Amendment I (Speech and Press)

Document 32

James Kent, Commentaries 2:12--22

As a part of the right of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection. The Roman law took a just distinction between slander spoken and written; and the same distinction prevails in our law, which considers the slander of a private person by words, in no other light than a civil injury, for which a pecuniary compensation may be obtained. The injury consists in falsely and maliciously charging another with the commission of some public offence, or the breach of some public trust, or with any matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment; or, lastly, with any other matter or thing, by which special injury is sustained. But if the slander be communicated by pictures, or signs, or writing, or printing, it is calculated to have a wider circulation, to make a deeper impression, and to become proportionably more [Volume 5, Page 180] injurious. Expressions which tend to render a man ridiculous, or lower him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken. A libel, as applicable to individuals, has been well defined to be a malicious publication, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt, or ridicule. A malicious intent towards government, magistrates, or individuals, and an injurious or offensive tendency, must concur to constitute the libel. It then becomes a grievance, and the law has accordingly considered it in the light of a public as well as a private injury, and has rendered the party not only liable to a private suit at the instance of the party libelled, but answerable to the state by indictment, as guilty of an offence tending directly to a breach of the public peace.

But though the law be solicitous to protect every man in his fair fame and character, it is equally careful that the liberty of speech, and of the press, should be duly preserved. The liberal communication of sentiment, and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favour, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that "every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and that no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press."

The law of England, even under the Anglo-Saxon line of princes, took severe and exemplary notice of defamation, as an offence against the public peace, and in the time of Henry III., Bracton adopted the language of the Institutes of Justinian, and held slander and libellous writings to be actionable injuries. But the first private suit for slanderous words to be met with in the English law, was in the reign of Edward III., and for the high offence of charging another with a crime which endangered his life. The mischiefs of licensed abuse were felt to be so extensive, and so incompatible with the preservation of peace, that several acts of parliament, known as the statutes de scandalis magnatum, were passed to suppress and punish the propagation of false and malicious slander. They are said to have been declaratory of the common law, and actions of slander were slowly, but gradually multiplied, between the time of Edward III., and the reign of Elizabeth, when they had become frequent. The remedy was applied to a variety of cases; and in a private action of slander for damages, and even in the action of scandalum magnatum, the defendant was allowed to justify, by showing the truth of the fact charged, for if the words were true, it was then a case of damnum absque injuria, according to the just opinion of Paulus, in the civil law. But in the case of a public prosecution for a libel, it became the established principle of the English law, as declared in the Court of Star Chamber, about the beginning of the reign of James I. that the truth of the libel could not be shown by way of justification, because, whether true or false, it was equally dangerous to the public peace. The same doctrine remains in England to this day unshaken; and in the case of The King v. Burdett, it was held, that where a libel imputes to others the commission of a triable crime, the evidence of the truth of it was inadmissible, and that the intention was to be collected from the paper itself, unless explained by the mode of publication, or other circumstances, and that if the contents were likely to produce mischief, the defendant must be presumed to intend that which his act was likely to produce. "The liberty of the press," as one of the judges in that case observed, "cannot impute criminal conduct to others without violating the right of character, and that right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends." Whether the rule of the English law was founded on a just basis, and whether it was applicable to the free press and free institutions in this country, has been a question extensively and laboriously discussed in several cases which have been brought before our American tribunals.

In the case of The People v. Croswell, which came before the Supreme Court of this state in 1804, and was argued at the bar with very great ability, the court were equally divided in opinion on the point, whether, on an indictment for a libel, the defendant was entitled to give in evidence to the jury the truth of the charges contained in the libel. In the Court of Appeals in South Carolina, in 1811, the court unanimously decided, in the case of The State v. Lehre, that by the English common law it was settled, on sound principles of policy derived from the civil law, that the defendant had no right to justify the libel by giving the truth of it in evidence. The court, in the learned and able opinion which was delivered in that case, considered that the law, as then declared, was not only the law of England, but probably the law of all Europe, and of most of the free states of America. The same question has been frequently discussed in Massachusetts. In the case of The Commonwealth v. Chase, in 1808, it was decided, that the publication of a libel maliciously, and with intent to defame, was clearly a public offence, whether the libel be true or not; and the rule was held to be founded on sound principles, indispensable to restrain all tendencies to breaches of the peace, and to private animosity and revenge. The essence of the offence consisted in the malicious intent to defame the reputation of another; and a man may maliciously publish the truth against another with the intent to defame his character, and if the publication be true, the tendency of the publication to inflame the passions, and to excite revenge, is not diminished. But though a defendant, on an indictment for a libel, cannot justify himself for publishing the libel, merely by proving the truth of it, yet he may repel the criminal charge by proving that the publication was for a justifiable purpose, and not malicious; and if the purpose be justifiable, the defendant may give in evidence the truth of the words, when such evidence will tend to negative the malicious intent to defame. The same question was again agitated and discussed before the same court in 1825, in the case of The Commonwealth v. Blanding, and the court strongly enforced [Volume 5, Page 181] the doctrine of the former case, that, as a general rule, the truth of the libel was not admissible in evidence upon the trial of the indictment; and this principle of the common law was declared to be founded in common sense and common justice, and prevailed in the codes of every civilized country. It was further held, that whether in any particular case such evidence be admissible, was to be determined by the court; and, if admissible, then the jury were to determine whether the publication was made with good motives, and for justifiable ends. The same rule, that the truth cannot be admitted in evidence on indictment for a libel, though it may in a civil suit for damages, has been adjudged in Louisiana; and the weight of judicial authority undoubtedly is, that the English common law doctrine of libel is the common law doctrine in this country, in all cases in which it has not been expressly controlled by constitutional or legislative provisions. The decisions in Massachusetts and Louisiana were made notwithstanding the constitution of the one state had declared, that "the liberty of the press ought not to be restrained," and that the other had said, that "every citizen might freely speak, write, and print, on any subject, being responsible for the abuse of that liberty." Those decisions went only to control the malicious abuse or licentiousness of the press, and that is the most effectual way to preserve its freedom in the genuine sense of the constitutional declarations on the subject. Without such a check, the press, in the hands of evil and designing men, would become a most formidable engine, and as mighty for mischief as for good. Since the decision in 1825, the legislature of Massachusetts have interposed, and by an act passed in March, 1827, have allowed the truth to be given in evidence in all prosecutions for libels, but with a proviso that such evidence should not be a justification, unless it should be made satisfactorily to appear upon the trial, that the matter charged as libellous was published with good motives, and for justifiable ends.

The constitutions of several of the United States have made special provision in favour of giving the truth in evidence in public prosecutions for libels. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana, and Illinois, it is declared, that in prosecutions for libels on men in respect to their public official conduct, the truth may be given in evidence, when the matter published was proper for public information. In the constitutions of Mississippi and Missouri, the extension of the right to give the truth in evidence is more at large, and applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege; and an act of the legislature of New-Jersey, in 1799, allowed the same unrestricted privilege. The legislature of Pennsylvania, in 1809, went far beyond their own constitution, and declared by statute, that no person should be indictable for a publication on the official conduct of men in public trust; and that in all actions or criminal prosecutions for a libel, the defendant might plead the truth in justification, or give it in evidence. The decision of the Court of Errors of this state, in Thorn v. Blanchard, carried the toleration of a libellous publication to as great an extent as the Pennsylvania law; for it appeared to be the doctrine of a majority of the court, that where a person petitioned the council of appointment to remove a public officer for corruption in office, public policy would not permit the officer libelled to have any redress by private action, whether the charge was true or false, or the motives of the petitioner innocent or malicious. The English law on the point seems to be founded in a juster policy. Petitions to the king, or to parliament, or to the secretary at war, for the redress of any grievance, are privileged communications, and not actionable libels, provided the privilege be not abused; but if it appear that the communication was made maliciously, and without probable cause, the pretence under which it is made aggravates the case, and an action lies. The constitution of this state, as amended in 1821, is a little varied in its language from those provisions which have been mentioned, and is not quite so latitudinary in its indulgence as some of them. It declares, that "in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury, that the matter charged as libellous, is true, and was published with good motives, and for justifiable ends, the party shall be acquitted." These provisions in favour of giving the truth in evidence, are to be found only in those constitutions which have been promulgated long since our revolution; and the current of opinion seems to have been setting strongly, not only in favour of erecting barriers against any previous restraints upon publications, (and which was all that the earlier sages of the revolution had in view,) but in favour of the policy that would diminish or destroy altogether every obstacle or responsibility in the way of the publication of the truth. The subject is not without its difficulties, and it has been found embarrassing to preserve equally, and in just harmony and proportion, the protection which is due to character, and the protection which ought to be afforded to liberty of speech, and of the press. These rights are frequently brought into dangerous collision, and the tendency of measures in this country has been to relax too far the vigilance with which the common law surrounded and guarded character, while we are animated with a generous anxiety to maintain freedom of discussion. The constitution of this state makes the facts in every possible case a necessary subject of open investigation; and however improper or unfit those facts may be for public information, and however painful or injurious to the individuals concerned, yet it would seem, that they may, in the first instance, be laid bare before the jury. The facts are to go to them, at all events; for the jury are to determine, as it shall appear to them, whether the motives of the libeller were good, and his end justifiable.

The act of Congress of the 14th of July, 1798, made it an indictable offence to libel the government, or Congress, or the President of the United States; and it made it lawful for the defendant, upon the trial, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. This act was, by the terms of it, declaratory, and it was intended to convey the sense of Congress, that in prosecutions of that kind it was the common right of the defendant to give the truth in evidence. So, the case of The People v. Croswell, in this state, was followed by an act of the legislature on the 6th of April, 1805, enacting and declaring, that in every prosecution, [Volume 5, Page 182] for a libel, (and which included public and private prosecutions) it should be lawful for the defendant to give in evidence in his defence the truth of the matter charged; but such evidence was not to be a justification, unless, on the trial, it should be made satisfactorily to appear, that the matter charged as libellous was published with good motives, and for justifiable ends; and this was the whole extent of the doctrine which had been claimed in favour of the press in the case of The People v. Croswell.

There appears to have been some contrariety of opinion in the English books on the point, whether a defendant in a private action upon a libel, could be permitted to justify the charge, by pleading the truth. But the prevailing, and the better opinion is, that the truth may, in all cases, be pleaded by way of justification, in a private action for damages, arising from written or printed defamation, as well as in an action for slanderous words. The ground of the private action, is the injury which the party has sustained, and his consequent right to damages as a recompense for that injury; but if the charge, in its substance and measure, be true in point of fact, the law considers the plaintiff as coming into court without any equitable title to relief. And yet it is easy to be perceived, that in the case of libels upon private character, greater strictness as to allowing the truth in evidence, by way of justification, ought to be observed, than in the case of public prosecutions; for the public have no interest in the detail of private vices and defects, when the individual charged is not a candidate for any public trust; and publications of that kind, are apt to be infected with malice, and to be very injurious to the peace and happiness of families. If the libel was made, in order to expose to the public eye personal defects, or misfortunes, or vices, the proof of the truth of the charge would rather aggravate than lessen the baseness and evil tendency of the publication; and there is much justice and sound policy in the opinion, that in private, as well as public prosecutions for libels, the inquiry should be pointed to the innocence or malice of the publisher's intentions. The truth ought to be admissible in evidence to explain that intent, and not in every instance to justify it. The guilt and the essential ground of action for defamation, consist in the malicious intention; and when the mind is not in fault, no prosecution can be sustained. On the other hand, the truth may be printed and published maliciously, and with an evil intent, and for no good purpose, and when it would be productive only of private misery, and public scandal and disgrace.

The Founders' Constitution
Volume 5, Amendment I (Speech and Press), Document 32
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The University of Chicago Press

Kent, James. Commentaries on American Law. 4 vols. New York, 1826--30.