CRITICISM DOES NOT EXTEND TO PERSON
But the privilege of criticism extends only to the actions or works of an individual; it does not extend to the person. In the case of an author, his works may be criticised as severely as the occasion demands. "Every man who publishes a book commits himself to the judgment of the public," says an eminent English judge; but this can not be made the excuse for personal abuse of the author himself.
The author, the artist, the architect, who produces a book, a painting or a building, is in this respect in the same position as the maker or producer of a watch, a piano or a carving-knife.
The thing produced in either case may be "criticised." But if the person who produces it is defamed, this must be defended, if at all, upon some other ground than that it is criticism.
Moreover, to justify such comment on men's actions or on the products of their hands or brains as criticism, it is essential that the acts or things so criticised should have actual existence.
For instance, a newspaper comments with great severity on certain occurrences which it publishes as the official acts of a mayor of its city. Before these strictures can be defended as criticism, it must appear that such official acts really occurred.
Again, newspaper proprietors might well be held liable for publishing a ridiculing criticism of language pretended to be quoted from the book which the critic is reviewing, but which language the author of the book had not actually used.
If the publishers who are defendants in a libel suit are unable to show that the defamatory publication is true or that it is privileged, then the injured plaintiff is entitled to a verdict in some amount. How small this sum shall be will depend upon how good a case the defendants can make out in mitigation of damages. The range of defenses that may be interposed for this purpose is very broad. The following may be enumerated as the most important:
(1) That the general conduct of the plaintiff gave the defendant "probable cause" for believing the charges to be true.
(2) That the complainant's general character is bad.
(3) That the publication was made in heat and passion, provoked by the acts of the plaintiff.
(4) That the charge published had been made orally in the presence of the plaintiff before publication, and he had not denied it.
(5) That the publication was made of a political antagonist in the heat of a political campaign.
(6) That as soon as the defendant discovered that he was in error he published a retraction, correction or apology.
(7) That the defamatory publication had reference not to the plaintiff, but to another person of a similar name, concerning whom the charges were true, and that readers understood this other individual to be meant.