I
A recent prosecution by the People of New York, represented by Mr. Jerome, of a suit for criminal libel, attracted the attention of the entire nation. The alleged libel set forth in the complaint had appeared in Collier’s Weekly, stating the connection of a certain judge with a certain unwholesome publication. The defense to this action was that the statement was true; and, somewhat to the joy of all concerned, excepting the judge, the unwholesome publication, and those who were exposed in the course of trial as being its creatures, the jury were obliged to find that this defense was sound.[[9]] From a lawyer’s point of view it was surprising to find that even professional critics and editorial writers looked upon this case as involving that part of the Common Law which prescribes the limits of criticism. It only needs to be pointed out that the statement relied upon as defamation was a statement of fact, to show that the case against the Collier editors involved no question of a critic’s right to criticise or an editor’s right to express his opinion. If the suit had been founded on the criticism of the contents of the unwholesome publication which had been offered to the public for those to read who would, then the law of fair comment would have controlled. No doubt, however, even the trained guides to the public taste seldom realize the presence of a law governing their freedom of comment. Such law is in force none the less, and, though the instinct to express only fair and honest opinion will generally suffice to prevent a breach of legal limits, it is evident that the consideration of the law upon the subject is important, not only to the professional critic, but to any man who has enough opinion on matters of public interest to be worth an expression.
[9]. The verdict for Collier’s Weekly, the defendant, was rendered on January 26, 1906. Cf. Collier’s Weekly, February 10, 1906, vol. 36, p. 23.—Ed.
It is public policy that the free expression of opinion on matters of public interest should be as little hampered as possible. Fair comment, says the law, is the preventive of affectation and folly, the educator of the public taste and ethics, and the incentive to progress in the arts. Often fair comment is spoken of as privileged. But privilege in its legal sense means that some statement is allowed to some particular person on some particular occasion—a statement that would be libel or slander unless it came within the realm of privilege. On the other hand, fair comment is not the right of any particular person or class, or the privilege of any particular occasion; it is not exclusively the right of the press or of one who is a critic in the sense that he is an expert. Doubtless the newspaper or professional critic is given a greater latitude by juries, who share the prevalent and not ill-advised view that opinion expressed by the public press is usually more sound than private comment. The law, however, recognizes no such distinction. Any one may be a critic.
In civil actions of defamation, truth in a general way is always a defense; whether the person against whom the suit is brought has made a statement of fact or opinion, if he can prove his words to be true, he is safe from liability. Such was the defense of the Collier editors in the criminal case mentioned above. Fair comment, however, does not need to be true to be defended, for it is, if we may use the phrase, its own defense. Then what is fair comment?
The right to comment is confined to matters which are of interest to the public. To endeavor to give a list of matters answering this requirement would be an endless task; even the courts of England and this country have passed upon only a few. Instances when the attention, judgment, and taste of the public are called upon are, however, most frequent in the fields of politics and of the arts. Such are the acts of those entrusted with functions of government, the direction of public institutions and possibly church matters, published books, pictures which have been exhibited, architecture, theatres, concerts, and public entertainments. Two reasons prohibit comment upon that which has not become the affair of the public nor has been offered to the attention of the public:—the public is not benefited by the criticism of that which it does not know, and about which it has no concern, and the act of the doer or the work of the artist against which the comment is directed cannot be said to have been submitted to open criticism.
The requirement, which seems right in principle, and which has been laid down many times in the remarks of English judges, was perhaps overlooked in Battersby vs. Collier, a New York case. Colonel Battersby, it appeared, was a veteran of the Civil War, and for six years had been engaged in painting a picture representing the dramatic meeting of General Lee and General Grant, at which Colonel Battersby was present. This painting was intended for exhibition at the Columbian Exposition. Unfortunately, a few days before Christmas, a young woman of a literary turn of mind had an opportunity to view this immense canvas, and was less favorably impressed with the painting than with the pathos surrounding its inception and development. Accordingly she wrote a story headed by that handiest of handy titles, The Colonel’s Christmas, but she did not sufficiently conceal the identity of her principal character. Colonel Battersby sued the publishers, and for damages relied upon the aspersions cast upon his picture, which in the story was called a “daub.” More than that, there occurred in the narrative these words: “What matters it if the Colonel’s ideas of color, light, and shade were a trifle hazy, if his perspective was a something extraordinary, his ‘breadth’ and ‘treatment’ and ‘tone’ truly marvelous, the Surrender was a great, vast picture, and it was the Colonel’s life.” The court held that this was a fair criticism; but it does not plainly appear that Colonel Battersby had yet submitted his six-year painting to the attention of the public, or that it had at the time become an object of general public interest; and if it had not, the decision would seem doubtful in principle.
On the other hand, in Gott vs. Pulsifer there was involved the “Cardiff Giant,” which all remember as the merriest of practical jokes in rock, which made Harvard scientists rub their eyes and called forth from one Yale professor a magazine article to prove that the man of stone was the god Baal brought to New York State by the Phœnicians. The court said that all manner of abuse might be heaped on the Giant’s adamant head. “Anything made subject of public exhibition,” said they, “is open to fair and reasonable comment, no matter how severe.” So you might with impunity call the Cardiff Giant, or Barnum’s famous long-haired horse, a hoax; they were objects of general public interest, and any one might have passed judgment upon them.
Letters written to a newspaper may be criticised most severely, as often happens when Constant Reader enters into a warfare of communication with Old Subscriber; and so long as the contention is free from actionable personalities, and remains within the bounds of fair comment, neither will find himself in trouble. Nor is the commercial advertisement immune from caustic comment, if the comment is sincere. The rhymes in the street cars, the posters on the fences, the handbill that is thrust over the domestic threshold, and the signboard, that has now become a factor in every rural sunset or urban sunrise, must bear the comment upon their taste, their efficiency, and their ingenuity, which by their very nature they invite. In England a writer was sued by the maker of a commodity for travelers advertised as the “Bag of Bags.” The writer thought the commercial catch-name was silly, vulgar, and ill-conceived, and he said so. The manufacturer in court urged that the comment injured his trade; but the judges were inclined to think that an advertisement appealing to the public was subject to the public opinion and its fair expression. What is of interest to the general public, so that comment thereon will be a right of the public, may, however, in certain cases trouble the jury. A volume of love sonnets printed and circulated privately, and the architecture of a person’s private dwelling, might furnish very delicate cases.
In a time when those who desire to be conspicuous succeed so well in becoming so, it is rather amusing to wonder just what may be the difference between the right to comment on the dancer on the stage, and on the lady who, if she has her way, will sit in a box. Both court public notice—the dancer by her penciled eyebrows, her tinted cheeks, her jewelry, her gown, and her grace; the lady in the box, perhaps, by all these things except the last; both wish favorable comment, and perhaps ought to bear ridicule, if their cheeks are too tinted, their eyebrows too penciled, their jewelry too generous, and their gowns too ornate. A more sober view, however, will show that the matter is one of proof. The dancer who exhibits herself and her dance for a consideration necessarily invites expressions of opinion, but it would be difficult to show in a court of law that the gala lady in the box meant to seek either commendation—or disapproval.
A vastly more important and interesting query, and one which must arise from the present state and tendency of industrial conditions, is whether the acts of men in commercial activity may ever become so prominent, and so far-reaching in their effect, that it can well be said that they compel a universal public interest, and that public comment is impliedly invited by reason of their conspicuous and semi-public nature. It may be said that at no time have private industries become of such startling interest to the community at large as at present in the United States. At least a few have had an effect more vital to citizens, perhaps, than the activities of some classes of public officials which are open to fair comment, and certainly more vital than the management of some semi-public institutions, which also are open to honest criticism.
As to corporations, it would seem that, as the public, through the chartering power of legislation, gives them a right to exist and act, an argument that the public retains the right to comment upon their management must have some force; in the case of other forms of commercial activity, whose powers are inherent and not delegated, the question must rest on the determination of the best public policy—a determination which in all classes of cases decides, and ought to decide, the right of fair comment.