Criticism must never depart from a consideration of the work of the artist or artisan, or the public acts of a person, to attack the individual himself, apart from his connection with the particular work or act which is being criticised. The critic is forbidden to touch upon the domestic or private life of the individual, or upon such matters concerning the individual as are not of general public interest, at the peril of exceeding his right. Whereas, in Fry vs. Bennett, an article in a newspaper purported to criticise the management of a theatrical troupe, it was held to contain a libel, since it went beyond matters which concerned the public, and branded the conduct of the manager toward his singers as unjust and oppressive.
J. Fenimore Cooper was plaintiff in another suit which illustrates the same rule of law. This author had many a gallant engagement with his critics, and, though it has been said that a man who is his own lawyer has a fool for a client, Mr. Cooper, conducting his own actions, won from many publishers, including Mr. Horace Greeley and Mr. Webb. In Cooper vs. Stone the facts reveal that the author, having completed a voluminous Naval History of the United States, in which he had given the lion’s share of credit for the Battle of Lake Erie, not to the commanding officer, Oliver H. Perry, but to Jesse D. Elliot, who was a subordinate, was attacked by the New York Commercial Advertiser, which imputed to the author “a disregard of justice and propriety as a man,” represented him as infatuated with vanity, mad with passion, and publishing as true, statements and evidence which had been falsified and encomiums which had been retracted. This was held to exceed the limits of fair criticism, since it attacked the character of the author as well as the book itself.
The line, however, is not very finely drawn, as may be seen by a comparison of the above case with Browning vs. Van Rensselaer, in which the plaintiff was the author of a genealogical treatise entitled Americans of Royal Descent. A young woman, who was interested in founding a society to be called the “Order of the Crown,” wrote to the defendant, inviting her to join and recommending to her the book. The latter answered this letter with a polite refusal, saying that she thought such a society was un-American and pretentious, and that the book gave no authority for its statements. The court said that this, even though it implied that the author was at fault, was not a personal attack on his private character.
An intimate relationship almost always exists between the doer of an act which interests the public and the act itself; the architect is closely associated with his building, the painter with his picture, the author with his works, the inventor with his patent, the tradesman with his advertisement, and the singer with his song; and the critic will find it impossible not to encroach to some extent upon the personality of the individual. It seems, however, that the privilege of comment extends to the individual only so far as is necessary to intelligent criticism of his particular work under discussion. To write that Mr. Palet’s latest picture shows that some artists are only fit to paint signs is a comment on the picture, but to write, apart from comment upon the particular work, that Mr. Palet is only fit to paint signs is an attack upon the artist, and if it is untrue, it is libel for which the law allows recovery.
No case presents a more complete confusion of the individual and his work than that of an actor. His physical characteristics, as well as his personality, may always be said to be presented to general public interest along with the words and movements which constitute his acting. The critic can hardly speak of the performance without speaking of the actor himself, who, it may be argued, presents to a certain extent his own bodily and mental characteristics to the judgment of the public, almost as much as do the ossified man and the fat lady of the side show.
The case of Cherry vs. the Des Moines Leader will serve to illustrate how far the critic who is not actuated by malice may comment upon the actors as well as the performance, and still be held to have remained within the limits of fair criticism. The three Cherry sisters were performers in a variety act, which consisted in part of a burlesque on Trilby, and a more serious presentation entitled, The Gypsy’s Warning. The judge stated that in his opinion the evidence showed that the performance was ridiculous. The testimony of Miss Cherry included a statement that one of the songs was a “sort of eulogy on ourselves,” and that the refrain consisted of these words:—
“Cherries ripe and cherries red;
The Cherry Sisters are still ahead.”
She also stated that in The Gypsy’s Warning she had taken the part of a Spaniard or a cavalier, and that she always supposed a Spaniard and a cavalier were one and the same thing. The defendant published the following comment on the performance: “Effie is an old jade of fifty summers, Jessie a frisky filly of forty, and Addie, the flower of the family, a capering monstrosity of thirty-five. Their long, skinny arms, equipped with talons at the extremities, swung mechanically, and anon waved frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre and fox-trot—strange creatures with painted faces and hideous mien.” This was held to be fair criticism and not libelous; for the Misses Cherry to a certain extent presented their personal appearance as a part of their performance.
The critic must not mix with his comment statement of facts which are not true, since the statement of facts is not criticism at all. In Tabbart vs. Tipper, the earliest case on the subject, the defendant, in order to ridicule a book published for children, printed a verse which purported to be an extract from the book, and it was held that this amounted to a false accusation that the author had published something which in fact he had never published; it was not comment, but an untrue statement of fact. So when, as in Davis vs. Shepstone, the critic, in commenting upon the acts of a government official in Zululand, falsely stated that the officer had been guilty of an assault upon a native chief, the critic went far beyond comment, and was liable for defamation. Not unlike Tabbart vs. Tipper is a recent case, Belknap vs. Ball. The defendant, during a political campaign, printed in his newspaper a coarsely executed imitation of the handwriting of a political candidate of the opposing party, and an imitation of his signature appeared beneath. The writing contained this misspelled, unrhetorical sentence: “I don’t propose to go into debate on the tariff differences on wool, quinine, and such, because I ain’t built that way.” Readers were led to believe that this was a signed statement by the candidate, and the newspaper was barred from setting up the plea that the writing was only fair criticism made through the means of a burlesque; it was held that imputing to the plaintiff something he had never written amounted to a false statement of fact, and was not within fair comment.