When once the comment is decided to be upon a matter of public interest, there arises the question whether or not the comment is fair. The requirement of the law in regard to fairness is not based, as might be supposed, upon the consideration whether comment is mild or severe, serious or ridiculing, temperate or exaggerated; the critic is not hampered in the free play of his honest opinions; he is not prohibited from using the most stinging satire, the most extravagant burlesque, or the most lacerating invective.
In 1808, Lord Ellenborough, in Carr vs. Hood, stated the length of leash given to the critic, and the law has not since been changed. Sir John Carr, Knight, was the author of several volumes, entitled A Stranger in France, A Northern Summer, A Stranger in Ireland, and other titles of equal connotation. Thomas Hood was rather more deserving of a lasting place in literature than his victim, because of his sense of humor, and his well-known rapid-fire satire. According to the declaration of Sir John Carr, the plaintiff, Hood had published a book of burlesque in which there was a frontispiece entitled “The Knight leaving Ireland with Regret,” and “containing and representing in the said print, a certain false, scandalous, malicious and defamatory and ridiculous representation of said Sir John in the form of a man of ludicrous and ridiculous appearance holding a pocket handkerchief to his face, and appearing to be weeping,” and also representing “a malicious and ridiculous man of ludicrous and ridiculous appearance following the said Sir John,” and bending under the weight of several books, and carrying a tied-up pocket handkerchief with “Wardrobe” printed thereon, “thereby falsely scandalously and maliciously meaning and intending to represent, for the purpose of rendering the said Sir John ridiculous and exposing him to laughter, ridicule and contempt,” that the books of the said Sir John “were so heavy as to cause a man to bend under the weight thereof, and that his the said Sir John’s wardrobe was very small and capable of being contained in a pocket handkerchief.” And at the end of this declaration Sir John alleged that he was damaged because of the consequent decline in his literary reputation, and, it may be supposed, because thereafter his books did not appear in the list of the “six bestsellers” in the Kingdom.
But no recovery was allowed him, for it was laid down that if a comment, in whatever form, only ridiculed the plaintiff as an author, there was no ground for action. Said the eminent justice, “One writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon for such a purpose.... Perhaps the plaintiff’s works are now unsalable, but is he to be indemnified by receiving a compensation from the person who has opened the eyes of the public to the bad taste and inanity of his compositions?... We must not cramp observations on authors and their works.... The critic does a great service to the public who writes down any vapid or useless publication, such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash. Fair and candid criticism every one has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider an injury, because it is a loss which the party ought to sustain. It is, in short, the loss of fame and profits to which he was never entitled.”
Criticism need not be fair and just, in the sense that it conforms to the judgment of the majority of the public, or the ideas of a judge, or the estimate of a jury; but it must remain within certain bounds circumscribed by the law.
In the first place, comment must be made honestly; in recent cases much more stress has been laid upon this point than formerly. It is urged that, if criticism is not sincere, it is not valuable to the public, and the ground of public policy, upon which the doctrine of fair criticism is built, fails to give support to comment which is born of improper motives or begotten from personal hatred or malice. Yet he who seeks for cases of criticism which have been decided against the critic solely on the ground that the critic was malicious must look far. The requirement in practice seems difficult of application, since, if the critic does not depart from the work that he is criticising, to strike at the author thereof as a private individual, and does not mix with his comment false statements or imputations of bad motives, there is nothing to show legal malice, and it is almost impossible to prove actual malice. If you should conclude that your neighbor’s painting which has been on exhibition is a beautiful marine, but if, because you do not like your neighbor, you pronounce it to be a dreadful mire of blue paint, it would be very hard for any other person to prove that at the moment you spoke you were not speaking honestly. Again, if the comment is within the other restrictions put by the law upon criticism, it would seem that to open the question whether or not the comment was malicious, is in effect very nearly submitting to the jury the question whether or not they disagree with the critic, since the jury have no other method of reaching a conclusion that the critic was or was not impelled by malice.
Malice, in fact, is a bugaboo in the law—and the law, especially the civil law, avoids dealing with him whenever it can. Yet it is quite certain that malice must be a consideration in determining what is fair comment; an opinion which is not honest is of no help to the public in its striving to attain high morals and unerring discernment. All the reasons of public policy that give criticism its rights fly out of the window when malice walks in at the door.
Some decisions of the courts seem to set the standard of fair comment even higher. They not only demand that the critic speak with an honest belief in his opinion, but insist also that a person taking upon himself to criticise must exercise a reasonable degree of judgment. As one English judge expressed it in charging the jury: “You must determine whether any fair man, however exaggerated or obstinate his views, would have said what this criticism has said.” It would seem, however, that in many cases this would result in putting the judgment of the jury against that of the critic. To ask the jury whether this comment is such as would be made by a fair man is not distinguishable from asking them whether the comment is fair, and it sometimes happens that, in spite of the opinion of the jury,—in fact, the opinion of all the world,—the single critic is right, and the rest of the community all wrong. Does any one doubt that the comment of Columbus upon the views of those who opposed him would have been considered unfair by a jury of his time, until this doughty navigator proved his judgment correct? What would have happened in a court of law to the man who first said that those who wrote that the earth was flat were stupidly ignorant? Often the opinion or criticism which is the most valuable to the community as a contribution to truth is the very opinion which the community as a body would call a wild inference by an unfair man; to hold the critic up to the standard of a “fair man” is to deprive the public of the benefit of the most powerful influences against the perpetuity of error.
No better illustration could be found than the case of Merrivale and Wife vs. Carson, in which a dramatic critic said of a play: “The Whip Hand ... gives us nothing but a hash-up of ingredients which have been used ad nauseam, until one rises in protestation against the loving, confiding, fatuous husband with the naughty wife, and her double existence, the good male genius, the limp aristocrat, and the villainous foreigner. And why dramatic authors will insist that in modern society comedies the villain must be a foreigner, and the foreigner must be a villain, is only explicable on the ground that there is more or less romance about such gentry. It is more in consonance with accepted notions that your continental croupier would make a much better fictitious prince, marquis, or count, than would, say, an English billiard-maker or stable lout. And so the Marquis Colonna in The Whip Hand is offered up by the authors upon the altar of tradition, and sacrificed in the usual manner when he gets too troublesome to permit of the reconciliation of husband and wife and lover and maiden, and is proved, also much as usual, to be nothing more than a kicked-out croupier.”
The jury found that this amounted to falsely setting out the drama as adulterous and immoral, and was not the criticism of a fair man. Granting that there was the general imputation of immorality, it seems, justly considered, a matter of the critic’s opinion. Is not the critic in effect saying, “To my mind the play is adulterous; no matter what any one else may think, the play suggests immorality to me”? And if this is the honest opinion of the critic, no matter how much juries may differ from him, it would seem that to stifle this individual expression was against public policy, the very ground on which fair criticism becomes a universal right. It does not very clearly appear that the case of Merrivale and Wife vs. Carson was decided exclusively on the question whether the criticism was that of a fair man, but this was the leading point of the case. The decision and the doctrine it sets forth seem open to much doubt.