Werner v. Southern California Associated Newpapers , 35 Cal. 2d 121 ( 1950 )

TRAYNOR, J.

Plaintiff appeals from a judgment of dismissal of his action for libel, entered upon his failure to amend his complaint after a demurrer thereto had been sustained. Plaintiff alleged in his complaint that defendant published in its newspapers false charges that he had been convicted of a felony and sentenced to prison therefor, that the falsity of these charges was known or should have been known to defendant, and that defendant published the charges with intent to injure, disgrace, and defame him. Defendant’s demurrer was sustained on the ground that plaintiff did not allege that he had complied with the provisions of Civil Code section 48a^* or that he suffered special damage as a result of the publication. Plaintiff contends that section 48a is unconstitutional.

Article I, section 9 of the California Constitution 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. ...” Plaintiff contends that under this section a person who defames another must be fully responsible for any damage caused thereby, and that the substitution of a retraction for all but special damages is an unconstitutional attempt to relieve newspapers and radio stations from full responsibility for the abuse of the right of free speech. Defendant contends that the abuse clause of section 9 does not confer on a person defamed a right to the remedy of damages, but merely specifies that the constitutional right of free speech does not automatically carry with it freedom from responsibility for such abuses as were recognized by the common law or defined by the Legislature. We agree with defendant’s contention. To hold otherwise would result in freezing the law of defamation as it was when the constitutional provision was originally adopted in 1849/^'

The quoted provision is an almost exact duplicate of article VII, section 8 of the New York Constitution of 1821. Substantially the same language is found in the constitutions of 43 states. (Chafee, Free Speech in the United States, p. 5, n. 2.) The remaining states have a shorter guaranty similar to that in the United States Constitution, in which the 11 abuse ’ ’ exception has been necessarily implied. (See Schenck v. United States, 249 U.S. 47, 52 [39 S.Ct. 247, 63 L.Ed. 470].) In none of these jurisdictions has the provision been construed as freezing the law of defamation as of the date of its adoption. Indeed, its primary purpose is to guarantee that freedom of speech shall not be restrained except to prevent abuse.

-•"'Since 1872 the Legislature has consistently acted on the principle that it is free to change the law of defamation. Many of the amendments have limited or abolished remedies theretofore available to persons defamed. Thus before 1945, the year of enactment of section 48a as presently worded, the Legislature had extended the absolute privilege with respect to statements in judicial, legislative, and other official proceedings, and the qualified privilege with respect to reports of such proceedings (Code Amendments 1873-1874, p. 184); it had extended the qualified privileges of section 47 of the Civil Code to fair and true reports of public meetings (Stats. 1895, p. 168); it had enacted the original version of section 48a limiting the liability of newspapers, when the publication was made without malice through misinformation and mistake, and a retraction was demanded and published. (See San Francisco v. Industrial Acc. Com., 183 Cal. 273, 279 [191 P. 26].) As early as 1886 this court recognized the power of the Legislature to extend absolute privileges and thus abolish all remedies for defamation in certain situations. (Hollis v. Meux, 69 Cal. 625, 629 [11 P. 248, 58 Am.Rep. 574].) Moreover, the courts have invoked the applicable code sections as amended to determine the rights of the parties without in any way intimating that the Legislature was powerless to reduce the remedies available at common law for defamation. (Harris v. Zanone, 93 Cal. 59, 70 [28 P. 845]; Ball v. Rawles, 93 Cal. 222, 236 [28 P. 937, 27 Am.St.Rep. 174]; Gosewisch v. Doran, 161 Cal. 511, 513-514 [119 P. 656, Ann.Cas. 1913D 442]; Brewer v. Second Baptist Church, 32 Cal.2d 791, 799 [197 P.2d 713]; Behrendt v. Times-Mirror Co., 30 Cal.App.2d 77, 88 [85 P.2d 949]; Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 349, 353 [121 P.2d 761].) Given the view that the Legislature has taken of its own powers with regard to the law of defamation and the courts’ acceptance of that view, it is clear that the abuse clause of the Constitution was intended, not to guaranty a remedy to those injured, but only to make clear that the right of free speech does not guaranty immunity from liability to those who abuse it. (See County of Los Angeles v. Southern Cal. Tel. Co., 32 Cal.2d 378, 392 [196 P.2d 773].) Accordingly, section 48a of the Civil Code is not rendered invalid by section 9 of article I of the California Constitution.

It is also clear that section 48a is not invalid under the due process clause of the United States Constitution. “Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals. (See Delaney v. Lowery, 25 Cal.2d 561, 568 [154 P.2d 674].) It may create new rights or provide that rights which have previously existed shall no longer arise, and it has full power to regulate and circumscribe the methods and means of enjoying those rights, so long as there is no interference with constitutional guaranties.” (Modern Barber Col. v. California Emp. Stab. Com., 31 Cal.2d 720, 726 [192 P.2d 916].) “. . . the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.” (Silver v. Silver, 280 U.S. 117, 122 [50 S.Ct. 57, 74 L.Ed. 221]; Langdon v. Sayre, 74 Cal.App.2d 41 [168 P.2d 57].)

''There are at least two bases on which the Legislature could reasonably conclude that the retraction provisions of section 48a provide a reasonable substitute for general damages in actions for defamation against newspapers and radio stations, namely, the danger of excessive recoveries of general damages in libel actions and the public interest in the free dissemination of^rews.

General damages are allowed for “loss of reputation, shame, mortification and hurt feelings” (Civ. Code, § 48a), but the extent of such injuries is difficult to determine. At common law it was conclusively presumed that general damages resulted from the publication of a libel. ‘ ‘ The practical result is that the jury may award not only nominal damages, but substantial sums in compensation of the supposed harm to the plaintiff’s reputation, without any proof that it has in fact occurred.” (Prosser, Torts, §92, p. 797.) The Legislature could reasonably conclude that recovery of damages without proof of injury constitutes an evil.

It is settled that the Legislature may attack the evils of unfounded litigation by abolishing causes of action altogether. Thus statutes abolishing civil actions for alienation of affection, criminal conversation, seduction and breach of promise to marry have generally been upheld. (Langdon v. Sayre, 74 Cal.App.2d 41 [168 P.2d 57]; see, anno. 158 A.L.R. 617, and cases cited.) The purpose of such legislation has been stated by the New York Legislature as follows: “The remedies heretofore provided by law for the enforcement of actions based upon [alleged] alienation of affections, criminal conversation, seduction and breach of contract to marry, having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by the abolition of such remedies.” (Civil Practice Act, §§ 61-a et seq.) Similarly it has been held that the dangers of unfounded actions based on negligence justify legislative abolition of certain classes of such actions. “We are not unaware of the increasing frequency of litigation in which passengers carried gratuitously in automobiles, often casual guests or licensees, have sought the recovery of large sums for injuries alleged to have been due to negligent operation. . . . Whether there has been a serious increase in the evils of vexatious litigation in this class of eases, where the carriage is by automobile, is for legislative determination and, if found, may well be the basis of legislative action further restricting the liability. Its wisdom is not the concern of courts.” (Silver v. Silver, 280 U.S. 117, 122-123 [50 S.Ct. 57, 74 L.Ed. 221]; see also, anno., 111 A.L.R. 1011, and cases cited.)

/These cases involved the danger of imposing liability when there had been no wrong. The same principles are applicable to the danger of imposing excessive liability when no actual damages have been proved. Moreover, in the common law of slander, as distinct from libel, there is ample precedent for denying any recovery unless special damages are proved. “All other slanderous words, no matter how grossly insulting or defamatory they may be, which cannot be fitted into the arbitrary categories listed above [imputation of a serious crime or a loathsome disease or affecting plaintiff in his business, trade, profession or office], are actionable only upon proof of ‘special’ damage—special in the sense that it must be supported by specific proof, as distinct from the ‘general’ damage presumed to follow in the case of libel or the kinds of slander already considered.” (Prosser, Torts, § 92, p. 805.) Although this distinction between libel and slander has been attacked as the irrational result of historical accident, “one reason that the law has remained as it stands is that there is violent dispute as to the direction in which it should move. Assuming that the distinction between libel and slander is a thing without reason and to be abandoned, at least four proposals have been made as to the basis on which the two might be united [only the first two are quoted here] :

“1. To require, in all cases, proof of actual damage as essential to the existence of a cause of action. This suggestion, of course, has been a popular one with publishers. It undoubtedly would do away with the serious evil of the abuse of the action of defamation as a weapon of extortion; but it is open to the important objection that proof of actual damage is impossible in many cases where, from the character of the defamatory words and the circumstances of publication, it is almost certain that it must have occurred."

“2. To make all defamation, oral or written, actionable without proof of damage. This, in substance, is the present law of Louisiana, where it seems to be administered without undue difficulty. Opposed to this is the obvious argument that much defamatory language, particularly in the case of hasty spoken words, is trivial, harmless, and unworthy of redress; that the opportunities for extortion would be vastly increased; and that in the interest of freedom of speech some safety-valve must be left open for the expression of unflattering views.” (Prosser, Torts, § 92, pp. 808-809.)

In view of the conflicting rules of liability presented by the law of defamation itself and the recognition in other situations that the Legislature may abolish causes of action to prevent unfounded litigation, we cannot say that the Legislature could not reasonably conclude that the danger of excessive recoveries of general damages in libel actions justified limitation of recovery to special damages when a retraction has not been demanded and refused.

Nor can we take exception to the second basis upon which the Legislature could justify its limitation of recovery tQ special damages, namely, the public interest in the free dissemination of news. In view of the complex and far-flung activities of the news services upon which newspapers and radio stations must largely rely and the necessity of publishing news while it is new, newspapers and radio stations may in good faith publicize items that are untrue but whose falsity they have neither the time nor the opportunity to ascertain. The Legislature may reasonably conclude that the public interest in the dissemination of news outweighs the possible injury to a plaintiff from the publication of a libel, and may properly encourage and protect news dissemination by relieving newspapers and radio stations from all but special damages resulting from defamation, upon the publication of a retraction. See Allen v. Pioneer Press Co., 40 Minn. 117, 120 [41 N.W. 936, 12 Am.St.Rep. 707, 3 L.R.A. 532]; Hall, Preserving Liberty of the Press by the Defense of Privilege in Libel Actions, 26 Cal.L.Rev. 226.) Plaintiff contends, however, that no public interest is served by the publication of false news and that it is desirable to enforce full responsibility as a deterrent to careless or malicious publication. He contends that the statute was enacted, not to encourage dissemination of news or to lessen the evils of excessive recoveries, but to grant newspapers and radio stations special privileges.

Certainly there are forceful arguments in favor of the policy plaintiff advocates. (See Morris, Inadvertent Newspaper Libel and, Retraction, 32 Ill.L.Rev. 36, 45; Paton, Reform and the English Law of Defamation, 33 Ill.L.Rev. 669.) It is for the Legislature, however, to choose between conflicting policies, and this court may not presume that in reaching its decision it acted upon improper motives. “. . . a judiciary must judge by results, not by the varied factors which may have determined legislators’ votes. We cannot undertake a search for motive in testing constitutionality.” (Daniel v. Family Secur. L. Ins. Co., 336 U.S. 220, 224 [69 S.Ct. 550, 93 L.Ed. 632, 10 A.L.R.2d 945]; Goesaert v. Cleary, 335 U.S. 464, 466-467 [69 S.Ct. 198, 93 L.Ed. 163].)

This court cannot invoke the due process clause to invalidate a legislative policy that it may deem unwise without exercising judicial censorship directed not at the constitutionality of legislation but at its wisdom, a censorship whose dangers Mr. Justice Holmes clearly envisaged: “I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.” (Baldwin v. Missouri, 281 U.S. 586, 595 [50 S.Ct. 436, 74 L.Ed. 1056], dissent.) This view has found increasing acceptance by the United States Supreme Court. “This Court beginning at least as early as 1934 when the Nebbia case was decided, has steadily rejected the due process philosophy enunciated in the Adair-Coppage line of cases. In doing so it has consciously returned closer and closer to the earlier constitutional principle that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law. [Citations.] Under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they agreed as offensive to the public welfare.” (Lincoln Fed. L. Union v. Northwestern I. & M. Co., 335 U.S. 525, 536-537 [69 S.Ct. 251, 93 L.Ed. 212, 6 A.L.R.2d 473].)

“Despite evidence to the contrary, respondents see no evil to be corrected by this legislation. We are asked to agree with respondents and call the statute arbitrary and unreasonable.

“Looking through the form of this plea to its essential basis, we cannot fail to recognize it as an argument for invalidity because this Court disagrees with the desirability of the legislation. We rehearse the obvious when we say that our function is thus misconceived. We are not equipped to decide desirability; and a court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature.” (Daniel v. Family Secur. L. Ins. Co., 336 U.S. 220, 224 [69 S.Ct. 550, 93 L.Ed. 632,10 A.L.R.2d 945].)

The responsiveness of a legislature reflects the alertness of the electorate, and legislation ill-considered in a climate of indifference may continue to flourish.in such a climate to the dismay of interested citizens whose numbers may be small. If these few then turn impatiently to the courts, however, abandoning the hard task of dispelling the general lethargy, they accomplish nothing to improve legislation, for if courts are called upon to set their judgment as to what is wise against the popular judgment they may summarily put an end to certain laws that may be foolish but also to certain laws that may be wise, and particularly to laws that may be wise in the long run although they appear foolish at the moment. “Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophesy in actual operation. operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests-the people. ’ ’ (Mr. Justice Frankfurter concurring in A.F.L. v. American Sash & D. Co., 335 U.S. 538, 553 [69 S.Ct. 258, 93 L.Ed. 222, 6 A.L.R.2d 481].) A.L.R.2d 481].)

Plaintiff then contends that section 48a violates the equal protection clause of the United States Constitution and section 25 of article IV of the California Constitution in granting to newspapers and radio stations privileges denied to others, thus depriving plaintiffs defamed hy newspapers or radio stations of rights enjoyed by plaintiffs defamed by others. These provisions were recently reconsidered in County of Los Angeles v. Southern Cal. Tel. Co., 32 Cal.2d 378 [196 P.2d 773], where the court said in quoting from People v. Western Fruit Growers, 22 Cal.2d 494 [140 P.2d 13], “ ‘Problems of classification under the California Constitution are thus similar to those presented by the federal equal protection of the laws clause of the 14th Amendment. Under either provision, the mere production of inequality which necessarily results to some degree in every selection of persons for regulation does not place the classification within the constitutional prohibition. The discrimination or inequality produced, in order to conflict with the constitutional provisions, must be “actually and palpably unreasonable and arbitrary,” or the legislative determination as to what is a sufficient distinction to warrant the classification will not be overthrown. [Citations.] When a legislative classification is questioned, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of existence of that state of facts, and the burden of showing arbitrary action rests upon the one who assails the classification.’ (22 Cal.2d 494, 506.) ” (32 Cal.2d 378, 390.)

A classification is reasonable, however, only if there are differences between the classes and the differences are reasonably related to the purposes of the statute. (Accounting Corp. v. State Bd. of Accountancy, 34 Cal.2d 186, 190 [208 P.2d 984], and cases cited; see Tussman and ten Broek, The Equal Protection of the Laws, 37 Cal.L.Rev. 341, 346.) “As a matter of principle and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purpose. The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance. See, for example, Mayflower Farms v. Ten Eyck, 297 U.S. 266 [56 S.Ct. 457, 80 L.Ed. 675]; Smith v. Cahoon, 283 U.S. 553 [51 S.Ct. 582, 75 L.Ed. 1264]. In the latter case a motor vehicle regulation was struck down upon citation of many authorities because ‘such a classification is not based on anything having relation to the purpose for which it is made.’ 283 U.S. 553, 567. If that were the situation here, I should think we should reach a similar conclusion.” (Mr. Justice Jackson, concurring in Railway Express Agency v. New York, 336 U.S. 106, 115 [69 S.Ct. 463, 93 L.Ed. 533].) It is therefore necessary to determine whether the classification of newspapers and radio stations apart from others bears a reasonable relationship to the objectives the Legislature sought to achieve by enacting section 48a.

It is contended that if the statute is designed to eliminate the danger of recoveries of excessive general damages, it is too narrow in that it does not attack the danger generally but only in litigation against newspapers and radio stations. Conversely, it is contended that if it is designed to encourage the free dissemination of news, it is too broad in that its protection is extended not only to those who may in good faith disseminate defamatory material but also to those who disseminate deliberate and malicious falsehoods. There are persuasive analogies, however, that support the validity of the classification in either ease.

Certainly a statute cannot be limited to a specific class without reason. (Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 269 [24 S.Ct. 638, 48 L.Ed. 971]; cf., Del Mar Canning Co. v. Payne, 29 Cal.2d 380 [175 P.2d 231], with Ferrante v. Fish & Game Commission, 29 Cal.2d 365 [175 P.2d 222].) The Legislature could reasonably conclude that defamation suits against newspapers and radio stations constituted the most conspicuous example of the danger it sought to preclude. It is not prohibited by the equal protection clause from striking the evil where it is felt most. (Goesaert v. Cleary, 335 U.S. 464, 466 [69 S.Ct. 198, 93 L.Ed. 163]; Railway Express Agency v. New York, 336 U.S. 106, 110 [69 S.Ct. 463, 93 L.Ed. 533].) In considering an analogous situation involving legislation limiting the right' to recover damages for negligence the United States Supreme Court said, “. . . there is no constitutional requirement that a regulation, in other respects permissible, must reach every class to which it might be applied—that the legislature must be held rigidly to the choice of regulating all or none. [Citations.] In this day of almost universal highway transportation by motor car, we cannot say that abuses originating in the multiplicity of suits growing out of the gratuitous carriage of passengers in automobiles do not present so conspicuous an example of what the legislature may regard as an evil, as to justify legislation aimed at it, even though some abuses may not be hit. [Citations.] It is enough that the present statute strikes at the evil where it is felt and reaches the class of cases where it most frequently occurs.” (Silver v. Silver, 280 U.S. 117, 123-124 [50 S.Ct. 57, 74 L.Ed. 221].) Similarly in this case, cannot say that the Legislature could not reasonably conclude that because of the business they are engaged in, newspapers and radio stations are the most frequent objects of defamation actions and that the danger of excessive damages in actions against them is greatest because of their reputed ability to pay. See, Morris, Inadvertent Newspaper Libel and Retraction, 32 Ill.L.Rev. 36, 43; cf., Packard v. Moore, 9 Cal.2d 571, 578-580 [71 P.2d 922], discussing rule of inadmissibility of evidence that defendant is insured in personal injury actions.)

Moreover, in balancing the danger of recoveries of excessive general damages against leaving plaintiffs with no effective remedy for injury to their reputations, the Legislature could properly take into consideration the fact that a retraction widely circulated by a newspaper or radio station would have greater effectiveness than a retraction by an individual and could thus class newspapers and radio stations apart. “Now, as far as vindication of character or reputation is concerned, it stands to reason that a full and frank retraction of the false charge, especially if published as widely and substantially to the same readers as was the libel, is usually in fact a more complete redress than a judgment for damages.” (Allen v. Pioneer Press Co., 40 Minn. 117, 124 [41 N.W. 936, 12 Am.St.Rep. 707, 3 L.R.A. 532].) ". . . exculpation in the eyes of the world is not accomplished by quiet entry of a judgment on the musty rolls of a court. The judgment must be publicized, if those who have read the libel are to know of its adjudged falsity. Unless the community is both small and interested, so that news of the judgment is spread throughout it verbally, the plaintiff’s vindication depends upon the mercy of the press. The vanquished defendant may not mention the judgment. Even his competitors—if he has any—may keep silent, out of fear of advertising a weapon which may be used against them when next they boggle.” (Morris, Inadvertent Newspaper Libel and Retraction, 32 Ill.L.Rev. 36, 38.)

The Legislature can make a classification for the purpose of applying a statute, not to the group classified, but to everyone except that group. Thus a Michigan statute prohibits females from acting as bartenders unless they are the wives or daughters of male owners of bars. In upholding this statute the Supreme Court said, “Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.” (Goesaert v. Cleary, 335 U.S. 464, 466-467 [69 S.Ct. 198, 93 L.Ed. 163].) Thus the equal protection clause did not require Michigan to exclude all women or none from bartending, for the reasons for exclusion were not so compelling for one group as for the others. Similarly, in this case, the Legislature could stop short of substituting a retraction for general damages in all cases, because it could reasonably conclude that in those cases where it did so provide a retraction would be a more effective substitute than in those eases the statute does not reach.

section 48a may also be sustained under the equal protection clause on the theory that its purpose is to encourage the dissemination of news. Although it extends its protection to those who may deliberately and maliciously disseminate libels, the Legislature could reasonably conclude that it was necessary to go so far effectively to protect those who in good faith and without malice inadvertently publish defamatory statements. The argument that the statute denies equal protection of the laws because it goes too far is substantially akin to the argument that it violates the due process clause and is equally specious. The legislation abolishing heart-balm suits, for example, was designed, not to protect those who deliberately or maliciously alienated the affection of one spouse for another, but to insure that innocent defendants will not be suedi''/Again, guest statutes were designed not to protect negligent drivers but to insure that innocent drivers will not be subjected to the hazards of a trial with the possibility of an erroneous conclusion on the facts. There are many examples in the law of defamation in which the defendant’s state of mind, his intent, or his negligence is immaterial to the question of liability. Thus, absolute privilege exemplifies the belief that in some case the public interest in freedom of expression outweighs the harm that may be done to the persons defamed. (See, Prosser, Torts, §94, p. 823; Civ. Code, §47(1), (2), (4),.(5).) “The rule exists, not because the malicious conduct of such persons ought not to be actionable, but because, if their conduct were actionable, actions would be brought against them in cases in which they had not spoken falsely and maliciously; it is not a desire to prevent actions from being brought in cases where they ought to be maintained, but the fear that if the rule were otherwise, numerous actions would be brought against persons who were acting honestly in the discharge of a duty. It may be urged, of course, that a false statement, known to be untrue, and dictated by malice, should always be the subject of a civil remedy. But this bald method of stating the question assumes both the untruth and the malice. If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question of doubt, there might be ground for contending that the law should give damages to an injured person. But this is not the state of things under which this question of law has to be determined. Whether statements were in fact untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A participant in judicial proceedings may be utterly free from malice, and yet in the eyes of a jury be open to that imputation; or he may be cleared by the jury of the imputation, and may yet have to encounter the expense and distress of a harassing litigation. With such possibilities hanging over his head, he cannot be expected to speak with that free and open mind which the administration of justice demands. ’ ’ (Veeder, Absolute Immunity in Defamation, 9 Columb.L.Rev. 463, 469-470.)

Conversely, when the primary interest is regarded as being that of the plaintiff in his reputation, strict liability has been imposed. (See, Prosser, Torts, § 93, p. 816, and cases cited.) This imposition of liability without fault, even in cases where actual damage appears doubtful (see, e. g., Hulton & Co. v. Jones [1909], 2 K.B. 44, aff’d [1910], A.C. 20), has been forcefully defended on the grounds that “Any attempt by the law to distinguish between the motives of those who defame others would make the rules too intricate and provide too many possibilities of escape” (Paton, Reform and the English Law of Defamation, 33 Ill.L.Rev. 669, 670), and that it is necessary to impose strict liability effectively to discourage negligent and intentional libels. (See, Morris, Inadvertent Newspaper Libel and Retraction, 32 Ill.L.Rev. 36, 45; cf., In re Marley, 29 Cal.2d 525 [175 P.2d 832].)

Thus in cases both of absolute privilege and strict liability the importance of protecting one interest or another has been considered sufficient to justify the broadest immunity or liability to insure the desired immunity or liability. This court is not in a position to weigh the relative importance of the conflicting interests involved, and even if it were it should not attempt to do so. ‘ ‘ Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feelings; it is also an exercise in prophecy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people. Its function can be assumed by this Court only in disregard of the historic limits of the Constitution.” (Mr. Justice Frankfurter, concurring in A.F.L. v. American Sash & D. Co., 335 U.S. 538, 557 [69 S.Ct. 258, 93 L.Ed. 222, 6 A.L.R.2d 481].)

/We cannot say that in balancing the interests of defamed plaintiffs against the interests of the public in the dissemination of news or the avoidance of the dangers of excessive general damages, the Legislature reached an unconstitutional compromise in enacting section 48a.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Spence, J., concurred.

* “1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

“2. If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may he recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.

“3. A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.

“4. As used herein, the terms ‘general damages,’ ‘special damages,’ ‘exemplary damages’ and ‘actual malice,’ are defined as follows:

“(a) ‘General damages’ are damages for loss of reputation, shame, mortification and hurt feelings;

“(b) ‘Special damages’ are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other. . ."