*1 Apr. A. No. 21132. In Bank. [L. 1950.] WERNER, ERWIN P. Appellant, v. SOUTHERN CALI FORNIA ASSOCIATED (a Corpora NEWSPAPERS tion), Respondent. *2 Appellant.
Morris Lavine for Appellant. Ring behalf of William as Amicus Curiae on C. Sidney Myers, H. Wall and ’Melveny Myers, & Louis W. O Respondent. Pierce for Works Calkins, Knox, Harry Price, Hall, L. &
Price, MacDonald White & Conard, Reginald Linforth, Cooper, H. & Linforth Helmer, Hamlyn, Cosgrove, Clayton, George A. John Cooper, Binford, & How- Cosgrove, Binford Diether, & T. B. Cramer & Mac- Hall, Hall, Felix & John Flint Binford, Lawler, ard MeEnemey & MacKay, Jr., Compton, Edward L. Kay, H. S. Amici MeEnerney Stephen Downey, II W. Jacobs, Garret Respondent. Curiae on behalf of dis judgment of from a appeals TRAYNOR, J.Plaintiff failure to upon his libel, entered action of his
missal been sus thereto had a demurrer complaint after his amend that defendant complaint alleged in his Plaintiff tained. had been charges that he false in its published therefor, prison felony sentenced of a convicted been known or should charges was falsity of these charges published the that defendant defendant, and known to him. Defendant’s disgrace, defame injure, with intent did not ground plaintiff sustained on was demurrer Code provisions of Civil complied with he had allege that damage as a result special he suffered or that section 48a* publication in a of a libel for the *“1. In action broadcast, plaintiff shall recover newspaper, slander radio or of a and be special be demanded unless a correction than no more not upon provided. broadcast, serve Plaintiff shall published as hereinafter place publication place at the publisher, or broadcaster at *3 specifying to be broadcast, statements claimed a written notice demanding and Said notice same be corrected. libelous and knowledge publica- days of the after within demand must be served to be libelous. claimed or of the statements tion broadcast period and be not within said be demanded “2. If a correction conspicuous substantially in manner published as a in or broadcast broadcasting newspaper as were the statements station or on said said published libelous, regular broadcast or in issue thereof claimed to be proves pleads service, plaintiff, if and he after such within three weeks correct, notice, if his cause of action and and failure to such demand damages; exemplary general, special maintained, may and recover be provided plaintiff damages may exemplary recovered unless he that no publication prove broadcast made the or that defendant shall jury, or in discretion of the court and then with actual malice publica- presumed or malice shall not be inferred and actual or broadcast. tion substantially published con- in as broadcast “3. A correction broadcasting newspaper station spicuous as the receipt said or on a manner said libelous, prior complaint to as to be statements claimed therefor, of the same force effect shall be demand published though three or broadcast within had been such correction therefor. after a demand weeks damages,’ damages,’ ‘special herein, ‘general the terms “4. As used malice,’ damages’ ‘exemplary as follows: and ‘actual are defined shame, reputation, damages’ “(a) for loss of ‘General feelings; and hurt mortification alleges plaintiff are all “(b) ‘Special damages’ business, trade, property, respect proves profession to his he has suffered money occupation, including as the such amounts of alleged proves expended plaintiff alleges libel, as a result of the he has no . ." other. publication. Plaintiff contends that section 48a is un- constitutional. I,
Article section 9 of the California pro Constitution “Every freely citizen speak, write, publish vides: subjects, being responsible all his sentiments on for the abuse right; passed of that and no law shall be abridge to restrain or liberty speech press. or of the ...” Plaintiff contends person that under this section a who defames another must fully responsible any damage caused thereby, and that the substitution of a retraction for all special damages attempt unconstitutional to relieve and radio responsibility stations from full right for the abuse of the free speech. Defendant contends that the abuse clause of person section 9 not confer on right does defamed a remedy merely specifies of damages, but that the constitutional right speech of free does not automatically carry with it responsibility freedom from recognized for such abuses as were the common law or Legislature. defined agree We with defendant’s contention. To hold otherwise would result freezing the law of defamation itas was when the consti provision originally tutional adopted was in 1849/^' quoted provision duplicate is an almost exact of arti VII, cle section 8 of New York Constitution of 1821. Sub stantially language the same is found in the constitutions of (Chafee, Speech states. Free in the United States, p. 5, 2.) n. remaining states have a shorter guaranty similar the United Constitution, States in which the ’’ exception abuse necessarily has been implied. (See Schenck States, 47, United U.S. S.Ct. L.Ed. In jurisdictions none of provision these has the been construed freezing the law of defamation as of the adoption. date of its Indeed, primary purpose guarantee is to that freedom of speech shall not be except restrained to prevent abuse. -(cid:127)"'Since 1872 the has consistently acted on the principle that it is change free to the law of defamation. Many of the amendments have limited or abolished remedies persons theretofore available to defamed. Thus before *4 year of enactment of section 48a presently as worded, Legislature had extended privilege absolute with respect statements judicial, legislative, and other pro- official ceedings, and qualified privilege with respect reports proceedings (Code of such Amendments 1873-1874, p. 184); it had qualified extended the privileges of section 47 of the Civil Code to fair and reports true public meetings (Stats.
125
original version of section
168); it had enacted the
1895, p.
liability
publication
limiting
newspapers,
when
48a
through misinformation and mis
made without malice
was
(See
published.
demanded and
take, and a retraction was
Com.,
273,
183
279
Francisco v. Industrial Acc.
Cal.
San
early
recognized
26].)
power
As
as 1886 this court
[191 P.
privileges
Legislature to extend absolute
and thus abol
of the
(Hollis
all remedies for defamation
certain situations.
ish
625,
Am.Rep.
58
Meux,
248,
v.
69 Cal.
629
P.
[11
574].)
Moreover,
applicable
the courts
invoked the
code
have
sections
rights
parties
to determine the
without in
amended
way intimating
Legislature
powerless
was
to re
remedies available at common law
duce the
for defamation.
(Harris
Zanone,
59,
845];
Rawles,
v.
93 Cal.
70
P.
Ball v.
[28
222,
937, Am.St.Rep. 174];
93 Cal.
236
P.
27
Gosewisch
[28
Doran,
511,
656,
v.
161 Cal.
513-514
1913D
P.
Ann.Cas.
[119
Baptist
;
Church,
Brewer v. Second
law, permissible legislative object.” (Silver attain v. Silver, 117, 122 ; Langdon U.S. S.Ct. 74 L.Ed. [50 221] Sayre, Cal.App.2d P.2d
''There are at least Legislature two bases on which the could reasonably provisions conclude that the retraction of section provide general 48a damages reasonable substitute for for actions defamation newspapers and radio stations, namely, danger of general excessive recoveries damages in libel public and the actions interest the free dissemina- tion of^rews.
General are allowed for reputation, “loss of shame, feelings” (Civ. mortification and hurt Code, 48a), § injuries but the extent of such difficult is to determine. At conclusively common law it was presumed dam- ‘‘ ages resulted from publication aof libel. The practical result is jury may that the award not nominal damages, compensation substantial sums supposed harm to plaintiff’s reputation, any proof without that it has in fact occurred.” (Prosser, Torts, §92, p. 797.) Legislature reasonably could recovery conclude that without proof injury constitutes evil. Legislature may that the attack
It is settled the evils by abolishing litigation of unfounded causes action al abolishing civil together. Thus statutes actions for alienation affection, conversation, seduction and criminal breach of marry upheld. (Langdon generally have been promise 57]; see, P.2d anno. 158 Sayre, Cal.App.2d A.L.R. legislation purpose cit 617, and cases such ed.) York the New as follows: “The been stated provided law for the enforcement heretofore remedies upon [alleged] affections, alienation of crimi actions based conversation, marry, seduction and breach of contract to nal subjected grave causing annoy having abuses, been extreme ance, embarrassment, pecuniary damage humiliation and wholly many persons wrongdoing, innocent and free of merely circumstances, the victims of and such reme who were having unscrupulous persons dies been exercised for their unjust enrichment, having and such remedies furnished vehi attempted cles the commission or commission of crime many having perpetration resulted in cases hereby frauds, policy it is declared as the public the state people the best interests of the of the state will be served (Civil Act, the abolition of such remedies.” Practice seq.) Similarly dangers 61-a et it has been held that the §§ justify negligence legislative actions based on of unfounded not un actions. “We are certain classes of such abolition of litigation pas in which increasing frequency of aware of automobiles, guests gratuitously in often casual sengers carried injuries recovery large sums for licensees, sought negligent operation. . . . Whether alleged due to have been vexatious liti there has been a serious increase in the evils of carriage by auto gation eases, in this class of where the found, mobile, legislative and, determination *6 legislative restricting further well be the basis of action (Silver liability. Its wisdom is not the concern of courts.” 221]; Silver, 117, 57, 122-123 74 L.Ed. U.S. S.Ct. see cited.) anno., 111 A.L.R. and cases also, imposing liability danger when involved the of cases /These appli- wrong. principles The same are no had been there liability no imposing excessive when danger of cable to Moreover, the common proved. damages have been actual ample libel, prece- there is slander, as distinct law of recovery special damages are denying unless dent for grossly words, no matter how other slanderous proved. “All they may defamatory be, which cannot fitted insulting or arbitrary [imputation above of categories listed into the affecting plaintiff in disease or crime or a loathsome serious office], actionable trade, profession or business, his it damage—special in the sense that ‘special’ upon proof of from the specific proof, as distinct supported must be libel or the damage presumed to follow in the case of ‘general’ already Torts, (Prosser, considered.” kinds of slander § between libel and slander Although this distinction p. 805.) historical acci- as irrational result of been attacked law has remained it stands is dent, reason that the “one dispute in which it as to the direction that there is violent libel Assuming between that distinction should move. abandoned, thing without reason and slander is basis on proposals been made as to the at least four quoted might [only the first two are two be united which the : here] damage as cases, proof of actual require, “1. To all suggestion, This a cause of action. essential to the existence of un- publishers. course, popular one with has been away the abuse doubtedly with the serious evil of would do weapon extortion; the action of defamation as a dam- objection proof of actual open important age impossible many where, cases from the character defamatory of the words and the publica circumstances of . " tion, it is almost certain that it must have occurred “2. defamation, To make all oral or written, actionable proof damage. without This, in substance, present is the law Louisiana, where it seems to be administered without difficulty. Opposed undue argument is the obvious defamatory much language, particularly in the case hasty spoken words, is trivial, harmless, unworthy redress; that the opportunities for vastly extortion would be increased; and that in the interest of freedom speech some safety-valve must open expression be left for the of unflatter- ing (Prosser, views.” Torts, 92, pp. 808-809.) § In view conflicting liability rules presented by the law of recognition defamation itself and the in other Legislature situations that the abolish causes of action prevent litigation, say unfounded we cannot Legislature reasonably could not danger conclude that the excessive general damages recoveries of justi in libel actions fied recovery limitation of special damages when a retrac tion has not been demanded and refused. exception
Nor can we take
upon
to the second basis
justify
recovery
which the
could
its limitation of
tQ
damages, namely, the
special
public interest
in the free
In
complex
of news.
view of
far-flung
dissemination
*7
upon
newspapers
activities of the news
which
services
rely
largely
necessity
publish
radio
must
and the
of
stations
ing
new, newspapers
may
it is
news while
and radio stations
publicize
falsity
in
faith
items that are untrue but whose
they
opportunity
time nor
have neither the
to ascertain.
may reasonably
public
conclude that
outweighs
possible
interest
the dissemination
news
injury
publication
plaintiff
libel,
may
to a
from the
of a
encourage
properly
protect
by
news dissemination
reliev
ing
and radio
newspapers
special damages
stations from all but
resulting
defamation, upon
publication
of a retra
Co.,
117,
See Allen v. Pioneer Press
40 Minn.
120 [41
ction.
936,
attempt to public (Lincoln Fed. agreed welfare.” they as offensive to Co., 525, 335 536-537 Northwestern I. & M. U.S. Union v. L. 473].) 6 A.L.R.2d 251, 212, L.Ed. S.Ct. [69 evil contrary, respondents see no to “Despite evidence agree are legislation. We asked to to be corrected arbitrary and unreasonable. call the statute respondents and with through plea to its essential “Looking the form of this invalidity argument recognize it an basis, fail to we cannot desirability disagrees with because this Court say when we legislation. rehearse the obvious We to equipped We not function is thus misconceived. are our desirability; a court cannot eliminate measures decide if it to maintain a happen suit tastes seeks which do system. The forum for the correction of ill-considered democratic legislature.” (Daniel legislation responsive is a Co., Ins. Family 220, 550, U.S. S.Ct. Secur. L. 945].) 632,10 L.Ed. A.L.R.2d legislature responsiveness reflects the alertness legislation in a climate of electorate, ill-considered may to the
indifference continue such a climate flourish.in dismay may citizens numbers small. interested whose be impatiently courts, however, turn If these few then dispelling lethargy, abandoning the hard task of improve legislation, for if courts accomplish nothing judgment upon set their as to is wise are called what they may summarily popular judgment put end may foolish but also to certain laws certain laws that may may wise, particularly to laws that be wise although they appear run foolish the moment. long at dealing problems “Most with economic and social laws appears trial actual operation. matters trial and error. That which before operation. demonstrably prophesy bad belie to be may prove prove good, but it innocuous. wanting trial, if a is found on it is better But even law should be demonstrated and removed than that the its defects by judicial fiat. should be Such an assertion law aborted responsibility judicial power deflects those on whom ’ ’ society ultimately (Mr. people. in a rests-the democratic concurring Frankfurter Justice A.F.L. American Sash 258, Co., & D. U.S. S.Ct. 93 L.Ed. A.L.R.2d 481].) A.L.R.2d equal
Plaintiff then contends that section 48a violates the *9 131 Constitution sec- protection clause United States granting in tion 25 article IV the Constitution of of California others, privileges newspapers denied to radio stations plaintiffs hy thus or depriving newspapers defamed radio enjoyed by rights defamed others. plaintiffs stations provisions recently County These were reconsidered Angeles Los v. Southern 32 Co., Cal. Tel. Cal.2d 378 [196 773], quoting People P.2d where the from v. court said “ Growers, Western Fruit 22 494 13], Cal.2d P.2d ‘Prob- [140 lems of classification under the California Constitution thus equal similar to presented those the protection federal of the laws clause of the 14th Amendment. either Under provision, necessarily production inequality mere which results to degree every some persons regu- selection for place lation does not classification within constitutional prohibition. The inequality produced, discrimination or order to conflict with provisions, the constitutional must be “actually palpably arbitrary,” unreasonable and or the legislative determination to what is a sufficient distinction to warrant will classification not be overthrown. [Cita- legislative When a questioned, is tions.] classification state of reasonably facts can be conceived that would sustain it, is a there presumption facts, of existence of that state of and the arbitrary burden of showing upon action rests ” one who assails (22 the classification.’ Cal.2d 494, 506.) (32 378, Cal.2d 390.)
A classification reasonable, however, only if there are differences between the classes and the differences are reasonably purposes related to the (Account of the statute. ing Corp. v. Bd. State Accountancy, 186, 34 Cal.2d 984], P.2d cited; Broek, cases see Tussman and ten [208 Equal Laws, Protection 341, 346.) Cal.L.Rev. principle “As a my matter of and in view of attitude toward equal protection clause, I do think differences treat approved ment under law should be on classification because legislative unrelated purpose. equal differences to the protection clause equality ceases to protection assure either by any if it is avoided conceivable difference can be pointed out between those bound and left free. This those Court has principle often announced the differentia tion must an appropriate object relation to legislation See, Mayflower ordinance. example, Farms Ten Eyck, 457, 675]; 80 L.Ed. U.S. S.Ct. [56 Cahoon, 582,
Smith
Certainly a statute cannot Ry. v. (Missouri, & Texas Co. Kansas class without reason. ; cf., 48 638, L.Ed. 267, 269 S.Ct. May, 971] 194 U.S. [24 231], 380 P.2d Payne, 29 Cal.2d Canning v. Mar Co. [175 Del Commission, 29 Cal.2d v. Fish & Game Ferrante with reasonably conclude Legislature could 222].) The P.2d [175 newspapers and radio stations against suits that defamation example danger it conspicuous the most constituted sought equal protec prohibited It is not preclude. (Goe it most. where is felt striking the evil tion clause 198, 93 S.Ct. L.Ed. 464, Cleary, 335 U.S. [69 saert York, U.S. Agency 106, 110 Railway v. New Express 163]; analogous considering an 463, L.Ed. S.Ct. [69 533].) In right' to limiting the recover legislation involving situation Supreme Court States negligence the United regu requirement that a constitutional there no said, “. . is . every class reach must permissible, lation, respects in other legislature must held might applied—that to which none. all or regulating [Citations.] choice of rigidly transportation highway universal day of almost In this multi- originating in the say abuses we car, motor cannot plicity growing gratuitous carriage pas suits out of sengers present conspicuous in automobiles do not an ex so ample legislature may regard evil, what as to justify legislation it, though at even aimed some abuses enough not be hit. It is present that the statute [Citations.] strikes at the evil where it is felt and reaches the class cases (Silver frequently where it Silver, occurs.” most 117, 57, Similarly U.S. S.Ct. 74 L.Ed. 123-124 say case, in this cannot could not reasonably conclude that because of the business engaged in, newspapers and radio stations are fre the most objects quent danger defamation actions and that the greatest excessive in actions them is because reputed ability of their pay. See, Morris, Inadvertent Newspaper Libel and Retraction, cf., 43; Ill.L.Rev. Moore, Packard v. 9 Cal.2d 578-580 P.2d 922], dis cussing rule inadmissibility of evidence that defendant personal injury insured in actions.)
Moreover, balancing danger of recoveries of ex general damages against cessive leaving plaintiffs with no remedy injury Legis effective to their reputations, lature could properly take into consideration the fact that widely retraction newspaper circulated station or radio greater would have effectiveness than an indi retraction vidual and could thus class and radio stations apart. “Now, as far as vindication of character or reputation concerned, it stands to full reason that a and frank re *11 charge, traction the especially published widely false if as substantially to the same readers as libel, was the is usu ally in fact complete a more judgment redress than a for damages.” (Allen v. Pioneer Co., Minn. 117, Press 936, Am.St.Rep. N.W. 707, 3 L.R.A. . . ex 532].) ". culpation eyes the of the world is accomplished not quiet entry judgment of a musty on the of a court. rolls judgment must be publicized, if read those who have the adjudged libel are to falsity. know of its com Unless the munity interested, is both small and so that news of the judgment spread throughout verbally, plaintiff’s it the depends upon vindication mercy press. the of the The van quished may defendant not judgment. mention the Even his competitors—if any—may keep he has silent, of fear of out advertising weapon may against be used when them they boggle.” next (Morris, Newspaper Inadvertent Libel Retraction, 36, Ill.L.Rev. 38.) Legislature for pur can make a classification the statute, group classified, to not to the
pose applying Michigan group. pro everyone except that Thus a statute acting they bartenders unless are as hibits females upholding daughters In of male owners of bars. the wives or bartending Supreme said, Court “Since statute the give legislative judgment, rise may, in allowable women the may problems which it devise moral social to legislature go length the full measures, the need preventive group that as to a defined prohibition it believes operating which either eliminate females other factors problems calling social otherwise the moral and reduce evidently Michigan oversight believes that prohibition. ownership through of a bar a barmaid’s husband assured hazards that confront barmaid or father minimizes oversight. certainly protecting This court is without such Michigan legis position gainsay to not in a such belief Michigan entertainable, is, If we think it lature. it is equal duty protection to afford laws. not violated its its actually argumentatively cross-examine either We cannot legislators Michigan question mind nor their motives. the line have drawn is not without a basis in rea Since give son, suggestion impulse to real we cannot ear legislation was an unchivalrous desire of male behind this monopolize try calling.” (Goesaert to bartenders Cleary, 335 U.S. 466-467 S.Ct. 93 L.Ed. protection equal require clause did not Thus Michigan bartending, all women or none from to exclude compelling group for one for exclusion were not so reasons Similarly, Legislature case, in this could as for others. general damages substituting a retraction for stop short of reasonably cases, that in those all because it could conclude more provide it did a retraction would be a cases where so substitute than those eases statute does effective reach. equal be sustained under the
section 48a also encourage protection theory purpose on the that its clause protection Although of news. it extends the dissemination may deliberately maliciously disseminate those who that was reasonably could conclude libels, necessary go effectively protect who in so far those inadvertently defamatory publish faith and without malice *12 equal pro argument denies that the statute statements. substantially goes far of the because it too tection laws argument process akin to the that it due clause violates the equally and specious. legislation heart- abolishing suits, protect example, designed, balm for to those who was not deliberately spouse maliciously alienated the affection of one but to not be another, insure that innocent defendants will suedi''/Again, guest designed protect statutes were not to negligent drivers but will to insure that innocent drivers subjected not be to with possibility the hazards of a trial many an erroneous conclusion on the facts. There are examples in the law of defamation in which the defendant’s mind, state of intent, negligence his or his is immaterial question liability. privilege exempli- Thus, absolute fies the belief that in public some case the interest in freedom expression outweighs may harm be done persons Torts, 823; (See, Prosser, §94, p. defamed. Civ. Code, §47(1), (2), (4),.(5).) because exists, “The rule not ought persons malicious conduct of action- such to be able, because, actionable, their conduct were actions brought against would they be them in in cases which had spoken falsely maliciously; pre- and it is not a desire vent being brought they ought actions from where cases to maintained, be otherwise, but the fear that if the rule were numerous brought against persons actions would were be who acting honestly duty. discharge urged, be course, that a statement, untrue, false and known to be dictated malice, always subject should be the a civil remedy. But this stating question bald method of assumes both the untruth and process the malice. If demon- stration, free judgment, the defects of human the un- truth beyond and malice question could be set above and all of doubt, might ground there contending be that the law give damages injured should person. to an But is not this things the state question which under of law has to be untrue, determined. Whether statements were fact always whether by malice, are, were dictated will be, open upon differ, questions, opinions may which judgment. can be resolved human exercise question And grounds the real proper is whether it is on public policy questions judgment remit of a such jury. against doing simple The reasons obvious. so are participant judicial proceedings may utterly A free yet from malice, eyes jury open of a imputation; jury imputa- or he be cleared *13 yet to and
tion, expense and encounter the distress litigation. possibilities harassing hanging of a With such speak that head, expected his he cannot to with free over ’’ justice of open mind which the administration demands. and Immunity Defamation, 9 (Veeder, Absolute in Columb.L.Rev. 463, 469-470.) regarded
Conversely, primary when interest being plaintiff reputation, liability in that of the his strict imposed. (See, Torts, p. 816, and Prosser, 93, has been cases § liability cited.) imposition fault, of without even in This damage g., appears (see, where doubtful e. cases actual Hul [1909], 44, [1910], ton & Co. Jones K.B. aff’d A.C. 20), grounds “Any forcefully been defended on at distinguish by between tempt the law to the motives of those defame would make the rules too intricate who others and many possibilities (Paton, too provide of and escape” Reform English 669, 670), Defamation, Law Ill.L.Rev. of liability effectively necessary impose to strict it is to discourage (See, negligent Morris, intentional libels. Newspaper Retraction, Inadvertent Libel and Ill.L.Rev. 832].) 36, 45; cf., Marley, In re 29 Cal.2d P.2d privilege in of and strict Thus cases both absolute liabil importance protecting one or another ity the interest justify immunity the broadest has been considered sufficient immunity liability liability. insure the desired This weigh importance the relative position court is in a and even it conflicting involved, interests if were should ‘‘ responsibility fulfill attempt Courts can their to do so. society only the extent that succeed in a democratic standards, shaping judgments rational and ra in their and communicable. impersonal are both Mat tional standards however, policy, definition matters which ters of demand value, conflicts the elements con the resolution of flicting largely imponderable. Assessment of their values are feelings; involves differences of it is also competing worth Obviously the forum prophecy. proper an exercise feelings mediating rendering prophetic judg clash body purposes people. those is the chosen for ment disregard Court be assumed Its function can (Mr. Justice the historic limits the Constitution.” D. concurring Co., A.F.L. American Sash & Frankfurter, 222, S.Ct. 93 L.Ed. A.L.R.2d 335 U.S. 557 [69 say balancing the interests of defamed cannot /We public in the plaintiffs the interests of the dissemina- dangers gen- tion news or the avoidance of the excessive damages, eral reached an unconstitutional com- promise enacting section 48a. judgment is affirmed.
Gibson, J., Shenk, J., Edmonds, J., J., Spence, C. concurred.
CARTER, J.I dissent. writings Prom the world’s wisest men we have great assurance “that a is rather name chosen than riches,” XXII-.1; Proverbs my woman,
“Good name in man and dear lord, *14 jewel souls; Is the immediate of their my purse trash; something, Who steals steals ’tis nothing; mine, his, ’tis ’Twas and has to thousands; been slave my good But he that filches from me name, me Robs of that which not him, enriches poor And makes me indeed.” (Shakespeare. Othello, Act III, 3) Sc. my
But the thief can be forced to return purse and its pay contents, expenses by all incurred me in pursuit it, though apologizes he profusely, and even he can be sent committing prison for the theft. a newspaper Whereas may wilfully maliciously radio station and my repu- defame up tation, contempt, me hatred, hold obloquy, ridicule and cause me to be shunned avoided, and and then a mere re- may traction which not be seen or heard of more than one per cent of those who read or defamation, heard of the escape out-of-pocket with the of such payment loss as I be able prove jury, to the satisfaction of a guilty but all others of such defamation be held exemplary, liable for as well special damages. and This the effect of the majority holding say agree this case. To I can not sophistry gross challenge with such is a understatement. I standpoint soundness authority. of both reason and my There is no doubt mind but the statute here (Civ. 48a) Code, involved is unconstitutional in that it tra- § equal protection both the process verses and due clauses of the Fourteenth Amendment to the Constitution of the United States. Criminals California are treated with uni- more formity equality and than an plaintiff innocent who has been defamed. criminal a law distinction draws between guilty through a crime committed who has been defendant guilty of a committed has been crime negligence one who draws Although the above-mentioned section malice. with class, members of the same very distinction between definite arbitrary one, does an unreasonable and my mind and to guilty between those of uninten- draw distinction not guilty negligent and those of wilful defamation tional but defamation. and malicious Constitution classification under California
Problems of equal protection the federal those presented are similar to Fourteenth Amendment. Under clause of the of the law production inequality mere provision, the either every persons degree in necessarily results some selection place not the classification within regulation does inequality prohibition. discrimination or constitutional provi- to conflict the constitutional produced, in order with “actually palpably and arbi- sions, imreasonable must be trary.” (People Growers, Fruit Western Cal.2d legislation question P.2d I submit that arbitrary wholly unreasonable actual, palpable, makes an singled Newspapers and radio classification. broadcasts are given privilege out for extension of which is sky- magazine publishers, individuals, periodicals, or other writers, trucks, banner-bearing dirigibles, and bill- sound picture boards, probably television and motion producers. plaintiffs picture, maligned On the side and de- other rights given privileges famed others are those at plaintiffs extended to who have suffered the hands news- papers or radio. *15 the why majority hold that there are two the classi-
The reasons fication made the section is a reasonable one. first newspapers be those reasons is that and radio stations must damages. Assuming protected against verdicts for excessive any danger for the asserted of exces- there basis awards just why against damages, protected those two should sive be damages magazines, pic- excessive more than motion the industry, mentioned, or the others above is far from ture equally carry designed All able to clear. are insurance give protection. such
Moreover, legal assump- there is no factual or for the basis damages against will tion that excessive awards of be made stations in or radio actions defamation character individuals who claim to or have been libeled by publications or assertion slandered broadcasts.
139 majority opinion juries disposed are to make excessive damages against newspapers awards of radio stations unjust upon actions this character is not reflection jury system, factually historically our but is untrue. jury system
While
it
opponents,
still has its
cannot be
system
firmly
system
denied that this
is so
embedded in our
of jurisprudence that
could not survive
it.
the latter
without
It is
promulgation
nevertheless true that ever
since the
Magna
year
Charta
present
1215 to the
time there have
system.
been
destroy
jury
those who would
These re-
actionary
decry
pleased
minds
what
to refer to as the
evils of the
system,
Thus,
extol none
virtues.
of its
tendency of juries to
damages
award
to those who have suf-
injury
fered
wrong
wilful,
as the result of the
malicious
negligent
acts of others is
opponents
condemned
these
jury system
as an evil which should be abated. But
should
reactionary
injected
system
philosophy
into our
of jurisprudence by permitting its use as a basis for the classi-
fication of
question
tort feasors? The answer to this
should
every unprejudiced
be obvious to
jury system
mind.
If the
it
remain as
centuries,
stood for over seven
then
just
newspaper
should be
as
for the
or radio tort feasor
any other,
tendency
and its
damages,
to award
whether
large or small, should
not made the basis of a classification
special
privileges upon
confers
certain
tort feasors
injured
History
detriment
those
or defamed
them.
conclusively disproves
majority opinion
assertion
against
excessive awards of
have been rendered
newspapers and radio
in libel and
stations
slander actions.
Of
against newspapers
(there
libel cases
are none
stations)
radio
which have come before this court and
appellate
courts
this state which I
been
able to
reported during
find
state’s
I
history,
entire
find that
judgments
plaintiff
judgments
were affirmed. These
(1871),
$7,500;
are as
Wilson v. Fitch
follows:
41 Cal.
v.
Pr. &
(1893),
Edwards
San Jose
Pub. Soc.
Cal.
[34
128, Am.St.Rep. 70],
specified;
P.
amount
McClatchy (1896),
$500;
241],
Gilman
Tingley v. Times-Mirror
[89
154
79
P.
(1908),
Cal.
$7,500;
Record Pub. Co.
[97
Ervin v.
damages
specified;
622], amount of
21, 18 L.R.A.N.S.
293], $1,750;
587
Hayes (1918), 177 Cal.
P.
Lewis v.
[171
P.
303
(1918), 178 Cal.
Fernando Pub. Co.
[173
Waite v. San
Co., (1919), 181 Cal.
591], $3,000; Scott v. Times-Mirror
Newby
1007], $37,500;
v. Times-Mirror
672, 12 A.L.R.
P.
[184
$7,500; Earl v.
1008],
P.
(1920),
Cal.App.
Co.
[188
57], $25,000;
P.
(1921),
Times-Mirror Co.
185 Cal.
[196
371], $1,000;
P.
(1923),
The
in the
second so-called reason
equal
legislation
travesty
the
prove
not a
on
that this
is
classification,
protection clause, but is a
is that
reasonable
re-
newspapers must be
to disseminate news. There is a
free
might
applied
hold
possibility
mote
this reason
water
that
hardly
newspaper libel
it can
be called
to inadvertent
good
problem
the
of
In
reason where
is one malicious libel.
majority (Morris,
article
the
Inadvertent
an
cited
News-
pointed
paper
Retraction,
36),
32 Ill.L.Rev.
it
Libel
out
(Alabama,
Kansas,
in at
Indiana,
that
least 10 states
Massa-
chusetts, Michigan, Minnesota,
Carolina,
Dakota,
North
North
Ohio, and Wisconsin),
purport.to
severity
lessen the
statutes
of the
newspaper
common law cases in which inadvertent
apply
published
libel is retracted. All of the statutes
to libel
leaving
rigors
“in
faith,”
the
of the
law
common
intact
points
for the malicious libeler. He
out that “The statutes
groups.
can be classified into
In
group
legis-
two
the first
the
provided
plaintiff
only
latures
that
recover
actual
shall
dam-
ages, but
damages.’
did not define ‘actual
have
Courts
inter-
preted
non-punitive damages
these statutes to mean that
shall
recovered—with
result
that
law
common
is not
changed.
In
legislatures
the second group
statutes,
of
clearly
they
indicated that
intended to eliminate
dam-
general
ages.
In
jurisdictions,
these
either the statutes have been
unconstitutional,
held
scope
operation
or the
of the statute
has been so
trifling,
limited that
if any, change is effected.
‘‘
significance
The
legislation
aim,
is its
not its accom-
plishment
. . . The statutes all suffer from a common defect.
legislature attempted
recovery
Bach
general
to eliminate the
damages. Why
I
legislators
?
impressed
submit that the
were
with the exculpatory
recognized
retraction;
effect of
futility
attempting
plaintiff
judg-
vindicate the
retraction,
folly
ment after
money
taking
from
further
purpose. They
that
then reasoned
general damages
that since
operate
exculpate
plaintiff
publisher
when the
retracted,
plaintiff
has not
since
no
exculpation
has
need of
after retraction which can be
money
served
judgment, general damages should not
publisher
be allowed when the
retracted. The error
reasoning
general
in the
damages
lies
are needed
fact
purposes other than exculpation.
gen-
The assessment
admonitory
eral
problem,
solves
does not
dam-
So the abolition
disappear
retraction.
with
func-
ground
exculpatory
on
ages
justified
not
’’ [Emphasis
served
their retention.
tion cannot be
added.]
certainly discriminatory
legislation
here involved is
members
a class to the detriment
certain
protects
proof
special
means
requirement
of others.
legal responsibility for both inadvertent
virtual abolition
very
a plain-
rare
and malicious libel.
It is
situation where
special damage
prove
he has suffered
tiff can trace
newspaper
spoken
in a
over
printed
matter
libelous
may
not
he
him. This does mean that
not
radio about
mean
hear of
does
that he
never
sharply—but it
suffered
which would have been
had
opportunities
his
business
appeared
plate.
on
name
who
his
Those
“libelous stain”
read the retraction
if he
the libel
loses
read
*18
opportunities which would
professional
business or
otherwise
(although
them,
he does not know of
cannot
have been his
or
pecuniary
them),
loss as
he
com-
prove his actual
to
should be
damage
probable
he has
and that
pensated for
suffered
Surely
suffer in the future.
which he will
Mr. Morris is
says
tendency
flamboyance
that “The
right when he
toward
journalism
than
in modern
should be
and haste
cheeked rather
public
interest
cannot
countenanced.”
news
outweigh
every
protection
which
en-
person
be said to
given
reputation
the law to
to
have his
remain
titled
negligence.
through malice or
holding
unsmirched
Under the
ease,
malign any
freely
in this
radio
only special damages
liable for
person and be
plaintiff
if the
retraction,
receives a
asks for and
if he does
ask for one.
will in effect allow these two favored
publication
This
means of
instances,
free,
scot
escape,
plaintiff
in most
since
will
special
prove
pecuniary
the exact
be able
loss he
suffered.
In Osborn v. S.E. 66 L.R.A. [47 type of statute was held 648], the same not to unconstitu process damages as denial due law since tional a “actual” punitive damages. include save were held to all Mr. Justice concurring, Douglas, felt that the statute was unconstitutional equal protection a denial of the law. He as said:“...I my say that, opinion, constrained libel feel so-called unconstitutional, inasmuch act discriminates between ordinary newspaper of a and the If I the editor citizen. editor, libeling most, a letter an that 10 perhaps, write at see, charges me people may printing and he libels identical pains subject to I am 10,000 see, people me that operation penalties exempted which he is may have, I do not the act statute. Whatever other merits under the that such can be sustained think discrimination explicit provision ...” of our Constitution N.W. Co., 72 Mich.
In Park v. Detroit Free Press
[40
held unconsti
599],
as ours
L.R.A.
a statute such
was
court
law, and the
process
tutional as a
of due
violation
property and
person’s reputation
species
said
a
a
that
was
remedy only
him with a
retraction statute which left
leaving him with no
special damages
prove
when he could
was
impossible
were
remedy
special
effective
inasmuch as
reached
proof
majority
in the
The same result was
of cases.
1041, 104
Krehbiel,
in Hanson v.
Even for slander was frozen in that a cause of action libel or freely (“Every speak, write, our Constitution citizen being publish subjects, responsible his on all sentiments right; 9]), I I, for abuse of that ...” maintain § [Art. injured by person that the such libel or slander has a cause process him guaranteed action the due clause of both (Cal. Const., I, 13, Constitutions. art. and the Fourteenth § States-.) Amendment the Constitution the United If Legislature replevin causes should abolish of action of (trover) leaving me thus for conversion remediless my car, being deprived loss of I would consider that I was my property process law, without due and I consider reputation right property a valuable can- the loss which giving fully from an not be taken individual without him a adequate legal remedy so that compensated, he so far possible, for loss as he has suffered and which he will wrong suffer from done him. Legislature (pushed by that the
may We now assume powerful groups play such a shameful pressure securing adoption special privilege important part in well having succeeded so with initial efforts legislation), constitutional), may well next (present held decide statute be abol- that of action libel slander shall all causes connection, point “guest” me out ished. In this let action for alienation of affections and and causes of statutes marry, etc., are not illustrations of promise breach abolish a cause of action power injury. guest does not to ride a car intangible guest, incapable is an attribute and affection beginning country possession. From the of time in this “commodity” marriage is a has been understood entirely men An different cannot be forced on and women. person presented where an innocent factual situation maliciously, irrep- suffers defamed, negligently or either professional, occupational business injury his arable
145
by the
be done
The least that can
because of it.
reputation
money
form of
reparation
guilty
is to make such
one
maligned
to live until such
one
damages as will enable the
reputation.
may again
up
build
his
time as he
a trade-name are
held that a trade-mark and
This court
through
the owner
worthy
because
them
protection
reputation/’
preserves
and
a “favorable
possessor creates
distinguish it from
product,
of a
and to
stimulate
sale
(Sun-Maid
competing
Raisin
products.
similar
Growers
Injury
630].)
to the
Mosesian,
Cal.App.
84
485
P.
[258
injury
standing
reputation
a business becomes an
and
good
infringement upon a
business,
will of the
injury
good
trade-mark
will of the
which results in
rom,
Cal.App.
enjoined.
(Hall
Holst
106
business
668].)
subject
P.
563
Words which are the
[289
they designate,
will
are entitled
reputation
of a business
protection
to the same
that afforded to one who has the
prior right
symbol,
character or
trade-mark,
words
which
meaning
have no common
are artificial.
(Eastern Columbia,
Waldman, 30
268
P.2d
Inc. v.
Cal.2d
[181
;
Cal.App.2d
v. Cahill,
;
Barnes
780
P.2d
865]
[133
433]
Hoyt Heater Co. v.
Hoyt,
Cal.App.2d
;
P.2d
[157
657]
Mau,
599];
Jackman v.
Cal.App.2d
P.2d
Weather
[177
v. Eytchison,
1040].)
“There is
constitutional
subject
private reputation
more
to be removed
legal protection
life, liberty,
prop
from full
than
statute
rights
erty.
necessary
society
is one of those
to human
(Park
the whole
that underlie
social scheme of civilization.”
Co.,
v. Detroit Free Press
When a it has a cause of action arises in Even where there species property. chose action—it is a of assault, legal damages, is no measure of as case of slander injured party right compensation the has an indeterminate jury injury. the instant he receives the The verdict they only judgment give, the of the court thereon do not injured define, right. vested, the is the right, Such when party, protected, property of as property, the nature of is tangible things, protected. cannot be annulled or is changed by extinguished legislation, except satisfac- nor tion, operation of limitation. release or the of statutes (1 Damages, 7, p. 26.) on Sutherland § being holding unconstitutional,
In a similar statute as process provision violation of the due Fourteenth the Supreme Constitution, Amendment to the Court federal writings men of Kansas said: “From the of the world’s wisest rather to be we have assurance 'that a name is thing great possessor chosen that riches.’ Yet of this entirely greatest value, being without despoiled it, is léft remedy question, except for in such its loss the statute rare as be exact financial cases he shall able to show some Krehbiel, injury (Hanson particulars named.” 1041, 1042, Am.St.Rep. 422, Kan. 670 P. 64 L.R.A. Independence From the time of the Declaration of rights people country of this have declared that unalienable “life, liberty, happiness.” Both Con- pursuit (California States) stitutions declare that no United person deprived rights shall without due be of these process instances, preserve life, of law. In in most order to necessary they may is men for provide for to work that themselves and their member court can families. No of this deny good reputation something highly prized a to be deny and cherished. member that one’s No of this court can reputation great position has a deal to do with one holds— public whether office, profession, business, it be an occu- pation, his position community, or the social one holds in his country. state, or his under The section of the Civil Code pub- a retraction evidently considers here consideration inestimable, uncountable compensation fair is a lished capable and radio stations are damage labeled, teacher person. A causing to an innocent school may not communist, negligently maliciously, either may opportunity lose advance- position, she an lose her doctor, dentist, A attor- will not be aware. ment of which she actress, singer, office, actor, busi- public candidate for ney, cli- opportunities, these lose or woman—all of nessman business, defama- patients, positions, and because ents, not, in the course opportunities These lost will tion. He come the attention the loser. has suffered events, pay. injured person which the defamer should a loss for compensated by a retraction which read or defamatory heard We heard all who read or words. expression among heard our contemporaries have all used much smoke there must fire.” “where there is so some expression days has survived from the Since Greek *22 philosophers (Euphues Euphoebus, reprint, and his Arber’s 1579) present, until the it would a fair assumption seem go right saying believing court, people will on and it. This holding depriving injured constitutional, statute is the property right. person of a As in the case was said Hanson : is (supra) suggested, “It re- however, that the retraction by quired published compensation the be for act to is a fair injury done, the and a of the libeled one with reinvestment being done, name. his This all has been accomplished by jury, would be a verdict aof and hence that the retraction by required legislative the if is, enactment not ‘due course ’ law, ample of an for easy substitute it. It is not an to task satisfactory either deduce from reason or a the authorities definition of land’ or ‘law of the ‘due course of feel law.’ We safe, however, saying standpoint, from either terms these Legislature may do not mean passed act that have give does opportunity such act to one to be heard before being deprived having property, liberty, reputation, of deprived of been either opportunity does afford a like showing the give adequate extent of his injury, an rem- edy to recover therefor. Whatever these mean terms this, they orderly more than do mean procedure due and courts in the ascertainment of for end injury, injured remedy’—that is, proper one ‘shall have adequate remedy—thus ascertained. be To refuse hearing remedy for injury after its infliction is small penalty hearing.” remove from infliction of before and without following majority opinion statement deserves “Moreover, danger recov- balancing comment: some general damages against leaving plaintiffs eries of excessive remedy injury reputations, for to their no effective with properly consideration fact Legislature could take into widely newspaper circulated a or radio that a retraction greater than a an effectiveness retraction station would newspapers class and radio stations and could thus individual argument clearly concisely This is answered apart.” (University Melbourne, Patón Austra- W. Professor G-. English and the Law lia) in his article “Reform of Defama- 669). (33 Ill.L.Rev. Professor Patón states that the tion,” grant security person’s exists to a certain to a law of torts integrity security good, and, if that reputation, physical damages. invaded, power press to award great individual destroy reputation of an is so that strict says necessary a balance. He that “It is rules are to secure speculative litigants there are whose one desire is to true that recompense slight: fancied reap golden some that some- reputation lose, dam- person, with no real recovers times reputation: very ages the view that he had a occasion- based on ally name it has newspaper has suffered because a fictitious admitted, life. chosen fits someone in real All this is great power press corollary the modern a strict at responsibility reputation those who lie sense mercy Utopian it is consider that and, their such attitude mind can be induced save the severest sanctions Viability justifiable by must law, strict effect. professional privilege newspaper that a has no remembered [Emphasis reputation to traffic in the of others.” added.] quoted just article is be found The last statement prior in libel cases decided in this state *23 legislation here considered. It should to the enactment of the imposing liability upon be rather than stricter noted that great power the newspapers and radio stations because of carelessly possess others, either or reputation to ruin the liability! maliciously, provides the for a lesser To illus- section futility retraction, newspaper trate utter of a or radio the public consider case of candidate for officewho has been a days publicly falsely a few before election of and accused crimes, being person a of low having committed several requests and He a retraction character of dishonest nature. given which, permits, election, if time before the permit, He time does not after the election. is not elected. him prove cannot that the libel caused to lose the election He although he and are certain it was cause. his advisors the election because untrue he lost too, that Consider, and widely published about him that was defamatory matter maliciously very purpose. been done may- this have possibility a favorable it,of too, that because Consider, very remote. this candi- any election is Is outcome future no restitution from the one office to have public date for says majority opinion “No.” I do wrong? The of the guilty agree. position court not in a is majority state “This The conflicting in- importance relative interests weigh the attempt if it were it should not to do volved, even so.” assuredly this duty court to scrutinize care- most in order to determine whether it un- fully any legislation discriminatory. people right have the reasonable possess courage members of this court will expect that the any necessary legis- unconstitutional integrity declare rights people as set forth which contravenes the lation equal protection both process clauses of Con- due guar- This invoke these constitutional court should stitutions. rights wronged by protect who antees to of those legislation be servile to and should not interest or such regardless power it wields. influence quotes majority opinion dissenting opinion from a writ- Holmes the late Justice Oliver Wendell in the case of ten Missouri, Baldwin v. U.S. S.Ct. L.Ed. tendency speaks of 1056], give in which he the court process provision of emphasis to the due the Fourteenth over striking legislation. Mr. Amendment down Justice Holmes special conferring not there concerned with statute was upon particular group such we privilege here, have a taxation matter. I no doubt was concerned with great Holmes, courage, liberal minded with his Mr. Justice speak foresight, would be the first to out wisdom legislation this character in order that it special privilege process might down as violative of both due struck equal protection clauses of the Fourteenth Amendment to the of the United Constitution States. pressure groups
I and their have hereinbefore referred to upon legislation By this reference obvious effect state. *24 I do slightest not mean to upon cast the reflection the members of the California Legislature, past present. my Both son and I have served as body, members of I this am a position that, considering great variety know and the importance tremendous problems presented, the time available for their solution, pressure consideration and and the exerted groups seeking different special privilege legisla- tion, the Legislature members of the render a commendable public service and are entitled confidence, respect commendation of people of this state. But I am not so I naive that do not realize may yield to some of the pressure exerted, and with particular legis- reference to the lation here under consideration, pressure may that that been of powerful a most unlikely nature. It is that the prohibition constitutional against legislation this was con- Legislature sidered body and that that concluded that this was a matter for the just courts to determine. It is probable Legislature that the argu- was not favored with the ments against here advanced legislation on constitutional grounds adopting before it. I strongly Since feel so that this statute process violates the due equal protection of law and provisions of both our state and federal Constitutions, I would violating my solemn support oath to both of these Constitu- if I my tions did not cast vote as a member of this court to strike it down—and I this have done.
I would, therefore, judgment. reverse the SCHAUER, J., Dissenting. respect It is privi- lege as to deliberately false and publications malicious by news- papers that this dissent is directed. I think that there is a substantial between, difference on the hand, inadvertently
one and, false defamation on the other hand, a defamation which is known to be false which is wilfully maliciously published. difference, That it seems me, legally significant assumes importance when we examine questions constitutional which are subject raised legislation. agree I large Traynor’s measure with Justice discussion of the principles constitutional involved but I do agree principles those protection extend to publication defamatory matter which is known to be false deliberately and which is maliciously uttered. Traynor Justice says, “There are at least two bases on which the reasonably could conclude that provisions retraction of section provide 48a a reasonable sub- defamation general damages in actions for stitute for danger of excessive stations, namely, newspapers and radio public and the in libel actions recoveries of news.” in the free dissemination interest mali- in relation to two bases Considering the above stated *25 defama- deliberately known-to-be-false ciously uttered and The vanishes. tions, completely I think that their substance danger “the of excessive recoveries is first asserted base the policy in But general damages libel actions.” does believe, there consider, permit or court to that the state general damages” in danger any is “excessive recoveries knowingly false, deliberate libel actions are based on which Why provide for publications? and does the law malicious punitive damages, against where the mat- defamers, other deliberately, wilfully mali- ter and and is known to be false is policy the as is ciously published? If state has such suggested 1, why provide libel for base No. does it that in all against broadcasting newspaper eases a or radio other than 48a), in company (under Code, specified the conditions Civ. § knowledge wilfulness ob- malice, where the conditions of and tain, punitive damages may that be assessed? majority opinion “the
Base No. 2 is in to be stated the surely public interest in the free dissemination of news.” But license, unlimited, know- wilfully, limited whether to ingly defamatory maliciously and false and matter does utter not free dissemination of public serve “the interest by en- news”; rather does tend to defeat that interest it to couraging matter known be the malicious dissemination of false. majority position, contended,
It is that defense of the legislation the malicious can be sustained “not because persons ought actionable, because, conduct of such not be brought actionable, if their conduct were actions would be spoken falsely they them in in which had cases not maliciously question and . whether it . And the real is is . grounds questions to proper public on remit policy to such judgment jury.” example a in the text as The cited quoted by immunity given majority opinion partici- is pants judicial proceeding. argument persua- a is regular judicial me. participants proceed- sive to The most ings judges. Judges public officers, respon- are of courts are they sible people; while sued for libel or arising they judicial acts, slander as are not self- out or self-constituted, subject selected and to election recall. people no power newspaper such over publishers who, completely conceivably, irresponsible. can be Likewise, participants (than judicial as to other judges) proceedings, there is a fundamental difference between their relationship public governmental to such proceeding relationship publisher private enterprise; of a his too, so very is there basic a court, difference between which is government, institution of newspaper, pri- and a is enterprise. (And devoutly vate hoped is destroyed.) difference shall never be
Furthermore, I think that section 9, I, article of our Cali- fornia significance Constitution entitled to more in its application than majority. here is accorded it provides “Every may freely speak, write, citizen publish subjects, his on being responsible sentiments all right; abuse of no passed law shall be restrain abridge liberty speech press.” or of the I think that “being responsible right” the clause for the abuse of that rather negative significance. has affirmative than mere I responsibility think that right for abuse of the a funda- part concept mental speech press. of our of freedom of *26 part a the definition very liberty forms of the which is guaranteed. responsiblity Unless there is for abuse of the right right then “liberty”; such becomes more a than it The becomes license. malicious and deliberate publication of false, that which known to be for purpose is uttered the sole injuring subject, not, my is estimation, within the guaranteed by freedom the Constitution. Eather such a is publication an right” “abuse of that liberty to which the does extend. protect
The courts have been most zealous to freedom speech against and press prior restraint. There is no ac- cepted principle of suggests constitutional law which they should be so zealous subsequent respon- to absolve from sibility for liberty. very a clear abuse of the Indeed, rule prior bespeaks strictness restraints need of subsequent responsibility for abuses. assume, notwithstanding provisions
Even we of sec- I, responsibility tion article relative to for abuse Legislature completely that the right, could abolish cause libel, assumption for such action does not save statute Legislature The action; here. abolished a cause has right” has it neither undertaken to define an “abuse of that subject If publisher responsible. for which the be damages only exemption general statute had extended the by framing But it would be far easier to defend. statute general liability exempt punitive both for the most pernicious newspaper put, abuse to which a it seems Legislature really special what the done is create privilege arbitrarily special The privi- for selected class. exemption' lege liability general punitive for libel, merely whether deliberate and malicious or inadvertent, requested unless a retraction is and refused. retraction, published, may if demanded and be followed immediately by By express a new defamation. terms of exemption statute extends the to include the deliberate publication malicious of known falsehoods. Since the privilege deliberately is extended to false and pub- malicious is, effect, lications it a license to defame. privilege Such to, or license is extended to, newspapers and radio broadcasting companies. metropolitan daily and the weekly rural privilege; United States News and Report, World Magazine, Esquire, Time Fortune, etc., do not. What reasonable basis giving is there for the “newspaper,” daily whether or weekly, such deliberately license to and mali- ciously withholding defame while magazines license from every Why type magazines should and publications gen- erally, other than and radio broadcasting com- panies, subject punitive general as well as damages for publications malicious special while the class exempt? Assuming that there is a reasonable basis for the classification insofar as inadvertent concerned, libel is I find none for such classification in relation special privilege deliberately defame. beginning At the of this I pointed discussion out that the
majority opinion declares proposition that “There are at least two bases on which the reasonably could conclude that the provisions retraction of section 48a provide reasonable substitute in actions for against newspapers defamation and radio stations, namely, *27 danger of excessive general recoveries damages in libel public actions and interest in the free 'disRP.Tni-nat.irvn ’’ news. It has been shown that both of those bases disappear applied when deliberately false and publications. malicious And there is a still more fatal inadequacy in the majority position. part fundamental proposition of their is that
“Legislature reasonably could conclude that the retraction provisions provide . . . a reasonable substitute for against newspapers for defamation actions ignores proposition completely radio stations.” That damages. element of punitive The statute relieves benefi- its liability punitive general damages. ciaries from for well as What provided punitive damages reasonable substitute is for ? Certainly not provision. compliance the retraction In full with the it, law and shielded the publisher could follow every retraction with a reiteration of the a still more same or policy calumnious defamation. There is sound behind the law provides which exemplary damages for in certain cases. (“ guilty here defendant been oppression, fraud [W] plaintiff, or malice . . . the in addition to the actual dam- ages, may example by way recover for the sake of ’’ punishing (Civ. the defendant. Code, 3294.) If law this § good generally exempt- what reasonable for basis is there ing “newspapers and radio stations” in relation to their deliberately publications? false and malicious
I reiterate respect licensing, effect, that it is deliberately publications false malicious that this dis- sent I great body is directed. cannot repu- think table broadcasting companies and radio which country serve our people stoop and our well would ever so practices the vicious permit. the statute But would nothing prevent entering there is persons vicious from publishing taking advantage business and from full of the upheld. law as it reputable publishers themselves long in the run practices suffer more from the nefarious permits which the encourages law and which it than defending would a few the unfounded libel actions charge falsity malice. majority opinion judgment
Since the affirms the on the theory every that section 48a appli- is valid its element and cation I do not discuss whether I in- what believe to be the portions valid applications of the statute could be deleted upheld. and the remainder Likewise, purposes for the dissent, accept I implications majority that affirm- judgment depends ance of sustaining on the statute entirety.
For judgment. the reasons above I stated would reverse Appellant’s petition rehearing May was denied 1950. Carter, J., Schauer, J., rehearing. voted