Black v. State

The appeals in three cases are from orders of his Honor, Robert E. Copes, dated June 7, 1911, sustaining the demurrers to and dismissing the complaints in each of the above causes. The complaints allege that the defendants published libellous and defamatory matter concerning plaintiffs' action in a municipal election held in the city of Columbia, to choose commissioners to govern the city under the new commission form of government. The only difference between the complaint in the John E. Black case and the E.O. Black case is that John E. Black is alleged to have been "engaged as a plain business man in the business of real estate and insurance and also as secretary and treasurer of two building and loan companies, in said city of Columbia," while E. O. Black it is alleged "his business being that of a builder and contractor." Fingal C. Black is alleged to have been, "by profession a civil engineer." John E. Black and E.O. Black were brothers to Fingal C. Black.

It appears from the complaints that plaintiffs had taken an active part in defeating one Charles C. Wilson, a candidate for commissioner and the publications were criticisms of the manner in which the plaintiffs had accomplished their purpose.

The defendant demurred to the complaint on seven grounds. The first ground of defendant's demurrer was abandoned on Circuit. The other grounds of the demurrer were upon the ground that the publications were criticisms and expressions of opinion of the acts and conduct of the plaintiffs in a matter of public concern and were not, therefore, libellous or defamatory. His Honor sustained the demurrers and dismissed the complaints. Plaintiffs appeal and allege error on the part of his Honor in three exceptions. The sole question raised by these exceptions is whether the Circuit Judge was correct in holding that it appears from the face of the complaints that the alleged libellous or defamatory matter was criticism and expression of opinion of the acts and conduct of plaintiffs in a matter of public concern and was not, therefore, defamatory, and did not tend to impeach the honesty, integrity or reputation of the plaintiffs or to injure their character or expose them to public hatred, contempt, ridicule or obloquy or to injure them in their business, or occupation or otherwise.

By the argument of appellants, no serious claim is made that the publications were defamatory upon the plaintiffs in their business and occupation, and the only question in the case is whether the publications are libellous per se. This simplifies the issue by reducing it to the question of libel or no libel.

The general definition of libel given by our Courts is found in Smith v. Bradstreet, 63 S.C. 530, 41 S.E. 763, and quoted with approval in Hubbard v. Furman University,76 S.C. 511, 57 S.E. 478: "A libel is malicious defamation, expressed either by writing or printing, or by signs, pictures, effigies or the like, tending to blacken the memory of one who is dead, or to impeach the honesty or integrity or reputation, or publish the natural or alleged defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule or obloquy, or to cause him to be shunned or avoided, or to injure him in his office, business or occupation."

Under the rule of pleading as laid down in this case, supra, and applying that rule of pleading to the complaints in these cases at bar there is no allegation of any facts tending to give the publications any meaning beyond the ordinary and popular meaning of the words used as explained by the entire publication, and it is for the Court to say whether the words are defamatory or not. In this same case of Hubbard v. Furman University, supra, the Court says: "In determining whether words are libellous, they are to be given their ordinary and popular meaning; and if they are susceptible of two meanings, one libellous and the other innocent, the former is not to be adopted and the latter rejected as a matter of course, but it must be left to the jury to determine in what sense they were used. Davis v. Johnson, 2 Bailey 579; Marshall v. Gunter, 6 Rich. 431. If the words are plainly libellous, or wanting in any defamatory signification, it is in the province and duty of the Court to say so. Whenever the meaning is doubtful, it is the province of the jury to decide. Note, 4 Am. Dec. 351; Barrows v. Bell, 66 Am. Dec. 479; Hayes v. Press Company, 14 Am. St. 874;St. James Military Academy, 46 Am. St. 502."

Were the four different publications by the defendant in reference to plaintiffs' conduct in the municipal election libellous or in the way of legitimate criticism fair and privileged in a matter of interest to the public and an expression as to their conduct in a public matter? The Courts have recognized the right to criticise and discuss men who become candidates for public honors. In Myrant v. Richardson, 1 N. M. 347, plaintiff alleged, when a candidate for congress, defendant spoke and published of plaintiff that plaintiff's mind was weak and that plaintiff could not be depended on. Court sustained a demurrer to the complaint, which on appeal was sustained and the Court said: "It was not pretended that those words spoken of a private individual would have been actionable. And I am not aware of any principle of law or Constitution by which a person, by proclaiming himself a candidate for congress, becomes so far elevated above the common level of mankind as to entitle him to any exclusive privileges. On the contrary, when one becomes a candidate for public honors he makes profert of himself for public investigation. All his pretensions become proper subjects of inquiry and discussion. He makes himself a species of public property, into the qualities of which every one has a right to inquire, and of the fitness of which every one has the right to judge and give his opinions. The ordeal of public scrutiny is many times a disagreeable and painful operation. But it is the result of that freedom of speech which is the necessary attribute of every free government, and is expressly guaranteed to the people of this country by the Constitution. The same may be said of the freedom of speech as of the press: "That among those principles deemed sacred in America; among those sacred rights considered as forming the bulwark of their liberty, which the government contemplates with awful reverence, and would approach with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind. That this liberty is often carried to excess, that it sometimes degenerates into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn.'"

It is a well settled rule of law that a fair and reasonable criticism upon the public acts of officers, or candidates for a public office, is allowed, provided, it contains no reference or reflections defamatory to his private affairs, character or business. Damages must be pecuniary, not sentimental. In the complaints in the cases there is no allegation that plaintiffs have suffered any loss of business or suffered in a social way by being ostracised or prevented from being invited anywhere. Mental anguish will not suffice as some people are more sensitive than others. What would annoy and cause anguish to one person would not effect another. In all cases of tort, damages must be proximate, not remote. The words published are not defamatory per se. If they were libellous per se no proof of actual injury would be necessary to recover something. The law in such cases presumes that he has suffered some injury by reason of the publication. In Odgers on Libel and Slander 34: Title, "Fair and bona fide comment and criticism," we find: "Every one has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose. Such comments are not libellous, however severe in their terms, unless they are written intemperately and maliciously. Every citizen has full freedom of speech on such subjects, but he must not abuse it. This branch of law is but of recent growth. Cockburn, C.J., says in Wesson v. Walter: `Our law of libel has, in many respects, only gradually developed itself into anything like a satisfactory and settled form. The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. * * * Yet who can doubt that the public are gainers by the change and that, though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties? * * * The right to comment upon the public acts of public men is the right of every citizen, and is not the peculiar privilege of the press. But newspaper writers, though in strict law they stand in no better position than any other person, are generally allowed greater latitude by juries. For it is in some measure the duty of the press to watch narrowly the conduct of all government officials, and the working of all public institutions, to comment freely on all matters of general concern to the nation, and to fearlessly expose abuses. * * * Every one of the public is entitled to pass an opinion on every thing which in a way incites public attention. Those of the public whose opinion on such matters is best worth having are called critics. From their education, ability or experience, they can judge with precision (which is the true meaning of the word criticise), and their opinion, therefore, is entitled to respect. Their criticism may be commendatory, but it is, perhaps, more generally unfavorable. Still, so long as it continues to be criticism at all, it is not defamatory. Where defamation commences, true criticism ends.

"True criticism differs from defamation in the following particulars:

1. "Criticism deals with only such things as invite public attention, or call for public comment.

2. "Criticism never attacks the individual, but only his work. Such work may be either the policy of a government, the action of a member of parliament, a public entertainment, a book published, or a picture exhibited. In every case the attack is on a man's acts, or on some thing, and not upon the man himself. A true critic never indulges in personalities.

3. "True criticism never imputes or insinuates dishonorable motives (unless justice absolutely requires it, and then only on the clearest proofs).

4. "The critic never takes the advantage of the occasion to gratify private malice, or to attain any other object beyond the fair discussion of matters of public interest, and the judicious guidance of the public taste."

We find the same rule laid down in Newell on Slander and Libel 2 ed., pages 564 and 567. "Criticism, fair comment made in good faith. Every person has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose. Such comments are not libelous, however severe in their terms, unless they are written intemperately and maliciously. Every citizen has full freedom of speech on such subjects, but he must not abuse it. The general rule to be adhered to in criticising or commenting on matters of public interest is to confine the comments to the matter itself and not to descend to personal attacks on private character or imputations of unworthy motives. For the public benefit the law confers a privilege upon fair and honest criticism and this privilege should never be abused in order to gratify personal malice or to advance private interest. The advancement of truth, the triumph of goodness, the destruction of falsehood and ignorance should be the object of the critic, the commentor or the reviewer, and these principles alone should animate him in the performance of his duty. His sole and single purpose should be to promote the public good, to enable the people to discern right from wrong, to encourage merit, and to firmly condemn and expose the charlatan and the cheat.

"Criticism distinguished from defamation. Criticism differs from defamation in the following particulars:

1. "Criticism deals only with such things as invite public attention or call for public comment. It does not follow a public man into his private life or pry into his domestic concerns.

2. "It never attacks the individual but only his work. Such work may be either the policy of a government, the action of a member of a legislative body, a public entertainment, a book published or a picture exhibited. In every case the attack is on a man's acts, or on something, and not upon the man himself. A true critic never indulges in personalities, but confines himself to the merits of the subject matter.

3. "It never imputes or insinuates dishonorable motives, unless justice absolutely requires it, and then only on the clearest proofs.

4. "The critic never takes advantage of the occasion to gratify private malice or to attain any other object beyond the fair discussion of matters of public interest, and the judicious guidance of public tastes. He carefully examines the matter, and then honestly and fearlessly states his true opinion of it."

In Bearce v. Bass (Maine, 1896), 51 Am. St. Rep. 446, 450, the Court said: "It is sometimes said that fair and honest criticism in matters of public concern is privileged. But this is not true in a strict legal sense. The distinction between fair and reasonable comment and criticism, and privileged communications, is this: That in the latter case, the words may be defamatory, but the defamation is excused or justified by reason of the occasion; while in the former case, the words are not defamatory of the plaintiff, and hence not libellous — the stricture or criticism is not upon the person himself, but upon his work. So long, therefore, as the criticism is confined to his work, and does not attack the moral character or professional integrity of the individual, and is fair and reasonable, there is no libel, because there is no defamation of the man himself. But, when the comment or criticism of the man's work becomes an attack on his private or business character, then the element of malice comes in and stamps the language as libellous.Fraser v. Berkeley, 7 Car. P. 621."

In Howarth v. Barlow, 113 App. Div. (N.Y.), 510, the Court said: "The plaintiff's whole official conduct in the matter was open to the fullest criticism, and the defendant and all other persons had the right to draw from it and express any opinions or inferences that could be drawn from it, although contrary, and it may be, more reasonable ones could be drawn from it. That such opinions or inferences are farfetched, high-strung, or severely moral, or contrary to other opinions or inferences that seem more reasonable, does not matter so long as there is a basis for them in the acts or words of the person who is subject to such criticism. The majority or prevailing opinion is not the test of whether such opinion or inference be permissible. The prevailing or majority opinion is often the wrong one, and for that reason the law gives full latitude to the expression of any and all opinions on things of general concern. It does not matter that the opinions or inferences expressed are not the most charitable or reasonable ones, or that they are the wrong ones, provided they be based on the facts, and the facts are capable of them. This is the rule of latitude of discussion and criticism of every one who holds a public office, or writes a book, or does any act by which he invites public attention and criticism. McDonald v. Sun Printingand Publishing Assn., 45 Misc. Rep. 441.

"The people are not obliged to speak of the conduct of their officials in whispers or in bated breath in a free government, but only in a despotism. On the contrary, they have a right to speak out in open discussion and criticism thereof, the only test being that they make no false statement. And this is the great safeguard of free government and of pure government. This is fundamental among us."

While an officer's public acts may be criticised, the publication must not contain a charge against his personal or moral character. In the case of Negley v. Farrow,60 Md. 158, the defendant, a newspaper, in the publication of an article charged the plaintiff, who was a senator, with being under corrupt influences, a traitor to his party, and accepting bribes. The Court held the publication libellous, on demurrer, and said: "No one denies the right of defendants to discuss and criticise boldly and fearlessly the official conduct of plaintiff. It is a right which, in every free country, belongs to the citizen, and the exercise of it, within lawful and proper limits, affords some protection at least against official abuse and corruption. But there is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man, and the imputation of corrupt motives by which that conduct may be supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril; and must either prove the truth of what he says, or answer in damages to the party injured."

"A newspaper has the right to fairly and honestly comment on matters of public interest, such as the official conduct of a public officer. * * * The right of a newspaper to comment within its privilege on matters of public interest, such as the conduct of a public officer, includes the right to express opinions as to his acts and to draw inferences as to his motives, whether they be right or wrong, or reasonable or unreasonable, provided they are made in good faith and based on facts. * * * Newspaper comment on acts of public officers are not privileged, when made maliciously."Cook v. Pulitzer Pub. Co., S.W. 145-481.

In Newell on Slander and Libel (2d ed.), page 577, we find: "In the exercise of the right of criticism in matters of public interest, it necessarily results that public officers will not always be placed before the people in their true character, but that their official acts will be misconstrued and wrong motives will be imputed, even when they are entirely free from blame and no valid basis for unfavorable comment exists. That is the common experience of all who have held public office. This incident of official position was aptly expressed by the noted English jurist, Cockburn, C.J., as follows: `Those who fill a public position must not be too thin-skinned in reference to comments made on them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with them, and submit to be misunderstood for a time, because all know that the criticism of the press was the best security for the proper discharge of public duties.'"

The plaintiffs were not candidates for election to public office, but were exercising their constitutional rights as voters and taking an active part in the selection of candidates. They voluntarily took a quasi public position and thereby invited criticism. It is, in a measure, now the practice for candidates for public office to have headquarters, a campaign manager, parties to distribute literature, spellbinders, strikers, challengers, heelers and electioneers, all of which is a part of the political machinery, whereby a person is elected to office, and we see no reason why a voter, who voluntarily becomes a part of this machinery for the purpose of electing one to office, should not be subject to the same criticism that the candidate to office is subject to.

If the voter voluntarily goes to the polls to influence another's vote by whispering in every voter's ear or attempting to insinuate his hands in every candidate's pocket, we see no reason why he is not a fair mark for legitimate criticism.

"All political, legal and ecclesiastical matters are matters of public concern, so is the conduct of every town and city council and the like. * * * Anything that is a public concern of the inhabitants is a matter of public interest within the meaning of the rule. The public conduct of every public man is a matter of public concern. * * * Where an individual, or organization, invites public attention in any way or appeals for public patronage, it challenges public criticism. When a man comes prominently forward in any way and acquires for a time a quasi public position, he cannot escape the necessary consequences, the free expression of public opinion. Whoever seeks notoriety or invites public attention is said to challenge public criticism, and he can not resort to the law Courts if that criticism be less favorable than he anticipated." Odgers on Libel and Slander, pp. 40-41, 45, 50.

The plaintiffs had the right to vote for whom they pleased and had the legal right to persuade others to vote for whom they wished. The publications do not charge them with bribery or any illegal act. There is nothing in the allegations of fact impeaching the honesty or integrity or reputation of plaintiffs, the words are not libellous per se. We think that the plaintiffs occupied a quasi public position and their conduct was the subject of fair and bona fide criticism by a public newspaper.

I think the exceptions should be overruled and judgment affirmed.