop- constitutions,
tion of state and the later ratification Amendment, signaled major First departure from policy concerning law and free speech freedom press. According Justice Black for Court in Bridges California, 264-265, 190, 194-195, 314 U.S. 62 S.Ct. (1941) (footnotes omitted), L.Ed.
“to assume that law in English common this field became to deny ours is the generally accepted historical belief objects ‘one of the Revolution was to rid of get liberty common law speech press.’ Schofield, States, Freedom the Press in the United Soe., 67, Publications Amer. Sociol. *20 denied,
“It for cannot be that the example, religious test oath or the upon assembly restrictions then in prevalent England would regarded have been as measures which the the prohibited Congress Constitution American from pass- And ing. unequivocal language since the same used with to the respect press, signifies freedom of it en- similar largement concept of that as well. Ratified as it while was memory many oppressive English the of on the restrictions fresh, enumerated was still the liberties First Amendment reasonably cannot taken as approving prevalent English be practices. contrary, only On the the supported conclusion by history is that unqualified prohibitions the down by laid the liberty press, of as give to the framers were intended liberties, that could be scope the broadest other the society.” in an orderly countenanced
(2) adopted Congress, by resolution The Continental Second new adopt the colonies recommended that thirteen May the precipitated prepara- and this action government, forms of first adopted the Virginia tion of new state constitutions. the and, the of the rights, by of end constitution and declaration War, adopted all states had new consti- thirteen Revolutionary Schwartz, A Bill Rights: The tutions. Bernard See of History, 228-250 Documentary Constitution, of its Declaration including The Maryland of lawyers August drafted a committee Rights, was 3,1776. According to Profes approved and was November Schwartz, Rights of “Maryland the Declaration sor Bernard containing predecessors, more detailed than its was much Schwartz, A Docu Rights: The Bill articles.” Bernard of History, supra, at 279.22 mentary Maryland Rights not the such Although was first the Declaration Mary- adopted points out Professor Schwartz that declaration "may rightly the Ameri- considered first in 1639 enacted what land (1 history, explains, Rights.” discussing early In he can colonial Bill of Schwartz, History, Rights: Documentary supra, at The A Bernard Bill of 67): themselves, acting through step their next was for the settlers "The early beyond legislators go statement the elected bare they rights Englishmen, that were entitled Charters rights They begin process giving specific content. did those sought define basic enactment of statutes which this rights such, were As these statutes to which colonists entitled. Rights. Bill of were direct American ancestors the federal Body Liber- of these was the Massachusetts most famous statutes ties, 71). however, (infra p. usually realized that before It is enacted, Assembly Maryland approved the General law was, People. Elementary though it 1639 Act for the Liberties of the may rightly first American Bill of that document be considered the Rights. struggle product popular Act was a "The 1639 political government in all colonies. which was a feature life Baltimore, Maryland, primary Proprietor intended the Lord *21 Maryland original The Declaration of did not Rights contain express clause, an of speech freedom but it did an contain clause, freedom the express press of thus the underscoring of importance freedom of the Article the press. XXXVIII of Rights Declaration of stated: liberty “That of press ought inviolably the be preserved.” Maryland been press
The clause has called the mod- “second el,” first, Virginia’s being the adopted it was in the Delaware, Georgia, constitutions of and South Carolina. Anderson, Clause, A. David The the Press Origins of (1983). UCLA L.Rev. 464-465 is apparently What the first recorded official of application the Free of Rights Press Clause the Declaration of occurred Court, 1777. It early by this which was not function time, ing by Assembly.23 but of General Accounts Andrews, the matter forth in Page History are set Matthew of (1929), State, Maryland: Province and 332-333 and Lawrence Wroth, History A Printing C. Maryland, Colonial 136- of (1922). Journal, February On published by Goddard, printed anonymous William an article which an argument supporting Tory amounted to point accеptance view recommended the of British offer himself, legislation popular Assembly role remain with with the by (as approving proposed limited to laws him. Assemblies Balti- son, put Charles) more it in instructions to his were to be called ‘for advice, giving approbation by assent and freemen any acts ordayned such as shall us att time made and enacted.’ very Assembly rejected up The first such restricted role and drew govern Colony. By laws of its own to had Baltimore assembly acceded the desires of the colonists. The was thus able People to vote the Act for the Liberties of the on own its initiative.” Although originated century, 23. this Court the mid-seventeenth it was re-established after Revolution the Constitution of 1776. 21, 1776, Appeals adjourned The May colonial Court its judges again Appeals. appointment never sat as the Court judges Appeals new to the re-established Court of did until not occur Bond, See T. Appeals Maryland, Carroll The Court A History, 56-63 *22 to apparently supposed Although the article was peace terms. took Club of Baltimore it piece, Whig the a satirical the author’s that Goddard reveal seriously and demanded refused, Whig of the members the Goddard name. When Club, of the at which meeting him force to a by carried Club within City Baltimore members ordered Goddard leave the hours, of “that tar and feathers twenty-four suggesting plenty left Baltimore and within convenient reach.”24 Goddard were of Committee Annapolis where he contacted the traveled to turn, which, newly him to the elected referred Safety matter, hearing the “Committee Assembly. After the General Delegates the House of Grievances Court Justice” Whig that the Club Whig the Club and declared condemned proceedings constitution, directly con a violation of the
“are manifest assented to the trary Rights to the Declaration State, this tend in of the freemen of representatives checked) (unless timely the consequences overthrow their regular government.”25 of all brought “he out his returned to Baltimore where Goddard Club, publication pamphlet, Whig Prowess of irony pepper he dusted the salt and derisive over which opponents.”26 again of his Goddard was taken before wounds his “sentence of banishment.”27 “reimposed” the Club which presided this Whig The officer of Club who “trial” Niсholson, Commodore James Commander Chief and, Annapolis Navy. Again went Continental Goddard Chase, appeared Samuel before the General represented Assembly. Thereafter Club’s Andrews, State, Page History Maryland: 24. Matthew Province and (1929). 332, quoting Proceedings Delegates, Id. at Votes and of the House of 25. March 1777. Wroth, Printing History Maryland, C. A 26. Lawrence Colonial Ibid. “officials received a formal Annapolis, summons to where they required were apologize at the bar of the In House. addition, pungently phrased resolutions passed were con demning members; the mob-like action of the and Governor Johnson, state, fully of the now established was especially directed to editor provide ample protection ‘all against ”28 or injury person violence to his and property.’ many There are other incidents in history demon- strating strength of this State’s policy guaranteeing freedom of press, although shall we mention only few For example, more. at the Maryland ratify Convention to *23 proposed States, Constitution of the United An- convened at 21, 1788, from napolis April through 29, 1788, April Convention proposed that there be thirteen to amendments constitution, the federal a including stating clause “that freedom of press inviolably preserved.” Professor (David Anderson, Anderson A. The Origins the Press of Clause, 472) swpra, UCLA L.Rev. at has on commented this recommendation as follows:
“The language, adaption an press of the clause of the Maryland Constitution, was not remarkable. The drafting committee, however, added an intriguing, enigmatic, if com- mentary: prosecutions ‘In in libels, the federal courts for the constitutional preservation of this great and fundamen- right prove tal may invaluable.’ Whatever the draftsmen this, by meant it they is clear that did not share the view guarantee that a of freedom of press would not affect seditious prosecutions.” libel Schwartz,
See also Bernard The Bill A Rights: Documen- tary History, supra, at 730-738.
Another historical example Maryland’s commitment press freedom is the statute, State’s newspaper shield presently (1974, codified at Code § 1995 RepLVol.), 9-112 of the Courts and Judicial Proceedings Maryland, Article. State, Andrews, History Maryland: Page 28. Matthew Province and . supra, at adopt United States the first state became newspersons designed protect statute shield newspaper 249 of the to disclose their sources. Ch. being compelled from 1896 provided: Acts of in, employed or engaged no connected with person
“That any journal compelled or shall be disclose newspaper trial, committee of the any or legal proceeding or before elsewhere, or informa- any news or the source legislature in the published or him for and tion obtained procured connected with engaged, in which he is newspaper on and employed.” Assembly signifi- the Acts of the General
By Ch. 113 of shield law newspaper of the protection cantly broadened (2) (1) give protection former protect newspersons, so as to data unpublished *24 any in to subjects England publish were forbidden It government. of matter without the license printed that the American prevent any such interference provisions in the patriots incorporated press] [free these Farrow, Negley v. 60 Md. Federal State Constitutions. 158, liberty press right belonging 176. The is a not, one, a or newspaper every proprietor whether he the interference of publish pleases whatever without nor the government. Neither the Federal Government upon printed form adopt any previous State can restraint circulation, any or their or take action which publications of public such free and discussion might prevent general for an prepare people matters as seems essential rights as citizens.” intelligent exercise their 590 Sigma 4,
See also v. Speaker, 1, Delta Chi 270 Md. 310 A.2d 156, (1973) (“freedom 158 the press zealously ... has been safeguarded in Maryland”).
C.
Despite
very
strong public policy Maryland regarding
press,
freedom of the
relationship
between freedom of the
press and defamation actions did not
a
great
receive
deal
attention
prior
Supreme Court’s
opinion New York
Sullivan,
254,
Times
710,
Co.
376 U.S.
11
S.Ct.
L.Ed.2d
(1964).
Occasionally
expressed
view was
that free
press
actions,
considerations had an
impact
defamation
such as the commentary
Maryland
at the
Ratifying Conven-
1788,
tion
April
opinions by
See,
or
a few
this Court.
e.g.,
Farrow,
Negley v.
supra,
Nevertheless,
591 711). Publishing In Co. v. 730, 11 at Curtis at L.Ed.2d S.Ct. (1967), 130, 1975, Butts, 18 L.Ed.2d 388 U.S. 87 S.Ct. set forth in New York principles that the Court held Supreme defamatory applicable were also Times Co. v. Sullivan “public figures.” criticism of Welch, Inc., 418 U.S. v. Robert Court Gertz Supreme (1974), 2997, 3010, held that
323, 347,
to a requirement plaintiff constitutional bear the fault, showing burden of falsity, recovering as well as before damages.” (475 777, 1564,
The Court continued
at
U.S.
“[T]he need to
debate on public issues that
in
governmental-restriction
concerned the Court
cases is
of concern in a similar
manner
this case
involving
private suit for damages: placement by state
law
proving
burden of
truth upon media defendants
publish
who
speech
public
concern deters
speech
such
because of the
liability
unjustifiably
fear that
will
result.”
Co.,
See also Milkovich v. Lorain Journal
1, 16,
497
110
U.S.
2695, 2704,
1,
(1990);
Hustler Magazine
S.Ct.
111 L.Ed.2d
16
Falwell,
v.
46, 56,
876, 882,
41,
485 U.S.
108 S.Ct.
99 L.Ed.2d
Williams,
(1988);
Chesapeake Pub. v.
285, 295,
52
339 Md.
661
Helinski,
(1995);
v.
A.2d
Rosenberg
664, 675,
1169
328 Md.
denied,
866,
(1992),
cert.
924,
616 A.2d
871
509 U.S.
113 S.Ct.
3041,
its
of speech
may
subject
which
be the
of state
* * *
defamation actions.
opinion
[A] statement of
relating
matters of
concern which does not contain a provably
false factual connotation will receive full constitutional protec
tion.” (Emphasis
Milkovich v. Lorain Journal
original).
Co.,
supra,
16, 20,
2704, 2706,
497
U.S.
In
opinions
a series of
after New York Times Co. and
Gertz,
substantially changed Maryland
this Court
common
regarding
law
defamation actions
in areas
even
where the
changes
by
were not mandated
the First Amendment and
Article 40 of
Maryland
Rights.29
Declaration of
See
Franchino,
131,
1129;
Marchesi v.
supra, 283 Md.
387 A.2d
Piskor,
165,
Corp.
General Motors
v.
277 Md.
supra,
352 A.2d
810;
particularly
Jacran
v. Sindorf, supra,
Sales Co.
580,
Md.
In
respect
with
to
by persons
defamation actions
were not
public
public figures,
who
officials
“we conclude[d]
” principles
as a matter of state law that the Gertz
should
apply regardless
alleged defamatory
of whether the
statement
subject
public
regardless
involved a
concern and
of whether
against
the action was
a media
or a
defendant
non-media
592, 594,
defendant. 276
atMd.
In Marchesi v.
138-139,
supra,
283
Md.
387
1133-1134,
A.2d at
we held that
the “actual
required
malice”
privilege
to overcome a conditional
in a defamation action was
“knowledge
falsity
or reckless
for
disregard
truth.” The
pending
30. The
is
issue
now
in another case before this Court of
whether,
light
subsequent developments
Maryland
in
in the
law of
punitive damages, punitive damages can be recovered in a defamation
disregard
action based on "reckless
for the truth.”
court held that “malice” in the sense of “ill-will” was an
overcoming
privilege
insufficient basis for
a conditional
or for
awarding
damages
any
action.
punitive
defamation
pertinent
Also
to the issue
the case at bar are this
holdings
alleged defamatory
cannot be
language
Court’s
considered
but must be
in the context in
isolation
viewed
See,
Williams,
which it is used.
Pub. v.
e.g., Chesapeake
295,
1174;
supra,
Shiflett,
D. The contrast between standards governing defama- tion present actions and the striking. standards is For the most part, English governed defamation actions are by principles unchanged which are from the earlier common See, Sanford, law period. e.g., Bruce W. Libel and Privacy, (2nd § Smolla, 2.2.2 Supp.); ed. 1996 A. Rodney Law of (1996) (“Modern § Defamation, 1.03[3] British libel law has changed very roots”); little from its original common law Blackshaw v. Lord, [1984] QB [1983] 2 All ER 311 [1983] WLR 283.
Thus, law, under defamation it is unnecessary fault, plaintiff establish either in the form conscious wrongdoing negligence. The state of mind or conduct of the defendant irrelevant. Defamation, Duncan & Neill on (2d 1983) (“[T]he 18.22, § at 133 ed. honest belief defendant thе truth of published what he ... does provide any defamation”); defence to an action for Rodney A. Smolla, (“The Defamation, § Law supra, at British 1.03[3] *29 cause of action for defamation liability remains a strict tort in which publishers may be held liable even for statements that true, and honestly published
were believed to be without negligence”).
Moreover, law, defamatory are under statements proves false unless a defendant them to be presumed be Defamation, supra, true. Duncan and Neill on 11.04, § at 51 (“The presumes defamatory law that words are false and the plaintiff prove defamatory need do no more than that words defendant; him it published have been is for the can”); Gatley true, if prove defendant to that the words are he (“The Slander, ch.l, (7th 1974) Libel & at 6 ed. law false, in favor presumes plaintiffs the words are contrary”); Rodney until the defendant proves unless and Defamation, Law Smolla, supra, § A. at In addi 1.03[3]. tion, if punitive damages pleads a defendant risks he truth but fails to prove it. See, e.g., Cassell & Ltd. v. Co, Broome, [1972] AC [1972] 1 All ER [1972] WLR 645 (English assessing punitive damages against House of Lords defendant true).31 prove defamatory for failure to statement England, qualified privilege In can be overcome without establishing actually publica- that the defendant knew that the tion or reckless of whether it disregard was false acted with ill- by proof “spite was false or not. It can be overcome or wrong improper will or some other or motive.” Peter F. Slander, (1973). Libel and Carter-Ruck, law exemplary damages authorizes or under numerous punitive actions; law, circumstances in defamation unlike are not limited to cases which there was actual they or to truth knowledge disregard of the falsehood reckless as Id. at 172-173. Furthermore, falsity. or as one scholar has id. out, pointed it practice only impossible one sum is awarded and
“[i]n damages any particular to tell to what extent the awarded compensatory case were intended to be and to what extent exemplary punitive. very high damages awarded years against newspapers only recent actions can publication 31. The of a libel is also a misdemeanor under the Libel Act Law, McEldowney, of 1843. See John F. Public *30 explained on the basis that the sums awarded reflect the juries’ opinion of the defendants’ conduct.” English defamatiоn presumes law that a statement is one of fact, and the burden is on the defendant to prove “fair (Peter comment.” According to one writer F. Car- ter-Ruck, Slander, 118), Libel and supra, at
“[fjor the defence of fair comment to succeed it must be proved subject that the matter of the comment is a matter interest; legitimate public upon the facts which the true; comment is based are and that the comment is fair in the sense that it is relevant to the facts and in the sense expression that it is the opinion the honest of the writer speaker.” malice, Proof of ill-will, etc., spite, sense “will vitiate fair comment though as defense event in all other respects the comment qualifications fulfils the which the law stipu- addition, Id. at 126. In lates.” “the malice of one defendant destroy will the defence for all the defendants and each defendant is not entitled to have his separate- case considered ly.” Moreover, Id. at 127. as the opinion of the House of present shows, Lords controversy a statement is not evaluated in the context of the publication to which it re- sponds. Matusevitch v. Telnikoff [1991] 4 ALL ER 822- appears Context to be eliminated from a court’s determi- nation of whether a statement is considered fact or comment.
Finally, English flatly rejects defamation law the principles Sullivan, set forth New York Times Co. v. supra, and Gertz Welch, Inc., v. Robert supra. The basic rules are the same regardless of plaintiff official, whether the public is a public figure, or private person, regardless of alleged whether the defamatory concern, statement involves a matter of regardless of the defendant’s status. As Professor Smolla has (Rodney Smolla, observed A. Law Defamation, supra, 1.03[3]), recognizes
“British law no special protection defamation arising actions from critiques of public figures or public officials, routinely imposing large damages awards cases characterize as core what American courts would involving political discourse.” v. Limit- Newspapers Bennett and others Guardian
See also ed, [1995] QB (28 December 1995) (“My conclusion is that the do not by plaintiff] overseas authorities persuasive [cited account the Sullivan doctrine should convince me that on their courts”); Derbyshire County Council adoptеd by oúr Times Newspapers Limited [1993] AC [1993] 1 All ER (“the libel, as it does no including American law of *31 politician political the individual as well as protection for institution, press the road of freedom of the goes along further law”). English than the
E. Maryland defamation English present A and comparison legal disclose a difference one or two simply law does not Place, Park 311 Md. Bally’s supra, Kramer v. principles. Cf. Instead, 467, 390, at and cases there cited. at 535 A.2d totally different from Maryland defamation law present virtually every significant respect. English defamation law Moreover, and funda the differences are rooted historic concerning freedom of the public policy mental differences press speech. Maryland law is
The stark contrast between Telni- underlying litigation between clearly illustrated Telnikoff, an of the employee publicly koff and Matusevitch. Liberty, undisputably was Europe/Radio funded Radio Free In have figure. country, this he would public official evidence, convincing that Matusev- prove, by had to clear fact and that Matu- contained false statements of itch’s letter that he maliciously acted the sense knew sevitch the state- disregard reckless of whether falsity or acted with courts, however, held false or not. The ments were allegations Telnikoffs supporting that there was no evidence malice, either under the acted with actual that Matusevitch in the sense of v. Sullivan definition or New York Times Co. ill-will, injure. the absence of actual Despite or intent to spite definition, allowed to recover. any Telnikoff was malice under He was not even required prove negligence, which is the purely private minimum a defamation plaintiff must establish to recover under law. addition,
In Telnikoff was not required prove that Matu- fact, sevitch’s letter contained a false statement of which would have required present Maryland been under In- law. stead, falsity presumed, was and the defendant risky had the attempt prove Furthermore, choice whether to truth. Telnikoff did not have to establish that the alleged defamation fact; even contained defamatory statements of the burden was upon the defendant to alleged establish that the defamatory language amounted to comment and not statements of fact.
Finally, contrary to the decisions of Supreme Court and Court, this Matusevitch’s letter examined in context but in isolation. It must be remembered began that Telnikoff article, the public published debate with his and Matusevitch’s letter constituted his Undoubtedly, rebuttal. in this country, opinions Falwell, under such as Hustler Magazine supra, 46, 876, 41, U.S. 108 S.Ct. 99 L.Ed.2d Letter Carriers v. Austin, 2782, supra, 418 U.S. at S.Ct. L.Ed.2d at 763, and Bresler, Greenbelt Cooperative Ass’n v. Publishing supra, 398 U.S. at S.Ct. at 26 L.Ed.2d at *32 alleged would, Matusevitch’s defamatory language as a matter law, be treated as “rhetorical hyperbole” in the course of rebuttal during vigorous a public debate. An apt description of what would have in happened Maryland to Telnikoff s libel suit was set forth by this Court ninety-five years ago (Shep- Baer, 152, 156, 159, (1902)): herd v. Md. 53 A. “ ‘A man who commences a newspaper war cannot subse- quently come to the complain Court to that he has had the * * * worst of it.’ article response] [T]he [in ... does not exceed the legitimate bounds of self-defense .” principles
The
governing defamation actions under law, which
applied
suit,
were
to Telnikoff s libel
are so con-
trary Maryland
law,
defamation
and
policy
to the
of free-
dom of
press
law,
the
underlying Maryland
that Telnikoff s
judgment should
recognition
be denied
under principles Foreign-Money
of the Uniform
comity.
language
In the
10-704(b)(2)
Act,
and
§
of the Courts
Judgments Recognition
Article,
“cause of
Telnikoffs
Proceedings
Judicial
to the
repugnant
is based is
judgment
on which the
action
”
of the State....
public policy
called to
parties
the two
have
American case which
only
The
a similar
attention,
directly
point,
reached
which is
our
Publications,
In Bachchan v. India Abroad
conclusion.
(1992),
national
an Indian
adopted
Inc.,
Co.,
Moreover, recognition judgments defamation could well lead to wholesale circumvention fundamental public policy the rest of the country. With *34 English Ameri- differences and
respect sharp between law, (Rodney Professor has can defamation Smolla observed 1.03[3]): Defamation, supra, Smolla, § at Law of A. “This American and British libel striking disparity between phenomenon, law has to a curious recent a sort led persons Prominent litigation: balance of trade deficit libel press publications primarily who receive distributed bad to file suits in the United States now often choose their libel has an libel England. London become international often Plaintiffs with wherewithal do so now capital. Britain’s choose to file suit Britain in order exploit laws, and plaintiffs strict even when the the publication libel country.” have little to that connection Nicol, Media also See Geoffrey Q.C. Robertson & Andrew Law, (3d 1992) (“British notoriously is libel law so ed. increasing that an of forum- plaintiffs favorable number taking are action in London news- shopping foreigners against circulated, are printed, mainly and books that and papers Sanford, Libel and Privacy, supra, abroad”); at Bruce W. (“The has familiarity § 2.2 for law need with libel with use of news material national greater beyond increased boundaries, by internationally libel shopping prominent forum damage the arrival of multi-million dollar plaintiffs, and awards in England”). Amendment,”
“At the
of the First
as well as Article
heart
Maryland
Rights
Maryland public
Declaration of
recognition
importance
“is the
the fundamental
policy,
public
on
opinions
the free flow of ideas
matters
Falwell,
Magazine
supra,
interest and concern.” Hustler
The
CERTIFIED ANSWERED TO APPELLANT VLADIMIR TELNIKOFF MATIVE. PAY COSTS.
CHASANOW, Judge, dissenting. question certified us the United Court of States Appeals may District Columbia Circuit have been the result of a misunderstanding during arguments before that court. The certification parties order states: “Both agreed argument that recognition at oral whether and enforce- foreign judgment ment of the repugnant would deter- arguments mined reference to In law.” their Court, however, before this both that they counsel indicated *35 did of any not desire certification Maryland public policy issue and primary that the issue the instant case was whether the First Amendment to the United States Constitution and the public policy the underlying pre- United States Constitution foreign judgment. cluded enforcement of the party Neither contended, nor even suggested, Maryland that the Constitu- tion Maryland public policy and in pari should be read materia with the United States underly- Constitution and its ing public are policy. statutory policy There both and reasons why the of Maryland public policy issue is not relevant and why this Court respectfully should decline to answer the certified question. 10, 1998,
On December Vladimir Telnikoff filed an action in Maryland seeking to his English have libel judgment against Vladimir Matusevitch recognized and enforced.1 Telnikoff also judgment filed to enforce Superior the in the Court for Columbia, perhaps District because Vladimir Matusev Columbia, itch worked the District of wages might and his attorney s Telnikoff a Registering filed "Declaration of Counsel For eign Judgment” stating "pursuant Maryland that was declaration §§ seq., Maryland Code et 11-801 Uniform Enforcement of [For eign] Judgments judgment Act.” Had Telnikoff s libel been rendered in court, filing (1974, a state Maryland or federal under Code Article, Repl.Vol.), Proceedings §§ Courts and Judicial seq. 11-801 et proper. would have been judgment foreign Since the a was from however, country, Maryland requires judgment law recog that the be Maryland nized under the Foreign Money-Judgments Recogni Uniform Act, (1974, tion Repl.Vol.), Md.Code Courts Judicial Proceed Art., ings §§ seq. recognized 10-701 et get Because Telnikoff failed to seq., §§ filing §§ first under 10-701 seq. et under 11-801 et was improper. declaratory- filed then a there. Matusevitch garnished District for action in the United States Court judgment rec- reciting seeking Telnikoff was that Maryland, District judgment Maryland and enforcement his libel ognition Columbia, a Matusevitch asked for District of and’ and the recognition that and enforcement of declaration policy judgment would violate Constitution libel public policy and the Constitution of the United States stipulation Superior A was filed in the Maryland. the State will take Matusevitch and Mr. Telnikoff Court case “Mr. v. Matusevitch styled transfer the action necessary steps all (D.Md.), Telnikoff, Civil Action No. L-94-1037 from Unit- for Maryland District the District ed States Court the District of Columbia.” States District Court for United a by joint a for accomplished request soon thereafter This was transfer. in the United States District Court
Following hearing Columbia, rendered scholarly opinion District of was as opinion reported Ricardo That Judge M. Urbina. (D.D.C.1995). Judge Telnikoff, Matusevitch F.Supp. findings, made several the first was that the Urbina *36 English judgment on libel was entry judgment based the Matusevitch, at procedural F.Supp. for reasons. invalid Maryland to the Judge pursuant Urbina reasoned that 3. Act, Mary- Money-Judgments Recognition Foreign Uniform (1974,1995 Proceed- Repl.Vol.), land Code Courts Judicial Article, 10-703, foreign- § can a ings party “before a enforce Recognition requires proceeding Act country judgment, the recognize the court preliminarily whether should to determine Matusevitch, at F.Supp. foreign-country judgment.” the that, not judge procedure complied The since this was 2. held with, Maryland judgment unenforceable. He stated: the' judg- attempted get [the libel] never to “[Telnikoff] filing, required by statute. Conse- recognized ment before as currently the court determines that defendant quently,. foreign-country judgment from unrecognized holds an Maryland. recognition The must obtain defendant State Matusevitch, it.” judgment this in order enforce F.Supp. judge at The District Court further concluded that public libel violated the judgment policy of Maryland. abundantly United States and the State It is this on holding clear that was based the United States solely underlying policy Maryland Constitution and its which would obligated Judge extensively analyzed follow. Urbina law, rely Article I and federal but or on a case did cite Maryland He read as single Maryland’s public policy case. embracing U.S. libel standards and standards wrote: “libel contrary that are libel U.S. standards would be repugnant public policies Maryland of the State of United Matusevitch, added). States.” F.Supp. (emphasis appealed Telnikoff Urbina’s to the United Judge decision for Appeals States Court the District of Columbia Circuit. for sole basis was the States appeal United Constitu- tion and federаl policy issue. Telnikoff did not cite rely single on a case. Maryland
THE THE STATUTORY REASON WHY CERTIFIED
QUESTION SHOULD NOT BE ANSWERED parties agreed Both obviously Judge finding with Urbina’s Maryland judgment was invalid for procedural rea- sons; they took steps expunge Maryland judgment with any Maryland it issue involving public policy. As result of Judge Urbina’s decision and appellate before briefs were filed, the parties jointly secured an order from the Circuit County Court for Montgomery dismissing the Maryland judg- only ment. That order not recites that Telnikoff voluntarily further, dismisses the proceeding but agreement parties, orders will party rely that neither cite nor the expunged Maryland judgment. The Circuit Court Montgomery County provides: order further
“Mr. any Telnikoff shall not assert pending or future any action or proceeding any forum or otherwise base *37 claim or defense in forum any premise he that now any holds or at time has held a judgment the State Maryland in his against favor and Mr. or Matusevitch judgment such any now or at time exists has existed.” the pleadings court’s order as well as The circuit dismissal filed Superior proceedings part in the were as pending Court It is appellate beyond in the court. of the record federal along and Maryland judgment expunged that the question only it any Maryland public policy. pending with issue of judgment is the recognition action for of the libel action, and since there is District of Court Superior Columbia judgment proceedings pending, Maryland no or Maryland relevancy no public policy has more than the public policy Tennessee, Oregon, any or other state' where later filed. judgment might (1974, RepLVol., Supp.), Maryland Code Courts Art., § Proceedings provides: and Judicial 12-603 answer may ques- of this State a Appeals “The Court court or tion certified to it of the United States of law tribe, if the court of another state or of appellate an litiga- of an may pending be determinative issue answer controlling is no certifying tion in the court there decision, of this appellate provision, constitutional statute State.” of the judgment,
As a of the expungement result issue. Since there is Maryland public policy there is no English judg- Maryland judgment no based on currently ment, any cannot be “determinative” of Maryland public policy litigation federal no more pending issue still any fifty states where policy relevant than Thus, might be filed. our statutе would seem judgment answering question. from this certified preclude us FOR NOT OTHER REASONS ANSWERING QUESTION THE CERTIFIED questions This cannot “decide of federal constitutional Court n. question case.” 347 Md. 578-79 law a certified 239 n. We also have discretion A.2d question, a certified and we should exercise refuse to answer (1974,1995 case. Maryland that discretion in the instant Code Art., Proceedings RepLVol., Supp.), Courts Judicial
607 State, § Court of provides: Appeals acting 12-607 “The this receiving court, notify certifying accep- as a shall the court and, rejection question tance or of the in accordance with fairness, comity respond accepted notions of and an certi- practicable.” fied as soon as In question accordance with fairness, issues, in comity, uniformity, notions of and case, instant should resolved pursuant the First Amend- public policy, ment and national on Maryland public based policy. agreed argument they
Both sides
in oral
that
this
view
case
as
being
by
public
controlled
First Amendment
its
addition,
policy.
In
this Court’s
of Maryland public
view
policy seems
be more restrictive
than
First Amendment
and,
so,
policy
and its
if
public
Maryland public
should
policy
yield
public
to federal
policy.
majority
The
a
“[i]n
states
Sullivan,
series of
New
opinions after
York Times Co.
[v.
254,
710,
(1964)
U.S.
84 S.Ct.
Section 10-708 interpreted “This subtitle shall be so and construed provides: uniform the law of general purpose its make as to effectuate (1974, RepLVol.), enact it.” Md.Code the states which Art., § impor 10-708. The Proceedings Courts and Judicial judgments under uniformity recognition foreign tance 40 Wolff, Md.App. the Act was commented Wolff *39 (1979): aff'd, (1978), A.2d 285 Md. 401 A.2d 413 389 Foreign Money-Judgments Recognition “Thus the Uniform of promote principles international Act was intended their foreign judgments nations that comity assuring circumstances, would, given under certain well-defined in have the recognition by adopted courts states which generally As an con- reciprocity important Act. is Uniform country the of determining whether courts one sideration another, the of the courts the recognize judgments will judgments provided certainty recognition those recognition of similar United hopefully the Act facilitate will omitted). (Citations judgments abroad.” States’ Maryland’s public A.2d Md.App. at When from of other and from national differs states policy Maryland’s policy yield should the policy, public then public for in provided This is further public policy. uniform national foreign money Act a state to enforce a by authorizing the judgment contrary if was rendered the judgment, even The enforcing pertinent provision state. is policy of public (1974, Repl.Vol.), Courts and Judicial Proceed- Md.Code 10-704, Art., provides: § ings which “(a) if: foreign judgment A is not conclusive
(1) system a which judgment was rendered under The compati- or procedures tribunals provide impartial does law; requirements process with of due ble (2) foreign personal jurisdiction court did not have The defendant; over the
(3) jurisdiction not have over the foreign The court did matter; subject or
(4) by fraud. judgment The was obtained (b) foreign judgment recognized A need not be if:
(1) proceedings foreign The defendant in the court proceedings did not receive notice sufficient time to defend; him to enable
(2) cause on judgment The action which the is based State; policy repugnant (3) judgment The conflicts "withanother final and conclu- judgment; sive
(4) contrary court proceeding foreign agreement parties an under which dispute between court; was to be settled out of (5) jurisdiction In the only personal case of based service, the foreign seriously court was a fo- inconvenient added.) (Emphasis rum for the trial of the action.” (1974, RepLVol.), Md.Code Proceed- Courts Judicial § ings Art., 10-704.
Thus, the Act provides mandatory why four a reasons judgment recognized cannot be discretionary five reasons why may to recognize foreign judgment. state refuse See *40 (7th 680, Mill. Ingersoll Mach. Co. 833 F.2d Granger, Cir.1987) stating: (b) language
“The
of subparagraph
[of the Uniform For-
eign-Money Judgments
mandatory,
Act] is not
rather
but
words,
optional. In other
if Ingersoll’s arguments
even
with
(b)
respect
[public policy] provisions of subparagraph
valid,
were
does not
the
require
statute
district court to
deny recognition of the judgment;
simply provides
it
that it
‘may’deny recognition of the judgment.”
Jeremy
See also
Maltby, Juggling Comity and Self-Govern-
ment: The
Foreign
Judgments
Libel
in U.S.
Enforcement of
Courts,
(1994)(the
94 Colum.
Uniform
L.Rev.
of
Recognition
Foreign Money-Judgments
gives
Act
a court
deny
discretion whether to
of a foreign judgment
enforcement
where “enforcement ... would
the public policy
contravene
of
state”).
enforcing
Act,
that,
may say
Under
we
even if
the libel cause of
is
repugnant
Maryland public
action
will
policy, we
in the interest of uniform
comity
national
to First Amendment
Maryland’s public policy
subordinate
We should
policy
public policy.
or
uniform national
public
majority
Mary-
suggests
case. The
that
do so in the instant
protective
more
of defama-
policy
law and
is
land case
so,
Amendment;
if
to have a
in order
tion than the First
of
enforcement
libel
policy regarding
uniform national
apply
we
exercise our discretion
judgments,
should
policy.
Maryland’s unique public
foreign judgments,
especially
of
and
Recognition
A
negotiations.
subject
treaty
has
of
judgments,
been
and the
Kingdom
the United
United
convention between
of
and Enforcement
Reciprocal Recognition
for the
States
treaty
held
but no
Judgments
in Civil Matters was
Court has not indicated
yet
has
The Supreme
been ratified.
govern
recognition
or
law
federal
state
should
whether
See
Bishop
R. Doak
foreign-nation
Susan
judgments.
Concerning Recognition
United States Practice
Burnette,
Although
Foreign Judgments, Int’l
Law.
or
currently
treaty
preempting
there is
no
federal statute
foreign
most
have assumed enforcement
area and
states
can
currently
regulated by
judgments is matter
states,
foreign
implication
must be
affаirs
cognizant
we
acknowledges:
recognition
“The
majority
comity.
foreign judgments
governed by principles
comity.”
has
us
Supreme
given
Hilton v. 16 S.Ct. 159 U.S. It is in enforcement comity L.Ed. clear First, judgments requires considerations. foreign two second, defendant; the interna- interest of the individual
gH tional relations sovereign between states. The definition of comity recognizes its foreign obvious international affairs im- plications. This ignores any Court foreign affairs consider- decision, ations its as well importance as the attempt comity base on a uniform national standard. I believe we should that, answer the certified question by explaining if even judgment libel might repugnant to some atypical public policy of Maryland, we would exercise our discretion to subordinate unique our public policy and enforce English judgment unless to do so violates the United Constitution, States federal public policy, or the pub- uniform lic policy of all states.
Since answering this certified question we are precluded from interpreting the United States Constitution or federal public policy, we should respectfully decline to answer the question. Had this same issue reached this Court an appeal filing judgment libel in Maryland instead of as a certified question, the case would be in a posture different and we could then construe the United States Constitution and what national public policy should be pursuant to the First Amendment. The imposed limitations us question certified proceeding preclude should us from answering question, and the only issue we can answer, ie., Maryland’s possibly unique public policy, is irrele- vant to this litigation.
MARYLAND PUBLIC POLICY SHOULD NOT
PREVENT ENFORCEMENT OF THIS
ENGLISH LIBEL JUDGMENT If this issue, Court had to reach the I Maryland believe public policy should prevent enforcement of this English judgment. libel Any resolution of whether enforcement of this English libel judgment would violate public policy begin should with the definition policy with regard enforсement foreign judgments. A good definition of public policy the context of recognition of foreign judgments Linder, found in Milhoux v. 902 P.2d 856 (Colo.Ct.App.1995): *42 normally deny recog- in the States will not United “[C]ourts foreign or merely practice nition because law differs, markedly recogni- if from that of the country even Ltd., (Libya) Hunt Exploration tion forum. See v. BP Co. Foreign Money-Judgments supra; Recognition Uniform (1986) (A (comment), Act 13 Uniform Laws Annot. 268 S a procedural system in the is not sufficient mere difference injustice A case of must non-recognition. for serious basis involved.). are so Judge As Cardozo observed: We say every problem as to that solution of a is provincial with otherwise home.’ wrong because we deal it courts, an have numerous other we conclude that As forth standard is that set in the Restatement appropriate (Second) § 117 c of Conflicts comment Under this standard, public exception is limited to ‘situations policy original claim is fundamental no- repugnant where to just’ is and in the recognition tions of what decent forum.” (Citations omitted). Levine,
“A
as
is unenforceable
that it is
‘repugnant
extent
fundamental notions
just is
what is decent and
the State where enforcement
is
As
sought.’
high,
infrequently
standard
met.
wrote,
it
‘[o]nly
ought
one court
clear-cut cases
to avail
formulation,
In
judgment
the classic
a
defendant.’
interest,
clearly’
public
undermine the
the public
‘tends
law,
security
confidence in
administration of the
rights
liberty or of
is
personal
private property
individual
(Citations omitted).
against public policy.”
one
judgment
For of years, up hundreds until 1964 when the Supreme Co., Court decided New York Times supra, Maryland the common law of libel was the same English as the current libel law under which English the instant libel case was decided. See, Farrow, (1883). e.g., Negley 60 Md. “The fact that proprietor one the of a newspaper, him entitles to no in privilege this not respect, possessed by community in general. The recognizes duty, him, law no imposed arising from his public, relations to the to defame and libel the one, does, character of any and if he it is no answer to say, he faith, did so in good malice, and without honestly believing it 177; be true.” Negley, 60 Md. at see also Domchick v. Services, 36, 46, Greenbelt Consumer 200 Md. 87 A.2d (1952) (In suits, libel defense of truth must by special be made plea justification plea justification, and such if not sustained, proof malice.”). “furnishes on record of continued Prior to there no public was outcry legislative or reac- tion in Maryland to the same common law applied English judgment against Matusevitch. Prior to New York Co., Times this Court saw nothing the Maryland Declara- Rights tion of Maryland or public policy that would have led to a decision any different from the judgment. The New York Times Co. decision changed common-law defamation based on Supreme interpretation Court’s of the First Amendment. noted, As one writer “it is sure that [New York Times found Co.] defamation a creature of the common law and left it a monument of the First Amendment.” Craig A. Stern, Foreign Judgments and the Freedom Speech: Look Who’s Talking, 999,1011 Brook. L.Rev.
It only was afterNew York Times Co. and its progeny that this Court abandoned hundreds of years of common-law defa- at 702 A.2d 246 and
mation See 347 Md. precedent. Constitution, It Maryland cases therein. was not cited Maryland outcry, Maryland poli- or Legislature, public Maryland to abandon its adherence to cy caused the Supreme law It was English common of libel construing the First Amendment to the United States Court jettison made common Constitution that us the same so The in the change law of that we now find offensive. libel law the result of the First Amend- Maryland common Constitution, ment, we pre- and since are action, cluded the First Amendment this interpreting from question. answer certified we should not Constitution First Amendment United States provides:
“Congress respecting shall no law an establishment make thereof; religion, abridg- the free exercise or prohibiting ing press; right or of the or the speech, the freedom assemble, petition and to the Gov- people peaceably *44 grievances.” for a redress of ernment Rights of differs Maryland Article 40 of Declaration counterpart from its and contains a safe- significantly federal guard defamation not found the United States against provides: Constitution. It liberty inviolably to press ought
“That of the ought of preserved; that citizen the State to be every all publish to write and his sentiments on speak, allowed subjects, responsible privilege.” the abuse that being for of added). (Emphasis Const., This Rights, Declaration of Art. provision
Md. Maryland of the Constitution seems to indicate drafters against or slander than the provided protection for more libel also First Amendment. Article established clear differ- inviolably is “liberty press,” ence between the of which write, right every preserved, speak, and the of citizen publish, responsible which leaves the individual abuse “liberty The case does not involve privilege. instant noteworthy speech that our freedom press.” perhaps It is expressly granted to citizens of not to this state non-citizen residents of England. majority The makes no attempt explain the differences the language of the two constitution- and, indeed, al provisions somehow concludes that Art. may give even more freedom to person defame another than the First nothing Amendment. There is in the words Art. 40 justifies that such a conclusion.
If we had to decide the I question, Mary- certified believe public policy preclude land’s should not enforcement of this judgment. majority opinion page devotes after to a page stirring tribute to freedom of the press, but this case does not involve press. freedom of the a libel judgment This is ob- by tained one of England against resident another resident England. The libel was contained in a letter by written defendant. Although the letter was published by a newspaper editor, as a letter to the that only damages, increased the libel was the letter prepared dispatched private person. The letter regardless was libelous of whether the newspaper reprint chose to it. Freedom of the press is not implicаted, nor any United implicated. States interest I trust the majority is not suggesting somehow that it is free- dom speech that protects it speaking, but is freedom of the press protects printing writing; that simply is wrong. See, Stern, e.g., Craig A. Foreign Judgments and the Freedom Speech: Look Who’s Talking, Brook. L.Rev. (1994). Article 40 of the Declaration of Rights also clearly differentiates “liberty between the press” and a write, citizen’s right speak, or publish.
Matusevitch’s letter was
determined
be libelous by a
jury;
the proceedings were fair
carefully
reviewed
Lords,
House of
the highest court in England. There is no
*45
grave injustice in this internal English litigation.
majori-
ty apparently holds that no English
judgment
libel
will ever be
recognized and enforced in Maryland;
says,
it
“recognition judgments
defamation
could well lead to wholesale
circumvention of
public
fundamental
in
policy Maryland the rest of the country.”
There is another legisla- recognized by our policy, public That by this Court. Foreign Money-Judgments adopted it Uniform ture when recognition uniform Act, give is to broad Recognition our courts discretion gives The Act judgments. foreign in interest interna- Our public policy. our State’s subordinate by recogni- fostered will, judicata and res comity, good tional our mini- against weighed must be foreign judgments tion public of our local libel the benefits giving mal interest foreign defame country another who residents of policy no reason- and who have foreign publications figures public by Maryland protected be they that will expectation able interest United States there is some Unless Constitution. reason to offend good is no there protected, that should be refusing recognize purely England by friendly nation like In the local defamation. for a judgment purely local libel might case, States interest there is no United instant or non-enforcement non-recognition necessitate cases can author noted: “Few As one judgment. defamation public solely grounds recognition denying found used, always case almost exception policy; when flowing recognizing from the concern a choice-of-law involves underlying transac- or the parties interest jurisdiction’s Trautman, Rec- Donald T. Mehren and Arthur T. von tion.” Suggest- and a Survey A Adjudications: Foreign ognition of Approach, 1601,1670 ed 81 Harv. L.Rev. emigres Russian
Here, Defendant were both Plaintiff and its protect If wishes to England living England.2 citizens, it by private libel non-negligent from even figures passport. He and had a Russian was a Russian citizen Matusevitch York citizenship he was bom in New may because also had U.S. have citizen, father, assigned to the Soviet Trade a Soviet while his was recalled Matusevitch’s father Representation in New York. In Union, accompanied family back his and Matusevitch the Soviet back to years He remained in was four old. Union when he to the Soviet in 1968. Russia until he defected *46 should be able to do so. There should be no need for Maryland policy give to an public protection English resi an English public figure England. dent who libels The newspaper article Telnikoff that provoked Matuseviteh’s attack personal libelous was a criticism of the British Broad (B.B.C.) casting Corporation’s hiring prac Russian Service tices. It ended with a statement that: “The author [Telnikoff] was on the staff of the External B.B.C. Services.”3 Matusev defamatory iteh’s only letter referred to the B.B.C.’s Russian policies Service recruitment and ended with the statement expect could that the spreading “[o]ne racialist views unacceptable would be a newspaper.” British There is no United or implicated by States interest this judg ment.
The majority
finding
makes the
of fact that “Telnikoff ...
undisputably
public
figure,”
official or public
Desai, F.Supp. at 680-81. from the is that Article 40 implication majority opinion Rights, Declaration of as well as the First
Amendment,
England
protect
English
extend to
all
resi-
dents who defame other
residents. We should not
imply
judgments
public policy
that all
libel
violate our
Instead,
majority
saying.
as the
seems
should
Court
*48
carefully
judgment
look
at the libel
at issue and make an
individualized determination as whether enforcement
chilling
have a
effect on First Amend-
foreign judgment would
in
protection.
ment
This is illustrated
Bachchan v. India
Publications,
Abroad
154 Misc.2d
“[I]t to chill way it such a as repugnance applying but non-recognition. is the grounds in New York that speech early opinion in its approach court adumbrates this repug- for repugnance ‘judgment’ it when substitutes ” of the ‘cause of action.’ nance Stern, and the Freedom Craig Foreign Judgments A. 999, 1031 60 Brook. L. Rev. Talking, Look Who’s Speech: Bachchan, writer, the result praising Another while fully explain failure to its rationale concerned that its into the same error made would lead other courts that, instead of majority in the instant case. His concern was interests were risk recognizing that United States Bachchan, might interpret other courts protection needed to refuse authority and use it as simplistically the case too judgment. libel He wrote: recognition any it Bachchan has provides, the ‘welcome relief “Despite grounds upon clearly explain serious flaws. It does it This protect. it is or the interests seeks which based reasoning precedent unclear provides lack of concrete may applied that its rule the future and raises concerns libel deny any foreign so as to broadly, too enforcement of *49 exactly requirements that does not judgment conform its Bachchan progeny. York Times and Co.] [New foreign judgments libel that forbids the enforcement Amendment, but does conflict the values of the First with these values are. To follow its command spell out what the interests at stake and identify one must properly, added). (Emphasis them.” determine what will threaten The Maltby, Juggling Comity Jeremy Self-Government: Courts, in U.S. Foreign Judgments Libel Enforcement 1978,1982 Colum. L.Rev. for about the need First question
There should be no news wire service protection Amendment for a United States in chill judgment Bachchan would and that enforcement newspaper York wire service. press rights the free New Amendment huge giving There is a difference between First and giving to a news wire service protection United States (or Article 40 to all protection protection) First Amendment refuse, simply It unwarranted to English libel defendants. is press Maryland public on the basis of freedom of the judgments. England all has an policy, English to enforce libel residents, in protecting including public interest its its own unintentionally from false and public figures, officials and even to their It defamatory damaging reputation. statements public policy recognize should not violate our that interest long endanger as as it does not our interest the free people of information our media and those dissemination might shielded our Constitution. Our national interest if English judgment of an libel it non-recognition necessitate judgment against publication was a a United States abroad, perhaps judgment circulated or even a defamation figure in foreign country by public obtained a United States cannot or unintended defamation merely negligent who sue public policy. under our Constitutions and Each case should be examined on its own facts to see if the United States if press implicated speech rights freedom the the free of our people protection entitled First Amendment implicated. are policy require give
Public should not us to First Amendment protection protection or Article 40 residents who publications defame other residents distributed only England. provi- Failure to make our constitutional relating wholly sions to defamation internal applicable English defamation would not seem to violate fundamental just notions of what is decent and not undermine should administration confidence law. Court *50 consider- analysis global public policy does little or no applica- ations and seems inclined to make libel law by providing to the rest of the world a safe haven ble foreign judgment libel debtors.
WATCH CONDOMINIUM. 77, Sept. Term,
No. 1997. Appeals Maryland. Court Nov. Baltimore, Mary Keating, T. for Petitioners. Arthur, Graham, H. F. Kramon Ogburn
Lee and Kevin & P.A., Baltimore, for Respondent. BELL, C.J., ELDRIDGE,
Submitted before RODOWSKY, CHASANOW, WILNER, RAKER and JJ.
ORDER motion to having respondent’s The Court considered the mootness, it is ground dismiss the writ of certiorari on the November, 1997, this 12th day ORDERED, that the Appeals Maryland, the Court of be, denied, hereby, motion to and it is and it is further dismiss disclosure notes against compelled (3) sources, provide well as and information as of a dissemination compelled disclosure was waived data. or of a of the confidential portion source press freedom the policy regarding Maryland public Howard Court by Judge Delaplaine this summarized Comm., 355, 361, v. Public Service Md. Sports Daily (1941), A.2d as follows: printing press, years after the invention many “For