PRIVILEGED PUBLICATIONS
There is a certain class of publications concerning official proceedings which, although they be defamatory in character, public policy demands that publishers should be protected in making, entirely regardless of the question whether the defamatory matter be true or false. These are termed "privileged publications" and are defined by law.
The mere fact that a paper is entitled as being in a certain suit or that its contents are sworn to does not necessarily make it a part of any "judicial, legislative or other public and official proceedings." Such proceedings must actually and legally have been instituted before it becomes entitled to the privilege.
An instance would be the publication of libelous statements taken from a complaint or affidavit that had been sworn to in a suit but before the paper had been actually introduced in the trial of the case. Here there would be no privilege.
The same would be true of an affidavit charging crime on a person which had not before the publication of it been presented to and judicially recognized by the committing or police magistrate.
Criticism is also privileged in a limited degree. Nowhere else in the world, not even in England, is so great freedom of legitimate criticism allowed and protected by law as in the United States.
The Constitution of the United States provides: "Congress shall make no law abridging the freedom of speech or of the press."
The Constitution of Michigan provides: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, accused shall be acquitted."
But the right to criticise is general, and belongs quite as much to any other individual as to the newspaper writer, editor or publisher.
The actions of individuals are always legitimate subjects of discussion and criticism.
"In this country," says Judge Smith, of the New Hampshire Supreme Court, "every citizen has the right to call the attention of his fellow-citizens to the maladministration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses or to defeat the re-election or reappointment of an incompetent officer."
"No one can doubt the importance," is the language of Judge Story, "in a free government of the right to canvass the acts of public men and the tendency of public measures—to censure boldly the conduct of rulers and to scrutinize the policy and plans of government."
The language of the English courts is nearly as broad.
"God forbid that you should not be allowed to comment on the conduct of all mankind, providing you do it justly and honorably," says Baron Alderson.
Chief Justice Cockburn said: "It is of vast importance that criticism, so long as it is fair, reasonable and just, should be allowed the utmost latitude, and that the most unsparing censure of works which are fairly subject to it should not be held libelous."