I LLINO I S UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN PRODUCTION NOTE University of Illinois at Urbana-Champaign Library Brittle Books Project, 2009. j - s , z r, } i : --mo d I '-". -" ! +i".': <- - ._.. 74 ie. L I I3 IZ A kY OF THE UNIVERSITY OF ILLINOIS 070.13 sw6p t., Problems of Law in Journalism THE MACMILLAN COMPANY NEW YORK * CHICAGO DALLAS * ATLANTA * SAN FRANCISCO LONDON * MANILA THE MACMILLAN COMPANY OF CANADA, LIMITED TORONTO Problems of Law in Journalism WILLIAM F. SWINDLER, Ph.D. New York THE MACMILLAN COMPANY w COPYRIGHT, 1955, by THE MACMILLAN COMPANY Published simultaneously in Canada All rights reserved-no part of this book may be reproduced in any form without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in connection with a review written for inclusion in magazine or newspaper. Printed in the United States of America First Printing 0 70.1 3 To Our Daughter Elizabeth Pearl Henrietta 0) ci: Introduction American law has always been at pains to point out that the newspaper enjoys no special privileges under our system of jurisprudence. The freedom which is guaranteed under the First Amendment is guaranteed to the people, not to the press as a private business. Nevertheless, it is an obvious fact that among individual members of American society the journalist is the citizen who most regularly and actively avails himself of this constitutional guarantee. It is no mere platitude to say that the constitutional protection of the liberty of utterance is indispensable to our system of journalism as well as to our sys- tem of government. The full meaning of this protection, this guarantee, is of supreme practical importance to the working newspaperman; its historical evolution and its philosophical basis, as well as its practical limits in operation, affect every phase of the gathering, reporting, and distributing of news. Neither is it a mere platitude to say that the reporter constitutes the first line of defense for his newspaper against legal liability for the printing of news. Most, if not all, of the news of the day-particularly local news-involves in- dividuals in situations of conflict with each other or with the institutions of society; the reporting of these conflicts regularly involves the good names and social well-being of many persons. Added to this is the fact that news is both literature and history in a hurry; there is little enough time before deadlines to make a conscientious check of the accuracy of the facts of a story, and no time at all to seek competent legal counsel. This does not mean that a journalist should attempt to be his own legal counsel-such a course would be manifest folly-but it does mean that the reporter as a layman needs to understand the basic principles of law affecting practical newspaper work. Law, in Roscoe Pound's phrase, is "experience developed by reason and reason tested by experience." This implies an evolutionary character in juris- prudence which is nowhere better illustrated than in the congeries of statutory and case law which relates to American journalism. The constitutional pro- visions of the First and Fourteenth Amendments have already taken on a more sophisticated interpretation in the twentieth century than when they were vii propounded in the eighteenth and nineteenth-as, indeed, the very extension of the Fourteenth Amendment to apply to the states the restraints which the First had imposed upon the federal power, was at once a final triumph of the natural rights philosophy in which the Constitution itself originated and a new branch added to the structure of pragmatic jurisprudence germinated in the economic and social changes in American life which began to appear in the eighties. As the concept of press freedom has changed-as illustrated in this text in the Morris Watson case, the antitrust prosecution of the Associated Press, and the philosophic tightrope walk in Dennis v. United States-so have other propositions of law affecting journalism. Libel has largely outgrown the issues of name-calling and gratuitous news comment which characterized the press in its nineteenth-century period of adolescence. The law on privacy, six decades after the first effort by Messrs. Warren and Brandeis to define it, has begun to find some degree of statutory recognition. Contempt law, which abruptly moved into a new path with the Los Angeles Times case in 1941, has been car- ried far enough down this path by subsequent decisions to make reasonably certain that it will not now turn back. The rapid growth of federal administra- tive law affecting the business activities of the press-to be sought as much in the published decisions of these administrative agencies as in the opinions of the courts-has been a phenomenon of the second quarter of the twentieth century. Radio journalism, itself a modern phase of mass communications, has been the subject of a� quantity of litigation which has been highlighted (and perhaps confused) by the radio industry's battle cry of "free radio" and the Federal Communications Commission's doctrine of "public service responsi- bility," and by the Port Huron and Mayflower rulings. It is of fundamental importance to the well-trained journalist to be aware not only of the basic principles of law affecting his calling but also of the direction in which the law appears to be moving. Accordingly, the plan of the chapters in this book has been conceived to help him look at past legal experi- ence, at current practice, and at prospective developments to come. Most of the chapters thus are divided into three main parts-a list of readings selected to offer some perspective and commentary on each phase of law affecting journalism; a background note which sometimes is historical summary, some- times a review of practical problems currently confronting journalism with respect to this area of jurisprudence; and a section (in most cases comprising half or more of the chapter) illustrating the most important principles of law on this subject which are generally and currently accepted. The present text uses an adaptation of the case method of study of the sub- ject which has become general in schools of law and in certain other profes- sional curricula. No less an authority than Mr. Justice Holmes, in the mid- viii Introduction Introduction ix i88o's when the method was still new, pronounced it the soundest way of in- troducing young law students to concrete principles rather than generalities. It would seem that this would apply equally to young journalism students, who for the most part are unfamiliar with law and the language of the courts. What is needed is not an exhaustive list of do's and don't's-specific details of law on specific details of journalism-but a selection of the pros and cons as to basic principles of law affecting journalism. The student needs to trace the development of a judicial line of thought, not only in one case but in suc- cessive cases, and not only in the prevailing view of a majority on the bench at a given time but in the dissenting opinions of the minority. How better to present the opposing points of view which were so fundamental in the Asso- ciated Press suit challenging the validity of the Wagner Act as it applied to the newspaper industry, for example, than to read the earnest presentation of the majority opinion of five justices and the minority view of four justices? How better to introduce the young journalist to the fundamental issues in the AP antitrust suit, or the Lorain Journal case, or the Federal Communications Commission's about-face on the question of a radio broadcaster's right to editorialize? Even granting this, the limitations of space make it impossible to include many pertinent supplementary data. The line of reasoning from the Schenck case to the Dennis case, for instance, covers little more than a quarter of a century, but the shift in constitutional thinking which it implies affects the whole history of Anglo-American political philosophy. This is to say that the student of those areas of law which most directly relate to journalism will soon discover that his subject has roots in many other social studies. To see the sub- ject as a whole against this background is to make a creditable beginning toward the student's concept of a professional ethic of journalism. Class dis- cussion of the arguments made by the courts within the context of their times and traditions-so dramatically illustrated in the struggles between judges and lawmakers over the law of contempt should both broaden and clarify one's understanding of principles not only of law but of journalism in general. Although the case method, in modified form, is used in this book, it should be remembered that the book is intended for the use of journalists rather than law students. In editing and re-editing the cases selected for the text, therefore, many procedural details have been left out. What is of primary importance to the readers I have had in mind is to place a particular problem of journalism against the background of law bearing upon it; the journalist, who is not a lawyer, needs to know how and why the law has determined upon a particular ruling with respect to essential journalistic practices. I have tried to help the layman who uses this book by stating these essential journalistic practices in the form of questions or propositions which, in numbered series, form a sort Introduction of outline of the general principles illustrated in each chapter, or in successive chapters related to each other. There is another reason for quoting as copiously as I have in some of the cases in each chapter. Wherever it was feasible to choose between an older case and a more recent one, provided that each expressed the pertinent prin- ciples of law with equal clarity, I have used the more recent decision, since it usually dealt with more recent journalistic practice. This did not, of course, disbar some well-known ruling cases, whatever their dates might be. But in a number of the more recent cases it was possible to include quotations from the older cases, contained in the later opinion itself. In this manner the student gets the essence of the older decision corroborated by a current one. This has the added advantage of illustrating for the layman how the law builds upon its precedents, whatever may be the full validity of the maxim of stare decisis today. This book is the result of more than fifteen years of teaching and experi- menting with various methods of presenting the case material. To the scores of students during this time who have made many valuable suggestions for more effective presentation, a special acknowledgment is due. The same is also extended to the many newspaper people, law teachers, and practicing attorneys who have made suggestions on the present project over the past several years. I hope that this text at least in part may justify their interest and encourage- ment. WILLIAM F. SWINDLER Lincoln, Nebraska Contents Introduction vii Table of Cases xvii Part I The Newspaper: News Side I PRESS FREEDOM: ITS HISTORY AND PHILOSOPHY Supplementary Reading 3 Background Note 3 General Principles: 1. What are the limits to press freedom? 11 II PRESS FREEDOM: ITS PRACTICAL DEFINITION 2. What are the limits to public authority in restricting freedom of expression? 38 3. The right of publication may be limited by the rights of others 56 4. Press freedom does not exempt the press as a business from reasonable regulations and controls 58 III FREEDOM TO GATHER NEWS Supplementary Reading 77 Background Note 77 General Principles: 1. Vhat is the right of access to public records? 86 2. Does a newspaper have a "special interest"? 90 3. What records are open or closed? 95 IV LIBEL: WHAT IT IS Supplementary Reading 98 Background Note 98 xi General Principles: 1. How does the law of libel affect the constitutional guar- antee of freedom of expression? io6 2. Libel is distinguished as to libel per se or libel per quod lo9 3. Libel per se must include statements which are in- jurious in themselves 111 4. Libel per quod depends upon the particular circum- stances surrounding the statement to render it libelous 123 5. To sustain a charge of civil libel, there must be definite and specific identification of the person claiming injury 125 6. Only the specific individual affected may bring an action for civil libel 128 7. What constitutes "publication" of a libel? 130 V LIBEL: SPECIAL ASPECTS 8. Headlines and other newswriting problems peculiar to journalism do not relieve the journalist of responsibility 135 9. In general, a civil action for libel will not lie when the defamation is against a group rather than against a spe- cific individual 144 io. Malice in fact will invalidate any defense to libel 149 11. Criminal libel rests upon the tendency of a defamatory publication to disturb the public peace 155 VI LIBEL DEFENSES: TRUTH AND PRIVILEGE Supplementary Reading 166 Background Note 166 General Principles: 1. Truth alone is a complete defense in most civil actions and in a few criminal actions for libel 172 2, Truth plus "good motives" and "justifiable ends" is required as a complete defense in most criminal actions and in a few civil actions for libel 177 3. The truth must be "reasonably near" the facts upon which the story is based 179 4. What are the differences between truth and privilege as libel defenses? 185 5. What constitutes privilege? 189 6. Privilege in reporting judicial proceedings 190 xii Contents 7. Privilege in reporting other official proceedings 197 8. Conditional privilege arising from reports in quasi- official proceedings or in confidential news communi- cations 201 VII LIBEL DEFENSES: FAIR COMMENT AND OTHER PLEAS 9. The principle of fair comment 207 io. Public interest in the issue commented upon enhances the defense 214 11. Whatever is offered for public approval is subject to comment 219 12. Comment on political affairs 221 13. Retraction may mitigate damages or limit the action to proof of special damages 234 14. The law recognizes the right to reply to an attack 241 VIII THE EVOLVING LAW OF PRIVACY Supplementary Reading 245 Background Note 245 General Principles: 1. What constitutes the right of privacy? 253 2. The right of privacy does not apply to news situations 261 IX THE CHANGING LAW OF CONTEMPT Supplementary Reading 272 Background Note 272 General Principles: 1. What is the status of contempt by publication since the Los Angeles Times case? 287 2. At what stage in a case is a news medium free from lia- bility for publishing news or comment? 296 3. What remains of a newspaper's liability for contempt? 304 4. The newsman's right of confidence in news sources is only valid where a statute defines the right 306 X COPYRIGHT AND PROPERTY IN NEWS Supplementary Reading 311 Background Note 311 xiii Contents xiv Cnet General Principles: i. What is copyrightable in a newspaper? 314 2. The law of unfair competition may protect noncopy- rightable news matter 3 1 XI THE LAW AND OTHER NEWS PROBLEMS 1. The press must conform to certain practices to qualify for lower postal rates 337 2. Obscenity statutes and the press 348 3. The state may prohibit editorial or promotional practices which constitute a lottery 352 Part II The Newspaper: Business Side XII ADMINISTRATIVE LAW AND A FREE PRESS Supplementary Reading 357 Background Note 357 General Principles: 1. News agency practices which tend to create a monopoly in the flow of news may constitute a violation of the anti- trust laws 365 XIII ADMINISTRATIVE LAW AND BUSINESS PRACTICES 2. Advertising and circulation practices may also constitute a violation of the antitrust laws 385 XIV LABOR RELATIONS OF NEWSPAPERS Supplementary Reading 406 3. The National Labor Relations Act established the right of union organization and collectiye bargaining in the newspaper industry 406 4. The Fair Labor Standards Act, as interpreted by the courts, has further defined the newspaper's liability and exemptions 412 5. The Labor Management Relations (Taft-Hartley) Act defines rights and responsibilities inherent in specific union practices 420 xiv Contents XV LAW AND OTHER BUSINESS PROBLEMS Supplementary Reading 443 General Principles: 1. A newspaper may not be compelled to accept advertising copy 443 2. A newspaper is liable for deceptive or false advertising only if it publishes the copy knowing it to be bad 445 3. A newspaper may be held liable to an advertiser for negli- gence or for misrepresentation 448 4. Circulation management is a private enterprise, not sub- ject to public regulation 451 5. The interstate nature of a newspaper's circulation does not exempt it from local taxation 454 XVI PUBLIC NOTICE ADVERTISING Supplementary Reading 459 Background Note 459 General Principles: 1. What is a "legal newspaper"? 462 2. How does a "legal newspaper" become an "official news- paper"? 472 3. Who is responsible for publication of notices? 481 4. How often are notices to be published? 482 5. Proof of the publication may be stipulated by law 482 6. The advertiser is liable for the costs of duly authorized notices 483 Part III Related Fields of Journalism XVII LAW AND RADIO JOURNALISM Supplementary Reading 487 Background Note 487 General Principles: 1. Radio broadcasting is essentially interstate in nature 490 2. What is the nature of radio defamation? 492 3. The "Port Huron doctrine" emphasized station liability in political broadcasts 504 4. What are the "public service responsibilities" of broad- casters? 509 Contents xv xvi Contents 5. The "Mayflower Doctrine" seeks to define the broad- caster's freedom to editorialize 517 Appendices Note on Legal Procedure 529 Glossary 539 Abbreviations 544 Index 547 Table of Cases Included in the following list are the cases which illustrate the General Principles of each chapter, as well as the most important cases cited or quoted in the Background Notes. The latter are starred (*). Abrams v. United States 21 American Newspaper Publishers Association v. National Labor Rela- tions Board 436 Associated Press v. KVOS, Inc. 332 Associated Press v. National Labor Relations Board 65 Associated Press v. United States 365 Atlanta Journal Co. v. Doyal 152 Atlantic Monthly Co. v. Post Pub. Co. 316 Babcock v. McClatchy Newspapers 214 Bailey v. Charleston Mail Assn. 212 Baltimore Radio Show v. State 296 Barber v. Time, Inc. 256 Beauharnais v. Illinois 155 Bend Pub. Co. v. Haner 91 Berg v. Minneapolis Star & Tribune Co. 266 Board of Commissioners of Costilla County v. Wood 481 Brewer v. Hearst Pub. Co. 110o * Brown v. Providence Telegram Pub. Co. 169 Buxbom v. City of Riverside 56 Cafferty v. Southern Tier Pub. Co. 182 Caller Times Pub. Co. v. Chandler 190 Campbell v. New York Evening Post 192 * Carr's Case 4 Cartwright v. Herald Pub. Co. 241 Castle v. Houston 172 xvii xviii * Cherry v. Des Moines Leader Chicago Record-Herald Co. v. Tribune Assn. City of Chicago v. Tribune Co. City of Corona v. Corona Daily Independent * Cleveland Leader Printing Co. v. Nethersole Coats v. News Corporation Coffey v. Midland Broadcasting Co. Colbert v. Journal Pub. Co. Coleman v. MacLennan Commonwealth v. Evans Cook v. East Shore Newspapers * Cowley v. Pulsifer Craig v. Harney Curry v. Journal Pub. Co. Dall v. Time, Inc. Dearborn Independent Pub. Co. v. Dearborn Dejonge v. Oregon Dennis et al. v. United States Department of Treasury v. South Bend Tribune * Ditson v. Ditson Duncan v. Record Pub. Co. DuPont Engineering Co. v. Nashville Banner Pub. Co. Table of Cases 169 314 107 63 170 125 492 104 221 75 149 84 291 129 Evening Times Prtg. 6 Pub. Co. v. American Newspaper Guild * "Exchange Telegraph" Cases Ex parte McCormick *Ex parte McLeod Ex parte Sturm 111 475 25 27 454 461 183 136 411 313 300 275 304 490 135 207 104 295 125 185 58 139 Fisher's Blend Station v. Tax Commission Fitch v. Daily News Pub. Co. Foley v. Press Pub. Co. * Foster v. Scripps Graham v. Jones Grant v. Readers Digest Assn. Griffin v. Opinion Pub. Co. Grosjean v. American Press Co. Gunder v. New York Times Co. Hannegan v. Esquire 43 Hardman v. Collector 97 Hoeppner v. Dunkirk Prtg. Co. 219 Holcomb, Sheriff v. State ex rel. Chandler 93 Hotz v. Alton Telegraph Prtg. Co. 113 Howard v. Southern California Associated Newspapers 216 Howard Sports Daily v. Weller 74 Hubbard v. Associated Press 123 Hughes v. New England Newspaper Corp. 128 Indiana Farmer's Guide Pub. Co. v. Department of Treasury 456 In re Application of . . . New York Daily News et al. 511 In re Application of Port Huron Broadcasting Co. 504 In re Bond Printing Co. 462 In re Gillette Daily Journal 465 * In re Grunow 285 In re Petition of Homer P. Rainey 509 In re Sterling Cleaners 6 Dyers 469 In the Matter of Blackwell Journal Pub. Co. 385 In the Matter of Editorializing by Broadcast Licensees 518 In the Matter of International Typographical Union . . . and American Newspaper Publishers Association 421 In the Matter of Mayflower Broadcasting Corp. 517 International News Service v. Associated Press 321 * Inter-Ocean Pub. Co. v. Associated Press 362 Irwin v. Ashurst et al. 189 Israel v. Portland News Pub. Co. 242 Johnson v. Scripps Pub. Co. 54 * Keddington v. Arizona 84 Kelly v. Post Pub. Co. 265 * King v. Lake 101 Knapp v. Post Prtg. 6 Pub. Co. 230 Knoxville Pub. Co. v. Taylor 114 Kulesza v. Chicago Daily News 217 Lane v. Washington Daily News 117 Latimer v. Chicago Daily News 144 Layne v. Tribune 141 xix Table of Cases xx Lee v. Beach Pub. Co. Lehner v. Associated Press Leighton v. People Leininger v. New Orleans Item Pub. Co. Leverton v. Curtis Pub. Co. Lewis Pub. Co. v. Morgan Little v. Allen Locke v. Gibbons Lorain Journal v. United States Lovell v. City of Griffin Luna v. Seattle Times Co. Mabee v. White Plains Journal Pub. Co. Marr v. Putnam Matthews v. Pyle May v. Syracuse Newspapers McComb v. Dessau * McPherson v. Daniels Melvin v. Reid Meridian Star v. Kay Metter v. Los Angeles Examiner Milwaukee Pub. Co. v. Burleson Morgan v. Bulletin Co. Mulina v. Item National Comics Publications v. Fawcett Publications National Labor Relations Board v. A. S. Abell Co. National Labor Relations Board v. Hearst Publications Near v. Minnesota ex rel. Olson Needham v. Proffitt Nowack v. Fuller * Nye v. United States Oklahoma Press Pub. Co. v. Walling * Osborne v. Leach Paducah Newspapers v. Bratcher * Patterson v. Colorado * Pavesich v. New England Life Ins. Co. * Peck v. Tribune Table of Cases 89 204 176 198 259 337 1.38 494 389 38 119 414 146 95 196 416 168 253 448 269 342 o109 lo6 320 406 407 11 72 90 284 412 105 193 277 250 104 Table of Cases xxi Pennekamp v. Florida 287 * People v. Croswell 168 People v. Dale 58 *People v. Jelke 85 People v. Spielman 163 * People v. Stokes 105 People ex rel. Mooney v. Sheriff of New York County 306 Petransky v. Repository Prtg. Co. 140 Philadelphia Record Pub. Co. v. Curtis-Martin Newspapers 451 Pittsburgh Athletic Co. v. KQV Broadcasting Co. 335 * Pollard v. Lyon ioo Proto v. Bridgeport Herald Corp. 121 Providence Journal v. McCoy 86 Public Ledger v. New York Times 328 * Roberson v. Rochester Folding Box Co. 248 Robinson v. Latah County 472 Robinson v. North Arkansas Prtg. Co. 418 Rogers v. Courier-Post Co. 196 Sanford v. Boston Herald-Traveler Corp. 191 Schenck v. United States 20 Schneider v. State, etc. 40 Service Parking Corp. v. Washington Times Co. 147 Sharon Herald Co. v. Mercer County 483 Sherman v. State Board of Dental Examiners 73 Shiver v. Valdosta Press 151 Shuck v. Carroll Daily Herald 443 Sidis v. F-R Pub. Corp. 263 Sorensen v. Wood 492 Southeastern Newspapers v. Walker 154 Spriggs v. Cheyenne Newspapers 177 State v. Beacon Pub. Co. 446 State v. Donovan 308 * State v. Evjue 351 State v. Haffer 162 State v. Needham 453 State v. Salt Lake Tribune Pub. Co. 70 State v. Winterrowd 164 State ex inf. McKittrick v. Globe-Democrat Pub. Co. 352 State ex rel. Beckley Newspapers v. Hunter 96 * State ex rel. Bowler v. Board of County Commissioners 475 State ex rel. Donahue v. Holbrook 92 State ex rel. Noe v. Knop 88 State ex rel. Pulitzer Pub. Co. v. Coleman 302 Summit Hotel Co. v. National Broadcasting Co. 496 Sun Pub. Co. v. Walling 419 Swearingen v. Parkersburg Sentinel Co. 197 Sweeney v. Beacon-Journal Co. 233 Sweeney v. Caller Times Pub. Co. 233 Sweeney v. Schenectady Union Pub. Co. 231 Themo v. New England Newspaper Pub. Co. 261 Thorson v. Albert Lea Pub. Co. 239 Times-Mirror v. Superior Court in and for Los Angeles County 47 Times-Picayune v. United States 394 * Toledo Newspaper Co. v. United States 278 Triangle Publications v. New England Newspaper Pub. Co. 330 *Tribune Co. of Chicago v. Associated Press 312 *Triggs v. Sun Prtg. 6 Pub. Assn. 170 * United Press Associations v. Valente 85 * United States v. Associated Press 366 Vaughan v. News-Leader 187 Warren v. Pulitzer Pub. Co. 201 Washington Times v. Bonner 227 Washingtonian Co. v. Pearson 318 * Wason v. Walter 78 *Weed v. Tucker 461 Werner v. Southern California Associated Newspapers 234 Williams v. Journal Co. 200 Wilson v. United Press Associations 179 Winrod v. Time, Inc. 130 Winters v. New York 348 Wood v. Constitution Pub. Co. 143 xxii Table of Cases * Zenger's Case 6 PART I The Newspaper: News Side CHAPTER Press Freedom: Its History and Philosophy SUPPLEMENTARY READING Alan Barth, The Loyalty of Free Men (New York, 1951), passim Commission on Freedom of the Press, A Free and Responsible Press (Chi- cago, 1947), c. 1, 2 J. Edward Gerald, The Press and the Constitution (Minneapolis, 1948), c. 1, 5 William E. Hocking, Freedom of the Press (Chicago, 1947), c. 1, 2, 4 Jay W. Jensen, "Toward a Solution of the Problem of Freedom of the Press," Journalism Quarterly, v. 27 (Fall, 1Q50), pp. 399-408 J. Ben Lieberman, "Restating the Concept of Freedom of the Press," Journal- ism Quarterly, v. 30 (Spring, 1953), PP. 131-8 F. Morstein Marx, "Effects of International Tension on Liberty Under Law," Columbia Law Review, v. 48 (May, 1948), pp. 555-73 F. S. Siebert, Freedom of the Press in England, 1476-1776 (Urbana, Ill., 1952), c. 1, 18 William F. Swindler, A Bibliography of Law on Journalism (New York, 1947), nos. 24, 47, 58, 87, 92, 113, 121, 124, 147, 222 BACKGROUND NOTE Freedom of speech and the press is a first principle of the Anglo- American legal structure, substantially supporting its representative form of government as well as the whole body of law relating to journalism. This is more than a nice phrase-it is a specific legal principle defining the practical relationship, in a democracy, between the people and their elected represent- atives. It was such a practical implementation of democracy that Erskine had in mind when he wrote that the press "keeps governments themselves in due subjection to their duties." The struggle for this freedom among the Western nations, and particularly among the English-speaking peoples, extends over a number of centuries, and Press Freedom: Its History and Philosophy represents a fundamental development in the philosophies of these peoples. It took more than 500 years to reverse the prevailing point of view expressed in the statute De Scandalis Magnatum (on the defamation of great men) in 1275 and give primacy instead to the First Amendment to the American Constitution in 1791 and to Fox's Libel Act passed by the British Parliament the following year. The statute De Scandalis Magnatum, which was enacted almost exactly two centuries before the first printing press appeared in Eng- land, and three and a half centuries before the first newspaper, reflected the contemporary concern of government over the growing, diversified, and ar- ticulate elements in society which had already, sixty years before, challenged the divine right of kings by compelling John to sign the Magna Charta. An uneasy Parliament accordingly approved the statute which stated: Whereasmuch as there have been aforetimes found in the country devisers of tales . . . whereby discord or occasion of discord hath arisen between the king and his people . . . it is commanded that none be so hardy as to tell or publish any false news or tales whereby discord or occasion of discord or slander may grow. . . . (3 Edw. I, Stat. Westmin. 1, c. 34) This statute, which was renewed a century later (and not formally removed from the books until 1887), served the purpose of the conservative majority until the introduction of printing presented new and special problems. In the sixteenth century Henry VIII felt compelled to publish an index of for- bidden books, and created a licensing system as a control over the number of printers and the nature of their output. In 1587, under Elizabeth I, these several laws on defamation, decrees against seditious rumors, and licenses on printing were restated in the famous decree establishing the Court of Star Chamber-an extraordinary judicial agency intended to search out and utterly uproot any manner of disaffection or criticism of the realm. Sir Edward Coke, in his opinion De Libellis famosis in 1609, clearly indicated that the court was concerned especially with the disturbing effects of the press: It is not material whether the libel be true, or whether the party against whom it is made be of good or ill fame; for in a settled state of government the party ought to complain for every injury done him in an ordinary course of law. ... (5 Reports, 125) More than seventy years later, Chief Justice Scroggs maintained this same opinion by writing: When, by the king's command, we were to give in our opinion what was to be done in point of the regulation of the press; we did all subscribe, that to print or publish any newspaper or pamphlets of news whatsoever is illegal; that it is a manifest intent to the breach of the peace; and they may be proceeded against by law for an illegal thing. (Carr's Case, 7 State Trials, 1111) 4 Background Note 5 This, then, was the firm conviction of the governing power in England from the thirteenth to the seventeenth centuries. From the mid-16oo's, how- ever, a chorus of dissent increased, partly in reaction to the severity of the law as administered by the Court of Star Chamber, partly in response to the new concepts of the state being expressed by the political philosophers. John Mil- ton published a plea for unlicensed printing in his famous essay, the Areo- pagitica, in 1644; but this was lost in the struggle for power during the Cromwellian revolution. Within two decades after Scroggs' opinion, however, Parliament permitted the licensing act to expire, and John Locke was writing in his Second Essay on Civil Government: But though men, when they enter into society, give up the equality, liberty and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative as the good of the society shall require, yet it being only with an intention in everyone the better to preserve himself, his liberty and property (for no rational creature can be supposed to change his condition with an intention to be worse), the power of the society or the legisla- ture constituted by them can never be supposed to extend farther than the com- mon good. It was doubly sure that the struggle for freedom in England would be transplanted and enlarged in the North American colonies. On the one hand, the settlers in the New World were dissidents who had manifested their op- position to the old order by migrating from England. On the other, the royal governors, judges, and other crown officers who were sent to administer these colonies represented the very classes in England which had most firmly op- posed any diminution of the authoritarian tradition-and especially were these men disposed to apply the full measure of the common law to a colonial populace. The first newspaper to be attempted in Massachusetts was sum- marily suppressed after its first issue (1690), and when, a generation later, newspapers had become fairly general throughout the colonies, relations with the ruling powers in most instances were continually in tension. For every printer who was reprimanded for criticism of the authorities, new bases for opposition were created; it was out of this political ferment that there developed the celebrated case of the New York Dutch printer, John Peter Zenger. The Zenger trial marked a climax in the earnest struggle between the an- cient concept of absolute and unquestionable authority in government, and the new concept of the "consent of the governed" which had been an- ticipated in the writings of Locke and his contemporaries. William Cosby, the royal governor of New York, was a proper prototype of the old order; Zenger, whose Weekly Journal was the medium for a succession of attacks on the governor by members of the popular party, became the symbol of challenge 6 Press Freedom: Its History and Philosophy to this authority. In the proclamation which preceded Zenger's arrest in 1734 the governor declared: Whereas, by the contrivance of some evil disposed and disaffected persons, divers journals or printed news-papers . . . have been caused to be printed and published by John Peter Zenger, in many of which journals or printed news- papers (but more particularly those numbered 7, 47, 48, 49) are contained divers scandalous, virulent, false and seditious reflections, not only upon the whole legislature, in general, and upon the most considerable persons in the most distinguished stations in the province, but also upon His Majesty's lawful and rightful government, and just prerogative. Which said reflections seem con- trived by the wicked authors of them, not only to create jealousies, discontents, and animosities in the minds of His Majesty's liege people of this province to the subversion of the peace and tranquillity thereof but to alienate their affec- tion from the best of kings, and raise factions, tumults, and sedition among them. Zenger's trial for seditious libel the following spring thus dramatized the issue on both sides of the Atlantic; Andrew Hamilton, the famed colonial attorney who defended the printer, was obviously conscious of the historic challenge to the common law of libel and of lese majestd which he was mak- ing in his unprecedented appeal to the jury. When the royal judge formally denied his effort to introduce evidence of truth as a defense to the charge, Hamilton said: Power may justly be compared to a great river, while kept within its due bounds, is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed, it bears down all before it, and brings destruction and desolation wherever it comes. If then this is the nature of power, let us at least do our duty, and like wise men (who value freedom) use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition, the blood of the best men that ever lived. S. . But to conclude; the question before the court and you gentlemen of the jury, is not of small nor private concern, it is not the cause of the poor printer, nor of New-York alone, which you are now trying: No! It may in its consequence affect every freeman that lives under a British Government on the main of America. It is the best cause. It is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow-citizens; but every man who prefers freedom to a life of slavery will bless and honour you, as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity and our neighbors, that, to which nature and the laws of our country have given us a right-the liberty both of exposing and oppos- ing arbitrary power (in these parts of the world, at least) by speaking and writ- ing truth. (16 American State Trials, 1) Background Note 4 7 Zenger's acquittal, althoutgh not accepted as precedent by any courts there- after, was nevertheless a spectacular popular political victory and increased the boldness of editors and the rising middle classes, both in England and in the colonies. John Wilkes, editor of the North Briton, was convicted of sedi- tion in 1765, but his release from prison after a short term was hailed through- out the colonies by bonfires and celebrations. Five years later the government failed to win a conviction of Henry Woodfall on a similar charge involving much graver editorial attacks-the famous Letters of Junius, perhaps the most vehement criticism of the Crown in British history. Although Lord Mans- field, the chief justice, insisted that the jury was not competent to determine more than the fact of publication of a libel, he was in the role of Canute be- fore the wave of the future. By the end of the century, the struggle for the right to criticize government was epitomized in Lord Erskine's defense of Thomas Paine: In this manner, power has reasoned in every age; government in its own esti- mation, has been at all times a system of perfection; but a free press has ex- amined and detected its errors, and the people have from time to time reformed them. This freedom has alone made our Government what it is! This freedom alone can preserve it. The writings of Locke and the arguments of Erskine expressed the highest ideals of the Enlightenment of the eighteenth century; and the American Revolution carried these principles to their logical extreme. At the same time the Revolution cast the New World free from the English law; between 1775 and the final ratification of the new Constitution of the United States, nine of the original thirteen colonies amended their charters to incorporate guaran- tees of press freedom, and several made their approval of the Constitution it- self contingent upon the enactment of a federal guarantee. This was drawn up and submitted to the states by the first Congress, and declared in force in 1791 as the First Amendment: Congress shall make no law respecting an establishment of religion, or pro- hibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This specific prohibition upon Congress, unique in a document which was it- self unique in political history, was nevertheless subject to some doubt after it was passed. What does it mean, Alexander Hamilton had written, to say that the press shall be free? James Madison replied that it meant freedom from the arbitrary exercise of control by the federal government, while Joseph Story, writing at a later date, declared that the Amendment was "neither more nor less than an expansion of the great doctrine recently brought into 8 Press Freedom: Its History and Philosophy operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends." Several courts soon adopted the general rule that "liberty of the press consists in printing without any previous license, subject to the consequences of the law."* These were, for the most part, general issues revolving around the new statutory guarantees of liberty of expression. A major practical question of the limits to this freedom was raised by the passage of the Alien and Sedition Acts of 1798. The Sedition Act, in particular, aimed at punishing domestic critics of the federal government by providing for fine and imprisonment for "any false, scandalous and malicious writing" against Congress or the Pres- ident. Although the law did provide that truth should be a defense in any trial brought under it, the protest against the act both in Congress and through- out the country was general. The collapse of the Federalists as a national party in the 18oo elections was attributed in large part to the public resent- ment of the law, which Thomas Jefferson called an "unauthorized" act of Congress. Jefferson pardoned the few editors who had been convicted, and the act expired in 18o01 with no effort at renewal. As Joseph Story later pointed out, the law, although it might have been constitutional, was "in the high- est degree impolitic," and as a practical matter no administration thereafter made any attempt to enact a similar law until this country's entry into World War I. Other developments in the constitutional history of the nineteenth century helped, sometimes indirectly, to define the practical meaning of the First Amendment and to indicate the general limits and proportions of press freedom under the federal system. In 1812 the Supreme Court denied to the federal government a common-law jurisdiction over crime (United States v. Hudson & Goodwin, 7 Cranch 32), thus lessening materially the possibility that Congress would attempt to assert any surveillance over newspapers on the ground that it had an inherent authority to punish wrongdoing. In 1831 Congress took an important step toward limiting the power of the federal courts to cite for contempt by restricting punishable activities to disturbances in court or "so near thereto" as actually to threaten to obstruct justice.t The enactment of libel statutes in various states, primarily as a reaction to the excesses of political party journalism during the first quarter of the nineteenth century, tended to bring the legal concerns of the press under state instead of federal jurisdiction. A vigorous debate over press rights arose in Congress in 1836 out of the * These statements reflect the general acceptance of the so-called dictum of Blackstone, that press freedom means freedom from "previous restraint," with subsequent responsibility for all consequences of publication. See Blackstone's Commentaries (Cooley's 4th ed., 1899), v. 4, p. 151. t For details on this development, see the background note to Ch. 9" proposal of John Calhoun and a bloc of slave-state senators to enact legisla- tion empowering the post office to bar from the mails certain abolitionist literature, or at least to prevent its circulation in the South. Webster opposed the bill on the ground that it violated the First Amendment, the guarantee in which he defined as "the liberty of printing as well as the liberty of publish- ing, in all the ordinary modes of publication; and [is] not the circulation of papers through the mails an ordinary mode of publication?" Calhoun's bill was defeated, but after the outbreak of hostilities in 1861 the post office on its own initiative barred from the mails certain allegedly disloyal Northern newspapers, while in 1864 military authorities suppressed several others for short periods of time. A haphazard censorship which was charged in Congress with being more concerned with stifling legitimate criticism than with protecting military se- crets-was alternately administered by the State, Treasury, and War depart- ments. But in spite of the lack of friendly relations between army authorities and the newspaper correspondents at the front, and in spite of the powers under the Articles of War to prosecute persons spreading information of value to the enemy, little seems to have been done to curb the liberties of orthodox Northern newspapers. A mild censorship over outgoing telegraph and cable correspondence was in force during the Spanish-American War; but it was the conflict of 1917 which first squarely raised the issue of the war powers of the government in relation to the guarantees within the'First Amendment. The Espionage Act was passed in 1917 and was greatly strengthened the following year by what was popularly called the Sedition Act. Under the former, the power of the post office to exclude from the mails any publication which tended to violate the law of the land was finally, after de facto existence since 1861, written into a statute and later upheld by the judiciary. The latter statute prohibited publication of any "disloyal, profane, scurrilous, or abusive language" about the form of government or the armed forces of the United States, or language which tended to incite resistance to the United States or to impede the prosecution of the war. The Supreme Court generally upheld the war powers of the government, but in view of the vigorous minority dissents in certain cases as well as the public protest of distinguished leaders, the question of the limits upon constitutional freedoms imposed by the emer- gency powers demanded by war was settled with little more definiteness than in i8oi1. The 1918 statute was repealed in 1927. A voluntary censorship was organized under the Trading With the Enemy Act of 1917, and more or less associated with this censorship program was the work of the Committee on Public Information, created almost imme- diately after war broke out. Thus by positive action the government sought to enlist the cooperation of agencies of communication rather than create an Background Note 9 Press Freedom: Its History and Philosophy issue of the primacy of war powers over the constitutional guarantees of liberty. The changing economic character of the United States after the seven- ties introduced significant new features into American jurisprudence which, some years later, were to affect the legal concept of press freedom. The vastly altered interpretation of the Fourteenth Amendment in the latter part of the nineteenth century was epitomized in a famous Supreme Court ruling in 1877 (Munn v. Illinois, 94 U.S. 113) to the effect that the Amendment could apply to the states the limitations which the Fifth Amendment had placed upon the federal government. Eventually this expanding concept of the Four- teenth Amendment relative to the Fifth led the Supreme Court to acknowl- edge that "freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause" and thus equally protected from state and federal infringement. Other economic and social developments at the turn of the century-some in the newspaper itself and some in the general make-up of American business life as a whole-encouraged the application of the new "sociological jurispru- dence" to the press. The rise of pictorial journalism with its early flagrant abuse in the form of "faked" pictures and the widespread publicity which photography made possible, suggested to legal scholars the need for some more definitive protection of personal privacy.* This same era also saw the high tide of "yellow journalism"-sensation-mongering of a type and degree undreamed of in the early days of political party journalism or the first penny newspapers. To a certain extent this seems to have been responsible for a tendency in the courts to reassert the older common law power of contempt and in effect to neutralize the congressional action of 1831. The increasingly narrow view of when and how publications might create a "clear and present danger" that justice would be impeded or governmental processes otherwise interfered with, was intensified by the reaction of law enforcement officers and the courts themselves during the period of World War I and the ensuing prosecution of radical publications. By the twentieth century the newspaper industry and related processes of mass communication had grown to a size and economic power which obvi- ously could not be conceived of when political philosophers of the seventeenth and eighteenth centuries called for a system of law which would insure the fullest freedom of expression. Metropolitan dailies counted their circulation in the hundreds of thousands and publications of all sizes represented, in varying proportions, financial investments of considerable magnitude as com- pared with other business enterprises in the same community. Merger, consol- idation, monopoly-these were the economic facts of American business in * For further details, see the background note to Ch. 8. 10 Near v. Minnesota ex rel. Olson general, and the newspaper as a business reflected the general trend. Ad- ministrative law developed correspondingly as the means by which the govern- ment sought to cope with these massive shifts in national industrial life; al- ready by 1920 the courts had several times been asked to define the liability of newspapers to regulation as businesses, in distinction from their right to freedom of editorial activity. This question-how shall the public interest in the regulation of private industry be reconciled with the public interest in the free flow of news-was actually implicit in the original constitutional expres- sion of press freedom; but its immediate urgency has become the keynote of journalism law at the present time. GENERAL PRINCIPLES 1. What are the limits to press freedom? The Saturday Press was a weekly newspaper published in Minneapolis which, in the fall of 1927, devoted a large part of its space to a vehement attack upon various public officers and other individuals in public life, charg- ing dereliction of duty in the fight against racketeering, gambling, and boot- legging in the community. The articles averred that a gangster was in charge of these activities; that the chief of police was guilty of neglect of his duty and in fact had illicit relations with gangsters; that the county attorney was ignor- ing conditions and making no effort to prosecute; that one member of a grand jury investigating conditions was in sympathy with gangsters; and that various other city and county officials, as well, were disposed to overlook or collaborate with these criminal elements. Two years before the Minnesota legislature had enacted a law providing for the abatement, as a public nuisance, of a "malicious, scandalous, and defamatory newspaper, magazine, or other periodical." Section 1 of this act stated in part: Any person who, as an individual, or as a member or an employee of a firm, or association or organization, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away (a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a malicious, scandalous, and defamatory newspaper, magazine, or other periodical -is guilty of a nuisance, and all persons guilty of such nuisance may be en- joined, as hereafter provided. Truth, if published with good motives and for justifiable ends, was accepted by this law as an admissible defense. The state brought suit against the Saturday Press under this statute, charg- II 12 Press Freedom: Its History and Philosophy ing that the articles published constituted a public nuisance within the mean- ing of the act. The publisher, Near, was found guilty by the district court and the verdict was upheld by the Minnesota Supreme Court. Thereupon Near appealed to the Supreme Court of the United States, relying upon the due process clause of the Fourteenth Amendment. That high tribunal reversed the judgment of the Minnesota courts, ruling that the state law violated the guarantees embodied in the federal Constitution. Mr. Justice Hughes delivered the majority opinion of five justices. * This statute, for the suppression as a public nuisance of a newspaper or pe- riodical, is unusual, if not unique, and raises questions of grave importance transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this es- sential personal liberty of the citizen was left unprotected by the general guar- anty of fundamental rights of person and property. Gitlow v. New York, 268 U.S. 652, 666; Whitney v. California, 274 U.S. 357, 362, 373; Fiske v. Kansas, 274 U.S. 380, 382; Stromberg v. California, 283 U.S. 359.t In maintaining this guaranty, the authority of the State to enact laws to promote the health, safety, morals and general welfare of its people is necessarily admitted. The limits of this sovereign power must always be determined with appropriate re- gard to the particular subject of its exercise. Thus, while recognizing the broad discretion of the legislature in fixing rates to be charged by those undertaking a public service, this Court has decided that the owner cannot constitutionally be deprived of his right to a fair return, because that is deemed to be of the essence of ownership. So, while liberty of contract is not an absolute right, and the wide field of activity in the making of contracts is subject to legislative supervision, this Court has held that the power of the State stops short of in- terference with what are deemed to be certain indispensable requirements of the liberty assured, notably with respect to the fixing of prices and wages. Lib- erty of speech, and of the press, is also not an absolute right, and the state may punish its abuse. Liberty, in each of its phases, has its history and connotation and, in the present instance, the inquiry is as to the historic conception of the liberty of the press and whether the statute under review violates the essential attributes of that liberty ... . . . It is thus important to note precisely the purpose and effect of the stat- ute as the state court has construed it. First. The statute is not aimed at the redress of individual or private wrongs. Remedies for libel remain available and unaffected. The statute, said * In a dissent read by Mr. Justice Butler, the minority of four argued-without avail in this case, of course-that the Supreme Court did not have authority to reverse the judgment of the state court solely on the ground that in some future instance the state law might in- fringe upon press freedom. The minority contended that since the law imposed no previous restraint upon publication, it did not deprive Near of his constitutional right of freedom of expression. t Citations of other cases in the opinions have been omitted in this book except where the cases are considered to be particularly pertinent for journalism students or practitioners. Near v. Minnesota ex rel. Olson 13 the state court, "is not directed at threatened libel but at an existing busi- ness which, generally speaking, involves more than libel." It is aimed at the distribution of scandalous matter "as detrimental to public morals and to the general welfare," tending "to disturb the peace of the community" and "to provoke assaults and the commission of crime." In order to obtain an injunc- tion to suppress the future publication of the newspaper or periodical, it is not necessary to prove the falsity of the charges that have been made in the pub- lication condemned. In the present action there was no allegation that the matter published was not true. It is alleged, and the statute requires the allega- tion, that the publication was "malicious." But, as in prosecutions for libel, there is no requirement of proof by the State of malice in fact as distinguished from malice inferred from the mere publication of the defamatory matter. The judgment in this case proceeded upon the mere proof of publication. The statute permits the defense, not of the truth alone, but only that the truth was published with good motives and for justifiable ends.* It is apparent that un- der the statute the publication is to be regarded as defamatory if it injures rep- utation, and that it is scandalous if it circulates charges of reprehensible con- duct, whether criminal or otherwise, and the publication is thus deemed to invite public reprobation and to constitute a public scandal. The court sharply defined the purpose of the statute, bringing out the precise point, in these words: "There is no constitutional right to publish a fact merely because it is true. It is a matter of common knowledge that prosecutions under the crimi- nal libel statutes do not result in efficient repression or suppression of the evils of scandal. Men who are the victims of such assaults seldom resort to the courts. This is especially true if their sins are exposed and the only question relates to whether it was done with good motives and for justifiable ends. This law is not for the protection of the person attacked nor to punish the wrong- doer. It is for the protection of the public welfare." Second. The statute is directed not simply at the circulation of scandalous and defamatory statements with regard to private citizens, but at the contin- ued publication by newspapers and periodicals of charges against public offi- cers of corruption, malfeasance in office, or serious neglect of duty. Such charges by their very nature create a public scandal. They are scandalous and defamatory within the meaning of the statute, which has its normal operation in relation to publications dealing prominently and chiefly with the alleged derelictions of public officers. Third. The object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical. The reason for the enactment, as the state court has said, is that prosecutions to enforce penal statutes for libel do not result in "efficient repression or suppression of the evils of scandal." Describing the business of publication as a public nuisance, does not obscure the substance of the proceeding which the statute author- izes. It is the continued publication of scandalous and defamatory matter that constitutes the business and the declared nuisance. In the case of public offi- cers, it is the reiteration of charges of official misconduct, and the fact that the newspaper or periodical is principally devoted to that purpose, that exposes * On the defense of truth in civil and criminal libel actions, see the background note to Ch. 6. Press Freedom: Its History and Philosophy 14 it to suppression. In the present instance, the proof was that nine editions of the newspaper or periodical in question were published on successive dates, and that they were chiefly devoted to charges against public officers and in re- lation to the prevalence and protection of crime. In such a case, these officers are not left to their ordinary remedy in a suit for libel, or the authorities to a prosecution for criminal libel. Under this statute, a publisher of a newspaper or periodical, undertaking to conduct a campaign to expose and to censure of- ficial derelictions, and devoting his publication principally to that purpose, must face not simply the possibility of a verdict against him in a suit or prose- cution for libel, but a determination that his newspaper or periodical is a pub- lic nuisance to be abated, and that this abatement and suppression will follow unless he is prepared with legal evidence to prove the truth of the charges and also to satisfy the court that, in addition to being true, the matter was pub- lished with good motives and for justifiable ends. This suppression is accomplished by enjoining publication and that re- straint is the object and effect of the statute. Fourth. The statute not only operates to suppress the offending newspaper or periodical but to put the publisher under an effective censorship. When a newspaper or periodical is found to be "malicious, scandalous and defama- tory," and is suppressed as such, resumption of publication is punishable as a contempt of court by fine or imprisonment. Thus, where a newspaper or peri- odical has been suppressed because of the circulation of charges against public officers of official misconduct, it would seem to be clear that the re- newal of the publication of such charges would constitute a contempt and that the judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the character of a new publication. Whether he would be permitted again to publish matter deemed to be deroga- tory to the same or other public officers would depend upon the court's ruling. In the present instance the judgment restrained the defendants from "publish- ing, circulating, having in their possession, selling or giving away any publica- tion whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law." The law gives no definition except that covered by the words "scandalous and defamatory," and publications charging official mis- conduct are of that class. While the court, answering the objection that the judgment was too broad, saw no reason for construing it as restraining the defendants "from operating a newspaper in harmony with the public welfare to which all must yield," and said that the defendants had not indicated "any desire to conduct their business in the usual and legitimate manner," the manifest inference is that, at least with respect to a new publication directed against official misconduct, the defendant would be held, under penalty of punishment for contempt as provided in the statute, to a manner of publi- cation which the court considered to be "usual and legitimate" and consistent with the public welfare. If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter-in particular that the matter consists of charges against public officers of official dereliction- Near v. Minnesota ex ret. Olson and unless the owner or publisher is able and disposed to bring competent evi- dence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the es- sence of censorship. The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication. The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. The liberty deemed to be established was thus described by Blackstone: "The lib- erty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mis- chievous or illegal, he must take the consequence of his own temerity." 4 Bl. Com. 151, 152; see Story, On the Constitution, sec. 1884, 1889. The distinc- tion was early pointed out between the extent of the freedom with respect to censorship under our constitutional system and that enjoyed in England. Here, as Madison said, "the great and essential rights of the people are secured against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, as in Great Britain, but from legislative restraint also." Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court said, in Patterson v. Colorado, 205 U.S. 454, 462: "In the first place, the main purpose of such constitutional pro- visions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent pun- ishment of such as may be deemed contrary to the public welfare. Common- wealth v. Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald, 1 Dallas, 319, 325. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all. Commonwealth v. Blanding, ubi sup.; 4 Bl. Com. 150." The criticism upon Blackstone's statement has not been because immunity from previous restraint upon publication has not been regarded as deserving of special emphasis, but chiefly because that immunity cannot be deemed to exhaust the conception of liberty guaranteed by state and federal constitu- tions. The point of criticism has been "that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions"; and that "the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications." 2 Cooley, Const. Lim., 8th ed., p. 885. But it is recog- z5 Press Freedom: Its History and Philosophy nized that punishment for the abuse of the liberty accorded to the press is es- sential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as the private injury, are not abolished by the protection extended in our constitutions. Id., pp. 883, 884. The law of criminal libel rests upon that secure founda- tion. There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions. In the present case, we have no occasion to inquire as to the per- missible scope of subsequent punishment. For whatever wrong the appellant has committed or may commit, by his publications, the State appropriately af- fords both public and private redress by its libel laws. As has been noted, the statute in question does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court's order, but for suppression and injunction, that is, for restraint upon publication. The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous re- straint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." Schenck v. United States, 249 U.S. 47, 52. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene pub- lications. The security of the community life may be protected against incite- ments to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not "protect a man from an injunction against uttering words that may have all the effect of force. Gom- pers v. Bucks Stove 6 Range Co., 221 U.S. 418, 439." Schenck v. United States, supra. These limitations are not applicable here. Nor are we now con- cerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exer- cise of the jurisdiction of courts of equity. The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, im- munity from previous restraints or censorship. The conception of the liberty of the press in this country had broadened with the exigencies of the colonial period and with the efforts to secure freedom from oppressive administra- tion. That liberty was especially cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct. As was said by Chief Justice Parker, in Common- wealth v. Blanding, 3 Pick. 304, 313, with respect to the constitution of Mas- sachusetts: "Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practiced by other 16 Near v. Minnesota ex rel. Olson 17 governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse." In the letter sent by the Continental Con- gress (October 26, 1774) to the Inhabitants of Quebec, referring to the "five great rights" it was said: "The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal senti- ments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more hon- ourable and just modes of conducting affairs." Madison, who was the lead- ing spirit in the preparation of the First Amendment of the Federal Consti- tution, thus described the practice and sentiment which led to the guaranties of liberty of the press in state constitutions: In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this footing it yet stands. . . . Some degree of abuse is inseparable from the proper use of everything, and in no in- stance is this more true than in that of the press. It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source the United States owe much of the lights which conducted them to the ranks of a free and independent nation, and which have improved their political system into a shape so auspicious to their happiness? Had "Sedition Acts," for- bidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day under the infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groan- ing under a foreign yoke? The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publi- cations relating to the malfeasance of public officers is significant of the deep- seated conviction that such restraints would violate constitutional right. Pub- lic officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The general princi- ple that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the pro- visions of state constitutions. 18 Press Freedom: Its History and Philosophy The importance of this immunity has not lessened. While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeav- oring faithfully to discharge official duties, exert a baleful influence and de- serve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious propor- tions, and the danger of its protection by unfaithful officials and of the im- pairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and coura- geous press, especially in great cities. The fact that the.liberty of the press may be abused by miscreant purveyors of scandal does not make any the less neces- sary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appro- priate remedy, consistent with constitutional privilege. In attempted justification of the statute, it is said that it deals not with pub- lication per se, but with the "business" of publishing defamation. If, however, the publisher has a constitutional right to publish, without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied that he may publish subsequent editions for the same purpose. He does not lose his right by exercising it. If his right exists, it may be exercised in publish- ing nine editions, as in this case, as well as in one edition. If previous restraint is permissible, it may be imposed at once; indeed, the wrong may be as serious in one publication as in several. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitu- tional immunity against restraint. Similarly, it does not matter that the news- paper or periodical is found to be "largely" or "chiefly" devoted to the publi- cation of such derelictions. If the publisher has a right, without previous restraint, to publish them, his right cannot be deemed to be dependent upon his publishing something else, more or less, with the matter to which objection is made. Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of municipal charters and ordi- nances carrying penal sanctions, the conduct of public officers is very largely within the purview of criminal statutes. The freedom of the press from previ- ous restraint has never been regarded as limited to such animadversions as lay outside the range of penal enactments. Historically, there is no such limita- tion; it is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established. The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter pub- lished is true and is published with good motives and for justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is con- stitutionally valid, it would be equally permissible for the legislature to provide that at any time the publisher of any newspaper could be brought before a Near v. Minnesota ex rel. Olson 19 court, or even an administrative officer (as the constitutional protection may not be regarded as resting on mere procedural details) and required to pro- duce proof of the truth of his publication, or of what he intended to publish, and of his motives, or stand enjoined. If this can be done, the legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends and restrain publication accordingly. And it would be but a step to a complete system of censorship. The recognition of authority to impose previous restraint upon publication in order to protect the com- munity against the circulation of charges of misconduct, and especially of offi- cial misconduct, necessarily would carry with it the admission of the author- ity of the censor against which the constitutional barrier was erected. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this Court has said, on proof of truth. Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to pro- voke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scan- dal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication. "To prohibit the intent to excite those unfavorable sentiments against those who administer the Government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them is equivalent to a prohi- bition of discussions having that tendency and effect; which, again, is equiva- lent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatred of the people, against being ex- posed to it by free animadversions on their characters and conduct." There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well-understood tendency did not alter the determination to protect the press against censorship and restraint upon publication. The danger of violent re- actions becomes greater with effective organization of defiant groups resenting exposure, and if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words. For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, with- out regard to the question of the truth of the charges contained in the par- ticular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable, cannot affect the conclusion that the statute imposes an unconsti- tutional restraint upon publication. Judgment reversed. NEAR V. MINNESOTA EX REL. OLSON, 283 U.S. 697; 51 S. Ct. 625; 75 L. Ed. 1357 (1931) Press Freedom: Its History and Philosophy During World War I the United States was confronted, almost for the first time, with the problems of militant radical ideology and the extension of the protection of the First Amendment to advocates of such ideology. The struggle of laborers for the right to organize and bargain collectively had al- ready begun, and the outbreak of the Russian Revolution gave a further im- petus to minority groups in the United States seeking to arouse working people to mass action to redress what these groups considered to be chronic economic evils. Upon the question of the right to circulate such views the highest judicial authorities failed to find agreement, and in the course of the next three decades the minority opinion of one era was to become the major- ity opinion of the next, and so on. In each succeeding case, however, the court sought to develop a consistently more detailed definition of the meaning and limits of liberty of expression. The Selective Service Act was one of the targets of the radical pamphleteers. The question of whether an editorial attack upon this law, particularly in time of war, enjoys the protection of the First Amendment came ultimately before the Supreme Court. Speaking for a unanimous court, Mr. Justice Holmes affirmed the convic- tion of individuals who, in time of national emergency, published pamphlets and other utterances urging disobedience to the draft laws. The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, "Do not submit to intimidation," but in form at least con- fined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that any one violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on "if you do not assert and support your rights, you are help- ing to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such coldblooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country." Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft ex- 20 cept to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point. But it is said, suppose that that was the tendency of this circular, it is pro- tected by the First Amendment to the Constitution. Two of the strongest ex- pressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, o05 U.S. 454, 462. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not pro- tect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove 6 Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its ef- fort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in sec. 4 punishes conspiracies to obstruct as well as actual ob- struction. If the act (speaking, or circulating a paper), its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. . Judgment affirmed. SCHENCK V. UNITED STATES, 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470 (1919) But what constitutes a "clear and present danger"? This was a question which, as Mr. Justice Holmes himself would have readily asserted, was to be settled in consideration of the circumstances of each case. Even so, there still would be a fundamental divergence in viewpoint upon the bench, as the great jurist himself found in the same term of court, which considered the many issues arising from the wartime restrictions. The majority of the court upheld the conviction of a group of radical pamphleteers urging violent resist- ance to the efforts of the United States to mount a campaign against the Rus- sian Bolsheviks. Holmes undertook to elaborate upon his concept of the "clear and present danger" in a minority opinion: This indictment is founded wholly upon the publication of two leaflets which I shall describe in a moment. The first count charges a conspiracy pend- Abrams v. United States 21 Press Freedom: Its History and Philosophy ing the war with Germany to publish abusive language about the form of gov- ernment of the United States, laying the preparation and publishing of the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish language intended to bring the form of government into con- tempt, laying the preparation and publishing of the two leaflets as overt acts. The third count alleges a conspiracy to encourage resistance to the United States in the same war and to attempt to effectuate the purpose by publishing the same leaflets. The fourth count lays a conspiracy to incite curtailment of production of things necessary to the prosecution of the war and to attempt to accomplish it by publishing the second leaflet to which I have referred. The first of these leaflets says that the President's cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that "German militarism combined with allied capitalism to crush the Russian revolution"-goes on that the tyrants of the world fight each other until they see a common enemy-working class enlight- enment, when they combine to crush it; and that now militarism and capital- ism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of the workers of the world and that is capitalism; that it is a crime for workers of America, &c., to fight the workers' republic of Russia, and ends, "Awake! Awake, you Workers of the World! Revolution- ists." A note adds, "It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more rea- sons for denouncing German militarism than has the coward of the White House." The other leaflet, headed "Workers-Wake Up," with abusive language says that America together with the Allies will march for Russia to help the Czecho-Slovaks in their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the Russian emigrants and friends of Russia in Amer- ica. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecu- tion of the war have been called forth and says that with the money they have lent or are going to lend "they will make bullets not only for the Germans but also for the Workers' Soviets of Russia," and further, "Workers in the ammu- nition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fight- ing for freedom." It then appeals to the same Russian emigrants at some length not to consent to the "inquisitionary expedition to Russia," and says that the destruction of the Russian revolution is "the politics of the march to Russia." The leaflet winds up by saying, "Workers, our reply to this barbaric intervention has to be a general strike!" and after a few words on the spirit of revolution, exhortations not to be afraid, and some usual tall talk, ends, "Woe unto those who will be in the way of progress. Let solidarity live! The Rebels." No argument seems to me necessary to show that these pronunciamentos in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be postponed until I have considered the fourth. With regard to that it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, 22 Abrams v. United States 23 and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending sec. 3 of the earlier Act of 1917. But to make the conduct criminal that statute requires that it should be "with intent by such curtailment to cripple or hinder the United States in the prosecution of the war." It seems to me that no such intent is proved. I am aware of course that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the con- sequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay dam- ages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the conse- quences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvi- ous, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to pro- duce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a cer- tain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prose- cution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the freedom of speech. I never have seen any reason to doubt . . . that by the same reasoning that would justify punishing persuasion to murder, the United States constitu- tionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immedi- ate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Con- gress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appre- ciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would Press Freedom: Its History and Philosophy have the quality of an attempt. So I assume that the second leaflet if pub- lished for the purposes alleged in the fourth count might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime, for reasons given in Swift 6 Co. v. United States, 196 U.S. 375, 396. It is necessary where the suc- cess of the attempt depends upon others because if that intent is not present the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged. I do not see how anyone can find the intent required by the statute in any of the defendants' words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of Ger- man militarism expressed in the former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop Ameri- can intervention there against the popular government-not to impede the United States in the war that it was carrying on. To say that two phrases taken literally might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect. I return for a moment to the third count. That charges an intent to pro- voke resistance to the United States in its war with Germany. Taking the clause in the statute that deals with that in connection with the other elabo- rate provisions of the act, I think that resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have described and for the reasons that I have given I think that no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United States as I construe the phrase. In this case sentences of twenty years' imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary in- tent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow-a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away 24 all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salva- tion upon some prophecy based upon imperfect knowledge. While that ex- periment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and be- lieve to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immedi- ate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to sedi- tious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law . . . abridging the freedom of speech." Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States. Mr. Justice Brandeis concurs with the foregoing opinion. ABRAMS V. UNITED STATES, 250 U.S. 616; 40 S. Ct. 17; 63 L. Ed. 1173 (1919) Almost two decades were to pass before the majority of the Supreme Court came to accept the extended social philosophy of Holmes in the Abrams case. In declaring invalid an Oregon statute on criminal syndicalism, the court un- dertook to give a further definition to the "clear and present danger" rule. Mr. Chief Justice Hughes read the opinion in which seven other members of the court concurred; Mr. Justice Stone, following a well-established practice of justices in abstaining from cases in which they had some direct or indirect role at an earlier stage (i.e., before they were appointed to this bench), took no part in the opinion. Freedom of speech and of the press are fundamental rights which are safe- guarded by the due process clause of the Fourteenth Amendment of the Fed- eral Constitution. The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. As this Court said DeJonge v. Oregon 2S: Press Freedom: Its History and Philosophy in United States v. Cruikshank, 92 U.S. 542, 552: "The very idea of a gov- ernment, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." The First Amendment of the Federal Constitu- tion expressly guarantees that right against abridgment by Congress. But ex- plicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of lib- erty and justice which lie at the base of all civil and political institutions,- principles which the Fourteenth Amendment embodies in the general terms of its due process clause. These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their legislatures may pro- tect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights them- selves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitu- tional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be ob- tained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be pro- scribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peace- able assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, in- stead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge. We are not called upon to review the findings of the state court as to the objectives of the Communist Party. Notwithstanding those objectives, the de- fendant still enjoyed his personal right of free speech and to take part in a peaceable assembly having a lawful purpose, although called by that Party. The defendant was none the less entitled to discuss the public issues of the day and thus in a lawful manner, without incitement to violence or crime, to seek redress of alleged grievances. That was of the essence of his guaran- teed personal liberty. We hold that the Oregon statute as applied to the particular charge as de- fined by the state court is repugnant to the due process clause of the Four- 26 Dennis et at. v. United States teenth Amendment. The judgment of conviction is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. DEJONGE V. OREGON, 299 U.S. 353; 57 S. Ct. 255; 81 L. Ed. 278 (1937) The meaning of freedom of expression in the political flux of the mid- century continued to confront American jurisprudence. Alarmed at the international influence of the Marxist-Leninist ideology, Congress in 1940 passed the Alien Registration (Smith) Act (54 Stat. 670), which provided in part: Sec. 2 (a) It shall be unlawful for any person . . . (2) with the intent to cause the overthrow or destruction of any govern- ment in the United States, to print, publish, edit, issue, circulate, sell, distribute or publicly display any written or printed matter advocating, advising or teach- ing the duty, necessity or propriety of overthrowing or destroying any govern- ment in the United States. In due course the government arrested and brought to trial a number of leaders of the Communist Party in the United States, including various jour- nalists and pamphleteers, on charges of violating this act. The original trial of the case extended over nine months, six of which were devoted to the taking of evidence amounting to 16,ooo pages. Upon conviction in the lower court the defendants appealed to the Supreme Court, relying among other things upon the protection of the First, Fifth, and Fourteenth Amendments. That tribunal recognized in the Dennis case a kind of culmination of the issues which had first appeared in serious proportions in 1919-the necessity of restating, if possible, the nature and limits of constitutional liberty within the framework of twentieth century political, economic, and social reality. Whereas, as lately as in Chief Justice Hughes' opinion in the case of Near v. Minnesota, the court had been inclined to preserve the legal philosophy of natural rights which had prevailed when the Constitution and the First Amendment were originated, the court of 1950 was keenly aware of the cur- rent prevalence of pragmatism and relativity as politico-legal theories. This was plain in the division of views with which the court answered the question of freedom of expression embodied in this case. Mr. Chief Justice Vinson delivered the opinion of the court, speaking for himself and three other justices; a fifth and a sixth justice wrote concurring opinions, all being in favor of upholding the convictions; one justice took no part in the case; two justices wrote separate dissenting opinions-five opin- ions in all being submitted in the judgment of the case. No important case involving free speech was decided by this Court prior to Schenck v. United States, 249 U.S. 47 (1919). Indeed, the summary treat- 27 Press Freedom: Its History and Philosophy ment accorded an argument based upon an individual's claim that the First Amendment protected certain utterances indicates that the Court at earlier dates placed no unique emphasis upon that right. It was not until the classic dictum of Justice Holmes in the Schenck case that speech per se received that emphasis in a majority opinion. That case involved a conviction under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced was whether the evidence was sufficient to sustain the conviction. Writing for a unanimous Court, Justice Holmes stated that the "question in every case is whether the words used are used in such circumstances and are of such a na- ture as to create a clear and present danger that they will bring about the sub- stantive evils that Congress has a right to prevent." 249 U.S. at 52. But the force of even this expression is considerably weakened by the reference at the end of the opinion to Goldman v. United States, 245 U.S. 474 (1918), a prosecution under the same statute. Said Justice Holmes, "Indeed [the Gold- man case] might be said to dispose of the present contention if the prec- edent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words." 249 U.S. at 52. The fact is inescapable, too, that the phrase bore no connotation that the dan- ger was to be any threat to the safety of the Republic. The charge was causing and attempting to cause insubordination in the military forces and obstruct recruiting. The objectionable document denounced conscription and its most inciting sentence was, "You must do your share to maintain, support and uphold the rights of the people of this country." 249 U.S. at 51. Fifteen thousand copies were printed and some circulated. This insubstantial gesture toward insubordination in 1917 during war was held to be a clear and present danger of bringing about the evil of military insubordination. In several later cases involving convictions under the Criminal Espionage Act, the nub of the evidence the Court held sufficient to meet the "clear and present danger" test enunciated in Schenck was as follows: Frohwerk v. United States, 249 U.S. 204 (1919)-publication of twelve newspaper arti- cles attacking the war; Debs v. United States, 249 U.S. 211 (1919) one speech attacking United States' participation in the war; Abrams v. United States, 250 U.S. 616 (1919)-circulation of copies of two different socialist circulars attacking the war; Schaefer v. United States, 251 U.S. 466 (1920)- publication of a German-language newspaper with allegedly false articles, critical of capitalism and the war; Pierce v. United States, 252 U.S. 239 (1920)-circulation of copies of a four-page pamphlet written by a clergy- man, attacking the purposes of the war and United States' participation therein. Justice Holmes wrote the opinions for a unanimous Court in Schenck, Frohwerk and Debs. He and Justice Brandeis dissented in Abrams, Schaefer and Pierce. The basis of these dissents was that, because of the protection which the First Amendment gives to speech, the evidence in each case was in- sufficient to show that the defendants had created the requisite danger under Schenck. But these dissents did not mark a change of principle. The dissent- ers doubted only the probable effectiveness of the puny efforts toward sub- version. .. The rule we deduce from these cases is that where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or 28 Dennis et al. v. United States press as evidence of violation may be sustained only when the speech or pub- lication created a "clear and present danger" of attempting or accomplishing the prohibited crime, e.g., interference with enlistment. The dissents, we re- peat, in emphasizing the value of speech, were addressed to the argument of the sufficiency of the evidence. The next important case before the Court in which free speech was the crux of the conflict was Gitlow v. New York, 268 U.S. 652 (1925). There New York had made it a crime to advocate "the necessity or propriety of overthrowing . .. organized government by force. . . ." The evidence of vi- olation of the statute was that the defendant had published a Manifesto at- tacking the Government and capitalism. The convictions were sustained, Jus- tices Holmes and Brandeis dissenting. The majority refused to apply the "clear and present danger" test to the specific utterance. Its reasoning was as follows: The "clear and present danger" test was applied to the utterance it- self in Schenck because the question was merely one of sufficiency of evidence under an admittedly constitutional statute. Gitlow, however, presented a dif- ferent question. There a legislature had found that a certain kind of speech was, itself, harmful and unlawful. The constitutionality of such a state statute had to be adjudged by this Court just as it determined the constitutionality of any state statute, namely, whether the statute was "reasonable." Since it was entirely reasonable for a state to attempt to protect itself from violent over- throw, the statute was perforce reasonable. The only question remaining in the case became whether there was evidence to support the conviction, a ques- tion which gave the majority no difficulty. Justices Holmes and Brandeis re- fused to accept this approach, but insisted that wherever speech was the evi- dence of the violation, it was necessary to show that the speech created the "clear and present danger" of the substantive evil which the legislature had the right to prevent. Justices Holmes and Brandeis, then, made no distinction be- tween a federal statute which made certain acts unlawful, the evidence to sup- port the conviction being speech, and a statute which made speech itself the crime. This approach was emphasized in Whitney v. California, 274 U.S. 357 (1927), where the Court was confronted with a conviction under the Califor- nia Criminal Syndicalist statute. The Court sustained the conviction, Jus- tices Brandeis and Holmes concurring in the result. In their concurrence they repeated that even though the legislature had designated certain speech as criminal, this could not prevent the defendant from showing that there was no danger that the substantive evil would be brought about. Although no case subsequent to Whitney and Gitlow has expressly over- ruled the majority opinions in those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis rationale. And in Amer- ican Communications Assn. v. Douds, [339 U.S. 382] we were called upon to decide the validity of sec. 9 (h) of the Labor Management Relations Act of 1947. That section required officials of unions which desired to avail them- selves of the facilities of the National Labor Relations Board to take oaths that they did not belong to the Communist Party and that they did not believe in the overthrow of the Government by force and violence. We pointed out that Congress did not intend to punish belief, but rather intended to regulate the conduct of union affairs. We therefore held that any indirect sanction on 29 Press Freedom: Its History and Philosophy speech which might arise from the oath requirement did not present a proper case for the "clear and present danger" test, for the regulation was aimed at conduct rather than speech. In discussing the proper measure of evaluation of this kind of legislation, we suggested that the Holmes-Brandeis philosophy insisted that where there was a direct restriction upon speech, a "clear and present danger" that the substantive evil would be caused was necessary before the statute in question could be constitutionally applied. And we stated, "[The First] Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantive public evil will result therefrom." 339 U.S. at 412. But we further suggested that neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and be- yond control by the legislature, when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when as- sociated with the considerations which gave birth to the nomenclature. To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative. ... We hold that secs. 2(a) (1), 2(a) (3) and 3 of the Smith Act do not in- herently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the Government of the United States as speedily as the circumstances would per- mit. Their conspiracy to organize the Communist Party and to teach and ad- vocate the overthrow of the Government of the United States by force and vi- olence created a "clear and present danger" of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act. The judgments of conviction are Affirmed. Mr. Justice Clark took no part in the consideration or decision of this case. Mr. Justice Frankfurter, concurring in affirmance of the judgment . . . But even the all-embracing power and duty of self-preservation are not absolute. Like the war power, which is indeed an aspect of the power of self-preservation, it is subject to applicable constitutional limitations. Our Constitution has no provision lifting restrictions upon governmental authority during periods of emergency, although the scope of a restriction may depend on the circumstances in which it is invoked. The First Amendment is such a restriction. It exacts obedience even dur- ing periods of war; it is applicable when war clouds are not figments of the imagination no less than when they are. The First Amendment categorically demands that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of 30 Dennis et al. v. United States speech, or of the press; or the right of the people peacably to assemble, and to petition the Government for a redress of grievances." The right of a man to think what he pleases, to write what he thinks, and to have his thoughts made available for others to hear or read has an engaging ring of universality. The Smith Act and this conviction under it no doubt restrict the exercise of free speech and assembly. Does that, without more, dispose of the matter? Just as there are those who regard as invulnerable every measure for which the claim of national survival is invoked, there are those who find in the Con- stitution a wholly unfettered right of expression. Such literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry. The historic antecedents of the First Amend- ment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political inter- est. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance. And it deserves to be noted that in writing to John Adams's wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States. The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed? Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case of every other provision of the Constitu- tion that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument. "The law is perfectly well settled," this Court said over fifty years ago, "that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inher- ited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed." Robertson v. Baldwin, 165 U.S. 275, 281. That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years. See, e.g., Gompers v. United States, 233 U.S. 604, 61o. Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules. 31 Press Freedom: Its History and Philosophy The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by an- nouncing dogmas too inflexible for the non-Euclidian problems to be solved. But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment?-who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within nar- row limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary re- sponsibility in choosing between competing political, economic and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it. .. Of course no government can recognize a "right" of revolution, or a "right" to incite revolution if the incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its effects may be mani- fold. A public interest is not wanting in granting freedom to speak their minds even to those who advocate the overthrow of the Government by force. For, as the evidence in this case abundantly illustrates, coupled with such advocacy is criticism of defects in our society. Criticism is the spur to reform; and Burke's admonition that a healthy society must reform in order to con- serve has not lost its force. Astute observers have remarked that one of the characteristics of the American Republic is indifference to fundamental crit- icism. Bryce, The American Commonwealth, c. 84. It is a commonplace that there may be a grain of truth in the most uncouth doctrine, however false and repellent the balance may be. Suppressing advocates of overthrow inevi- tably will also silence critics who do not advocate overthrow but fear that their criticism may be so construed. No matter how clear we may be that the defendants now before us are preparing to overthrow our Government at the propitious moment, it is self-delusion to think that we can punish them for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a sobering fact that in sustaining the convictions before us we can hardly escape restriction on the interchange of ideas. We must not overlook the value of that interchange. Freedom of expression is the well-spring of our civilization-the civilization we seek to maintain and further by recognizing the right of Congress to put some limitation upon ex- pression. Such are the paradoxes of life. For social development of trial and error, the fullest possible opportunity for the free play of the human mind is 32 Dennis et al. v. United States an indispensable prerequisite. The history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths. Therefore the liberty of man to search for truth ought not to be fettered, no matter what ortho- doxies he may challenge. Liberty of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes. "The interest, which [the First Amendment] guards, and which gives it its importance, presupposes that there are no orthodoxies-religious, political, economic, or scientific-which are immune from debate and dispute. Back of that is the assumption-itself an orthodoxy, and the one permissible excep- tion-that truth will be most likely to emerge, if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to pre- sent grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies." International Brotherhood of Electrical Workers v. Labor Board, 181 F.2d 34, 40. In the last analysis it is on the validity of this faith that our national security is staked. It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Con- gress has determined that the danger created by advocacy of overthrow justi- fies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends. Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government's protection? To make validity of legislation depend on judicial reading of events still in the womb of time-a forecast, that is, of the outcome of forces at best appre- ciated only with knowledge of the topmost secrets of nations-is to charge the judiciary with duties beyond its equipment. We do not expect courts to pro- nounce historic verdicts on bygone events. Even historians have conflicting views to this day on the origins and conduct of the French Revolution, or, for that matter, varying interpretations of "the glorious Revolution" of 1688. It is as absurd to be confident that we can measure the present clash of forces and their outcome as to ask us to read history still enveloped in clouds of controversy. ... Civil liberties draw at best only limited strength from legal guaranties. Preoccupation by our people with the constitutionality, instead of with the wisdom, of legislation or of executive action is preoccupation with a false value. Even those who would most freely use the judicial brake on the demo- cratic process by invalidating legislation that goes deeply against their grain, acknowledge, at least by paying lip service, that constitutionality does not exact a sense of proportion or the sanity of humor or an absence of fear. Focus- ing attention on constitutionality tends to make constitutionality synony- mous with wisdom. When legislation touches freedom of thought and freedom of speech, such a tendency is a formidable enemy of the free spirit. Much 33 Press Freedom: Its History and Philosophy that should be rejected as illiberal, because repressive and envenoming, may well be not unconstitutional. The ultimate reliance for the deepest needs of civilization must be found outside their vindication in courts of law; apart from all else, judges, howsoever they may conscientiously seek to discipline themselves against it, unconsciously are too apt to be moved by the deep un- dercurrents of public feeling. A persistent, positive translation of the liberat- ing faith into the feelings and thoughts and actions of men and women is the real protection against attempts to strait-jacket the human mind. Such temptations will have their way, if fear and hatred are not exorcized. The mark of a truly civilized man is confidence in the strength and security derived from the inquiring mind. We may be grateful for such honest comforts as it supports, but we must be unafraid of its incertitudes. Without open minds there can be no open society. And if society be not open the spirit of man is mutilated and becomes enslaved. ... Mr. Justice Douglas, dissenting. If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and im- morality. This case was argued as if those were the facts. The argument im- ported much seditious conduct into the record. That is easy and it has popular appeal, for the activities of Communists in plotting and scheming against the free world are common knowledge. But the fact is that no such evidence was introduced at the trial. There is a statute which makes a seditious conspiracy unlawful. Petitioners, however, were not charged with a "conspiracy to over- throw" the Government. They were charged with a conspiracy to form a party and groups and assemblies of people who teach and advocate the overthrow of our Government by force or violence and with a conspiracy to advocate and teach its overthrow by force and violence. It may well be that indoctrina- tion in the techniques of terror to destroy the Government would be indicta- ble under either statute. But the teaching which is condemned here is of a dif- ferent character. So far as the present record is concerned, what petitioners did was to organ- ize people to teach and themselves teach the Marxist-Leninist doctrine con- tained chiefly in four books: Stalin, Foundations of Leninism (1924); Marx and Engels, Manifesto of the Communist Party (1848); Lenin, The State and Revolution (1917); History of the Communist Party of the Soviet Un- ion (B) (1939)" Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent, and the chances of its success less likely. That is not, of course, the reason why petitioners chose these books for their classrooms. They are fervent Commu- nists to whom these volumes are gospel. They preached the creed with the hope that some day it would be acted upon. 34. Dennis et al. v. United States The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists do literature offensive to their creed. But if the books themselves are not outlawed, if they can lawfully remain on library shelves, by what reasoning does their use in a classroom become a crime? It would not be a crime under the Act to introduce these books to a class, though that would be teaching what the creed of violent overthrow of the Govern- ment is. The Act, as construed, requires the element of intent-that those who teach the creed believe in it. The crime then depends not on what is taught but on who the teacher is. That is to make freedom of speech turn not on what is said, but on the intent with which it is said. Once we start down that road we enter territory dangerous to the liberties of every citizen. There was a time in England when the concept of constructive treason flourished. Men were punished not for raising a hand against the king but for thinking murderous thoughts about him. The Framers of the Constitution were alive to that abuse and took steps to see that the practice would not flourish here. Treason was defined to require overt acts-the evolution of a plot against the country into an actual project. The present case is not one of treason. But the analogy is close when the illegality is made to turn on in- tent, not on the nature of the act. We then start probing men's minds for motive and purpose; they become entangled in the law not for what they did but for what they thought; they get convicted not for what they said but for the purpose with which they said it. Intent, of course, often makes the difference in the law. An act otherwise ex- cusable or carrying minor penalties may grow to an abhorrent thing if the evil intent is present. We deal here, however, not with ordinary acts but with speech, to which the Constitution has given a special sanction. The vice of treating speech as the equivalent of overt acts of a treasonable or seditious character is emphasized by a concurring opinion, which by invoking the law of conspiracy makes speech do service for deeds which are danger- ous to society. The doctrine of conspiracy has served divers and oppressive purposes and in its broad reach can be made to do great evil. But never until today has anyone seriously thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious conduct. Yet that is precisely what is suggested. I repeat that we deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single sedi- tious act is charged in the indictment. To make a lawful speech unlawful be- cause two men conceive it is to raise the law of conspiracy to appalling propor- tions. That course is to make a radical break with the past and to violate one of the cardinal principles of our constitutional scheme. Free speech has occupied an exalted position because of the high service it has given society. Its protection is essential to the very existence of a democ- racy. The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents. Full and free discus- sion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stag- nant and unprepared for the stresses and strains that work to tear all civiliza- tions apart. 35 Press Freedom: Its History and Philosophy Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every re- ligious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest. This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world. There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the clear and present danger test. When conditions are so crit- ical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the Nation will be the cause of its destruction. Yet free speech is the rule, not the exception. The restraint to be constitu- tional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 376-377: Fear of serious injury cannot alone justify suppression of free speech and as- sembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and at- tempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that im- mediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flow- 36 Dennis et al. v. United States ing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence [italics added] . The First Amendment provides that "Congress shall make no law abridging the freedom of speech." The Constitution provides no exception. This does not mean, however, that the Nation need hold its hand until it is in such weakened condition that there is no time to protect itself from incite- ment to revolution. Seditious conduct can always be punished. But the com- mand of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself. The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democ- racy. Its philosophy is that violence is rarely, if ever, stopped by denying civil liberties to those advocating resort to force. The First Amendment reflects the philosophy of Jefferson "that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order." The political censor has no place in our public debates. Unless and until extreme and necessitous circumstances are shown, our aim should be to keep speech unfettered and to allow the processes of law to be invoked only when the provocateurs among us move from speech to action. Vishinsky wrote in 1938 in The Law of the Soviet State, "In our state, naturally, there is and can be no place for freedom of speech, press, and so on for the foes of socialism." Our concern should be that we accept no such standard for the United States. Our faith should be that our people will never give support to these ad- vocates of revolution, so long as we remain loyal to the purposes for which our nation was founded. DENNIS ET AL. V. UNITED STATES, 341 U.S. 494; 71 S. Ct. 857; 95 L. Ed. 1137 (1951) 37 CHAPTER II Its Practical Definition The readings and background note to Chapter I apply also to this chapter, which continues the consideration of the fundamental principles of law affecting freedom of news and comment. Chapter I emphasized the basic philosophical concepts involved in the question. The present chapter takes up additional problems of practical limits to the exercise of this freedom and practical guarantees for its preservation. 2. What are the limits to public authority in restricting freedom of expression? The city of Griffin, Ga. had an ordinance which read: 1. That the practice of distributing, either by hand or otherwise, circulars, handbooks, advertising, or literature of any kind, whether said articles are being delivered free, or whether same are being sold, within the limits of the City of Griffin, without first obtaining written permission from the City Manager of the City of Griffin, such practice shall be deemed a nuisance, and punishable as an offense against the City of Griffin. 2. The Chief of Police of the City of Griffin and the police force of the City of Griffin are hereby required to suppress the same and abate any nuisance as is described in the first section of this ordinance. This ordinance was challenged as violating the First and Fourteenth Amend- ments to the federal Constitution. After the Georgia courts had upheld the law, an appeal was taken to the Supreme Court of the United States. The Supreme Court, with Mr. Chief Justice Hughes reading the opinion, reversed the Georgia courts by a majority of eight justices to none. Mr. Justice Cardozo, the ninth justice, took no part in the case. Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamen- tal personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. . .. 38 The ordinance in its broad sweep prohibits the distribution of "circulars, handbooks, advertising, or literature of any kind." It manifestly applies to pamphlets, magazines and periodicals. The evidence against appellant was that she distributed a certain pamphlet and a magazine called the "Golden Age." Whether in actual administration the ordinance is applied, as appar- ently it could be, to newspapers does not appear. The city manager testified that "every one applies to me for a license to distribute literature in this City. None of these people (including defendant) secured a permit from me to distribute literature in the City of Griffin." The ordinance is not limited to "literature" that is obscene or offensive to public morals or that advocates un- lawful conduct. There is no suggestion that the pamphlet and magazine distributed in the instant case were of that character. The ordinance em- braces "literature" in the widest sense. The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation "either by hand or otherwise." There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the mainte- nance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance pro- hibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager. We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censor- ship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton di- rected his assault by his "appeal for the Liberty of Unlicensed Printing." And the liberty of the press became initially a right to publish "without a license what formerly could be published only with one." While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. See Patterson v. Colo- rado, 205 U.S. 454, 462; Near v. Minnesota, 283 U.S. 697, 713-716; Gros- jean v. American Press Co., 297 U.S. 233, 245, 246. Legislation of the type of the ordinance in question would restore the system of license and censor- ship in its baldest form. The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic conno- tation comprehends every sort of publication which affords a vehicle of infor- mation and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of in- fringement need not be repeated. The ordinance cannot be saved because it relates to distribution and not to publication. "Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little alue." Ex parte Jackson, 96 U.S. 727, 733. The license tax in Grosjean v. Lovell v. City of Griffin 39 Press Freedom: Its Practical Definition American Press Co., supra, was held invalid because of its direct tendency to restrict circulation. As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it. She was entitled to contest its validity in answer to the charge against her. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. LOVELL V. CITY OF GRIFFIN, 303 U.S. 444; 58 S. Ct. 666; 82 L. Ed. 949 (1938) The Supreme Court was called upon to review a number of so-called "handbill cases" in the late 1930's, almost all of them involving statutes or ordinances seeking by different provisions to accomplish the same objectives as the ordinance of Griffin, Ga. Often these were aimed at the pamphleteer- ing activities of one or more religious sects which sought to reach the general public by selling or giving away copies of their literature. Although the court recognized that there were certain reasonable restraints which a government might establish,* it was primarily concerned that the liberty of expression be safeguarded from government infringement. This was emphasized by Mr. Justice Roberts, speaking for an eight-to-one majority of the Supreme Court, in a review of four ordinances from various parts of the country which came before the tribunal in 1938. The ordinances, which are described ade- quately in the opinion, had been upheld by the respective state courts; the Supreme Court reversed all of these rulings. Four cases are here, each of which presents the question whether regula- tions embodied in a municipal ordinance abridge the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution. ... The freedom of speech and of the press secured by the First Amendment against abridgment by the United States is similarly secured to all persons by the Fourteenth against abridgment by a state. Although a municipality may enact regulations in the interest of the pub- lic safety, health, welfare or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion. Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of litera- ture, it may lawfully regulate the conduct of those using the streets. For ex- ample, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to * See below, pp. 56-58. 40 Schneider v. State 41 the stoppage of all traffic; a group of distributors could not insist upon a con- stitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of free- dom of speech or of the press deprive a municipality of power to enact regula- tions against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute in- formation or opinion. This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Consti- tution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties. In every case, therefore, where legislative abridgment of the rights is as- serted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of pub- lic convenience may well support regulation directed at other personal ac- tivities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights .. . The Los Angeles, the Milwaukee, and the Worcester ordinances under re- view do not purport to license distribution but all of them absolutely prohibit it in the streets and, one of them, in other public places as well. The motive of the legislation under attack . . . is held by the courts below to be the prevention of littering of the streets and, although the alleged of- fenders were not charged with themselves scattering paper in the streets, their convictions were sustained upon the theory that distribution by them encour- aged or resulted in such littering. We are of opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an or- dinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets. It is argued that the circumstance that in the actual enforcement of the Milwaukee ordinance the distributor is arrested only if those who receive the literature throw it in the streets, renders it valid. But, even as thus construed, the ordinance cannot be enforced without unconstitutionally abridging the liberty of free speech. As we have pointed out, the public convenience in re- spect of cleanliness of the streets does not justify an exertion of the police power which invades the free communication of information and opinion secured by the Constitution. Press Freedom: Its Practical Definition It is suggested that the Los Angeles and Worcester ordinances are valid be- cause their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places. But, as we have said, the streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in ap- propriate places abridged on the plea that it may be exercised in some other place. While it affects others, the Irvington [N.J.] ordinance drawn in question S. . as construed below, affects all those, who, like the petitioner, desire to impart information and opinion to citizens at their homes. If it covers the pe- titioner's activities it equally applies to one who wishes to present his views on political, social or economic questions. The ordinance is not limited to those who canvass for private profit; nor is it merely the common type of or- dinance requiring some form of registration or license of hawkers, or peddlers. It is not a general ordinance to prohibit trespassing. It bans unlicensed com- munication of any views or the advocacy of any cause from door to door, and permits canvassing only subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and who may distribute it. The applicant must submit to that officer's judgment evi- dence as to his good character and as to the absence of fraud in the "project" he proposes to promote or the literature he intends to distribute, and must undergo a burdensome and inquisitorial examination, including photograph- ing and fingerprinting. In the end, his liberty to communicate with the resi- dents of the town at their homes depends upon the exercise of the officer's discretion. As said in Lovell v. City of Griffin, supra, pamphlets have proved most effec- tive instruments in the dissemination of opinion. And perhaps the most effec- tive way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees. Conceding that fraudulent appeals may be made in the name of charity and religion, we hold a municipality cannot, for this reason, require all who wish to disseminate ideas to present them first to police authorities for their con- sideration and approval, with a discretion in the police to say some ideas may, while others may not, be carried to the homes of citizens; some persons may, while others may not, disseminate information from house to house. Frauds may be denounced as offenses and punished by law. Trespasses may similarly be forbidden. If it is said that these means are less efficient and convenient than bestowal of power on police authorities to decide what information may be disseminated from house to house, and who may impart the information, the answer is that considerations of this sort do not empower a municipality to abridge freedom of speech and press. We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires. Nor do 42 we hold that the town may not fix reasonable hours when canvassing may be done by persons having such objects as the petitioner. Doubtless there are other features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty. We do hold, however, that the ordinance in question, as applied to the petitioner's con- duct, is void, and she cannot be punished for acting without a permit. The judgment in each case is reversed and the causes are remanded for fur- ther proceedings not inconsistent with this opinion. Reversed. SCHNEIDER V. STATE OF NEW JERSEY (TOWN OF IRVINGTON); YOUNG V. PEOPLE; SNYDER V. CITY OF MILWAUKEE; NICHOLS V. COMMONWEALTH, 308 U.S. 147; 60 S. Ct. 146; 84 L.Ed. 155 (1939) To encourage the widest flow of information, Congress has traditionally authorized the Post Office Department to provide special, low postage rates for newspapers and periodicals. At the same time, it has insisted that publica- tions enjoying the benefits of second class postage rates conform to certain fundamental provisions.* Whether the withholding of admittance to second class rates amounts to a curtailment of press freedom depends primarily upon the reasons for the withholding. Under the Classification Act of 1879 (20 Stat. 358; 43 Stat. 1067) the several conditions upon which admittance to the second class depended were set forth; the Fourth condition provided, among other things, that the publication "must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry." In 1943 the Postmaster General, following a formal hearing on the case, issued an order revoking the second class permit for the magazine Esquire, averring that the magazine had failed to comply with the Fourth condition and further that it violated the spirit of the federal 'law on obscene publica- tions (35 Stat. 1129). The opinion of the Postmaster General went on: The plain language of this statute does not assume that a publication must in fact be "obscene" within the intendment of the postal obscenity statutes before it can be found not to be "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry." Writings and pictures may be indecent, vulgar, and risque and still not be obscene in a technical sense. Such writings and pictures may be in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proof that they are morally improper and not for the public welfare and the public good. When such writings or pictures occur in isolated instances their dangerous tendencies and malignant qualities may be considered of lesser importance. * See below, pp. 337-348, and also Ch. 12. Hannegan v. Esquire, Inc. 43 When, however, they become a dominant and systematic feature they most certainly cannot be said to be for the public good, and a publication which uses them in that manner is not making the "special contribution to the public wel- fare" which Congress intended by the Fourth condition. A publisher to enjoy these unique mail privileges and special preferences is bound to do more than refrain from disseminating material which is obscene or bordering on the obscene. It is under a positive duty to contribute to the public good and the public welfare. The magazine appealed to the Supreme Court of the United States on the ground that, among other rights, its freedom under the First Amendment had been arbitrarily denied. Mr. Justice Douglas delivered the opinion of the court, in which, with one justice abstaining from the case, all others concurred in favor of the magazine. An examination of the items makes plain, we think, that the controversy is not whether the magazine publishes "information of a public character" or is devoted to "literature" or to the "arts." It is whether the contents are "good" or "bad." To uphold the order of revocation would, therefore, grant the Post- master General a power of censorship. Such a power is so abhorrent to our traditions that a purpose to grant it should not be easily inferred. The second-class privilege is a form of subsidy. From the beginning Con- gress has allowed special rates to certain classes of publications. The Act of February 20, 1792, 1 Stat. 232, 238, granted newspapers a more favorable rate. These were extended to magazines and pamphlets by the Act of May 8, 1794, 1 Stat. 354, 362. Prior to the Classification Act of 1879, periodicals were put into the second class, which by the Act of March 3, 1863, 12 Stat. 701, 705, included "all mailable matter exclusively in print, and regularly is- sued at stated periods, without addition by writing, mark, or sign." That Act plainly adopted a strictly objective test and left no discretion to the postal au- thorities to withhold the second-class privilege from a mailable newspaper or periodical because it failed to meet some standard of worth or value or propri- ety. There is nothing in the language or history of the Classification Act of 1879 which suggests that Congress in that law made any basic change in its treatment of second-class mail, let alone such an abrupt and radical change as would be entailed by the inauguration of even a limited form of censorship. The postal laws make a clear-cut division between mailable and nonmaila- ble material. The four classes of mailable matter are generally described by objective standards which refer in part to their contents, but not to the quality of their contents. The more particular descriptions of the first, third, and fourth classes follow the same pattern, as do the first three conditions specified for second-class matter. If, therefore, the Fourth condition is read in the con- text of the postal laws of which it is an integral part, it, too, must be taken to supply standards which relate to the format of the publication and to the na- ture of its contents, but not to their quality, worth, or value. In that view, "literature" or the "arts" mean no more than productions which convey ideas by words, pictures, or drawings. If the Fourth condition is read in that way, it is plain that Congress made Press Freedom: Its Practical Definition 44 no radical or basic change in the type of regulation which it adopted for second-class mail in 1879. The inauguration of even a limited type of censor- ship would have been such a startling change as to have left some traces in the legislative history. But we find none. Congressman Money, a member of the Postal Committee who defended the bill on the floor of the House, stated that it was "nothing but a simplification of the postal code. There are no new powers granted to the Department by this bill, none whatever." 8 Cong. Rec. 2134. The bill contained registration provisions which were opposed on the ground that they might be the inception of a censorship of the press. Id., p. 2137. These were deleted. Id., pp. 2137, 2138. It is difficult to imagine that the Congress, having deleted them for fear of censorship, gave the Postmaster General by the Fourth condition discretion to deny periodicals the second- class rate, if in his view they did not contribute to the public good. Congress- man Money indeed referred to "the daily newspapers, with their load of gos- sip and scandal and every-day topics that are floating through the press" as being entitled without question to the second-class privilege. Id., p. 2135. To the charge that the bill imposed a censorship, he pointed out that it only with- held the privileged rate from publications "made up simply of advertising concerns not intended for public education"; and added: We know the reason for which papers are allowed to go at a low rate of postage, amounting almost to the franking privilege, is because they are the most effi- cient educators of our people. It is because they go into general circulation and are intended for the dissemination of useful knowledge such as will promote the prosperity and the best interests of the people all over the country. Then all this vast mass of matter is excluded from that low rate of postage. I say, instead of being a censorship upon the press, it is for the protection of the legitimate journals of the country. Id., p. 2135. The policy of Congress has been clear. It has been to encourage the dis- tribution of periodicals which disseminated "information of a public charac- ter" or which were devoted to "literature, the sciences, arts, or some special in- dustry" because it was thought that those publications as a class contributed to the public good. The standards prescribed in the Fourth condition have been criticized, but not on the ground that they provide for censorship. As stated by the Postal Commission of 1911, H. Doe. 559, 62d Cong., 2d Sess., p. 142: The original object in placing on second-class matter a rate far below that on any other class of mail was to encourage the dissemination of news and of cur- rent literature of educational value. This object has been only in part attained. The low rate has helped to stimulate an enormous mass of periodicals, many of which are of little utility for the cause of popular education. Others are of ex- cellent quality, but the experience of the post office has shown the impossibility of making a satisfactory test based upon literary or educational values. To at- tempt to do so would be to set up a censorship of the press. Of necessity the words of the statute-"devoted to literature, the sciences, arts, or some special industry"-must have a broad interpretation. Hannegan v. Esquire, Inc. 45 46 Press Freedom: Its Practical Definition We may assume that Congress has a broad power of classification and need not open second-class mail to publications of all types. The categories of pub- lications entitled to that classification have indeed varied through the years. And the Court held in Ex parte Jackson, 96 U.S. 727, that Congress could constitutionally make it a crime to send fraudulent or obscene material through the mails. But grave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever. See the dissents of Mr. Justice Bran- deis and Mr. Justice Holmes in Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 421-423, 430-432, 437-438. Under that view the second-class rate could be granted on condition that certain economic or political ideas not be disseminated. The provisions of the Fourth condition would have to be far more explicit for us to assume that Congress made such a radical departure from our traditions and undertook to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country. It is plain, as we have said, that the favorable second-class rates were granted periodicals meeting the requirements of the Fourth condition, so that the public good might be served through a dissemination of the class of periodicals described. But that is a far cry from assuming that Congress had any idea that each applicant for the second-class rate must convince the Postmaster General that his publication positively contributes to the public good or public wel- fare. Under our system of government there is an accommodation for the wid- est varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with indi- viduals as it does from one generation to another. There doubtless would be a contrariety of views concerning Cervantes' Don Quixote, Shakespeare's Ve- nus and Adonis, or Zola's Nana. But a requirement that literature or art con- form to some norm prescribed by an official smacks of an ideology foreign to our system. The basic values implicit in the requirements of the Fourth con- dition can be served only by uncensored distribution of literature. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication today because its con- tents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official. The validity of the ob- scenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted. But Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates. This is not to say that there is nothing left to the Postmaster General under the Fourth condition. It is his duty to "execute all laws relative to the Postal Service." Rev. Stat. sec. 396, 5 U.S.C. sec. 369. For example, questions will arise as they did in Houghton v. Payne, 194 U.S. 88; Bates 6 Guild Co. v. Payne, 194 U.S. 1o6, and Smith v. Hitchcock, 226 U.S. 53, whether the pub- lication which seeks the favorable second-class rate is a periodical as defined in the Fourth condition or a book or other type of publication. And it may ap- pear that the information contained in a periodical may not be of a "public Times Mirror et al. v. Superior Court character." But the power to determine whether a periodical (which is maila- ble) contains information of a public character, literature or art does not in- clude the further power to determine whether the contents meet some stand- ard of the public good or welfare. Affirmed.* HIANNEGAN V. ESQUIRE, INC., 327 U.S. 146; 66 S. Ct. 456; 90 L. Ed. 586 (1946) The courts have jealously guarded their common law power to cite newspa- pers for contempt when in their opinion any phase of the newsgathering activity tended to jeopardize the administration of even-handed justice. Par- ticularly have the courts frowned upon editorial comments upon cases which were still in any stage of trial or other adjudication. In 1937 and 1938 the Los Angeles Times squarely challenged this judicial practice by publishing a series of editorials on causes which, according to a charge by a committee of the Los Angeles Bar Association, were still pending in court. The first editorial, entitled, "Sit-Strikers Convicted," approved the convic- tion of twenty-two sit-down strikers and appeared after the verdict but before sentence had been pronounced in the case. Another editorial, "Probation for Gorillas?" spoke approvingly of a conviction of a pair of labor union mem- bers on charges of assault and, while a hearing on an application for probation was pending, urged the court to make "examples" of the defendants. Other editorials, both before and after the original complaint brought against the Times, dealt critically with other matters in litigation. Both the original trial court and the California Supreme Court ruled ad- versely on the Times's plea of infringement of the First Amendment by the contempt citation, and the case was carried on an appeal to the Supreme Court of the United States. Mr. Justice Black read the opinion of the five-to- four majorityt which reversed the California rulings. In brief, the state courts asserted and exercised a power to punish petition- ers for publishing their views concerning cases not in all respects finally deter- mined, upon the following chain of reasoning: California is invested with the power and duty to provide an adequate administration of justice; by virtue of this power and duty, it can take appropriate measures for providing fair judi- cial trials free from coercion or intimidation; included among such appropri- ate measures is the common law procedure of punishing certain interferences and obstructions through contempt proceedings; this particular measure, de- volving upon the courts of California by reason of their creation as courts, in- cludes the power to punish for publications made outside the court room if they tend to interfere with the fair and orderly administration of justice in a * I.e., the lower courts had previously upheld the magazine. t Although this majority was the narrowest possible one, it now seems unlikely that the courts will upset the ruling on contempt cases of this type, for reasons suggested in the back- ground note to Ch. 9. 47 Press Freedom: Its Practical Definition pending case; the trial court having found that the publications had such a tendency, and there being substantial evidence to support the finding, the punishments here imposed were an appropriate exercise of the state's power; in so far as these punishments constitute a restriction on liberty of expression, the public interest in that liberty was properly subordinated to the public in- terest in judicial impartiality and decorum. If the inference of conflict raised by the last clause be correct, the issue be- fore us is of the very gravest moment. For free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them. But even if such a conflict is not actually raised by the question before us, we are still confronted with the delicate problems entailed in passing upon the deliberations of the highest court of a state. This is not, however, solely an issue between state and nation, as it would be if we were called upon to mediate in one of those troublous situations where each claims to be the repository of a particular sovereign power. To be sure, the exercise of power here in question was by a state judge. But in deciding whether or not the sweeping constitutional mandate against any law "abridging the free- dom of speech or of the press" forbids it, we are necessarily measuring a power of all American courts, both state and federal, including this one. I It is to be noted at once that we have no direction by the legislature of 'California that publications outside the court room which comment upon a pending case in a specified manner should be punishable. As we said in Cant- well v. Connecticut, 310 U.S. 296, 307-308, such a "declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitu- tional limitations." But as we also said there, the problem is different where "the judgment is based on a common law concept of the most general and undefined nature." Id. 308. Cf. Herndon v. Lowry, 310 U.S. 242, 261-264. For here the legislature of California has not appraised a particular kind of situation and found a specific danger sufficiently imminent to justify a restric- tion on a particular kind of utterance. The judgments below, therefore, do not come to us encased in the armor wrought by prior legislative deliberation. Under such circumstances, this Court has said that "it must necessarily be found, as an original question," that the specified publications involved cre- ated "such likelihood of bringing about the substantive evil as to deprive [them] of the constitutional protection." Gitlow v. New York, 268 U.S. 652, 671. How much "likelihood" is another question, "a question of proximity and degree" that cannot be completely captured in a formula. In Schenck v. United States, however, this Court said that there must be a determination of whether or not "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils." We recognize that this statement, however helpful, does not comprehend the whole problem. As Mr. Justice Brandeis said in his con- curring opinion in Whitney v. California, 274 U.S. 357, 374: "This Court has not yet fixed the standard by which to determine when a danger shall be 48 Times-Mirror et al. v. Superior Court deemed clear; how remote the danger may be and yet be deemed present." Nevertheless, the "clear and present danger" language of the Schenck case has afforded practical guidance in a great variety of cases in which the scope of constitutional protections of freedom of expression was in issue. It has been utilized by either a majority or minority of this Court in passing upon the con- stitutionality of convictions under espionage acts, Schenck v. United States, supra; Abrams v. United States, 250 U.S. 616; under a criminal syndicalism act, Whitney v. California, supra; under an "anti-insurrection" act, Herndon v. Lowry, supra; and for breach of the peace at common law, Cantwell v. Con- necticut, supra. And very recently we have also suggested that "clear and pres- ent danger" is an appropriate guide in determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented by the restriction is "destruction of life or property, or invasion of the right of privacy." Thornhill v. Alabama, 310 U.S. 88, 1o5. Moreover, the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of speech or the press. The evil itself must be "substantial," Brandeis, J., concurring in Whitney v. Cali- fornia, supra, 374; it must be "serious," id. 376. And even the expression of "legislative preferences or beliefs" cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to war- rant the curtailment of liberty of expression. Schneider v. State, 308 U.S. 147, 161. What finally emerges from the "clear and present danger" cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law "abridging the freedom of speech, or of the press." It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow. II Before analyzing the punished utterances and the circumstances surround- ing their publication, we must consider an argument which, if valid, would destroy the relevance of the foregoing discussion to this case. In brief, this ar- gument is that the publications here in question belong to a special category marked off by history,-a category to which the criteria of constitutional im- munity from punishment used where other types of utterances are concerned are not applicable. For, the argument runs, the power of judges to punish by contempt out-of-court publications tending to obstruct the orderly and fair administration of justice in a pending case was deeply rooted in English com- mon law at the time the Constitution was adopted. That this historical con- tention is dubious has been persuasively argued elsewhere. Fox, Contempt of Court, passim, e.g., 207. See also Stansbury, Trial of James H. Peck, 430. In any event it need not detain us, for to assume that English common law in this field became ours is to deny the generally accepted historical belief 49 Press Freedom: Its Practical Definition that "one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press." Schofield, Freedom of the Press in the United States, 9 Publications Amer. Sociol. Soc., 67, 76. More specifically, it is to forget the environment in which the First Amend- ment was ratified. In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the leader in the preparation of the First Amendment, said: "Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution." 1 Annals of Congress 1789-1790, 434. And Madison elsewhere wrote that "the state of the press . . under the common law, cannot . . . be the standard of its freedom in the United States." VI Writings of James Madison 1790-1802, 387. There are no contrary implications in any part of the history of the period in which the First Amendment was framed and adopted. No purpose in rati- fying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed. It cannot be de- nied, for example, that the religious test oath or the restrictions upon assem- bly then prevalent in England would have been regarded as measures which the Constitution prohibited the American Congress from passing. And since the same unequivocal language is used with respect to freedom of the press, it signifies a similar enlargement of that concept as well. Ratified as it was while the memory of many oppressive English restrictions on the enumerated liber- ties was still fresh, the First Amendment cannot reasonably be taken as ap- proving prevalent English practices. On the contrary, the only conclusion sup- ported by history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press, as to the other liberties, the broadest scope that could be countenanced in an orderly society. ... III We may appropriately begin our discussion of the judgments below by con- sidering how much, as a practical matter, they would affect liberty of expres- sion. It must be recognized that public interest is much more likely to be kin- dled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist. Since they punish utterances made during the pendency of a case, the judgments below therefore produce their restrictive results at the precise time when public interest in the matters dis- cussed would naturally be at its height. Moreover, the ban is likely to fall not only at a crucial time but upon the most important topics of discussion. Here, for example, labor controversies were the topics of some of the publications. Experience shows that the more acute labor controversies are, the more likely it is that in some aspect they will get into court. It is therefore the contro- 50 Times-Mirror et al. v. Superior Court versies that command most interest that the decisions below would remove from the arena of public discussion. No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression. Yet, it would follow as a prac- tical result of the decisions below that anyone who might wish to give public expression to his views on a pending case involving no matter what problem of public interest, just at the time his audience would be most receptive, would be as effectively discouraged as if a deliberate statutory scheme of cen- sorship had been adopted. Indeed, perhaps more so, because under a legisla- tive specification of the particular kinds of expressions prohibited and the circumstances under which the prohibitions are to operate, the speaker or publisher might at least have an authoritative guide to the permissible scope of comment, instead of being compelled to act at the peril that judges might find in the utterance a "reasonable tendency" to obstruct justice in a pend- ing case. This unfocussed threat is, to be sure, limited in time, terminating as it does upon final disposition of the case. But this does not change its censorial quality. An endless series of moratoria on public discussion, even if each were very short, could hardly be dismissed as an insignificant abridgment of free- dom of expression. And to assume that each would be short is to overlook the fact that the "pendency" of a case is frequently a matter of months or even years rather than days or weeks. For these reasons we are convinced that the judgments below result in a curtailment of expression that cannot be dismissed as insignificant. If they can be justified at all, it must be in terms of some serious substantive evil which they are designed to avert. The substantive evil here sought to be averted has been variously described below. It appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, how- ever limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect. The other evil feared, disorderly and unfair administration of justice, is more plausibly associated with restricting publications which touch upon pending litigation. The very word "trial" connotes decisions on the evidence and arguments properly advanced in open court. Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper. But we cannot start with the assumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases. We must therefore turn to the particular utterances here in question and the circumstances of their publica- I.i iAkY 51 Press Freedom: Its Practical Definition tion to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment. The Los Angeles Times Editorials. The Times-Mirror Company, publisher of the Los Angeles Times, and L. D. Hotchkiss, its managing editor, were cited for contempt for the publication of three editorials. Both found by the trial court to be responsible for one of the editorials, the company and Hotch- kiss were each fined $1oo. The company alone was held responsible for the other two, and was fined $1oo more on account of one, and $300 more on account of the other. The $300 fine presumably marks the most serious offense. The editorial thus distinguished was entitled "Probation for Gorillas?" After vigorously denounc- ing two members of a labor union who had previously been found guilty of assaulting nonunion truck drivers, it closes with the observation: "Judge A. A. Scott will make a serious mistake if he grants probation to Matthew Shannon and Kennan Holmes. This community needs the example of their assignment to the jute mill." Judge Scott had previously set a day (about a month after the publication) for passing upon the application of Shannon and Holmes for probation and for pronouncing sentence. The basis for punishing the publication as contempt was by the trial court said to be its "inherent tendency" and by the Supreme Court its "reasonable tendency" to interfere with the orderly administration of justice in an action then before a court for consideration. In accordance with what we have said on the "clear and present danger" cases, neither "inherent tendency" nor "reasonable tendency" is enough to justify a restriction of free expression. But even if they were appropriate measures, we should find exaggeration in the use of those phrases to describe the facts here. From the indications in the record of the position taken by the Los Angeles Times on labor controversies in the past, there could have been little doubt of its attitude toward the probation of Shannon and Holmes. In view of the pa- per's long-continued militancy in this field, it is inconceivable that any judge in Los Angeles would expect anything but adverse criticism from it in the event probation were granted. Yet such criticism after final disposition of the proceedings would clearly have been privileged. Hence, this editorial, given the most intimidating construction it will bear, did no more than threaten fu- ture adverse criticism which was reasonably to be expected anyway in the event of a lenient disposition of the pending case. To regard it, therefore, as in itself of substantial influence upon the course of justice would be to impute to judges a lack of firmness, wisdom, or honor,-which we cannot accept as a major premise. Cf. Holmes, J., dissenting in Toledo Newspaper Co. v. United States, 247 U.S. 402, 424. .. Judgment reversed. Mr. Justice Frankfurter, with whom concurred the Chief Justice, Mr. Jus- tice Roberts and Mr. Justice Byrnes, dissenting. Our whole history repels the view that it is an exercise of one of the civil liberties secured by the Bill of Rights for a leader of a large following or for 52 Times-Mirror et al. v. Superior Court a powerful metropolitan newspaper to attempt to overawe a judge in a mat- ter immediately pending before him. The view of the majority deprives Cali- fornia of means for securing to its citizens justice according to law-means which, since the Union was founded, have been the possession, hitherto un- challenged, of all the states. This sudden break with the uninterrupted course of constitutional history has no constitutional warrant. To find justification for such deprivation of the historic powers of the states is to misconceive the idea of freedom of thought and speech as guaranteed by the Constitu- tion. . These are not academic debating points or technical niceties. Those who have gone before us have admonished us "that in a free representative gov- ernment nothing is more fundamental than the right of the people through their appointed servants to govern themselves in accordance with their own will, except so far as they have restrained themselves by constitutional limits specifically established, and that in our peculiar dual form of government nothing is more fundamental than the full power of the State to order its own affairs and govern its own people, except so far as the Federal Constitution expressly or by fair implication has withdrawn that power. The power of the people of the States to make and alter their laws at pleasure is the greatest security for liberty and justice. . .. We are not invested with the jurisdic- tion to pass upon the expediency, wisdom or justice of the laws of the States as declared by their courts, but only to determine their conformity with the Federal Constitution and the paramount laws enacted pursuant to it. Under the guise of interpreting the Constitution we must take care that we do not import into the discussion our own personal views of what would be wise, just and fitting rules of government to be adopted by a free people and con- found them with constitutional limitations." Twining v. New Jersey, 211 U.S. 78, 106-07. In a series of opinions as uncompromising as any in its history, this Court has settled that the fullest opportunities for free discussion are "implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment," protected against attempted invasion by the states. Palko v. Connecticut, 302 U.S. 319, 324-25. The channels of inquiry and thought must be kept open to new conquests of reason, however odious their expression may be to the pre- vailing climate of opiriion. But liberty, "in each of its phases, has its history and connotation." Whether a particular state action violates "the essential attributes of that liberty" must be judged in the light of the liberty that is invoked and the curtailment that is challenged. Near v. Minnesota, 283 U.S. 697, 708. For "the recognition of a privilege does not mean that it is without conditions or exceptions. The social policy that will prevail in many situations may run foul in others of a different social policy, competing for supremacy. It is then the function of a court to mediate between them, assigning, so far as possible, a proper value to each, and summoning to its aid all the distinc- tions and analogies that are the tools of the judicial process." Clark v. United States, 289 U.S. 1, 13. Free speech is not so absolute or irrational a conception as to imply paraly- sis of the means for effective protection of all the freedoms secured by the Bill of Rights. Compare Lincoln's Message to Congress in Special Session, 53 Press Freedom: Its Practical Definition July 4, 1861, 7 Richardson, Messages and Papers of the Presidents, pp. 3221- 3232. In the cases before us, the claims on behalf of freedom of speech and of the press encounter claims on behalf of liberties no less precious. California asserts her right to do what she has done as a means of safeguarding her system of justice. ... Of course freedom of speech and of the press are essential to the enlighten- ment of a free people and in restraining those who wield power. Particularly should this freedom be employed in comment upon the work of courts, who are without many influences ordinarily making for humor and humility, twin antidotes to the corrosion of power. But the Bill of Rights is not self- destructive. Freedom of expression can hardly carry implications that nullify the guarantees of impartial trials. And since courts are the ultimate resorts for vindicating the Bill of Rights, a state may surely authorize appropriate his- toric means to assure that the process for such vindication be not wrenched from its rational tracks into the more primitive melee of passion and pressure. The need is great that courts be criticized, but just as great that they be al- lowed to do their duty. TIMVIES-MIRROR CO. V. SUPERIOR COURT IN AND FOR Los ANGELES COUNTY, 314 U.S. 252; 62 S. Ct. 190; 86 L. Ed. 192; 159 A.L.R. 1346 (1941) The Cleveland Press in 1940 published a list of signers of petitions circu- lated by the Communist Party nominating their candidate for governor. The newspaper in boldface type printed an invitation to any persons whose names appeared on the list without their actually having signed to notify the Press. It was alleged by the plaintiffs in the case that publication of the names on the petition violated the right of privacy and amounted to a virtual blacklist for employers of many individuals who had signed. Judge Hurd of the Common Pleas Court of Cuyahoga County, Ohio, denied the plea and upheld the newspaper. The first major question therefore is whether this court may intervene by injunction to impose a censorship in advance upon what shall appear in print, concerning the right of privacy of the plaintiffs. If so, under what conditions may the court so act, and are such conditions presented by the case at bar? What general and specific rules apply? Counsel for the defense in support of their demurrer rely upon the provi- sions of the Constitution of the United States and the Bill of Rights of Ohio which contain prohibitions against the enactment of laws abridging the free- dom of speech or of the press. They have cited many authorities in support of this proposition which we have examined with care, as well as many other authorities on this same subject. Counsel for plaintiffs cite no authority, but argue that a court of equity may intervene as a matter of right and enjoin threatened publication of matter al- leged to be an invasion of the right of privacy of the plaintiffs and the right to secrecy in placing their names upon the nominating petitions in question. 54 Johnson v. Scripps Publishing Co. The fundamental law binding upon all parties is contained in the First Amendment to the Constitution of the United States which provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." and Section 11 of Article 1 of the Constitution of the state of Ohio which provides: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." Let us first consider the Ohio authorities on this subject. The following paragraph, taken from 8 Ohio Jurisprudence, Section 341, and entitled "Lib- erty of the Press" is directly in point: Freedom of the press is one of the strongest bulwarks of liberty. The primary meaning of "liberty of the press" as understood at the time our early constitu- tions were framed, was freedom from any censorship of the press, and from all such restraint upon publications as had been practiced by monarchial or des- potic government in order to stifle the efforts of patriots towards enlightening their fellow subjects upon the rights, and as to the duties of their rulers. The freedom of the press, properly understood, is not inconsistent with the protection due to private character. It has been well defined as consisting in the right to publish with impunity, the truth, for good motives, and for justifiable ends, whether it respects government, magistry, or individuals. It imports freedom from any censorship over what shall be published, exemption from control in advance over the dissemination of ideas by writing or printing. It does not im- port that one may not be mulcted in damages or punished for what he has published, if after the act it is shown to be contrary to law, but that he should not be restrained beforehand. It is clear that the weight of authority in both England and the United States is substantially all one way, against the power of a court of equity to enjoin merely an anticipated libel. The constitutional provision in favor of freedom of speech and of the press, subject to responsibility for abuse, permits no restraint beforehand by either statutory enactment or judicial in- junction. . .. To suggest that the legislature intended to surround the procedure of nomi- nation by petition with secrecy in the light of these provisions is to do vio- lence to elementary reasoning. It is the opinion of the court that the moment the plaintiffs filed their nominating petitions with the secretary of state, said petitions became ipso facto documents of public record open to public inspection and publication. The very act of filing divested these petitions of any private character with which they may theretofore have been vested, consequently there can be no immunity in favor of the signers of the petition creating liability against the defendants for publication. This brings us to a consideration of the further contention of the plaintiffs that the procedure of nominating by petition is the only method by which a minority party may obtain a place on the ballot and hence constitutes a form 55 Press Freedom: Its Practical Definition of primary election. A nominating petition is exactly what the term implies. In no sense can it be said to be any form of election. It does not deprive any- one of his right to a secret ballot. Quite the contrary. It provides an oppor- tunity for voters, who might not otherwise have had such an opportunity in their free choice of a candidate, to cast a secret ballot for one so nominated. The court feels that nominating by petition is a privilege of citizenship sur- rounded by all the duties and obligations of citizenship. An elector who avails himself of the right to nominate by petition does so with a full knowl- edge of the responsibilities that attach. He does so in full contemplation that the petition which he signs, when filed with the secretary of state, will be- come a public record open to public inspection. There are few privileges that do not carry with them some burdens. He who avails himself of the privilege should accept the burden. If in the exer- cise of his privilege an elector espouses a candidate or cause which is not pop- ular, he does so in full contemplation and acceptance of the consequences that flow naturally from his voluntary act. The petitioner in effect consented by the very act of signing that his name could be made public. If in the heat of violent differences of opinion some odium attaches to his act in the eyes of his fellow citizens, that is the burden and responsibility which the elector accepts when he chooses his course of conduct. In view of this consideration we feel that the contention of the plaintiffs on this proposition must likewise fail. The claim of the right of privacy or secrecy must also fail on the ground that the procedure provided by law for the placing of names and parties on the ballot springs from social and political conditions and is a matter of great general or public interest. To curtail the right of publication or to make the publisher liable to respond in damages would be a subversion of the constitu- tional guaranties of the freedom of speech and of the press, particularly when the petitions have been placed on file in the office of the secretary of state in pursuance of the election laws. The acts of the signers must be regarded as in the nature of public acts distinguished from matters of a strictly private and personal nature in which the public would have no interest. In other words the rights of the public are paramount to the right of privacy of the individ- ual, when the individual engages in conduct which vitally affects the public welfare and public concern. JOHNSON V. SCRIPPS PUBLISHING CO., 18 Ohio Op. 372 (1940) 3. The right of publication may be limited by the rights of others. Among the varieties of local ordinances seeking to deal with handbills and other special publications, the courts have sought to distinguish between those imposing an absolute prohibition or a series of conditions which were considered unreasonable, and those which undertook to protect both the general public and private individuals from inconvenience, nuisance, or affront to personal beliefs or practices. Two cases, originating in California and New York respectively, illustrate the lines of distinction which the judici- 56 Buxbom v. City of Riverside ary has sought to draw between freedom of expression and the reasonable exercise of the police power of government. The city of Riverside, Calif., seeking to reduce the public nuisance of littering public and private premises with unsolicited handbills, enacted an ordinance prohibiting the deposit of such literature on private property with- out the previous consent of the owner, or the distributing of the same to individuals unless they were willing to accept it. This ordinance was chal- lenged in the United States District Court as a violation of constitutional rights. Judge Leon Yankwich, an authority on newspaper law and related ques- tions of civil liability, upheld the ordinance, saying: I cannot see how this ordinance, and especially the provisions . . . requir- ing permission of the owner of property before putting handbills or advertis- ing on it, can be said to violate the right of a free press. Freedom of the press is a part of that freedom of expression which includes free speech. The right to speak freely does not imply the right to force one's speech on another's private premises. As I stated at the trial, no constitutional principle gives one the right to stand on my front lawn and deliver a speech to whomever may listen. Prag- matic American speech disposes of any such claim by the familiar expression "go and hire a hall." This is also sound constitutional doctrine. In like manner, the right to distribute literature and pamphlets does not imply the right to "force" acceptance by placing them on another person's premises without his permission. Governmental agencies may protect a property owner in the enjoyment of his property. They may ward off those who would annoy him, by trespassing on it in one way or another. These are verites ca la Palisse. See note, "Free- dom of the Press," 1939, 12 So. Cal. Law Rev. 446. If, as claimed by the petitioner, this curtails the right of the occupant of property to receive literature and advertising, the answer is twofold. The plain- tiff, not being in that position, cannot complain of the invasion of rights which do not affect him. More, the occupant of premises may have the full benefit of limitless dis- tribution by indicating his consent directly to a particular distributor, or, gen- erally, by placing upon his premises a sign indicating that "all distribution is welcome." There is no more inconvenience in this than in the customary "No solic- itors or peddlers" signs by which persons shield their privacy. Nor is any constitutional norm violated when he who would spread litera- ture or advertising on private premises is compelled to obtain the owner's consent. A man's home is still his castle. If, to paraphrase Chatham, the King is not free to enter the humblest cot- tage without being guilty of trespass, what "Divinity doth hedge" the purveyor of handbills that he should be free to enter? 57 Press Freedom: Its Practical Definition If, by the common law of England, the humblest cotter, to quote Chatham, "may bid defiance to all the forces of the crown," and a similar right is guar- anteed by the Fourth Amendment to the Constitution of the United States, whence the right of the dispenser of printed matter to immunity from this? . [It] is incomprehensible how the right to print and distribute freely may be broadened into absolute freedom to invade another's property rights by lit- tering his premises without his consent. Yet that is exactly what the plaintiff here claims. He engages in the busi- ness of distributing advertising or other leaflets for hire. Under the claim of freedom of the press, he would have us confer upon him the right to invade the property of others, in the conduct of his business. This would call for an extension of the right of a free press which is not sanctioned by precedent or by any historical considerations. . We conclude that the complaint does not state a claim upon which relief can be granted. Dismissed. BUXBOM V. CITY OF RIVERSIDE, 29 F. Supp. 3 (1939) In the New York case, a question of religious freedom was raised in connec- tion with the attempt by the member of a particular sect to insist upon expressing his dogma to unwilling listeners. Judge Walsh of the City Court of Utica, N. Y., observed: Freedom of speech has never been understood to go so far as to require a hearer to listen; nor has freedom of the press been understood to force litera- ture to be read by those confronted with it. Likewise, freedom of religion has never been intended to require another to accept religious belief thrust upon him against his free will. If rights become thus inflated, they become privi- leges which, in their turn, destroy other rights of equal value . . . There is a reasonable limit to the right of free speech, and it ends at the door of a home whose residents do not want the speaker to enter. The guar- antees of freedom of speech and religious worship do not and cannot sanc- tion trespass in the name of freedom. PEOPLE V. DALE, 47 N.Y.S. 2d 702 (1944) For the courts' discussion of the proper limits to freedom of expression imposed by the laws of civil and criminal libel, see, respectively, Mulina v. Item, p. o106, and Beauharnais v. Illinois, p. 155- 4. Press freedom does not exempt the press as a business from reasonable regulations and controls. The growth of the daily newspaper in America into a large-scale industrial enterprise since the end of the nineteenth century has tended to cloud the issues of constitutional privilege and protection from government surveillance. 58 Grosjean v. American Press Co. Newspaper publishers and their legal counsel have frequently maintained that the freedom for news and comment which has been repeatedly affirmed by the courts must extend also to other functions of the newspaper as a further safeguard against indirect or oblique government control. The courts, in rul- ing upon successive questions which have been raised in this area, have undertaken to clarify the distinction between the editorial phase of journal- ism, which is generally exempt from public control, and the business phase, which is subject to the same degree of regulation and administration by public bodies as are other businesses. For an early example of this issue presented to the courts, see Lewis Publish- ing Co. v. Morgan, p. 337, below. Taxation as a means of control is one of the oldest devices known to government; the imposition of "taxes on knowledge," in fact, was one of the points of contention between the people and their government in colonial America as well as in England until the middle of the nineteenth century. In 1934 the issue appeared again in the state of Louisiana, which enacted a law imposing a license tax of 2 per cent upon the gross receipts of newspapers having an average weekly circulation of more than 20,000. Punishment by fine and imprisonment was provided for violations. Nine Louisiana newspa- pers falling into the category defined by this statute sued for a permanent injunction against state officials seeking to enforce it. The United States District Court granted the injunction and the state appealed to the Supreme Court. Mr. Justice Sutherland delivered the opinion of a unanimous Court in upholding the injunction. The tax imposed is designated a "license tax for the privilege of engaging in such business"-that is to say, the business of selling, or making any charge for, advertising. As applied to appellees, it is a tax of two per cent on the gross receipts derived from advertisements carried in their newspapers when, and only when, the newspapers of each enjoy a circulation of more than 20,000 copies per week. It thus operates as a restraint in a double sense. First, its effect is to curtail the amount of revenue realized from advertising, and, second, its direct tendency is to restrict circulation. This is plain enough when we consider that, if it were increased to a high degree, as it could be if valid, it well might result in destroying both advertising and circulation. A determination of the question whether the tax is valid in respect of the point now under review, requires an examination of the history and circum- stances which antedated and attended the adoption of the abridgment clause of the First Amendment, since that clause expresses one of those "funda- mental principles of liberty and justice which lie at the base of all our civil and political institutions" and, as such, is embodied in the concept "due proc- ess of law" (Twining v. New Jersey, 211 U.S. 78, 99), and, therefore, pro- tected against hostile state invasion by the due process clause of the Four- 59 Press Freedom: Its Practical Definition teenth Amendment. The history is a long one; but for present purposes it may be greatly abbreviated. For more than a century prior to the adoption of the amendment-and, indeed, for many years thereafter-history discloses a persistent effort on the part of the British government to prevent or abridge the free expression of any opinion which seemed to criticize or exhibit in an unfavorable light, how- ever truly, the agencies and operations of the government. The struggle be- tween the proponents of measures to that end and those who asserted the right of free expression was continuous and unceasing. As early as 1644, John Milton, in an "Appeal for the Liberty of Unlicensed Printing," assailed an act of Parliament which had just been passed providing for censorship of the press previous to publication. He vigorously defended the right of every man to make public his honest views "without previous censure"; and declared the impossibility of finding any man base enough to accept the office of censor and at the same time good enough to be allowed to perform its duties. Col- lett, History of the Taxes on Knowledge, vol. I, pp. 4-6. The act expired by its own terms in 1695. It was never renewed; and the liberty of the press thus became, as pointed out by Wickwar (The Struggle for the Freedom of the Press, p. 15), merely "a right or liberty to publish without a license what formerly could be published only with one." But mere exemption from pre- vious censorship was soon recognized as too narrow a view of the liberty of the press. In 1712, in response to a message from Queen Anne (Hansard's Parlia- mentary History of England, vol. 6, p. 1063), Parliament imposed a tax upon all newspapers and upon advertisements. Collett, vol. I, pp. 8-1o. That the main purpose of these taxes was to suppress the publication of comments and criticisms objectionable to the Crown does not admit of doubt. Stewart, "Len- nox and the Taxes on Knowledge," 15 Scottish Historical Review, 322-327- There followed more than a century of resistance to, and evasion of, the taxes, and of agitation for their repeal. In the article last referred to (p. 326), which was written in 1918, it was pointed out that these taxes constituted one of the factors that aroused the American colonists to protest against taxa- tion for the purposes of the home government; and that the revolution really began when, in 1765, that government sent stamps for newspaper duties to the American colonies. These duties were quite commonly characterized as "taxes on knowledge," a phrase used for the purpose of describing the effect of the exactions and at the same time condemning them. That the taxes had, and were intended to have, the effect of curtailing the circulation of newspapers, and particularly the cheaper ones whose readers were generally found among the masses of the people, went almost without question, even on the part of those who de- fended the act. May (Constitutional History of England, 7th ed., vol. 2, p. 245), after discussing the control by "previous censure," says: ". . . a new restraint was devised in the form of a stamp duty on newspapers and adver- tisements,-avowedly for the purpose of repressing libels. This policy, being found effectual in limiting the circulation of cheap papers, was improved upon in the two following reigns, and continued in high esteem until our own time." Collett (vol. I, p. 14) says, "Any man who carried on printing or 60 Grosjean v. American Press Co. publishing for a livelihood was actually at the mercy of the Commissioners of Stamps, when they chose to exert their powers." Citations of similar import might be multiplied many times; but the fore- going is enough to demonstrate beyond peradventure that in the adoption of the English newspaper stamp tax and the tax on advertisements, revenue was of subordinate concern; and that the dominant and controlling aim was to prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect of their governmental affairs. It is idle to suppose that so many of the best men of England would for a century of time have waged, as they did, stubborn and often precarious warfare against these taxes if a mere matter of taxation had been involved. The aim of the struggle was not to relieve taxpayers from a burden, but to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government. Upon the correctness of this conclusion the very charac- terization of the exactions as "taxes on knowledge" sheds a flood of corrobora- tive light. In the ultimate, an informed and enlightened public opinion was the thing at stake; for, as Erskine, in his great speech in defense of Paine, has said, "The liberty of opinion keeps governments themselves in due sub- jection to their duties." Erskine's Speeches, High's ed., vol. I, p. 525. See May's Constitutional History of England, 7th ed., vol. 2, pp. 238-245- In 1785, only four years before Congress had proposed the First Amend- ment, the Massachusetts legislature, following the English example, imposed a stamp tax on all newspapers and magazines. The following year an adver- tisement tax was imposed. Both taxes met with such violent opposition that the former was repealed in 1786, and the latter in 1788. Duniway, Freedom of the Press in Massachusetts, pp. 136-137- The framers of the First Amendment were familiar with the English strug- gle, which then had continued for nearly eighty years and was destined to go on for another sixty-five years, at the end of which time it culminated in a last- ing abandonment of the obnoxious taxes. The framers were likewise familiar with the then recent Massachusetts episode; and while that occurrence did much to bring about the adoption of the amendment, the predominant in- fluence must have come from the English experience. It is impossible to con- cede that by the words "freedom of the press" the framers of the amendment intended to adopt merely the narrow view then reflected by the law of Eng- land that such freedom consisted only in immunity from previous censorship; for this abuse had then permanently disappeared from English practice. It is equally impossible to believe that it was not intended to bring within the reach of these words such modes of restraint as were embodied in the two forms of taxation already described. Such belief must be rejected in the face of the then well known purpose of the exactions and the general adverse sen- timent of the colonies in respect of them. Undoubtedly, the range of a con- stitutional provision phrased in terms of the common law sometimes may be fixed by recourse to the applicable rules of that law. But the doctrine which justifies such recourse, like other canons of construction, must yield to more compelling reasons whenever they exist. And, obviously, it is subject to the qualification that the common law rule invoked shall be one not rejected by our ancestors as unsuited to their civil or political conditions. 6i Press Freedom: Its Practical Definition In the light of all that has now been said, it is evident that the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists, and that by the First Amendment it was meant to preclude the national gov- ernment, and by the Fourteen Amendment to preclude the states, from adopt- ing any form of previous restraint upon printed publications, or their cir- culation, including that which had theretofore been effected by these two well-known and odious methods. This court had occasion in Near v. Minnesota, supra, at pp. 713 et seq., to discuss at some length the subject in its general aspect. The conclusion there stated is that the object of the constitutional provisions was to prevent previous restraints on publication; and the court was careful not to limit the protection of the right to any particular way of abridging it. Liberty of the press within the meaning of the constitutional provision, it was broadly said (p. 716), meant "principally although not exclusively, immunity from previ- ous restraints or [from] censorship." Judge Cooley has laid down the test to be applied-"The evils to be pre- vented were not the censorship of the press merely, but any action of the gov- ernment by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens." 2 Cooley's Constitutional Lim- itations, 8th ed., p. 886. It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for sup- port of the government. But this is not an ordinary form of tax, but one sin- gle in kind, with a long history of hostile misuse against the freedom of the press. The predominant purpose of the grant of immunity here invoked was to preserve an untrammeled press as a vital source of public information. The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and cal- culated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves. In view of the persistent search for new subjects of taxation, it is not with- out significance that, with the single exception of the Louisiana statute, so far as we can discover, no state during the one hundred fifty years of our national existence has undertaken to impose a tax like that now in question. The form in which the tax is imposed is in itself suspicious. It is not meas- ured or limited by the volume of advertisements. It is measured alone by the 62 City of Corona v. Corona Daily Independent extent of the circulation of the publication in which the advertisements are carried, with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers. Having reached the conclusion that the act imposing the tax in question is unconstitutional under the due process of law clause because it abridges the freedom of the press, we deem it unnecessary to consider the further ground assigned that it also constitutes a denial of the equal protection of the laws. Decree affirmed. GROSJEAN v. AMERICAN PRESS CO., 297 U.S. 233; 56 S. Ct. 444; 8o L. Ed. 66o (1936) This was not to mean, however, that government was powerless to impose taxes upon niewspapers. The test was whether the intent or effect of the tax was to restrain the publication in its news or editorial function. In two differ- ent cases soon after the Louisiana tax case, involving license taxes in Arizona which were laid on all businesses including newspapers, the federal courts affirmed that the tax was permissible. The Supreme Court upheld a license tax imposed by the city of Tampa in 1949 for the same reason, and in 1953 declined to review a California Appellate Court decision upholding a similar tax. The California case involved a business license tax imposed by the city of Corona. In 1951 the Corona Daily Independent, after having paid the tax in previous years, declined to do so any longer, alleging that the tax infringed upon the freedom of the press in violation of the First and Fourteenth Amend- ments of the United States Constitution. The trial court ruled in favor of the newspaper, and the appellate court reversed the judgment. Justice Griffin of the California Appellate Court, with two associates concurring, said: There is ample authority to the effect that newspapers and the business of newspaper publication are not made exempt from the ordinary forms of taxes for the support of local government by the provisions of the First and Four- teenth Amendments to the Constitution of the United States. Grosfean v. American Press Co., supra; Tampa Times Co. v. City of Tampa, Fla., 29 So. 2d 368, id., 332 U.S. 749, 68 S. Ct. 69, 92 L. Ed. 336. The principal question here involved appears to be of first impression in the State of California. However, license taxes similar to the tax here in ques- tion and imposed upon the press have been upheld by the courts of other states as not in violation of the constitutional guarantee of freedom of the press. Among the cases decided are In re Jager, 1888, 29 S.C. 438, 7 S.E. 605, 609, wherein a criminal action was brought against one John McElree, charged with publishing a newspaper without having first procured a license, in violation of the municipal business license tax ordinance. The defendant was found guilty and appealed. The Supreme Court of South Carolina sus- tained the conviction and said: 63 Press Freedom: Its Practical Definition But we cannot see that a tax on the business of publishing a newspaper is any more an abridgement of the liberty of the press than a tax on the office, type, and other material used in the business. In City of Norfolk v. Norfolk Landmark Publishing Co., 1898, 95 Va. 564, 28 S.E. 959, the court had before it a municipal ordinance imposing a busi- ness license tax upon every person engaged in the publication of a newspaper. The amount of the tax was not stated. The court held the ordinance v- i not an abridgment of the freedom of the press, and said, 28 S.E. at page 960: The guaranties of the Constitution and bill of rights in favor of the freedom of the press, freedom of speech, and personal liberty, were never mtn ...to restrict the right of taxation for the support of the government. If these guar- anties did restrict the power of taxation, the government would soon be in- solvent, and powerless to furnish the protection claimed. In Giragi v. Moore, 48 Ariz. 33, 64 P. 2d 819, 110 A.L.R. 314, appeal dis- missed in 301 U.S. 670, 57 S. Ct. 946, 81 L. Ed. 1334, plaintiffs brought suit for declaratory relief as to the Arizona Excise Revenue Act of 1935, and chal- lenged the constitutionality of the act upon the grounds here mentioned. The court held that the tax was a general sales tax law levying a one percent tax upon the sales or gross income of practically every business or concern en- gaged in selling merchandise or services in the State of Arizona, including newspaper publications. The court held the act constitutional and the tax valid. See, also, Arizona Pub. Co. v. O'Neil, D.C., 22 F. Supp. 117, affirmed 1938, 304 U.S. 543, 58 S. Ct. 950, 82 L. Ed. 1518. In Associated Press v. National Labor Relations Board, 1937, 301 U.S. 103, 57 S. Ct. 650, at page 656, 81 L. Ed. 953, the court said: The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special im- munity from the application of general laws. . . . Like others he must pay equitable and non-discriminatory taxes on his business. In Reuben H. Donnelley Corporation v. City of Bellevue, 1940, 283 Ky. 152, 140 S.W. 2d 1024, at page 1026, the court said: The privilege of distributing advertising matter is available to any one paying the tax. True it is that a license is required. We construe the term, however, not in the sense of being a grant or permission but as descriptive of the tax and the document evidencing its payment. And further said: If the right of the state or a municipal subdivision merely to exact a reason- able license tax for the privilege of carrying on the business of distributing advertising matter, or even of publishing a newspaper, for private profit, be denied as an abridgment of freedom of speech or press, then there is a clash with the fundamental social and political philosophy and constitutional mandate of equality of right and equality of burden. . . . The business of advertising 64 Associated Press v. N.L.R.B. possesses no virtue justifying immunity from the ordinary license or other taxes. Freedom of speech or publication does not authorize it. In Tampa Times Co. v. City of Tampa, supra, an ordinance imposed an annual business license tax upon newspapers, magazines and other periodicals or publications, based upon gross receipts, with a minimum tax of $10 per annum upon receipts from all sales and advertising, both wholesale and retail. The tax applied equally to all lines of business. There was no claim that the ordinance was arbitrary or harsh in nature. There the court held that the or- dinance was one for revenue; that the question was one of whether or not a newspaper was immune from the burden of taxation to maintain government; and declared that it had no knowledge of any case where a newspaper had been held immune from all forms of taxation. The court stated that a tax in any form is a burden, yet that alone does not impair freedom of the press any more than an ad valorem tax will destroy freedom of speech. On appeal to the Supreme Court of the United States, the action was dismissed for want of a substantial Federal question. The phrase "power to tax is the power to destroy" is without application to the issue here presented. There is no allegation or showing by defendant that the amount levied was arbitrary or harsh in nature, or oppressive or confisca- tory, or that defendant's freedom to disseminate news and comment has been actually curtailed or abridged by the requirement that it shall pay a tax of $8 per quarter for publishing its newspaper. Nor is there any showing that the imposition of the tax was for the purpose of regulating defendant's business. While the ordinary business tax here in issue is levied in form upon the privilege of engaging in or transacting business, it is, on its face and in fact, a tax for revenue purposes only, and does not grant or take away any right to do business, does not subject business to withdrawal or control by the city, is not regulatory in any manner, and in substance has been recognized and upheld by the weight of authority. We conclude that a nondiscriminatory tax, levied upon the doing of busi- ness, for the sole purpose of maintaining the municipal government, without whose municipal services and protection the press could neither exist nor function, must be sustained as being within the purview and necessary impli- cations of the Constitution and its amendments. CITY OF CORONA V. CORONA DAILY INDEPENDENT, 115 Calif. App. 2d 382; 252 Pac. 2d 56 (1953); certiorari denied, 343 U.S. 833; 74 S. Ct. 2; 98 L. Ed. 45 (1953) The Grosjean and Corona cases effectively delineate the area in which the taxing power of government may operate without infringement upon the rights guaranteed in the First, Fifth, and Fourteenth Amendments. The next question to present itself was that of the proper relationship between adminis- trative regulation and the freedom of the press. The original National Labor Relations Act had sought to establish a practical protection for employees in their right to organize and bargain collectively; a few years later Congress 65 Press Freedom: Its Practical Definition also passed the Fair Labor Standards (Wage-Hour) Act to put a floor under wages and a ceiling on hours. Both of these laws were challenged by the newspaper industry as curtailing the freedom from arbitrary federal controls which was guaranteed by the First Amendment. In the case of the earlier (Wagner) act, the court undertook once more to draw the line between editorial freedom and business liability to regulation. The New York office of the Associated Press had discharged an editorial employee, Morris Watson, who at the time was seeking to organize a local unit of the American Newspaper Guild, a depression-born union of news workers. The National Labor Relations Board, upon Watson's complaint, cited the Associated Press for violation of the act, alleging that Watson had been discharged because of his union activity. The AP brought suit in the federal Circuit Court of Appeals, which upheld the board's finding; where- upon the case was carried to the Supreme Court of the United States. By a majority of five justices to four the high court sustained the appellate court. Mr. Justice Roberts read the majority opinion. First. Does the statute, as applied to the petitioner, exceed the power of Congress to regulate interstate commerce? The solution of this issue depends upon the nature of the petitioner's activities, and Watson's relation to them. The findings of the Board in this aspect are unchallenged, and the question becomes, therefore, solely one of law to be answered in the light of the un- contradicted facts. ... The Associated Press is engaged in interstate commerce within the defini- tion of the statute and the meaning of Article I, sec. 8, of the Constitution. It is an instrumentality set up by constituent members who are engaged in a commercial business for profit, and as such instrumentality acts as an exchange or clearing house of news as between the respective members, and as a sup- plier to members, of news gathered through its own domestic and foreign ac- tivities. These operations involve the constant use of channels of interstate and foreign communication. They amount to commercial intercourse, and such intercourse is commerce within the meaning of the Constitution. Inter- state communication of a business nature, whatever the means of such com- munication, is interstate commerce regulable by Congress under the Consti- tution. This conclusion is unaffected by the fact that the petitioner does not sell news and does not operate for profit, or that technically the title to the news remains in the petitioner during interstate transmission. Petitioner be- ing so engaged in interstate commerce, the Congress may adopt appropriate regulations of its activities for the protection and advancement, and for the insurance of the safety of, such commerce. Tbc National Labor Relations Act seeks to protect the employees' right of collective bargaining, and prohibits acts of the employer discriminating against employees for union activities and advocacy of such bargaining, by denomi- nating them unfair practices to be abated in accordance with the terms of the 66 Associated Press v. N.L.R.B. act. . . . The petitioner, however, insists that editorial employees such as Watson are remote from any interstate activity and their employment and ten- ure can have no direct or intimate relation with the course of interstate com- merce. We think, however, it is obvious that strikes or labor disturbances amongst this class of employees would have as direct an effect upon the ac- tivities of the petitioner as similar disturbances amongst those who operate the teletype machines or as a strike amongst the employees of telegraph lines over which petitioner's messages travel . Second. Does the statute, as applied to the petitioner, abridge the freedom of speech or of the press, safeguarded by the First Amendment? We hold that it does not. It is insisted that the Associated Press is in substance the press it- self, that the membership consists solely of persons who own and operate newspapers, that the news is gathered solely for publication in the newspapers of members. Stress is laid upon the facts that this membership consists of per- sons of every conceivable political, economic, and religious view, that the one thing upon which the members are united is that the Associated Press shall be wholly free from partisan activity or the expression of opinions, that it shall limit its function to reporting events without bias in order that the citi- zens of our country, if given the facts, may be able to form their own opinions respecting them. The conclusion which the petitioner draws is that whatever may be the case with respect to employees in its mechanical departments it must have absolute and unrestricted freedom to employ and to discharge those who, like Watson, edit the news, that there must not be the slightest op- portunity for any bias or prejudice personally entertained by an editorial em- ployee to color or to distort what he writes, and that the Associated Press can- not be free to furnish unbiased and impartial news reports unless it is equally free to determine for itself the partiality or bias of editorial employees. So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press. We think the contention not only has no relevance to the circumstances of the instant case but is an unsound generalization. The ostensible reason for Watson's discharge, as embodied in the records of the petitioner, is "solely on the grounds of his work not being on a basis for which he has shown capabil- ity." The petitioner did not assert and does not now claim that he had shown bias in the past. It does not claim that by reason of his connection with the union he will be likely, as the petitioner honestly believes, to show bias in the future. The actual reason for his discharge, as shown by the unattacked finding of the Board, was his Guild activity and his agitation for collective bargaining. The statute does not preclude a discharge on the ostensible grounds for the petitioner's action; it forbids discharge for what has been found to be the real motive of the petitioner. These considerations answer the suggestion that if the petitioner believed its policy of impartiality was likely to be subverted by Watson's continued service, Congress was without power to interdict his discharge. No such question is here for decision. Nei- ther before the Board, nor in the court below, nor here has the petitioner pro- fessed such belief. It seeks to bar all regulation by contending that regulation 67 Press Freedom: Its Practical Definition in a situation not presented would be invalid. Courts deal with cases upon the basis of the facts disclosed, never with nonexistent and assumed circum- stances. The act does not compel the petitioner to employ anyone; it does not re- quire that the petitioner retain in its employ an incompetent editor or one who fails faithfully to edit the news to reflect the facts without bias or preju- dice. The act permits a discharge for any reason other than union activity or agitation for collective bargaining with employees. The restoration of Watson to his former position in no sense guarantees his continuance in petitioner's employ. The petitioner is at liberty, whenever occasion may arise, to exer- cise its undoubted right to sever his relationship for any cause that seems to it proper save only as a punishment for, or discouragement of, such activities as the act declares permissible. The business of the Associated Press is not immune from regulation be- cause it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. He is subject to the anti-trust laws. Like others he must pay equitable and nondiscriminatory taxes on his business. The regulation here in question has no relation whatever to the impartial distribu- tion of news. The order of the Board in nowise circumscribes the full free- dom and liberty of the petitioner to publish the news as it desires it published or to enforce policies of its own choosing with respect to the editing and re- writing of news for publication, and the petitioner is free at any time to dis- charge Watson or any editorial employee who fails to comply with the policies it may adopt. . The judgment of the Circuit Court of Appeals is Affirmed. Mr. Justice Sutherland, dissenting. Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Butler and I think the judgment below should be reversed. One of the points made in the court below, and assigned as error here, is that the statute involved, as applied, abridges the freedom of the press in violation of the First Amendment. The Associated Press is engaged in collecting, editing and distributing news to its members, publishers of some 1300 newspapers throughout the United States. These newspapers represent many diverse policies and many differ- ences in point of view. It, obviously, is essential that the news furnished should not only be without suppression but that it should be, as far as possi- ble, free from color, bias or distortion. Such is the long-established policy of the Associated Press. If the Congressional act here involved, upon its face or in its present application, abridges the freedom of petitioner to carry its policy into effect, the act to that extent falls under the condemnation of the First Amendment. We shall confine ourselves to that question, the gravity of which is evident; but we do not mean thereby to record our assent to all that has been said with regard to other questions in the case. .. 68 Associated Press v. N.L.R.B. In a matter of such concern, the judgment of Congress-or, still less, the judgment of an administrative censor-cannot, under the Constitution, be substituted for that of the press management in respect of the employment or discharge of employees engaged in editorial work. The good which might come to interstate commerce or the benefit which might result to a special group, however large, must give way to that higher good of all the people so plainly contemplated by the imperative requirement that "congress shall make no law . . . abridging the freedom . . . of the press." The present case illustrates the necessity for the enforcement of these prin- ciples. The board found, in effect, that the actual reason for Watson's dis- charge was his activity as a member of a labor organization in the furtherance of its aims. Accepting this as a true statement of the reason for the discharge, let us consider the question from the standpoint of that finding; although, as already indicated, we are of opinion that the constitutional immunity of the press does not permit any legislative restriction of the authority of a publisher, acting upon his own judgment, to discharge anyone engaged in the editorial service. Such a restriction of itself would be an abridgment of the freedom of the press no less than a law restricting the constitutional liberty of one to speak would be an abridgment of the freedom of speech. For many years there has been contention between labor and capital. Labor has become highly organized in a wide effort to secure and preserve its rights. The daily news with respect to labor disputes is now of vast propor- tions; and clearly a considerable part of petitioner's editorial service must be devoted to that subject. Such news is not only of great public interest; but an unbiased version of it is of the utmost public concern. To give a group of employers on the one hand, or a labor organization on the other, power of control over such a service is obviously to endanger the fairness and accuracy of the service. Strong sympathy for or strong prejudice against a given cause or the efforts made to advance it has too often led to suppression or coloration of unwelcome facts. It would seem to be an exercise of only reasonable pru- dence for an association engaged in part in supplying the public with fair and accurate factual information with respect to the contests between labor and capital, to see that those whose activities include that service are free from either extreme sympathy or extreme prejudice one way or the other. And it would be no answer to say that dealing with news of this character constitutes only a part of the duties of the editorial force. The interest of a juror, for example, in the result, which excludes him from sitting in a case, may be small and the adverse effect upon his verdict by no means certain. Nevertheless, the party affected cannot be called upon to assume the hazard. In the present case, by a parity of reasoning, the hope of benefit to a cherished cause which may bias the editorial employee is a contingency the risk of which the press in the exercise of its unchallengeable freedom under the Constitution may take or decline to take, without being subject to any form of legislative coercion. What, then, are the facts here involved? Morris Watson was employed by petitioner first in 1928 as a reporter and rewrite editor in petitioner's Chicago office. In 1930, he was transferred to the New York office, and there served as editorial employee until his discharge on October 18, 1935. One of his duties was to rewrite and supervise the news received at the New York office and de- 69 Press Freedom: Its Practical Definition termine what portion of it should be sent to points outside. As the court al- ready has pointed out, he has authority to determine the news value of items received and was required to speedily and accurately rewrite the copy delivered to him. In November, 1933, Watson was instrumental in organizing the Associated Press Unit of the New York Newspaper Guild, a labor organization, consti- tuting a part of the American Newspaper Guild; and he was, from the begin- ning, recognized as the outstanding union representative of the press associ- ations. He served successively as chairman of the Associated Press Unit and as treasurer and secretary of the New York Guild, and at the time of his dis- charge was vice-president of wiring services of the American Guild. His guild activities were immediately objected to by petitioner; and thereafter, on nu- merous occasions, these activities were objected to by petitioner's executives and inducements were held out to him to abandon them. The findings of the board disclose that Watson continued in various ways to promote the interests of the guild; and there is no doubt that his sympathies were strongly enlisted in support of the guild's policies, whether they clashed with the policies of petitioner or not. We do not question his right to assume and maintain that attitude. But, if petitioner concluded, as it well could have done, that its policy to preserve its news service free from color, bias or distortion was likely to be subverted by Watson's retention, what power has Congress to interfere in the face of the First Amendment? And that question may not be determined by considering Watson only; for the power to compel his continuance in the service includes the power to compel the continuance of all guild members engaged in editorial work, with the result that the application of the statute here made, if carried to the logical extreme, would give opportunity for the guild to exercise a high degree of con- trol over the character of the news service. Due regard for the constitutional guaranty requires that the publisher or agency of the publisher of news shall be free from restraint in respect of employment in the editorial force. And we are dealing here not with guild members employed in the mechanical or purely clerical work of the press but with those engaged as Watson was in its editorial work and having the power thereby to affect the execution of its poli- cies. ASSOCIATED PRESS V. NATIONAL LABOR RELATIONS BOARD, 301 U.S. 103; 57 S. Ct. 650; 81 L. Ed. 953 (1937) For the newspaper industry's challenge to the Wage-Hour Act as it applied to the press, see Sun Pub. Co. v. Walling, p. 419. The liability of the newspaper as a business enterprise under the federal antitrust laws was another issue which came to a head in the new era of economic legislation and changing economic conditions in the newspaper industry itself. The trend toward one-newspaper cities presented questions of monopoly, particularly as the single newspaper might also acquire ownership of the single radio broadcasting station in the community and thus control all 70 State v. Salt Lake Tribune Publishing Co. media of advertising available to local businesses. Once more the courts were called upon to distinguish between long-accepted newspaper practices-such as the right to refuse to accept advertising-and the new purposes to which such practices might be put, such as the effort to discourage or stifle possible competition by insistence upon advertising terms which the court considered unreasonable. There was, for instance, the refusal of a newspaper to accept advertising from a business which had placed advertising with a competing medium, even when this medium was outside the community in which the newspaper operated. For this case, see Lorain Journal v. United States, p. 389. Or a newspaper might insist upon an advertiser's buying space in a com- panion publication, as in the case where a morning and an evening newspa- per were owned by the same company. For the court's current view on this question, see Times-Picayune Co. v. United States, p. 394" The question of the antitrust laws arose also in the case of the great news- gathering agencies, particularly the Associated Press with its unique corporate organization as a nonprofit cooperative enterprise in which membership was held by individual publishers rather than by newspaper corporations. For this celebrated issue, see Associated Press v. United States, p. 365. State courts were also frequently called upon to test the validity of statutes thought to infringe upon either federal or state guarantees of free expression. One of the earliest such cases involved a 1921 Utah law which prohibited the advertisement of tobacco or tobacco products. Judge Frick of the state su- preme court read the opinion unanimously ruling the law unconstitutional: While the state of Utah could perhaps entirely prohibit the sale of ciga- rettes, in so far as the sales are not protected by the interstate commerce clause of the federal Constitution, yet, as already pointed out, Utah merely regulates the sale of cigarettes as it regulates the sale of many other articles of merchandise. All sales of cigarettes which are made in compliance with the provisions of our statute are lawful. If it is lawful, therefore, to deal in and to sell cigarettes, why is it not lawful to inform those who may legally purchase an article where they may do so? It may be true that the state within its police power may, as a matter of regulation, seek to minimize the sale of an article the use of which it may deem injurious to the public health; and if it may do that, it may, perhaps, regulate or prohibit the advertisement of such an article. Where, however, as is the case here, the article in question is an article of com- merce which is protected by the interstate commerce clause of the federal Constitution, it may well be doubted whether the state can interfere with the sale of an article which is so protected. The conclusion therefore seems irre- sistible that, in view that the advertisement published by the Salt Lake Trib- une in and of itself constitutes interstate commerce with which the state of Utah could not interfere, and further that the article likewise was protected both by the laws of Utah permitting its sale and to the extent that the article 71 Press Freedom: Its Practical Definition was shipped into the state in original packages was also protected from inter- ference by the state, the defendant was clearly within its legal rights in pub- lishing the advertisement, and that the statute in question constitutes an un- due interference with interstate commerce and therefore cannot be upheld. STATE V. SALT LAKE TRIBUNE PUBLISHING Co., 68 Utah 187; 249 Pac. 474; 48 A.L.R. 553 (1926) In 1939 Indiana enacted a law prohibiting price advertising by embalmers. The statute contained this statement: "By advertisement is meant any form of printed matter, newspaper or otherwise, holding out such facts to the public." The law was challenged on the ground that, since it did not prohibit advertis- ing by means other than printed matter, it discriminated unfairly against printed media. The lower court sustained this argument and on reviewing the case Chief Justice Shake of the state supreme court read an opinion unani- mously upholding the ruling. If the statute was an old one the prohibition against advertising by means of the printed word without restricting the right to advertise by other means might be understood, even if it could not be justified, upon the theory that science has since overtaken the lawmakers; but we cannot close our eyes to the fact that in 1939 when this statute was enacted the radio had already come into general use in the advertising field. We are unable to conceive of any possible reason for prohibiting licensed funeral directors and embalmers from advertising their prices in newspapers or by handbills and at the same time permitting them to broadcast the same facts to the public by radio. Such a re- sult constitutes a direct violation of sec. 23 of Article 1 of the Constitution of Indiana, which forbids the General Assembly from granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens. For the same reason the act violates sec. 1 and sec. 9 of Article 1 of the State Constitution. A case in point is People v. Osborne, 1936, 17 Cal. App. 2d Supp. 771, 773, 776, 59 P. 2d 1083, 1084, o1086. The court there had under consideration the validity of a municipal ordinance regulating barbering, sec. 4 of which was as follows: "Prices of services shall not be advertised in any publication, handbill or notice whatsoever. Price lists may be displayed in any barber shop but shall be so displayed as not to be visible from outside the shop. No advertising of prices shall be allowed on windows or on the outside of build- ings or on the street or sidewalk." The court said: Apparently, by the ordinance under consideration, neither telephone nor radio advertising of prices is prohibited and the prerogative of oral solicitation remains unimpaired. It does not appear that the acquirement of knowledge by a customer before he enters a barber shop of the price he is to be required to pay for services therein is detrimental to the morals or general welfare of the barber, the customer or the public at large. Yet written or printed advertising of 72 Sherman v. State Board of Dental Examiners prices of services "in any publication, handbill or notice whatsoever" is abso- lutely prohibited, and any price list inside the shop must be so displayed as not to be visible from outside the shop. The only apparent purpose of such provi- sions is to make it necessary for a prospective customer to advance so far within the portals of a barber shop, before learning the prices to be charged him therein for the work he desires, as to discourage him from a departure should those prices seem to him more than he should pay. Such an object would be as distasteful to the many fair-minded barbers as it would be to timid customers. It is not in complete accord with those ethical and honest concepts of freedom and fair dealing in contracts underlying American institutions and is repugnant to, rather than within, the police power. A classification based on the possibility of seeing a price list while outside the shop rests on no natural, constitutional, or intrinsic distinction justifying it, and is arbitrary and void. Likewise, so far as advertising the price of a given service or commodity is concerned, there being involved in the distinction itself no question of public welfare, we see no rational ground for discriminating between the senses and prohibiting the dis- semination by visual means of that information which orally may be com- municated. Advertising in various ways has been from time to time the subject of regulatory legislation under the police power, but absolute prohibition, ir- respective of considerations of public welfare, of printed advertising of prices of services or commodities which may lawfully be offered for sale, and which may be legally advertised otherwise than visually, has no constitutional justifica- tion. That part of sec. 6, Chapter 165, Acts 1939, quoted above, is void. The judgment is affirmed. NEEDHAM V. PROFFITT, 220 Ind. 265; 41 N.E. 2d 6o6 (1942) A Texas law in 1938 prohibited the advertising of services by dentists, except for professional announcements stating the name, address, and office hours of practitioners. To the question of whether this violated the constitu- tional provisions on press freedom Chief Justice Smith of the state supreme court said: The question of freedom of the press is not involved, except as a remote in- cident of the purposes and effect of the act. The act does not purport to bear upon or affect the right of the press to publish whatever it sees fit to print, in whatever form or language it chooses. The object and effect of the act are clearly within the inherent police power of the state, and the act will not be nullified simply because its enforcement will tend to cut off purely conjectural profits which the press might derive from the prohibited practices. It has been repeatedly, and as far as we are advised, uniformly, held that such legislation is not in contravention of the constitutional guarantee of freedom of speech and of the press. SHERMAN V. STATE BOARD OF DENTAL EXAMINERS, 116 S.W. 2d 843 (1938) 73 Press Freedom: Its Practical Definition The transmission of news of horse-racing results, which has been exploited for gambling purposes, has led the Federal Communications Commission in recent years to tighten its tariff regulations which stipulate that no tele- graphic facilities shall be used for purposes which may violate federal or state laws. Western Union accordingly discontinued service of this type in interstate commerce. However, a Maryland newspaper contended that it should be permitted to continue receiving such service within its state, and upon denial of its complaint by the state public service commission the newspaper took the case to the state court of appeals. Judge Delaplaine of the Maryland Court of Appeals affirmed the action of the Baltimore circuit court in dismissing the suit against the commission. It was insisted that the transmission of sports news does not violate any law of the State merely because a recipient of it puts it to illegal use, and that consequently no evidence of illegal activities on the premises of cus- tomers should have been produced against the appellant. Harry E. Bilson, secretary and treasurer of the appellant, asserted that while he had executed the contracts with the customers, he had never visited their places of business, and professed ignorance of the character of their operations. But it is well set- tled that a telegraph company has the right to refuse service which is con- nected with illegal operations. The company may refuse to render such serv- ice, not only where such action would subject it to prosecution as a participant in the illegality, but also where it would have the effect of promoting illegality, even though the company might not be liable to punishment for rendering the service. There is abundant authority for the principle that a telegraph company cannot be compelled to furnish reports of market prices to a bucket shop, notwithstanding its duty as a public service corporation to serve all cus- tomers without discrimination, and even though it may have executed a con- tract to furnish such reports. Otherwise, telegraph companies would be con- verted into public vehicles for the consummation of all kinds of illegal designs. ... The second contention of the appellant was that, since it had been publish- ing a daily sports sheet, the order of the Public Service Commission abridged the constitutional privilege of freedom of the press. . . . It is obvious that the appellant has not been denied the privilege of expressing its opinion on any subject. It is an ancient doctrine of the common law that no court should lend its aid to enforce a contract to do an act that is illegal, or which is incon- sistent with sound morals or public policy, or which tends to corrupt or con- taminate by improper influences the integrity of our social or political insti- tutions. The State, in the exercise of the police power and in the interest of the public welfare, has the undoubted right to regulate and limit the right of contract. . . HOWARD SPORTS DAILY V. WELLER, 179 Md. 355; 18 Atl. 2d 210 (1941) 74 The Pennsylvania election code of 1943 prohibited anonymous political advertisements or cartoons. Judge Reno of the Pennsylvania Superior Court upheld the constitutionality of the statute. [The] words employed by the legislature explicitly indicate a purpose to denounce anonymous publications as a campaign device. Their total effect is to prohibit anonymous publications of written or printed matter "which is designed or tends to injure or defeat any candidate for nomination or election to public office, by reflecting on his personal character or political actions." The essence of the crime is anonymity, and the crime is committed, and is complete, when the proscribed matter has been published without compliance with the enacted exculpatory regulations. It is a distinct and separate crime. We repeat, anonymity is the core of the offense, and it is committed whether the content is true or false. For, as the section itself proclaims, the crime de- fined by it is distinguished from libel. If the matter is libelous it is also punish- able as libel, and in a prosecution for libel the defenses pertaining to that crime are available. But in prosecutions for this crime, truth or non-negligent publication are not defenses. If the publication is anonymous and false, the crime has been committed; if it is anonymous and true the crime has been committed; and, whether true or false, if it is published in accordance with the provisions which authenticate it or identify the writer, the crime de- fined by this section has not been committed. The purpose of the legislation is equally obvious. It compels persons who charge candidates with private frailties or political misconduct to avow respon- sibility for their assertions. It prohibits campaign in a cloak of anonymity; it compels a writer, exercising his right to the freedom of the press, to disclose his identity and assume responsibility just as a speaker, exercising his right to free speech, identifies himself by the very act of articulation, and ipso facto, becomes responsible for his utterance. It is an attempt to raise the ethical standards of political discussion, to promote fair play and fair competition in politics, to banish cowards from the political arena, and extirpate the dirty business of surreptitious character assassination. The section represents the views of both major political parties of the Commonwealth, and even the judiciary is not so remote from the realities of political life that it cannot rec- ognize it as wholesome and desirable legislation. The power of the legislature in the premises is wholly free from doubt. The section of the Bill of Rights which guarantees the ineffably precious right of literary expression does not contain one syllable which protects anon- ymous writers. The Constitution shields only those who openly and in good faith publicly examine the official and private conduct of candidates for public office. Comrn. v. Foley, 292 Pa. 277, 141 A. 50; Com. v. Wilhelm, 90 Pa. Super. 473. The Constitution itself imposes responsibility as a condition to the exercise of the right, and that condition empowers the legislature to enact law under which identity must be disclosed and responsibility assumed. 11 Am. Jur., Constitutional Law, sec. 321. This is the real purpose of the section. It does not deny any person his constitutional right to write or print information concerning a candidate. The section merely requires disclosure of the identity Commonwealth v. Evans 75 76 Press Freedom: Its Practical Definition of the writer or publisher, that is, it requires only the open assumption of the responsibility imposed by the Constitution. The appellee's contention, when exposed to examination in the light of the Constitution, becomes a specious plea for the exercise of a right without acknowledging the existence of the correlative duty. . .. COMMONWEALTH V. EVANS, 156 Pa. Sup. 321; 40 Atl. 2d 137 (1944) CHAPTER III Freedom to Gather News SUPPLEMENTARY READING American Society of Newspaper Editors, Problems of Journalism (New York, 1948-53), annual reports of Committee on Freedom of Information Anon., "Access to Official Information-a Neglected Constitutional Right," Indiana Law Journal, v. 27 (Winter, 1950), pp. 209-30 Herbert Brucker, Freedom of Information (New York, 1949), c. 2-6 Harold L. Cross, The People's Right to Know (New York, 1953), c. 1, 3-7 Swindler, Bibliography, nos. 1oo, 226-8 BACKGROUND NOTE The freedom to publish news and comment is of little value without the corollary freedom to gather the news. Access to public information- particularly in the form of public meetings and public records-has always been the practical key to real freedom of the press; and the struggle to effectuate this access has been but another phase of the continuing fight to keep the agencies of communications unrestricted and unhampered in the pursuit of their functions. This struggle, indeed, has assumed sudden new proportions in the period since World War II. News agencies have become alarmed at the tightening reins of "classified" or restricted information which has very readily spread from military to nonmilitary branches of the government. What has particu- larly alarmed the journalist in this trend on the part of public agencies, both state and national, to circumscribe the area of information, is the apparently widespread conviction on the part of officeholders that secrecy is demanded by public policy and the public interest-a complete reversal of the position which, after generations of arduous popular effort, had come to be accepted as the essence of democratic government: The people have a general right to examine the records maintained by their public servants. This issue reached its first climax in the demand for the right to report Parliament-the most important single news source in the period of the seven- 77 teenth, eighteenth, and early nineteenth centuries when the English middle classes were striving ever more vigorously to gain a greater role in public affairs. Although the Long Parliament had granted limited permission to publish its proceedings, the government of the Restoration had reverted to the earlier practice of complete secrecy and the prosecution of those who presumed to violate the practice. Licensing and censorship as formal controls had disappeared by the first decade of the eighteenth century; but it was not until the seventies that the House of Commons, yielding reluctantly to popular demand, permitted reporters to be present during the debates and to prepare such stories aS they could compose from memory and without the privilege of inspecting the official journals. Almost another century was to pass before Parliament gave up a prerogative it had jealously preserved and occasionally used-that of excluding reporters and other strangers from the visitors' galleries upon the demand of a single member. It remained for a British court, in 1868, in an obiter dictum in a question of a newspaper's qualified privilege, to define a legal basis for the right to gather news from public sources-a ruling which has been accepted as authoritative in both British and American jurisprudence: It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of Parliament shall be communicated to the public, who have:the deepest interest in knowing what passes within their walls, seeing that on what is there said and done the welfare of the community depends. Where would be our confidence in the government of the country or in the Legislature by which our laws are framed, and to whose charge the great interests of the country are committed, where would be our attachment to the constitution under which we live, if the proceedings of the great council of the realm were shrouded in secrecy and concealed from the knowledge of the nation? How could the communications between the rep- resentatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on, if the constitu- encies were kept in ignorance of what their representatives were doing? What would become of the right of petitioning on all measures pending in Parlia- ment, the undoubted right of the subject, if the people are to be kept in ignorance of what is passing in either house? Can any man bring himself to doubt that the publicity given in modern times to what passes in Parliament is essential to the maintenance of the relations subsisting between the govern- ment, the Legislature, and the country at large? (Wason v. Walter [1868], L.R. 4 Q.B. 73) The demands for access to public meetings and public records were even more vociferous in the new United States after the Revolution. Although the Continental Congress had operated in secrecy-obviously of necessity, since the members of the Congress were technically and actually engaged in treasonable activity until the war of independence was won-the press and 78 Freedom to Gather News the people clamored for open sessions of the Congress established under the new Constitution. Although the first inclination of both houses seems to have been to preserve a degree of secrecy, the lower chamber in 1790 and the Senate two years later yielded to popular pressure and admitted press representatives to the galleries. Since 1857 the House of Representatives has reserved gallery sections for the press and permitted one representative of each wire service a seat on the floor; in 1939 this privilege was also extended to radio correspond- ents and networks. The Senate follows a similar practice. By virtue of these congressional provisions, and the generally liberal find- ings of state courts in which local questions of access to records were raised, the American press enjoyed an ever-widening area of newsgathering from the second quarter of the nineteenth century to the second quarter of the twentieth. During World War I, the Espionage and Sedition Acts of 1917 and 1918 and the Trading With the Enemy Act of 1917 set up certain controls which were, however, repealed after the Armistice. World War II resulted in an act of Congress in 1946 (42 U.S.C. 181o) restricting the flow of informa- tion on atomic energy, and particularly forbidding the international exchange of such information "until Congress declares by joint resolution that effective and enforceable international safeguards against the use of atomic energy for destructive purposes have been established." In addition to these developments resulting from wartime exigencies, the changing social and economic characteristics of the country accounted for other legal restraints-each of them having plausible bases when enacted but all of them taken together amounting to what, in the opinion of many news- paper leaders, was a serious barrier to the flow of news from public sources. In the 1920's the income tax laws were modified to protect individuals from unreasonable publicity respecting the particular amount of tax paid by each person. A decade later, with the development of a national policy of old-age assistance and security, Congress enacted legislation making confidential the names of recipients of such funds. The general tenor of official policy underwent a marked change in the mid- 1940's, obviously as a result of the war and the continuing state of interna- tional crisis following it. This led to a succession of instances in which, in the view of experienced and thoughtful journalists, responsible public officials stretched the meaning of the laws dealing with national security to cover many unrelated issues as well. In particular, newspapers in various parts of the country found themselves confronted with strict "no news" policies on the part of commanding officers at air bases and other military installations. In one of the most celebrated of these issues, the Fort Worth Press successfully challenged and secured the reversal of a local air base's policy of censorship of news affecting its personnel Background Note 79 even outside the military premises. The problem reached a climax when a crash of a military plane resulted in the deaths of twenty-three local men; the air base commander imposed a ban on all news to the Fort Worth paper because, among other things, he charged that it had been "sensational" in its coverage of the plane crash and that the news of this and other activities of the base personnel had been handled in a manner detrimental to the morale of the officers and men. Department of Defense officials, upon the protests of the Press, ordered the ban to be lifted; but in other parts of the country the newspapers found that any news stories which tended to ruffle official tempers in the military hierarchy were apt to be denounced, frequently with a threat to cut off further news from the armed forces represented in that locality. This has led to a condition where newspapers have become alert- perhaps to an exaggerated degree-for any sign of news control by local mili- tary commanders and have usually rushed into print with their grievances in the belief that a vigorous campaign of publicity, as in the case of the Fort Worth Press, will halt the operation. Another instance of extended interpretation of a federal law involved the St. Louis Star-Times in 1947. This had nothing to do with military security, but with a federal statute originally enacted in 1890, which forbade the circulation of any information calculated to promote or encourage public participation in lotteries.* The 1947 issue developed from a news story from North Carolina about a Negro war veteran who had been found to hold the winning ticket in a lottery conducted by a local service club. An attempt had been made to deny the Negro the winner's prize, an automobile; the Independent of Elizabeth City, N. C., discovered the story and published it, whereupon newspapers throughout the country gave the story national promi- nence, with the result that the veteran was belatedly given his prize. However, the St. Louis postmaster formally advised the Star-Times that the paper, at least technically, had violated the federal law prohibiting informa- tion on lotteries. The newspaper replied with a front-page editorial denounc- ing this interpretation of the law as "arrogant nonsense." Post office officials in Washington promptly issued a public statement denying any intention of trying to penalize the St. Louis newspaper for the story, and sending a special directive to all postmasters advising them that the incidental mention of a lottery in a news story did not constitute a violation of the antilottery statute. As a matter of fact, American newspapers generally have published stories about winners of the Irish Sweepstakes and other sporting activities at home and abroad which may well have violated this law if it were applied literally. It is not yet clear whether the issue raised by the Star-Times, and the direc- tive which resulted from it, has settled the question or not. Again, as in the * For a court case on lottery promotion in newspapers, see Ch. 11. .80 Freedom to Gather News Background Note 8r case of the control of military news, each incident may have to be examined- and challenged-separately. Most important of the restrictive policies of the federal government, how- ever, have been the so-called security orders of Presidents Truman and Eisen- hower, respectively dated September 24, 1951, and November 3, 1953.* The Truman security order, which was continued in modified form by the Eisen- hower order, was described as an attempt to establish "minimum standards for identifying and protecting information the safeguarding of which is necessary in order to protect the security of the United States." The 1951 order set up four categories of "classified" information: "Top Secret," "Secret," "Con- fidential," and "Restricted." It gave every executive agency official the author- ity to determine what records under his jurisdictiol should be classified, and which of the four categories should govern the records; moreover, each official could delegate part of this authority to other staff members under his supervi- sion. A general outcry arose from the press and other news media when the Truman order was announced. The order was so sweeping that it would make it possible to withdraw virtually all public records from public inspec- tion, it was argued; by permitting every officeholder to acquire authority to classify material, any individual in the executive branch might conceal any- thing which he might prefer to keep secret for any reason. Both critics and advocates of the order compared it with the "Official Secrets" acts of Great Britain, citing instances of abuse or justification of the law in the journalistic experiences of that country. Certainly the security order, following as it did the security provisions of the Atomic Energy Act of 1946, vastly enlarged the precedent of government restriction upon the individual citizen's right to inform himself about the affairs of his government, in contravention of all national tradition up to that time. In support of this precedent it was argued that the critical condition of world affairs, inextricably bound up with the cataclysmic problems of the control and use of atomic energy for military purposes, left the government no other choice. Upon the continued requests of the Washington press representatives, how- ever, the Eisenhower administration immediately upon coming into office undertook a study of the security order, and in late 1953 issued a modified version with these major alterations: The number of categories for classi- fied information was reduced from four to three; the type of material to be entered under any of the categories was more precisely defined; the number of officers authorized to classify material was limited; and the President re- served the right to delegate one of his assistants to review all suggestions or * For the full text of these important documents, see Executive Order 10290 in 16 Fed. Register 9795, and Executive Order lo5ol in 18 Fed. Register 7049. complaints about the order from "nongovernmental sources" (e.g., the press corps) with authority to take action on any of them. The developments in public policy, particularly those centering around the military, tax-collecting, and public welfare branches of the federal government, obviously affected a large proportion of the news which the American press and radio considered of primary importance. The denial of access to informa- tion in these fields made newsgatherers sensitive to similar trends in other areas of government; and although the law had consistently held that the public's right to inspect public records could be limited in any cases where national or international policy depended upon the confidential nature of the records, the journalistic reaction was one of general alarm. State and local activities, aimed at restricting the flow of news, were uncovered and publicized by newspaper groups, particularly the Freedom of Information Committee of the American Society of Newspaper Editors, adding to the cases being gath- ered from federal government offices. School boards, village councils, justice of the peace courts, and even committees of state legislatures in various parts of the country were found to be withholding records or data on a number of grounds-unchallenged local precedent, vagueness of state laws on the sub- ject, the sensitivity to newspaper criticism on the part of officeholders, and so on. Access to police records, a subject on which state laws had frequently been anomalous, afforded another major problem for news media. Early in its investigations the ASNE Committee, through the study of its special counsel, Harold L. Cross, focused attention on a federal law which, although it had been on the statute books since 1789, had assumed the aspect of a threat to news freedom only in the light of contemporary government practice. This law (5 U.S.C. 22) authorized the head of every government department "to prescribe regulations, not inconsistent with law, for . . . the custody, use and preservation of the records, papers and property appertain- ing to it." Supplementary to this law, and symptomatic of the prevailing official attitude toward the limiting of access to certain government records, was a 1946 statute (5 U.S.C. 1002) which stated in part: "Save as otherwise required by statute, matters of official record shall in accordance with pub- lished rule be made available to persons properly and directly concerned ex- cept information held confidential for good cause found." These restrictive provisions, incorporated in the general powers of the executive branch of the government, appeared to the committee as serious infringements upon the freedom of the press to gather news. A series of public scandals involving personnel in the Federal Bureau of Internal Revenue added substance to the argument of press representatives that secrecy tended to encourage misfeasance. In 1953 Congress, responding to long and continuous agitation by newspaper organizations, lifted the re- 82 Freedom to Gather News strictions on publicity of the public assistance rolls; and the fact that in most instances little or no public interest in these rolls was evidenced was cited by journalists as refutation of the argument that recipients of public assistance would become victims of morbid or maudlin curiosity. The ASNE committee exhorted individual newspapers and news agencies to publicize any cases of denial of access to news as the most effective means of halting the trend toward secrecy. Even the tight military grip on news, both at home and abroad, seemed somewhat to relax after the vigorous journalistic cam- paign against news barriers. The increasing complexity of government in the twentieth century-the degree to which state and national laws have come to affect the personal affairs of individual citizens, and the tension which has characterized inter- national affairs for most of the period since the mid-thirties-has made in- evitable the restriction of public information in many areas of news which are of major public interest. Corruption and abuse of power are apparently chronic threats to the general welfare under any system of government; the theory of democratic government has been that these dangers can be reduced according as the public in general has adequate means of informing itself as to the conduct of government business.* But in the conduct of national and foreign affairs a certain number of confidential acts and records is obviously required-and there have been frequent incidents in recent years to demon- strate how American diplomacy has been handicapped by publicity or publicity-seekers. The ultimate solution to the problem in all likelihood lies not in the letter of the law but in an increasing sense of ethics and responsibil- ity on the part of both journalists and officeholders. A "public record" has been defined by the courts as a record required by law to be kept, either because it is essential to the discharge of the duties of a public official or because it is required as evidence of accomplished action. Even records which are kept as a matter of practical convenience rather than of law, in most cases, have been ruled to be public documents and hence open to public inspection. Public records include those of the legislative, execu- tive, and judicial branches of the government-local, state, and national- except papers which must be restricted or kept confidential if the government agency is to carry out its duties. The books of private corporations are not open to general inspection, but their articles of incorporation and any other papers required by law to be deposited with public authority may be examined. The right to inspect all records of this type was qualified in English common law by the provision that only those persons who had a legitimate interest * This has also been, at least in part, the theory behind the laws on public notice adver- tising. See the background note to Ch. 16. Background Note 83 therein .should be permitted access. Although American law for the most part has failed to modify the common law rule, in practice the general interest of an individual as a citizen and taxpayer has been sufficient to open such papers to him. Representatives of newspapers have thus, in their capacity as indi- vidual citizens and taxpayers, generally enjoyed access to records. A New York court in 1933 declared that "taxpayers should not be denied access to their own books for the purpose of ascertaining how their money is expended and how their business is conducted. A municipal corporation can have no private books, not even of accounts, not open to its citizens." (North v. Foley, 238 App. Div. 731; 265 N.Y.S. 780) As early as 1884 the Massachusetts court, ac- quiescing in the general statement of principle in the Wason v. Walter case, declared: It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. (Cowley v. Pulsifer, 137 Mass. 392; 50 Am. Rep. 318) The presence of newspaper representatives at a trial, in fact, has been held by the Arizona Supreme Court to insure that the trial is a public one in ac- cordance with constitutional guarantee. Referring to a 1918 case in which the public was excluded from the courtroom because of the vulgar or otherwise unsavory nature of the testimony, the court rejected the appellant's argu- ment that the trial had not been public by noting that the press had been fully represented during the testimony: Protection from oppression or arbitrariness of the court, its officers, and the prosecuting officer, will be assured so long as trained and discriminating news- paper reporters are present at the trial, keeping close and critical watch of everything done and said, for the purpose of publication in the daily press. A larger public is made acquainted with the salient facts of the trial, even when it is progressing, through the press than it is possible to reach through the open doors of the courtroom. (Keddington v. Arizona, 19 Ariz. 457; 172 Pac. 273) The abuse of the privilege of access to public records, particularly in instances where the press has overplayed the testimony in certain salacious court cases, has qualified this Arizona rule. California, for example, by statute has closed the records of divorce suits to newspaper inspection, except for a brief state- ment of the parties involved and the disposition of the case. The New York Supreme Court in 1953, concerned at the sensational publicity attending a sex offense case, closed the records to the press as well as excluding the general pub- lic and the press from the trial itself, relying upon a state law which permitted 84 Freedom to Gather News the exclusion of the public at the discretion of the court in sex offense cases. An appeal from this ruling was denied by the appellate division. Upon review of the trial itself, however, the Appellate Division of the New York Supreme Court in the spring of 1954 held that the excluding of press representatives from the courtroom during the taking of testimony amounted to a denial of a fair trial to the accused. As this book went to press the final outcome of this case was still pending, as was a further appeal by the press association. It is pertinent to review the thoughtful arguments made by the courts on both sides of the issue to this time. The 1953 ruling by Justice Schreiber declared: The rights to freedom of speech and freedom of the press were not intended to destroy all rights of privacy and secrecy. The claim that petitioners are being deprived of their property rights in violation of the due process clause of the Fourteenth Amendment to the United States Constitution is also predicated upon the false assumption that petitioners have a constitutional right to be present at all trials and obtain for publication purposes all the information described in such trials. No such constitutional right exists. (United Press As- sociations v. Valente, 203 Misc. 220; 120 N.Y.S. 2d 642) In the 1954 opinion on the trial itself by the appellate division, Justice Bastow read the statement of the three-to-two majority: To place in the hands of any court the power in a criminal trial to close the doors of a courtroom during the presentation of the case of one party and open it when the other party undertakes to present his case creates a situation that should not be tolerated . We conceive it to be no part of the work of the judiciary upon the facts here presented to decide what a newspaper prints or to what portion of the people it caters to sell its papers. A judge may have his personal opinion as to the good taste of what may appear in public print but when serving as a judicial officer he has no right in a situation such as this to restrain or dictate what portion of court proceedings shall be made available for reading by the public. (People v. Jelke, App. Div. ; 13o N.Y.S. 2d 662 [1954]) The variance between the rules in the Cowley and Valente cases is indicative of the variance between the journalism of 1884 and that of the present. The growth of "yellow journalism" in the 1890's and the "tabloid era" of the early 1920's identified certain segments of the American press with wanton sensa- tionalism and disregard for elemental responsibility which inevitably had an effect upon the attitude of the courts. To the degree that this segment of the press sought to open the records of salacious testimony so as to pander to the morbid curiosity of its readers, the court's action in closing these records is hard to criticize. To the degree that this action deprived legitimate news- papers of the opportunity to check the record as background to a dignified report of the trial, the press has been handicapped less by the courts than by the irresponsible policies of some of its own members. Background Note 85 The basic principle, in any case, is that public papers and proceedings should be open to inspection by everyone, except in a narrowly defined number of instances which reasonable persons agree should be restricted in the interest of public safety or welfare. GENERAL PRINCIPLES 1. What is the right of access to public records? The Providence Journal for several years tried unsuccessfully to persuade city officials in Pawtucket, R. I., to permit correspondents for the Journal in that city to examine the lists of tax abatements and cancellations which the city council had authorized over a period of years. Representatives of the newspaper were put off with requests to "come back tomorrow," with the com- ment of secretaries that the official sought was in conference or out of the office, and so on. As the insistence of the newspaper mounted, the city coun- cil passed an ordinance forbidding any officials to make public the records of tax abatements or cancellations without the council's permission. These particular records represented a potential source of important news; the names of individual citizens who had benefited from adjustments in their taxes would naturally be of interest to the rest of the citizens of the com- munity. The newspaper took the attitude that if certain individuals had re- ceived unfair advantages, the public examination of the lists would bring this fact to light; on the other hand, if no such situation existed, an unwarranted suspicion of corruption would be dispelled. Pawtucket city officers, however, did not accept this argument. The fact that the Journal was highly critical of various members of the city government at this time further aggravated the problem-on one occasion, before the city council passed its restrictive ordi- nance, a rival newspaper was given the tax lists which the Journal was seeking to examine. Eventually the newspaper sought relief through action in the state courts. These courts, however, in the absence of a state statute specifically requiring that such records be open, referred to the ancient common law rule that only persons with a "special interest" could claim the right to inspect public docu- ments. The newspaper was held not to have such a "special interest," and the petition for writs of mandamus were denied. The Journal thereupon sought relief through the federal courts, alleging that the refusal of city officials to open these records, and the city ordinance itself, violated the equal protection clause of the Fourteenth Amendment. District Judge Hartigan agreed. 86 Freedom to Gather News Providence Journal v. McCoy The plaintiffs have made out a case under the equal protection clause of the Constitution. Although the element of race discrimination does not enter into this case, the discrimination practised is so clearly state action and is so wilful and purposeful that I cannot escape the conclusion that these plain- tiffs are denied equal protection of the laws . The denial of equal protection, therefore, entitles these plaintiffs to redress. The records are open to countless others and in fact to another competing newspaper. Such discrimination against these plaintiffs is arbitrary and capri- cious. The guaranty of equal protection of the laws "is aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimina- tion or the oppression of inequality, on the other." II Cooley's Const. Lim. (8th Ed.), p. 824. There remains for consideration that part of the complaint concerning the alleged unconstitutional ordinance of January 23, 1948, and resolutions of February 9, 1948, quoted above. The complaint prays for a judgment de- claring the ordinance and resolutions unconstitutional. Apart from the fact that these city council enactments are the crowning achievement of the dis- crimination which we find to exist and aside from the apparently innocuous ordinance, it appears that the ordinance and the action in the form of two resolutions taken thereunder are an integral whole designed to violate the plaintiffs' constitutional guaranties of freedom of speech and of the press. No other reasonable conclusion can be drawn from the record. A reading of the ordinance and the resolutions in chronological order, as set out above, when taken together with all the other evidence in the case, in- dicates their unconstitutional character especially in view of their discrimina- tory application. They are attempts to place restraints on publication which are adverse to our civil liberties. No person is permitted to examine such records for publication without the express permission of the city council. These enactments are not only capable of preventing publication by the plaintiffs, they have already been used to that end and may be so used again. The defendants contend that these formal actions of the council are a proper exercise of the police power, that the presumption favors constitution- ality, that there is no penalty attached to their violation, that they apply to all equally and are not void on their face, that the Journal has never asked for the city council's permission, and that there is no power to deprive the plaintiffs of their rights which are unchanged by the enactments. These contentions are without merit. They seek to becloud the issue of whether or not these en- actments are designed and operate so as to deny any constitutional right. ... To my mind the plaintiffs properly object to such a restriction on publica- tion. It appears to make discretionary and susceptible to arbitrary action something which before was merely ministerial, namely, giving permission to examine public records. However, what is more pernicious is the attempt to make the city council a licensing authority as to their publication. They have no relation to the promotion of order, safety, health, morals and the gen- eral welfare of society. Where such records as these are public records and where there is no reason- able basis for restricting their examination and publication, the attempt here 87 to prohibit their publication is an abridgement of the freedom of speech and of the press. They seek to place in the discretion of the city council the grant- ing or denial of a constitutional right. PROVIDENCE JOURNAL V. MCCOY, 94 F. Supp. 186 (195o); aff. 19o Fed. 2d 760 (1951); certiorari denied 342 U.S. 894; 72 S. Ct. 200; 96 L. Ed. 119 (951) A newspaper photographer undertook to make photographic reproductions of pages in the poll books containing names of New Orleans voters. The sheriff, in whose custody the poll books were kept, refused access to them, claiming that the process of photographing would unduly disrupt the work in his office and that the electricity required for the process would add to the public maintenance costs of his office. The newspaper offered to make the photographs at any time convenient to the sheriff and to defray the expense of electricity; but although the law authorized the sheriff to withhold the poll books only when their inspection would have been for unlawful or commercial purposes, the newspaper was still denied access. Thereupon a formal com- plaint was filed with the state's attorney, who sought a writ of mandamus on behalf of the newspaper. Affirming the action of the parish (county) court in granting the writ, Judge Janvier of the state court of appeals said: We next consider the contention that the public official, to-wit, the Sheriff, must be granted discretion to determine whether the person who desires to take the photographs is actuated by a proper motive, and that, if the Sheriff has such discretion, then the writ of mandamus should not issue since no pub- lic official should be required, by mandamus, to perform any act unless he has no discretion in the premises and unless he must follow a clear ministerial duty. If there is discretion in a public official in the sense that he, in his judg- ment, may or may not perform the act which is demanded of him, then ordi- narily mandamus will not lie to compel him to do so, for it is true that it will only lie to compel him to perform a clear ministerial duty, and it is on this basis that respondent contends that, if the sheriff is given the right to deter- mine whether anyone who desires to photograph the poll books is actuated by a proper motive, he may not be compelled by mandamus to submit, and it is argued that the sheriff must be given this discretion since, if he is not possessed of it, he must permit anyone-even a forger with criminal intent- to photograph the signatures of the community's most prominent citizens. It is also argued that, if he has no right to refuse, then the work of his office may be seriously hampered, the electric current paid for by the public may be wasted, and serious disturbances may occur. It must always be conceded that the sheriff may not be improperly inter- fered with in the work of his office and that therefore regardless of the mandatory self-executing nature of the constitutional provision-he may al- ways require that the photographs be made in such a way and at such a time as will interfere as little as possible with the work of his office, and he may re- quire that no disturbance be committed and that no expense be placed upon 88 Freedom to Gather News Lee v. Beach Publishing Co. him or upon the public fisc. This, as we have said, was decided in Marsh v. Sanders, [116 La. 726] in which the court held that, though it was the duty of the sheriff to permit the inspection of the records, he might rely upon the courts to protect him against the abuses or interferences which he might fear. The same may be said here, except that here, by insisting that the question be presented by an exception of no cause of action, the sheriff has challenged the right to take the photographs at all. Had he raised that question and shown that there might be an interference with his work, or that the electric current paid for with public funds might be wasted, surely protection against those abuses could have been afforded him. But, in considering the exception of no cause of action, we must assume the truth of the allegations of the relator that he offered to take the photographs without interference and without placing expense upon the sheriff, or upon the public fisc . Thus here, if the respondent contended that the relator had no proper inter- est to serve, or that his exercise of his right might injuriously affect the public, then the courts could determine whether the facts justified the refusal. Since these questions are not presented by the exception of no cause of action, that exception was properly overruled. STATE EX REL. NOE v. KNOP, CIVIL SHERIFF, 194 La. 834; 190 So. 135 (1939) A Florida newspaper's right to inspect police records was denied by police authorities. Judge Buford of the state supreme court, in upholding the lower court's granting of a permanent injunction to the newspaper restraining the police from unlawful interference with the general right to inspect public records, cited from the original court order in its opinion: "It is further ordered, adjudged and decreed that the defendants be, and each of them is hereby permanently and perpetually enjoined and restrained from any illegal interference with or the prevention of the photographers, re- porters, agents or employees of the Beach Publishing Company, plaintiff herein, from legally and lawfully gathering news, or the making of photo- graphs for the printing, publishing and dissemination in the public Press: "It is further ordered, adjudged and decreed that the defendants be, and each of them is hereby permanently and perpetually enjoined and restrained from the closing of the books and records of the Police Department of the City of Miami, in violation of Section 94 of the Charter of the City of Miami, Florida, a municipal corporation, to the inspection of the reporters, camera- men, employees and servants of the plaintiff, Beach Publishing Company, sub- ject to the proper rules and regulations made on or before January 29, 1936, for the efficient conduct of the business of said Police Department of the City of Miami, Florida." Section 94 of the Charter of the City of Miami provides as follows: "Except where otherwise provided by general law or this charter, all public offices shall be kept open for business every day except Sundays and legal holidays at least from 8:30 o'clock in the forenoon until 5 o'clock in the after- noon, and all books and records of every office and department shall 89 be opened to the inspection of any citizen at any time during the business hours subject to the proper rules and regulations for the efficient conduct of the business of such department or office." The appellant contends that there are certain records in the Police De- partment of a city which must be kept secret and free from common inspec- tion as a matter of public policy. This is true. The rule as stated in 23 R.C.L. 161 is as follows: "The right of inspection does not extend to all public records or docu- ments, for public safety demands that some of them, although of a public na- ture, must be kept secret and free from common inspection, such for exam- ple as diplomatic correspondence and letters and despatches in the detective police service or otherwise relating to the apprehension and prosecution of criminals." We do not construe the decree appealed from so as to violate the rule above stated. The order only restrains the defendants "from the illegal interference with or the prevention of the photographers, reporters, agents or employees of the Beach Publishing Company, plaintiffs herein, from legally and lawfully gathering news, or the making of photographs for the printing, publishing and dissemination in the public press"; and further, "from the closing of the books and records of the Police Department of the City of Miami in violation of Section 94 of the Charter of the City of Miami, Florida, a municipal cor- poration, to an inspection of the reporters, cameramen, employees, and serv- ants of the plaintiff, Beach Publishing Company, subject to the proper rules and regulations made on or before January 29, 1936, for the efficient conduct of the business of said Police Department of the City of Miami, Florida." So it is that in the order appealed from we find that the Chancellor in terms so cast the order as to protect the rights and privileges of the Police Depart- ment and at the same time to preserve and protect the rights and privilege of the complainants and their agents and servants in carrying on the lawful business of lawfully gathering and disseminating news of general interest to the public. LEE V. BEACH PUBLISHING CO., 12Z7 Fla. 6oo00; 173 So. 440 (1937) 2. Does a newspaper have a "special interest"? To entertain the 1927 conference of state governors at Mackinac Island, the state of Michigan allocated $,,5,ooo f0m which various disbursements were made in due course. The publisher of a newspaper, the Michigan Digest, sought to examine the records of these disbursements in the office of the state auditor general. The auditor refused access to the records on the ground that there was no public interest attaching to them and that a news- paper had no "special interest" as required by common law. An appeal for a writ of mandamus was taken to the state supreme court. After reviewing the common law history of the right of access, under which "the individual citizen as a member of the public had a right to inspect; but, if inspection was Freedom to Gather News 9� Bend Publishing Co. v. Haner refused, he could only enforce his right by mandamus proceedings instituted in his behalf by the attorney general," Judge McDonald read an opinion unanimously supporting the publication. This rule adopted by the English courts has no basis in reason or justice. It is absurd to hold that a man could inspect the public records, providing his purpose was to use the information in some litigation, and to deny him the right to inspect for some other purpose that might be equally beneficial to him. It does not protect all of his substantial rights and has not been received with general favor in this country. ... So, in the instant case, the plaintiff as a citizen and taxpayer has a common- law right to inspect the public records in the auditor general's office, to de- termine if the public money is being properly expended. It is a right that belongs to his citizenship. It is a right which he enjoys in common with all other citizens, a public right, which can be enforced only by mandamus pro- ceedings brought by the Attorney General. "It is not, and never has been, the policy of the law to permit private individuals the use of the writ of man- damus against public officers, except in cases where they had some special in- terest, not possessed by the citizens generally." The plaintiff has not sought to enforce his rights through the office of the Attorney General. He has begun this suit in his own name. In order to maintain it, he must show that he has a special interest, not possessed by the citizens generally. Apart from his public interest, his petition shows that he has been hampered and injured in his business by the refusal of the defendant to allow him to inspect the records in his office. This is a special interest. Is it a sufficient interest to entitle him to the aid of this court by writ of manda- mus? We think so. He is the manager and editor of a newspaper. It is pub- lished and circulated in Michigan. He sells news to the people through the medium of his paper. In a proper and lawful manner, he has a right to pub- lish matters of public interest. The citizens and taxpayers of this state are interested in knowing whether the public business is being properly man- aged. By denying him access to the public records for the purpose of securing such information, he is deprived of legal rights for which he is entitled to redress by the writ of mandamus. It is the plain duty of the auditor general to exhibit his official records to any citizen of Michigan who desires to inspect them for any proper and lawful purpose, in circumstances not detrimental to the public business. The writ will issue, if necessary. NOWACK V. FULLER, AUDITOR GENERAL, 243 Mich. 200; 219 N.W. 749; 60 A.L.R. 1351 (1928) One of the most important sources of local news for a daily or weekly newspaper is the collection of documents in the files, of the cognty clerk. The Central Oregon Press of Bend, Ore., seeking to check these records according to a long-established newspaper practice, in 1926 was suddenly denied access to them by the clerk. Although the newspaper's representatives 91 came to the county office at regular business hours, they were consistently refused the right to examine the materials. Upon the granting of a mandamus to the paper by the district court, the state carried an appeal to the Oregon Supreme Court, which unequivocally upheld the newspaper's right of access. Justice Brown read the unanimous opinion. That the Legislature possessed the power to enact a law granting to any per- son, for any lawful purpose, free access to the clerk's office in order to inspect and examine the records in his custody, is beyond question. . . . Moreover, the clerk is protected in his possession and care of the records, in that he is em- powered to make such rules and regulations as he shall deem necessary for the preservation of the records and files and to prevent interference with his regular duties as such clerk. Under a similar statute, the Supreme Court of the state of New Jersey, in the much-cited case of Lum v. McCarty, 39 N.J. Law, 287, said: "The clerk is the lawful custodian of the records, and indexes thereto, and is responsible for the safe-keeping thereof. His powers over them are such as are necessary for their protection and preservation. To that end, he may make and enforce proper regulations consistent with the public right for the use of them. But they are public property, for public use, and he has no lawful au- thority to exclude any of the public from access to, and inspection and exam- ination thereof, at proper seasons, and on proper application." To those persons only who have occasion to examine the records for some lawful purpose, and not from mere curiosity, will a writ of mandamus be granted. The demurrer admits the truth of all well-pleaded facts. From the allega- tions contained in the petition, it appears that the petitioner sought to ex- amine the records for a lawful purpose, and it is therefore entitled to a writ of mandamus in the enforcement of its right. BEND PUBLISHING CO. V. HANER, COUNTY CLERK, 118 Ore. 105; 244 Pac. 868 (1926) Although it stated the case obliquely if not cryptically, the Connecticut Supreme Court of Errors also recognized the "special interest" of a newspaper in records open to public inspection, in denying the petition of a publisher because he relied on his general right as an elector rather than upon his special interest as a newspaperman; Judge Inglis said: Inasmuch as an elector may have as his object in gaining access to public records one of any number of purposes not connected with the performance of his duties as an elector, it has now become the generally accepted rule that the mere fact that a plaintiff is an elector does not in itself entitle him to a peremptory writ for such inspection, at least as to other than judicial rec- ords .... The issue whether the plaintiff has a proper purpose in seeking the informa- Freedom to Gather News 92 tion is not one to be raised by way of affirmative defense. That he has a proper purpose is an essential element of his prima facie case and must be al- leged in the alternative writ. The contention of the plaintiff that to compel him to allege his purpose in seeking access to public records denies him a constitutional right incident to the right of freedom of speech has no merit. From the fact that the alternative writ in the present case failed to allege the plaintiff's interest in the inspection of the records which he sought or his purpose in seeking it, it follows that it did not state a prima facie case, and therefore the motion to quash was properly granted. STATE EX REL. DONAHUE V. HOLBROOK, 136 Conn. 691; 73 Atl. 2d 924 (1950) The newspaper's "special interest" was asserted most forcefully of all by the Alabama Supreme Court in 1941. The Mobile Register had sought unsuccess- fully to examine the records of prisoners admitted to the county jail. The defendant officials claimed that only specific cases of admittance should be requested for examination, that the newspaper had no right of general inspec- tion of the records. Justice Thomas of the state supreme court, in upholding the lower court decision in favor of the Register, issued a comprehensive state- ment of the legal principles involved: At the risk of repetition and to avoid uncertainty, we conclude by saying this court holds: (1) that the public generally have the right of a reasonable and free examination of public records required by law to be kept by public officials, except in instances where the purpose is purely speculative or from idle curiosity, or such as to unduly interfere or hinder the discharge of the duties of such officer. In Randolph v. State ex rel. Collier, etc., 82 Ala. 527, 2 So. 714, 715, 6o Am. Rep. 761, this court said: Questions similar to the one before us have been heretofore considered by this court. We said: "It is not the unqualified right of every citizen to demand access to and inspection of the books or documents of a public office, though they are the property of the public, and preserved for public uses and purposes. S. . And the individual who claims access to the public records and documents . can properly be required to show that he has an interest in the document which is sought, and that the inspection is for a legitimate purpose." Speaking, in another place, of the right of inspection, we said: "The qualification of the rule is that no person can demand the right, save those who have an interest in the record, their lawful agents or attorneys. . . . Whether the right extends beyond the mere right of looking at the record, we have found no adjudged case that determines. It would seem, however, that no reasonable argument can be urged why persons having an initerest in the particular tract or tracts should be denied the privilege of making or having made memoranda for his own use .... " We must not, however, be understood as intending to abridge the right, Holcombe v. State 93 conferred by statute, of "free examination," by all persons having an interest, of the records of the probate judge's office. Nor will we confine this right to a mere right to inspect. He may make memoranda or copies, if he will, and to this end may employ an agent or attorney. The limitation is that he must not obstruct the officers in charge in the performance of their official duties, by withholding records from them when needed for the performance of an official function. Nor is this right, of examination confined to persons claiming title, or having a present pecuniary interest in the subject-matter. It will embrace all persons interested, presently or prospectively, in the chain of title, or nature of en- cumbrance, proposed to be investigated. The right of free examination is the rule; and the inhibition of such privilege, when the purpose is speculative, or from idle curiosity, is the exception. We further hold (2) persons engaged in the publication of newspapers have such an interest in the public records of public officers as to entitle them to a due or reasonable inspection of such public records. The function of the press in gathering information for the public to enable public affairs to be intelligently discussed is of great importance. Public officials as a matter of courtesy may well afford special privileges to representatives of the press and seek its aid in the attention of the public mind by availing themselves of its readiness to disseminate information. The giving of information to the press must necessarily rest on mutual confidence to insure adequate information reaching the public, and in Journal Printing Co. v. McVeity, 33 Ontario Law Reports 166, Mr. Justice Middleton cautions that when this happy rela- tion does not exist and there is an inclination on the other side to be "curt," it will "probably be found that courts can afford no real redress." Many of the practical affairs of life must depend on good taste and good manners rather than on strict definitions of right "emanating from the Courts." This observa- tion applied to the giving of information or items of interest by the officials to the representatives of the press. As to the right of inspection of public records, and to which the mandamus was granted, the court said: "The Municipal Act, R.S.O. 1914, ch. 192, sec. 219, provides that any person has the right to inspect the books and documents mentioned in sec. 218, which it is the duty of the clerk to keep, and the minutes and proceedings of any committee of the council, whether the acts of the committee have been adopted or not, and the assessment rolls, voters' lists, etc. By sec. 237, auditors are required to pre- pare certain statements of receipts and expenditures, and a resident of the municipality has the right to inspect these. No doubt, scattered throughout the Municipal Act and other Acts, there are other records and documents which are open to inspection. All these, it is admitted, the newspaper, through its reporters, has a right to inspect. Beyond this, the giving of information rests entirely in the discretion of the municipal authorities. .. " [The] publisher of a newspaper has such a public interest as will entitle him or his duly accredited representatives to a right of inspection of public records, and on denial of aid of a court by writ of mandamus to compel such public official to allow a reasonable inspection of public records in his charge, in order that the publisher may disseminate correct information therefrom to the public interest thus served. ... Freedom to Gather News 94 It follows, therefore, that the judgment of the circuit court should be and it is hereby affirmed. HOLCOMBE, SHERIFF V. STATE EX REL. CHANDLER, 240 Ala. 590; 200 So. 739 (1941) 3. What records are open or closed? Although the general right of inspection has been affirmed by many courts, and the newspaper's special interest has been recognized by most, the right of access may still be restricted by judicial definition of documents which are confidential or which for other reasons that the court believes good and sufficient are to be withheld. This is the crux of the argument of groups like the ASNE Freedom of Information Committee-that in an increasing num- ber of cases the executive departments of state and federal governments are declaring certain documents closed to general inspection in the public interest, and the judicial arm of these governments is apparently disposed to support them in this contention. In a recent Arizona case the publisher of the Arizona Daily Star of Tucson won what may or may not be considered a hollow victory in dis- puting the right of the executive to declare certain records closed. The governor of Arizona had ordered the attorney general to investigate the office of the state land commissioner, and although the report of the investigation was open to public inspection the various documents accompanying the re- port were not open. The newspaper challenged the right of the governor to refuse access to these documents; particularly it disputed the governor's claim that he alone had the right to determine when it was in the public interest to withhold certain records from general access. The state supreme court, in reversing a lower court finding in favor of the governor, declared in a unanimous opinion read by Justice Phelps: The documents in question in this case are not a part of any report which the law requires the Attorney General to make at stated periods. The Gover- nor, however, had the authority to demand of the Attorney General that he make an investigation of the affairs of the State Land Office and report on the matter to him. There are a number of jurisdictions that have had the ques- tion before them of whether such a report based upon an investigation is sub- ject to inspection by an interested citizen. They have quite uniformly held that such reports are not subject to inspection by any citizen, first, because it is based upon hearsay statements obtained from others and consists in a large measure of the opinion, conclusion or judgment of the investigator; Steel v. Johnson, 9 Wash. 2d 347, 115 P. 2d 145; and secondly, upon the ground that if it is confidential or if it would be detrimental to the best interests of the state, that it will not be permitted to be opened to public inspection or to the inspection of any individual. Matthews v. Pyle 95 Certainly this court will not go so far as to approve the position of the At- torney General that the Governor of the state is the sole judge as to what in- formation regarding the affairs of his office should be made public. This, we believe, is inconsistent with all principles of democratic government. Nowack v. Fuller, 243 Mich. 200, 219 N.W. 749, 60 A.L.R. 1351. The Governor should be given the authority to deny in the first instance the right of inspection if he thinks that the document is privileged or confidential, or if he thinks that it would be detrimental to the interests of the state to permit its contents to be known either to newspaper editors or other citizens, but under no circum- stances should his determination be final. It rests within the jurisdiction of the courts of the state to determine these questions. To arrive at the conclusion and judgment reached by the trial court in this case, based on a motion to dismiss, it had to assume as an established fact that the documents involved were either confidential and therefore privileged or that the disclosure of their contents would be detrimental to the best interests of the state or it had to hold that the Governor is the sole and final judge of those questions. We have above stated that we cannot sustain the latter po- sition and of course a court may not assume facts upon which to base its judgment. The case is therefore reversed and remanded with instructions to reinstate the petition and to require the supplemental documents and letter in ques- tion to be produced in court for the private examination of the trial judge in order that the court may determine whether such letter and supplemental documents are confidential and privileged or whether their disclosure would be detrimental to the best interests of the state. In no other way can such questions be determined. ... MATTHEWS V. PYLE, 75 Ariz. 76; 251 Pac. 2d 893 (1952) The increasingly narrow view of the right of access-or, conversely, the in- creasingly broad view of a public official's right to determine what records shall be withheld-is illustrated in a 1945 West Virginia case in which the Raleigh Register and Beckley Post-Herald tried unsuccessfully to secure a mandamus writ against the clerk of court who denied them the right to in- spect certain of his files containing preliminary data on divorce suits. Although a certain number of states, particularly California, have placed statutory restraints upon the publication of news about divorce suits, the West Virginia Supreme Court of Appeals chose to decide the issue simply upon the question of the clerk's proper responsibility. Judge Lovins, in denying the writ, contended that no "question of the right of examination of public records is here involved" because the clerk denied access only to "memoranda relative to the commencement of divorce suits," and concluded: It may be convenient for a clerk of a court of record to request and preserve written orders for the issuance of such process, but we cannot say, as a mat- ter of law, that such action is required as a part of his duties. The order may 96 Freedom to Gather News be oral, made in the form of a letter addressed to the clerk, or made by mem- orandum, and when written or copied in a book becomes a note or minute for the convenience of the clerk to whom directed. The only issue here presented is the right of relator's employees to inspect a specific book in respondent's office, and we therefore express no opinion con- cerning the freedom of the press; or the necessary interest of relator in public records to support its right to inspect the same. Relator has not shown a viola- tion of its right nor failure of respondent to perform his duty with respect thereto. The writ of mandamus prayed for is denied ... STATE EX REL. BECKLEY NEWSPAPERS V. HUNTER, CLERK OF COURT, 127 W.Va. 738; 34 S.E. 2d 468 (1945) A Massachusetts court has similarly ruled against a newspaper's attempt to inspect the tax lists submitted by assessors to the city tax collector, on the startling ground that the tax collector was not a "public officer" within the meaning of the statute defining public records. The reasoning of Justice Dolan of the Supreme Judicial Court in this case should be compared with the gen- eral principles of law outlined in the background note to the present chapter: Unless a person is in possession of information which leads him to believe that the collector is derelict in his duty, it would seem that the collector's en- tries of receipts and payments would be of little interest to him. But if one is possessed of such information he may readily have recourse to an application to the authorities designated in G.L. (Ter. Ed.) c. 60, sec. 8, and it is to be presumed that, upon probable cause shown, they will proceed in accordance with their duty to examine the records of the collector or to designate the complaining or other person to examine them. The governing statute was doubtless enacted for the orderly conduct of the business of the collector and to prevent its interruption by what might be capricious demands for inspec- tion of his books, accounts and vouchers by indiscriminate persons. We con- clude that the records sought to be examined by the petitioner are not open to his inspection as a matter of right under the governing statutes. HARDMAN V. COLLECTOR, 317 Mass. 439; 58 N.E. 2d 845 (1945) Hardman v. Collector 97 CHAPTER IV Libel: What It Is SUPPLEMENTARY READING Paul P. Ashley, Essentials of Libel (Seattle, 1948), c. 1-6 Harold L. Cross, "Current Libel Trends," Nieman Reports, v. 5 (January, 1951), PP. 7-11 Albert W. Gray, "Double Meaning Story Puts Libel Up to Jury," Editor 6 Publisher, v. 84 (April 28, 1951), p. 11o --- , "Failure to Tell Truth Imposes No Liability," Editor 6 Publisher, v. 83 (March 11, 1950), p. 24 V. K. Miller, "Defamation in Newspaper Cases," Loyola Law Review, v. 4 (June, 1947), PP- 25-49 D. W. Nowell, "Defamation of Public Officers and Candidates," Columbia Law Review, v. 49 (November, 1949), pp. 875-903 Philip Wittenberg, Dangerous Words (New York, 1947), c. 1-3 Leon R. Yankwich, "It's Libel or Contempt If You Print It" (Los Angeles, 1950), c. 1-7 Swindler, Bibliography, nos. 81, 251, 252, 266, 268, 284, 286, 293, 297, 302, 303, 308, 324, 329, 334, 335, 337 BACKGROUND NOTE The reporter, the copyreader, and the proofreader of a newspaper are the primary lines of defense against libel. As one group of. managing edi- tors has said, "nine-tenths of all libel actions originate from inaccuracies of reporting, writing, typesetting, or headline writing." This manifestly places the chief burden of responsibility upon the journalist rather than upon the pub- lication's legal counsel. The attorney is almost always called in after the fact; it is the man on the job getting and writing the news who must be able to recognize libel when he sees it. From a practical standpoint, libel is probably the most important single phase of law with which the working newspaperman comes into contact. This is so by the very nature of journalism; the time-honored phrase, "names make news," is simply a succinct way of saying that journalism deals in stories 98 about specific people involved in specific incidents. The incidents which are commonest and easiest to report, and have been found to appeal most readily to most readers, are those involving the individual in conflicts of some sort -criminal activities, domestic or marital problems, political rivalries and dis- putes, labor-management or intra-union quarrels, private litigation in the courts involving a multitude of issues, and the like. When news of this type is reported, the newspaper, periodical, radio or television station, or other news medium has touched the reputation of every person who can be identi- fied in the story. The law recognizes that all men have a right to protect their reputations from unwarranted injury. Hence, it is obvious that with almost every news story it publishes, and with every editorial in which it comments upon the news, the newspaper or other news medium is dealing with material with which the law of libel concerns itself. Libel suits constitute a potential financial threat to news media which may well assume major proportions. A former member of the business staff of the New York World, after it had gone out of existence as a separate publication in 1931, testified that the constant drain upon its resources from settlement of libel suits was at least one.factor in the economic decline of the newspaper which led to its ultimate demise. Several publications have been made defendants in libel suits which began by asking for hundreds of thou- sands, or even millions, of dollars in damages; and although many of these suits have been dismissed or successfully contested by the publication, and while others have been settled for a fraction of the original amount demanded, the expenses in all cases have'been substantial. As a practical matter, a civil action for libel will seldombe initiated against an established newspaper un- less there is evidence of gross negligence on the part of the paper and substan- tial injury to the reputation on the plaintiff; in either instance the amount of money asked in compensation will be relatively large-seldom less than $1io,ooo, for example, and often $50,000 or $75,00ooo.* As a practical matter, too, it is the newspaper which almost always is the defendant-not the reporter or other staff member who was directly responsible for the publication of the de- famatory matter; this follows from the classic legal maxim of respondeat su- perior (let the superior be responsible, i.e., for the acts of his agents or subor- dinates). Libel has been variously defined. Blackstone, the classic English authority, wrote that it comprised any false statements about a person "which set him in an odious or ridiculous light, and thereby diminish his reputation." Chancel- lor James Kent, in his early nineteenth-century Commentaries on American * Unless sufficient damages are stated, the rules of-the court may not permit a suit. Al- though it involved a question of property rather than of defamation, note how the case of Associated Press v. KVOS, at p. 332 below, was dismissed for this reason. Background Note 99 Law, described libel as "a malicious publication, expressed either in print- ing or writing, or by signs or pictures, tending either to injure the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt, or ridicule. A malicious intent toward government, magistrates, or individuals, and an injurious or offensive tendency, must concur to consti- tute a libel." This is essentially a definition of criminal libel; and as this type of action declined in favor of civil suits, other definitions were attempted. Mr. Justice Clifford, of the Supreme Court of the United States, wrote in 1875: Different definitions of slander are given by different commentators upon the subject; but it will be sufficient to say that oral slander, as a cause of action, may be divided into five classes, as follows: (1) Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. (2) Words falsely spoken of a person which impute that the party is infected with contagious disease, where, if the charge is true, it would exclude the party from society; or (3) defamatory words, falsely spoken of a person, which impute to the party unfitness to perform the duties of an office or em- ployment of profit, or the want of integrity in the discharge of the duties of such an office or employment. (4) Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. (5) Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage . Certain words, all admit, are in themselves actionable, because the natural consequences of what they impute to the party is damage . . . but in all other cases the party who brings an action for words must show the damage he or she suffered by the false speaking of the other party. (Pollard v. Lyon, 91 U.S. 225, 23 L. Ed. 308) This statement had to do with slander, but it applies equally to libel; and courts in many jurisdictions have cited this definition as authority since it was handed down. Perhaps the most recent pronouncement is that of the American Law Institute in its Restatement of the Law of Torts (1938), which simply runs: "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The progressively more exact definition of libel, as a matter of historical fact, has been the practical means by which freedom of expression itself has been identified in Anglo-American law. In the English system of an unwritten constitution-or more precisely a constitution made up of the aggregate of public laws currently in force and interpreted in the sense given them by contemporary political conviction-this fundamental freedom has relied ex- clusively upon a progressive modification of the laws on defamation. The constitutional systems of most of the American states also reflect this his- torical or evolutionary development of press freedom through a curtailment Libel: What It Is 100 of the common law concepts of libel; typical of many state charters is the statement in the New York constitution: 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. In all criminal 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 libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. (Article I, Sec. 8) "Every man has a right to a good name in his calling, be that calling never so mean," ran an ancient English case. The concept of personal reputation as something which could be protected in court, even though it is intangible, is one of the earliest propositions of English common law as well as of the Roman law which formed the basis of most Continental European jurispru- dence. The church, in the age when ecclesiastical courts had independent au- thority to try cases, punished defamation as a sin. The law De Scandalis Magnatum was enacted to protect the reputations of great men of the realm who would not or could not institute legal action in defense of their good names when attacked by commoners. Because the state undertook this action as a means of enforcing respect and preserving the peace, defamation was conceived from the beginning to be a criminal as much as a civil cause. But civil actions, brought in the seignorial or manorial courts for injury to reputation, were frequent throughout the thirteenth and fourteenth centuries -the period in which English private law was crystallizing in the classic tril- ogy of contract, property, and tort-although the separate tort of defamation seems not to have become clearly identified until the sixteenth century. The general use of the printing press by the 16oo's prompted the courts to distinguish between injury to reputation arising from oral defamation (later called slander) and the considerably wider effect of an injury arising from printed defamation or libel. In 1670, indeed, one English judge declared of an injurious publication that "although such words, spoken once without writing or publishing them would not be actionable, yet here, they being writ and published, which contains more malice than if they had been once spoken, they are actionable" (King v. Lake, Hardres, 470). The struggle for freedom of the press from the seventeenth to the nine- teenth centuries was essentially a struggle to limit the application of the criminal law of seditious libel. The trend away from criminal actions for libel, both in English and American courts, in the past eighty years has be- come so pronounced that such an action, particularly against orthodox news media, is rare. Criminal libel in the form of sedition has disappeared en- Background Note 101 tirely as a common law offense, and sedition itself is defined in statutes gen- erally limited to periods of war or national emergency. Blasphemy, another phase of libel which developed when the jurisdiction of the ecclesiastical courts was all but abolished, has also become obsolete as a common law offense, while most statutory laws on the subject have lain in neglect for many years. The state still reserves the right to prosecute by criminal proceedings those libels which it considers to be so serious as to constitute a threat to the public peace and welfare,* but in the vast majority of cases where private parties seek redress for injury to reputation, it is through civil action for damages rather than through a criminal complaint filed with the state's at- torney. To be defamatory, published words must be construed "according to the general and natural meaning, and agreeable to the common understanding of all men," as an English court said in 1693. If the words appear to the average man or woman (traditionally epitomized in the personnel of a jury) to have a degrading imputation, they are held to be libelous. This is so irrespective of the intent of the writer himself; nor will the use of such terms as "it is alleged" or "it is understood" relieve him of liability. Particularly actionable are words falsely accusing a person of a specific crime or of criminal activity in general, or claiming that he has been accused, arrested, prosecuted, or convicted of a crime. Nor need the false statement impute a criminal act; the test is whether the words tend to lower the person in the eyes of his contemporaries, associates, or any considerable number of the com- munity. False statements of 'family or marital discord, sexual promiscuity, insanity, or deceitful practices have all been held libelous; and so have sim- ilar statements charging one with racial intermingling in areas where this is disapproved, or with being a Mormon in a time and place where this was considered to be synonymous with polygamy, or with being a Nazi during World War II or a Communist during the so-called "cold war" period of the late 1940's and 1950's. Charges that one engages in unfair labor practices, or in unethical business dealings, or abuses a profession which rests almost entirely upon public trust and respect (e.g., banking, the ministry, law, medi- cine, teaching) have all been the bases for successful libel actions in various jurisdictions. The law of libel has manifestly undergone extensive refinement and change over the centuries. In the past fifty years much of this change has been the result of revised journalistic practices; in the nineteenth century the excesses of political party journalism, as well as the news-writing style which called for use of vigorous epithet and gratuitous comment intermingled with fact, brought many a newspaper to grief and litigation. The following examples, * See Beauharnais v. Illinois, p. 155. Libel: What It Is 102 and the dates of the cases growing out of them, are significant; they illustrate not only the journalistic carelessness which precipitated suits but also the ex- tent to which modern journalism has departed from the old practices: Stat- ing that one "is no slouch at swearing to an old story" (1812); that a man is guilty of infringing upon patent rights (1834); that one is a "rascal" (1843); that a certain individual would not bring a suit in a certain county "because he is known there" (1845); that a man cannot be more despised by the community than he now is (1858); that one is insane (i86o); that one is destitute (1874); that a wife's fraudulent conduct drove her husband to sui- cide (1884); that a person is a "skunk" (1887). The examples can be multi- plied by consulting any collection of American law reports; but it is particu- larly interesting to note that after the turn of the century, and particularly after World War I, libel actions based on this type of journalism declined very rapidly. The passing of the party journalist, the "personal" journalist, the "yellow" journalist set the stage for the factual news report, the modulated editorial page, the premium on greater effort at accuracy rather than glib vituperation. Changes in journalism have in some respects outstripped the law, which is notable (some would say notorious) for the slow process by which it devel- ops new lines of reasoning. The broad distinction between libel and slander, made at a time when the printed word was incomparably more capable of circulating a damaging statement than was the spoken word, has ob- viously been rendered obsolete by the growth of radio; courts and legislatures alike have been hesitant to include the broadcast word within the definition of libel, or to restate or reinterpret the statutory provisions on slander which are almost universally inadequate to deal with the problem. The liability of individual newspapers for wire service copy or syndicated materials over which they have no practical means of control or checking for accuracy, is still absolute under the long-recognized rule that everyone who repeats a libel is separately open to suit.* The absence of civil liability in cases of defamation of groups, on the other hand, is still absolute except for some isolated ex- periments in the form of statutory enactments which have not yet had many conclusive tests in the courts. Another vestige of the common law history of libel is the factor of malice; today it is rare indeed to find a periodical of general circulation which has actually been motivated by malice in the publication of a defamatory statement-yet the law in most jurisdictions in- sists upon including the charge in the allegations filed by a plaintiff even though it is only a legal fiction. It is, in fact, recognized as a fiction by the term, "malice in law," in cases where it is alleged purely as a required * On this point, note the conflicting rules in Layne v. Tribune, p. 141, and Wood v. Con- stitution Pub. Co., p. 143. Background Note 103 formality; in the few instances in which malice is an active ingredient in the suit, it is referred to as "malice in fact" or "express malice." The long-established principles of defamation, which serve as the founda- tion for modern law affecting modern journalistic practices, may be sum- marized as follows: Libel is (1) a malicious published statement (2) which is false and (3) which holds up the person injured to public hatred, scorn, contempt, or ridicule, or (4) adversely affects him in his business or profes- sional capacity. It may be either the subject of (5) a criminal action or a civil action (6) for damages. 1. Malice has been well described by a New Mexico court in the following words: "Malice in law is implied malice, and arises . . . when a publication is made without lawful excuses. Actual malice or malice in fact, sometimes denominated as express malice, implies personal hatred or ill will towards the plaintiff, or wanton disregard of the civil obligations of the defendant to- ward the plaintiff" (Colbert v. Journal Pub. Co., 19 N.M. 156; 142 Pac. 146 [1914]). 2. Falsity of published statements is essentially a question of the meaning which words have for the particular readers who see them. Judge Thomas M. Cooley in his treatise on torts avers that words "are to be taken in their plain and natural import, according to the ideas they are calculated to convey to those to whom they are addressed; reference being had not only to the words themselves but also to the circumstances under which they were used." 3. Public "hatred, contempt, scorn, or ridicule" are terms with a distinctly archaic connotation to modern laymen. Mr. Justice Holmes undertook in a case in 1909 to give an acceptable current definition to the terms by recog- nizing that "obviously an unprivileged falsehood need not entail universal hatred to constitute a cause of action. No falsehood is thought about or even known by all the world. No conduct is hated by all. That it will be known by a large number, and will lead an appreciable fraction of that number to re- gard the plaintiff with contempt, is enough to do . . . practical harm" (Peck v. Tribune Co., 214 U.S. 185; 29 S. Ct. 554; 53 L. Ed. 960; 16 Ann. Gas. 1075). 4. Business or professional injury (the former sometimes called trade libel) has always been regarded as a particularly serious aspect of libel. A Michigan case in 1878, concerning a physician, made the following rule which has often been quoted: If a medical officer is charged in the public press with professional misconduct, the immediate and necessary effect is to destroy confidence in him and prevent him from gaining a livelihood by his profession. The readers of the paper have no means of investigation and may never have. The charges may never reach an investigation, and he may have no means of compelling one. If he is obliged to Libel: What It Is 104 put up with such a wrong the consequences will be monstrous. The law cannot recognize any such immunity from responsibility, nor can the rights of individ- uals be so trifled with. (Foster v. Scripps, 39 Mich. 376; 33 Am. Rep. 403) Similar statements have been made by courts in reference to the vital though intangible factor of public confidence and good will with which attorneys, clergymen, teachers, and others develop their reputations and through these reputations derive their livelihood. 5. Criminal libel, today a latent rather than an active element of American law, serves a function which was well stated by a New York court in 1893: A criminal libel is prosecuted in the name of the people, not for the purpose of redressing an injury done to an individual, but is so prosecuted and punished as a crime, for the reason that it tends to provoke animosity and violence, and to disturb the public peace and repose. . .. [In] a criminal action brought in the name of the people the individual libeled, so far as personal redress and satis- faction are concerned, is not considered. (People v. Stokes, 30 Abb. New Cas. 200; 24 N.Y.S. 727) 6. Damages may be of several kinds-nominal damages of one cent or one dollar are occasionally awarded where either the plaintiff or the court believes that a token verdict in favor of the offended party is sufficient to vin- dicate reputation. Actual damages and punitive damages are more common, and have been well defined by a North Carolina court as follows: [Actual damages] are compensatory damages, and include (1) pecuniary loss, direct or indirect, i.e., special damages; (2) damages for physical pain and inconvenience; (3) damages for mental suffering; and (4) damages for injury to reputation. Punitive damages . . . are awarded on grounds of public policy, and not because the plaintiff has a right to the money, but it goes to him merely because it is assessed in his suit. (Osborn v. Leach, 135 N.C. 628; 47 S.E. 811; 66 L.R.A. 648 [1904]) These are the basic ingredients or propositions in American libel law. That they are expressed for the most part in cases decided before the turn of the century, or before World War I, and have stood the test of the intervening years, is evidence of their fundamental soundness. The working journalist will do well to study them carefully; not only are they elemental and fun- damental principles to guide him in his practical newsgathering, but they will serve as a proper perspective for the following illustrative cases which deal largely with the type of problems most common to the news media of the present. Background Note o5 GENERAL PRINCIPLES 1. How does the law of libel affect the constitutional guarantee of free- dom of expression? Historically, the struggle for freedom of expression has been largely in terms of a reduction of the scope of the law on defamation. It is still the concern of the law today, on the one hand to insure that the constitutional guarantee of freedom of expression shall not be infringed upon by statutory enactment or judicial interpretation of laws such as those on libel, and on the other hand to insure that individuals shall not suffer injury to personal repu- tation through abuses of the legal rights enjoyed by the press. The New Orleans Item published a photograph of a group of persons leaving the federal courthouse in New Orleans, among them being several individuals who had been indicted for acts of violence in a so-called "milk war" in various Louisiana parishes (counties). The caption of the photo- graph read: "Milk War Indictees Photographed Despite Their Threats," while the underlines for the photograph said: "Some of the men indicted by the federal grand jury on conspiracy charges growing out of the recent milk strike and other figures in the case were photographed by the Item's Bill Sadlier as they left the federal building despite threats to smash his camera. They are part of a large group from the Florida parishes who appeared before Commissioner Carter and posted bonds. This was the second federal in- dictment to follow the milk war which raged for ten days last March and early April." One of the men included in the photograph alleged that he had been libeled by being shown associating with some of those who had been in- dicted. No names were given in the reading matter which accompanied the picture, and the plaintiff's likeness in the actual photograph was separated from the four indictees by perpendicular lines which had been drawn onto the print. The Louisiana Supreme Court rejected the argument, pointing out that while "there may be a likelihood of libel by implication" arising from the picture and headline caption alone, the newsworthiness of the whole story and the evident care which the newspaper had taken to distinguish between the actual indictees and others appearing in the photograph removed any reasonable possibility that the plaintiff had been damaged. Justice Moise observed: The issue here is the responsibility for the alleged abuse of the liberty granted by the Constitution to the press. This Court has construed this Arti- cle to mean that the press is free from all censorship over what shall be pub- lished and is entirely exempt from control in advance, or restraint by injunc- tion. The liberty enjoyed by the press includes even that which may be of a o6 Libel: What It Is City of Chicago v. Tribune Co. libelous nature, the party injured having his remedy after publication. The Court is bound to give full effect to the Constitution, in that the law pre- scribes that the remedy proposed will come after publication, with the Court as the arbiter of the rights of the parties. The Congress, the Executive Depart- ments, the Legislature, the courts, the press, all sometimes show an enter- prising ambition to further extend power. It is because of this fact, on ques- tions of power, that Thomas Jefferson was prompted to write ". . . have no confidence in man but bind him down from mischief by the chains of the Constitution." While the Court is the judge of the abuse of power granted to the press, the only check and balance which it has on its own exercise of power is its own sense of self-restraint. It should, therefore, ever be on guard so as not to permit its own prejudices to become legal principles. After a careful consideration of all of the facts and surrounding circumstances of this case and construing the picture, the headline, and the explanatory note as a whole, it is our conclusion that the publication does not fairly and reasonably infer or imply that the plaintiff was one of the indictees as contended by him. In reaching this con- clusion, however, we want to convey that the freedom of the press, as secured by the Fourteenth Amendment to the Federal Constitution, does not impart an absolute right to publish without responsibility whatever one may choose, or an unrestricted and unbridled license that affords immunity from any possible use of language, or which prevents punishment for abuse of such freedom. Unconstitutional exercise of power is subject to judicial restraint. There are limits beyond which the press must not go. When the power of the press in this democracy is properly exercised, it is said to be "the pillow of a freeman's hope, the center of the nation's desire." MULINA V. ITEM CO., 217 La. 842; 47 So. 2d 56o (1950) In the summer of 1920, in connection with a campaign for the Republican gubernatorial nomination, the Chicago Tribune published a series of articles vigorously criticizing the conduct of the business affairs of the municipal corporation. The articles charged that the city was approaching bankruptcy, that its "credit is shot to pieces," that the incumbent city administration "is paying city debts with city hall script," that the city "is threatened with a receivership for its revenue," and similar statements. The municipal corpor- ation brought suit for libel on the grounds that the statements were false and had seriously affected the market for the city's bonds and had resulted in losses totaling approximately $io,ooo,ooo. The principal question on which the suit relied was, Can a municipality sue for libel? Chief Justice Thompson of the Illinois Supreme Court said no: The government consists of associated persons representing the sovereign, who make, interpret, and enforce the laws. The American system of govern- ment is founded upon the fundamental principle that the citizen is the foun- tain of all authority. Under our system this sovereign citizen has conferred 107 certain authority upon his servants-officers of the law commissioned for a fixed time to discharge specific duties. In order to serve their needs the citi- zens of Illinois, acting through the state government erected by them, have authorized the organization of city governments. The persons living within the corporate limits of these cities select officers who constitute the city gov- ernment. The activities of these governments are limited by the needs of the people. All organized governments own and operate more or less property, and certain proprietary rights have long been recognized as necessary for the welfare of the inhabitants of the municipality. Municipal corporations, how- ever, exist primarily for governmental purposes, and they are permitted to en- ter the commercial field solely for the purpose of subserving the interests of the public which they represent. A city is no less a government because it owns and operates its own water system, its own gas and electric system, and its own transportation system. ... It is manifest that, the more so-called private property the people permit their governments to own and operate, the more important is the right to freely criticize the administration of the government. As the amount of prop- erty owned by the city and the amount of public business to be transacted by the city increase, so does the opportunity for inefficient and corrupt gov- ernment increase, and the greater will be the efforts of the administration to remain in control of such a political prize. The richer the city the greater the incentive to stifle opposition. In so far as the question before us is concerned, no distinction can be made with respect to the proprietary and governmental capacities of a city. By its demurrer appellee admits it published malicious and false statements regarding the city of Chicago with intent to destroy its credit and financial standing; and, assuming that there was a temporary damage to the city, and a resultant increase in taxes, it is better that an occasional individual or news- paper that is so perverted in judgment and so misguided in his or its civic duty should go free than that all of the citizens should be put in jeopardy of imprisonment or economic subjugation if they venture to criticize an in- efficient or corrupt government. We do not pass upon the truth or falsity of the publications nor the merits of the political controversy between the par- ties. We consider the question solely from the standpoint of public policy and fundamental principles of government. For the same reason that mem- bers of the Legislature, judges of the courts, and other persons engaged in certain fields of the public service or in the administration of justice are ab- solutely immune from actions, civil or criminal, for libel for words published in the discharge of such public duties, the individual citizen must be given a like privilege when he is acting in his sovereign capacity. This action is out of tune with the American spirit, and has no place in American jurisprudence. CITY OF CHIcAGo v. TRIBUNE Co., 307 Ill. 595; 139 N.E. 86; 28 A.L.R. 1368 (1923) o8 Libel: What It Is Morgan v. Bulletin Co. 2. Libel is distinguished as to libel per se or libel per quod. A defamatory statement may be one which, by the literal meaning of the words used, injures one's reputation. It may also be one which derives from words which in themselves may have an innocent meaning but are construed by the courts to be injurious because of the circumstances under which they are used. The first type of defamation, known as libel per se, is often fairly obvious; the second type, known as libel per quod, has been subject to much legal dispute. What constitutes libel in a newspaper photograph, or any other type of publication, was emphasized by the Pennsylvania Supreme Court in a case involving the Philadelphia Bulletin. The newspaper was investigating rumors of attempted bribery in the competition between certain parking meter companies seeking to obtain contracts with the municipality for installation of meters. One of the news stories appeared with a banner headline, "Bribe Offer Reported in Fight for Contract on Parking Meters." This was fol- lowed by a picture of the plaintiff seated at a table on which were placed two parking meters, the cutlines for the picture reading: "Miss Alice Morgan, vice-president of a parking meter sales firm, displays metering devices for which she is seeking a city contract." The second sentence of the accompany- ing article said: "Stories of high pressure methods, large rolls of currency waiting for a taker, and even of a woman known as the 'Mata Hari of the parking meters,' have been circulated in City Hall and have reached the ears of state officials." It was alleged in the suit against the newspaper that the photograph in its relation to the banner headline, and the reference to the plaintiff as a "Mata Hari," constituted a libel. Chief Justice Drew of the Pennsylvania Supreme Court, in upholding the judgment against the newspaper, said: Had the article directly stated that plaintiff was a Mata Hari there could be no doubt but that it would be a libel. We are all well aware that Mata Hari was a notorious spy who gained her ends with public officials by use of money or her favors as the situation dictated. To accuse somebody of using those tactics without the most thorough inquiry into the truth of such an accusa- tion would be a gross defamation. The article published by the Bulletin did not go so far as to make a direct accusation. The first question is, therefore, whether the article and picture can fairly and reasonably be construed to im- ply that plaintiff was the "Mata Hari of the parking meters" or was involved in the attempted bribery. In spite of the Bulletin's protestations that it pub- lished only facts as learned by its reporter, we are convinced that no other construction is possible. The picture of the plaintiff immediately beneath the headline referring to bribe offers creates an impression that plaintiff was involved in the bribery. In lo9 the body of the story reference is made to the Mata Hari report and in the next sentence plaintiff is described as "the only woman here interested in the meter business." The natural conclusion to be drawn from that is that plaintiff must have been the "Mata Hari of the parking meters." Nor does the printing of plaintiff's denial absolve the Bulletin. As the learned court below stated in its findings: "An astonishing number of people are convicted of charges they deny, and the denial does not set them right in the public mind. A denial often lends piquancy to the story, and printing one would be an easy escape from liability if that were all there was to it. .. " That the Bulletin did not have reasonable and probable cause to refer to plaintiff, even indirectly, as a Mata Hari is immediately apparent on reading the record. That information was gained only from a report which merely noted that Shovlin had so stated to an investigator. That report was made six months prior to the publication of the article. There is nothing to show that the statement was based on facts or even that there were reasonable grounds for believing it to be true. Nor is there anything to show that Shovlin's state- ment was investigated by the deputy attorney general or the Bulletin. Cer- tainly there is no basis whatsoever for the statement in the article that a story concerning the "Mata Hari of the parking meters" was being generally circu- lated in City Hall. Under those circumstances it is clear that the Bulletin did not have reasonable and probable cause for publishing the defamatory refer- ences to plaintiff. We do not deem it necessary to discuss in detail the question of whether the article was published in a proper manner. From what we have said above it is apparent that it was not. A reading of the story with its accompanying picture creates the distinct impression that plaintiff is involved in the type of scan- dalous conduct attributed to Mata Hari. The whole layout was designed to draw attention to plaintiff and her part in the situation. An article such as this must present the truth and present it in a fair and just way if it is to avoid the stigma of libel. Boyer v. Pitt Publishing Company, 324 Pa. 154, 188 A. 303; Press Company v. Stewart, 119 Pa. 584, 14 A. 51. This the Bulletin failed to do. MORGAN V. BULLETIN CO., 369 Pa. 349; 85 Atl. 2d 869 (1952) The Chicago Herald-American published a series of articles and photo- graphs on the subject of vivisection, as background to a discussion of a bill on the subject then pending in the Illinois legislature. The plaintiff was a mem- ber of the medical faculty of the University of Chicago and superintendent of the animal quarters for the medical school. The stories included a picture of the plaintiff, and the caption called attention to the fact that he was wear- ing a hand-painted necktie having a picture of a dog. The plaintiff was also identified as one who "holds a job caring for tortured dogs and cats." It was charged that this description implied that the plaintiff was a torturer of animals or practiced vivisection himself. The newspaper denied that the words complained of referred to the plaintiff. Judge Finnegan of the Circuit Court Libel: What It Is 110 of Appeals, upholding the district court's ruling in favor of the newspaper, said: To determine whether or not the published article is libelous per se, we must view it stripped of all innuendo, colloquium or extrinsic or explanatory circumstances; if the words are unambiguous and incapable of an innocent meaning they may be declared libelous as a matter of law. The words must be taken in the sense which readers of common and reason- able understanding would ascribe to them, that is, in their ordinary and com- mon acceptation. The meaning of the words alleged to be libelous cannot, by innuendo, be extended beyond a reasonable construction. Life Printing and Publishing Co. v. Field, 324 Ill. App. 254-262, 58 N.E. 2d 307. In- nuendos are not available to impute libel to an article which in itself is other- wise innocent of any libelous meaning. Words alleged to be libelous will re- ceive an innocent construction if they are reasonably susceptible of it. Viewed in the light of these general principles, the publications cannot be said to constitute libel per se. Words actionable per quod are those which require an innuendo to give the words a libelous meaning, and require evidence to show that as a matter of fact some substantial injury has followed from their use. To state a cause of action for words actionable per quod, a complaint must contain allegations of fact showing special damages and actual malice. The complaint in the case at bar contains no allegations of fact showing special damages and actual malice and therefore does not state a cause of ac- tion for libel per quod. BREWER V. HEARST PUB. CO., C.C.A. 7th; 185 Fed. 2d, 846 (1950) 3. Libel per se must include statements which are injurious in themselves. The news magazine Time published the following under the heading of "Foreign News-France": Son-in-Law Yesterday Curtis B. Dall, son-in-law of President Roosevelt, shot himself in the White House in the presence of his estranged wife and Mrs. Roosevelt. He died later in the day. If such an event were so briefly reported in the U.S. Press, neither readers nor publishers would be satisfied. Yet almost an exact parallel of that tragedy oc- curred in the Hotel Continental apartment of Premier Gaston Doumergue last week. Mention was limited to a few slender paragraphs in New York news- papers and a close-mouthed silence on the part of French officialdom. The magazine's purpose, it was brought out at the trial, had been to devise a lead for the article which would bring home to American readers the im- portance of the personages who had figured in the actual suicide in France. The plaintiff, however, contended that it was widely believed that the fictitious Dall v. Time, Inc. I1l lead using his name had actually been true and that he and his business partners had suffered serious embarrassment therefrom. The trial court jury returned a verdict in favor of the publication, but the court granted a motion to set aside the verdict and to order a new trial. The newspaper appealed this action to the Appellate Division of the New York Supreme Court, and Justice Dore affirmed the trial court's action, saying: Any written or printed article published of and concerning a person with- out lawful justification or excuse and tending to expose him to public con- tempt, scorn, obloquy, ridicule, shame or disgrace, or tending to induce an evil opinion of him in the minds of right-thinking persons, or injure him in his profession, occupation, or trade, is libelous and actionable, whatever the in- tention of the writer may have been. The words need not necessarily impute actual disgraceful conduct to the plaintiff; it is sufficient if they render him contemptible and ridiculous. In Sydney v. MacFadden Newspaper Publishing Corp. (242 N.Y. 208), the Court of Appeals held: "A publication is libelous per se where its tend- ency is to disgrace the plaintiff, and bring him into ridicule and contempt." In Morey v. Morning Journal Association (123 N.Y. 207), Earl, J., said: "There can be no doubt that the publication is libelous per se. Its tendency was to disgrace the plaintiff, and bring him into ridicule and contempt." In Triggs v. Sun Printing 6 Pub. Ass'n. 179 N.Y. 144, 155, 71 N.E. 739, 742, 66 L.R.A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326, where the words published were alleged to have been written merely in jest, the court said: "If, however, they can be regarded as having been published as a jest, then it should be said that however desirable it may be that the readers of and the writers for the public prints shall be amused, it is manifest that neither such readers nor writers should be furnished such amusement at the expense of the reputation or business of another. In the language of Joy, C. B.: 'The principle is clear that a person shall not be allowed to murder another's repu- tation in jest'; or, in the words of Smith, B., in the same case: 'If a man in jest conveys a serious imputation, he jests at his peril.' (Donoghue v. Hayes [1831] Hayes, Irish Exchequer, 265, 266). .. Read in the light of the foregoing rules of law, the article published by the defendant concerning the plaintiff is libelous per se, and the jury should have been so instructed. It necessarily tended to hold plaintiff up to public shame, contempt, and ridicule and injure him in his reputation. The first paragraph of the article in plain and unambiguous language charged plaintiff with the commission of an odious act, self-murder, under circumstances ex- ceptionally revolting and evincing a depraved disregard of human decency. The falsity of that statement was conceded, indeed, it was in effect relied on as part of the defense in that the statement was claimed to be obviously ficti- tious, a mere figment of the writer's imagination having no basis in fact and used merely to illustrate a foreign press policy on another tragedy in which the suicide was actual. Charging a named person with degrading, infamous, or criminal acts in what the context later shows to be a fictitious narrative may, nevertheless, be libelous and actionable if the result is to expose such Libel: What It Is 112 Hotz v. Alton Telegraph Printing Co. person to public shame or ridicule or injure him in his reputation, trade, or profession. This is merely an application of the fundamental rule that lies at the basis of the whole law of libel. A person may be exposed to public scorn and obloquy by indirect and adroit methods as well as by crude and direct ac- cusations. The effect of the language and not its form is the criterion by which to determine the actionable quality of the words used. 36 C.J. 1153. If pub- lishers desire to use the names of living persons by way of example or analogy of infamous acts and degrading crimes merely to arrest their readers' atten- tion, they do so at their peril. If defendant's contention on this appeal were sound, defendant or any other publisher in successive issues of a magazine may charge designated per- sons with one degraded, immoral, infamous, or criminal act after another until every category of crime and indecency is exhausted, provided only in the con- text of each article the publisher sufficiently suggests to persons of average intelligence that the named person was thus publicly used only for purposes of illustration or analogy and to startle readers into attention. Such contention is obviously without merit. DALL V. TIME, INC., 252 App. Div. 636; 300 N.Y.S. 68o (1937); aff. 278 N.Y. 635; 16 N.E. 2d 297 (1938) The Alton Telegraph published a series of editorials in which the counting canvassing board was criticized for its manner of counting election ballots. The first publication ran as follows: Keep Your Hands Steady, Boys The voters in the Forty-Seventh Senatorial District while picking Madison- Bond County representation in the Illinois General Assembly, showed fine dis- crimination and in so doing have provided themselves with four high-grade men to represent them. Besides re-electing Senator Norman Flagg, they chose a Democrat, Lloyd Harris, who has achieved a good record in the General As- sembly. Once he was deprived of his seat in the lower House by unauthorized action of the Madison County canvassing board which assumed to decide, with- out consulting the ballots, what the voters had done in the way of distributing split votes among candidates. What was done at that time was wrong, inex- cusable. It was an amazing action for the canvassing board to carry out. With the vote now as close as it is between Schuyler B. Vaughan and Schaefer O'Neill, only 1o6 difference by unofficial returns, it would be a matter much simpler than it then was to deprive Lloyd (Curly) Harris of his seat to which he was honestly entitled. The canvassing board must be more careful than it was four years ago. They must keep their hands clean and their heads clear this time. Following the canvassing board's report, in which O'Neill was declared the winner of the election, the Telegraph ran another article in which it stated among other things: "It is the third time that O'Neill has thus been counted in, and the second time that Vaughan has been counted out by the Madison 113 County Canvassing Board, which repeatedly has taken the liberty of trying to interpret what the voters wanted to do, but seems somewhat inaccurate in its arithmetic." The trial court dismissed the resultiig libel suit upon the motion of the newspaper's attorneys; but the Illinois Appellate Court reversed the action, Justice Bristow reading the unanimous opinion remanding the case for trial. It has been held that a statement in writing may be libelous per se which, if spoken, would not be. In determining whether a published article is libel- ous per se, the words must be taken in the sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary and common acceptance. ... Appellees contend that the words in these published articles are reasonably susceptible of an innocent construction, and, therefore, cannot be held to be libelous per se. We cannot see how the language used in these articles can be given an in- nocent construction. When one has read the two articles, giving them a rea sonable interpretation, and placing upon them a common and generally ac- cepted meaning, the conclusion is inescapable that the plaintiffs were accused of being dishonest in the discharge of the duties of their office and of a betrayal of a public trust; that they were guilty of defrauding the electorate by caus- ing their returns to affect a result other than that which an actual count of the ballots indicated. In other words, it seems that when Schaefer O'Neill ran for the legislature in the Forty-Seventh Senatorial District, he invariably had the blessing of the Madison County canvassing board. The articles in question implied that on three different occasions, Mr. O'Neill failed to receive enough votes on the official count to be elected, but by some trick or manipu- lation the canvassing board of Madison County succeeded in landing him in office, and by so doing, they excluded from office Lloyd (Curly) Harris and Schuyler B. Vaughan who had actually been elected. It is inconceivable that any reasonable construction placed on the articles in question could lead to any other conclusion than that the defendants maliciously intended to charge the plaintiffs with public wrongs steeped in dishonesty and fraud, and that they were designed to impeach the integrity and standing of the plaintiffs in their community. These publications were certainly knowingly calculated to induce an ill opinion of the plaintiffs, and to destroy their reputation in their community. Such an assault upon the good name of anyone has repeat- edly been held to be libelous per se. "Defamatory words . . . which im- pute . . . unfitness to perform the duties of an . . . employment of profit, or the want of integrity in the discharge of the duties, .. . are actionable in themselves." Creitz v. Bennett, 273 Ill. App. 88, 96. HOTZ v. ALTON TELEGRAPH PRINTING Co., 324 Ill. App. 1; 57 N.E. 2d 137 (1944) Errors in news stories, even when the error appears in a report which the newspaper had every reason to believe was correct, generally establish a case Libel: What It Is 114 of libel per se. Where a paper makes prompt correction and full apology, 'r where such cases are covered by so-called "honest mistake" statutes,* courts are inclined to be somewhat more lenient than in previous generations. However, the fact that a false statement has been published about an individ- ual is of the very essence of libel per se. The Knoxville Journal on September 24, 1946, published a brief item picked up by its courthouse reporter, stating that a man and his wife had waived preliminary hearing on a charge that they had received and con- cealed stolen goods. It developed that the reporter had failed to note, in examining the record of court proceedings for that day, that these persons were actually named as sureties on the appearance bond of the person charged with the offense. A libel suit was filed on September 27, and on September 28 the paper ran the following story: Apology Given to Taylors by Journal The Knoxville Journal regrets that the citizens who signed the bond were erroneously named defendants in a General Sessions record reported in the September 24 edition. Thomas N. Edwards was bound to the grand jury Sept. 23 under $iooo bond after waiving preliminary hearing in General Sessions Court on charges of receiving and concealing stolen property. Mr. and Mrs. Joe Neal Taylor, Blount Avenue, erroneously reported as defendants, were securities who made bond for Edwards, their kinsman. The Knoxville Journal was unaware of the error until it learned that a lawsuit was filed against the newspaper yesterday in Circuit Court by Mrs. Taylor. The Journal extends its apologies to Mr. and Mrs. Taylor. The Tennessee court was asked to consider not only the fact of the exist- ence of a libel, but the relative liability of various members of the news- paper's staff in such a situation, and also the effect of a correction and apology published as soon as the alleged offense was called to the newspaper's atten- tion. Judge McAmis of the Tennessee Court of Appeals upheld the verdict of the trial court in favor of the plaintiffs, ruling that the publishing corporation, if not the newspaper's individual personnel, was properly found liable by the jury. There was no error in charging the jury that the publication was libelous per se and in refusing to direct a verdict for the corpprate defendant. However, we think the motion should have been sustained as to the in- dividual defendants. There is authority for holding that there is a presumption of fact that those in authority and managing the publication of a newspaper are cognizant of libel appearing in its columns and should be held personally responsible for its consequences without proof of actual knowledge and par- * "Honest mistake" as a defense to libel is discussed at pp. 234-241. Knoxville Publishing Co. v. Taylor 115 ticipation. But, at most, there is a mere presumption in any case. To apply it against the managers of a large daily newspaper published by a corporation having a great number of employees and reporters we would have to shut our eyes to reality. Mere dogma should not be substituted for logic, common sense and reason. Whatever justification may be found in holding the editor or managing head of a small newspaper liable under the presumption of fact that he not only knew beforehand what was to be published but the lack of authenticity of the matter published or that he had some intimate knowl- edge of the source of information, there is no basis for such a presumption in the case of a large daily newspaper whose sources of news are numerous and far-flung. "The reason of the law is the soul of the law and when the reason fails the rule should not apply." We think the better rule is that adopted in Folwell v. Miller et al., 145 F. 495, 496, 75 C.C.A. 489, io L.R.A., N.S., 332, 7 Ann. Gas. 455, where the Court, after referring to what are termed "authorities . . . of trivial impor- tance" holding to the contrary, said: Notwithstanding these adjudications, we are not convinced that the editor's liability is commensurate with that of the proprietor. Of course, he is liable equally with the proprietor when he has personally assisted in any manner in the preparation, revision, or otherwise of the publication of the libel. There is doubtless a presumption of fact that the managing editor has supervised the contents of the newspaper and performed the duties of his office in that behalf. But, when it appears affirmatively that he was not on duty during any part of the time between the reception of the libelous matter by the newspaper and the publication, and could not have had any actual part in composing and publishing, we think he cannot be held liable without disregarding the settled rule of law by which no man is bound by tortious act of another over whom he has not a master's power of control. In this case it affirmatively appears that the libel resulted solely from the negligence of the reporter who was the agent of the corporation-not of its president or of the editor. Respondeat superior therefore does not apply as to them. And, though it appears from thie evidence that it was not the duty of the editor or the president of the corporation to check items such as the one here involved, if such a check had been made and the presence of the item noted, its falsity could not have been detected except by checking the court records and it can hardly be said that either of the individual defendants was guilty of any dereliction in not making such a check. .. It is also insisted a new trial should be granted because the court refused to instruct the jury as requested that the retraction and apology quoted above was sufficient as a matter of law and should be considered by the jury in mitigation of damages. The rule is that in order to be considered as mitigating the damages the re- traction of a libel should admit the defamation in language free from ambigu- ity, admit it was unfounded and made without proper information, and offer the regrets and apology of the publisher. It should be frank, fair and un- equivocal and should not be mixed with an attempted justification. The cases are not entirely agreed as to whether the question of the sui- 116 Libel: What It Is Lane v. Washington Daily News ciency of the retraction is a question of law for the court or one of fact for the jury. We think if reasonable minds might differ as to whether it was published within a reasonable time after discovery of the libel by the publisher, whether it was given proper prominence and whether it was otherwise reasonable, adequate and fair, the question is one for the jury. To what extent, if any, it mitigated the damages is clearly for the jury to say. We think the question of the sufficiency of the retraction offered in this case was properly submitted to the jury. It was not made until after suit was filed though it is fair to note that the publisher did not discover the error until after suit was filed. The language of the first paragraph is not entirely free of am- biguity. It can be interpreted as though the issue of September 24th merely carried a report of the court record which erroneously named the Taylors as defendants. A reasonable mind might therefore conclude that it was not a frank, unequivocal and unambiguous admission of the libel as, under the authority cited, it must be before its sufficiency may properly be determined as a matter of law. Moreover, the smallness of the verdict rather tends to the conclusion that the jury accepted the retraction at full value and mitigated the damages. KNOXVILLE PUB. Co. v. TAYLOR, 31 Tenn. App. 368; 215 S.W. 2d 27 (1948) It is important to remember that the determination of what news stories mean, and whether this meaning is libelous, rests with the courts and not with the publication. This is illustrated in a story published in a District of Colum- bia newspaper, which read: Auto Crash Reveals Cache of Weapons Fredericksburg, Va.-Two Washington men, L. L. Lane, 6o, and W. H. Cotton, 46, who gave their addresses as oi B St., SE., Washington, D.C., are in Mary Washington hospital here 'today with painful injuries received when their car crashed into a culvert early this morning. Investigating the crash, police discovered two sawed-off shotguns and four revolvers in the wrecked auto. The [car] bore Vermont tags. The men said they were forced off the road, but refused, according to police, to discuss the presence of the weapons. The plaintiff charged that this.publication alleged an unlawful purpose in transporting the guns. The defendant newspaper argued that the story at the most could have such a meaning only by reading into the facts, which were truthfully stated, certain implications; in such case, the defendant con- tended, the story was not libelous per se. The federal district court dismissed the case, but Associate Justice Stephens of the Circuit Court of Appeals for the District of Columbia reversed this ruling and ordered the case to trial, reviewing his reasons for doing so by citing earlier cases on the same general subject: 117 The applicable rule of law is thus stated in Washington Post Co. v. Chal- oner, 250 U.S. 290, 293, 39 S. Ct. 448, 63 L. Ed. 987, in a quotation from Commercial Publishing Co. v. Smith (C.C.A.) 149 F. 704, 706, 707: A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily under- stand it. So the whole item, including display lines, should be read and con- strued together, and its meaning and signification thus determined. When thus read, if its meaning is so unambiguous as reasonably to bear but one inter- pretation, it is for the judge to say whether that signification is defamatory or not. If, upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts ad- missible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read. Also it is well settled that if statements, whose meaning under the above rule is so unambiguous as reasonably to bear but one interpretation, tend to bring the plaintiff into contempt, ridicule and disgrace they are libelous per se, and this even though they do not actually charge the plaintiff with the commission of a crime. Washington Times Co. v. Downey, 26 App. D.C. 258, 6 Ann. Cas. 765; Washington Herald Co. v. Berry, 41 App. D.C. 322. We said, at page 339, in the case last cited: "Where the charges in a publication tend to bring the plaintiff into con- tempt, ridicule, or disgrace, they are libelous per se, and it is not necessary that they charge a criminal offense also [citing numerous authorities]." Whether statements declared on in a defamation suit are susceptible of but one meaning, and whether that is a meaning which tends to bring the subject of the statements into contempt, ridicule or disgrace, is of necessity a question for the judgment of the court in each particular case on its own facts. Other cases, though persuasive, are rarely controlling because of varia- tions in the words used. For this reason, while we have considered the cases cited by counsel, we think it not useful in this opinion to review them. We feel bound to conclude that the article alleged to have been published by the appellee is libelous per se and that, therefore, the appellant's declara- tion stated a cause of action. What the statements charge is clear; they unam- biguously charge that the appellant and his companion had a cache of weap- ons, revealed by an automobile crash; that the weapons consisted of two sawed-off shotguns and four revolvers; that the appellant and his companion refused to discuss the presence of the weapons; and that though they gave their address as Washington, D.C., their car bore Vermont tags. We think it not possible to conclude that these clear charges are capable of two meanings, one of which would be defamatory, and the other not. We think they could have but one meaning in these days, that the subjects of the statements were "gangsters," and we think that such a meaning would bring them into con- tempt, ridicule, or disgrace. Cache implies concealment; the number and character of the weapons together implies criminality. It is a matter of com- mon knowledge that sawed-off shotguns are the implements of but two classes of persons, "gangsters" and officers of the law. Certainly the charges are not 118 Libel: What It Is Luna v. Seattle Times Co. susceptible of the construction that the appellant and his companion were the latter. Accordingly the judgment of the trial court is Reversed, and the case remanded for further proceedings. LANE V. WASHINGTON DAILY NEWS, D.C.C.A.; 85 Fed. 2d 822 (1936) The Seattle Times on March 16, 1934, ran a prominent feature story under a two-column head as follows: Consul's Gay Party Winds Up as Girls Steal Clothes, Cash Fellow consuls and friends of Fernando Berckemeyer-Pazas, Peruvian consul here, gave a farewell party for him last night at the Washington Athletic Club. The party ended at 5:30 o'clock this morning when Felix Luna, Peruvian consul at Vancouver, B.C., telephoned police and said two women, "uninvited guests," had left with clothing, $20o and jewelry belonging to Mr. Berckemeyer-Pazas. "It was a great party," Mr. Luna recalled today, as he "convalesced" at the Mayflower Hotel. . Mr. Luna had a towel on his forehead as he talked. Luis Navarro, Portland, Ore., importer and former Peruvian consul there, sat nearby. He also attended the party, and his diet today consisted of aspirin tablets and ice water. Edmundo Chocano, former Peruvian vice-consul here, also was in Mr. Luna's room. He had been unable to attend the party. He was consoling Mr. Luna and Mr. Navarro, while he tried to decide whether he was glad or sorry he missed the party. . "The party started with a seven-course dinner at $3.50 a plate, with extra service of Manhattan cocktails, burgundy, champagne and cognac. Then the party moved up to the twenty-first floor," Mr. Luna said. "We had several kinds of very nice liquor there," Mr. Navarro said. "Then some gentlemen arrived. I did not know them. They brought two women with them." "Very early this morning," Mr. Luna remarked, "Mr. Berckemeyer-Pazas dis- covered his money was gone. Also some of his clothes, and some jewels. The women were gone, too. .. " Shortly after the appearance of this story, a suit for libel was filed. On April 17, 1934, the newspaper published the following: It was just a practical joke. Nothing was really stolen from the room of Fernando Berckemeyer-Pazas, former Peruvian consul here, after a farewell dinner in his honor the evening of March 15 in the Washington Athletic Club, according to a report on file with the police today. The missing articles were found next day in the pocket of a guest at the dinner, according to the report. The practical joke was as much on the guest as it was on Mr. Berckemeyer-Pazas, because neither knew who dropped the articles in his pocket. But the joke caused no end of trouble to Mr. Berckemeyer-Pazas, Mr. Felix 219 Luna, Peruvian consul at Vancouver, who was also a guest at the dinner; the Seattle Police Department, and the Seattle Times, which printed an article about the purported theft. Mr. Luna became involved when Mr. Berckemeyer-Pazas, upon discovering his loss several hours after the dinner, telephoned him. Mr. Luna promptly notified police in good faith. Police started an investigation. A Times reporter read Mr. Luna's report and went to the Mayflower Hotel, where Mr. Luna was staying, to interview him. But the reporter didn't get any of the details of the dinner or the purported theft from Mr. Luna. Instead, the reporter interviewed another guest at the party, who was staying in a room adjoining Mr. Luna's at the Mayflower Hotel. However, due to a confusion of identity, the name of Mr. Luna was inserted in the article, printed in the Times, March 16, as giving the interview. Mr. Luna gave no interview. The Times article reported: " 'It was a great party,' Mr. Luna recalled today, as he convalesced at the Mayflower Hotel." The insertion of Mr. Luna's name in this sentence instead of the name of the guest who gave the interview was an error. The article further reported that "Mr. Luna had a towel on his head as he talked" and that during the interview "he put a fresh towel on his head." Mr. Luna did not have a towel on his head. The original police report on the purported theft, reprinted in the article, stated that clothing had been stolen from Mr. Berckemeyer's room. No clothing was involved in the prank. And thus endeth the report of a series of errors which followed a playful desire of well-wishing friends. No hits, no runs, all errors. The defendant newspaper submitted the article of April 17 as evidence in mitigation of damages. The defense rested also on the plea that the state- ments in the March 16 article were true and correct, although the newspaper admitted that they should have been attributed to the correct interviewee in- stead of to the plaintiff. In affirming the verdict in the lower court in favor of the plaintiff,* Justice Blake of the Washington Supreme Court declared: In determining whether or not the published matter is libelous per se, the article is to be read as a whole. Graham v. Star Publishing Co., 133 Wash. 387, 233 P. 625. Now, taking this article of March 16th by its four corners, we fail to see how it could have any other effect than to hold respondent up to public scorn, ridicule, and disgrace. The fact that it was published with- out malice does not diminish its effect nor relieve appellant of liability. An examination of the cases heretofore cited will show that articles having much less tendency to hold one up to public scorn and disgrace have been held libelous per se. While none of our own cases involves publications attrib- uting to one untrue statements, actually not made by him, such cases are * This was a five-to-three decision, but the three dissenting justices, although they felt there were strong procedural grounds for reversing the lower court, agreed with the reason- ing of the majority on the newspaper's responsibility in such a story. Libel: What It, Is 120 Proto v. Bridgeport Herald Corp. 121 plentiful from other jurisdictions. Publications of such character, far less of- fensive than the article of March 16th, have been held libelous per se. With respect to the truth of the article of March 6th, appellant admitted that respondent did not give the purported interview. It also admitted that respondent did not have a towel on his head nor call for another at the time of the purported interview. Furthermore, although appellant alleged in its answer that the interview as reported was in fact given by Navarro and Cho- cano, no proof was offered in support of the allegation. Neither the reporter who was supposed to have had the interview nor the rewrite man in the office who wrote the story was called. So far as the evidence in the case shows, the whole story was a fabrication of their imagination, based upon a report to the police made by appellant at 5:30 A.M., March 6th, of the theft of "money, clothing & jewelry fm room of the Peruvian counsel at Seattle at 2001 Washington Athletic Club Bldg by a couple of women ... " To substantiate the truth of the article, appellant offered evidence of the events of the evening of the party. It undertook to prove that there was much to drink and that respondent got drunk; that after the banquet the guests re- paired to the room of Berckemeyer-Pazas, where two women shortly joined them. Respondent admitted the presence of the women, and that cocktails and wine were served at the banquet, and whisky afterward. He denied, how- ever, that he was drunk, or that he had a hang-over next morning. Upon this evidence, we think the question of the truth of the article and its effect was for the jury. Taking the article as a whole, it purported to be an interview with respondent. As such it was wholly false. The fact that true statements were in- terspersed through the story makes it none the less libelous per se or damag- ing in its effect. Nor do such true statements relieve appellant from liability. What was said in Snyder v. New York Press Co., 137 App. Div. 291, 121 N.Y.S. 944, 946, is peculiarly pertinent here: "An article may be libelous, though it does not impute immoral conduct. The whole tenor of this article is to ridicule the plaintiff. It has a direct tendency to lower her in the estima- tion of the community, though it may not charge immoral conduct, or impute immoral character ... "The defendant contends that the article is innocent, and belongs to a class generally recognized as having a 'news value.' It is difficult to perceive what news value it can have, and impossible to discover its literary value. If newspapers see fit to give their readers fiction as news, they do so at their peril. Such an article should not be held harmless, unless, in the language of Judge Martin in the Triggs case [179 N.Y. 144, 71 N.E. 739, 66 L.R.A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326], it is 'perfectly manifest' that it is." LUNA V. SEATTLE TIMES Co., 186 Wash. 618; 59 Pac. 2d 753 (1936) The Sunday Herald, a weekly newspaper, published a story which ran in part as follows: Any undiscriminating consumers who shop at Tad's Corner Store, 203 Spring St., New Haven, are hereby warned that they will not find an unlimited supply of black market butter there this week. That's the way things are, ladies, regardless of the efforts of Andrew Proto, manager of the store, to get you some butter outside the usual channels of supply. Andrew got stuck, but good, by a customer of his, Stanley Potoniec, 25, 19 Hurlbert St., who told him he could get plenty of butter for him-at a price. The store manager made a deal with Stanley, giving him $20 on April 18 and another $1o on April zo. Stanley informed him that, since he worked for the Sperry-Barnes Company, it would be no trick at all to produce as much of the golden stuff as Andrew could sell. Visions of a horde of customers beating a path to his store-and of the hundreds of so-called tie-in sales, a common practice throughout the state, that he could make-apparently dulled Proto's fears of OPA reprisals. Andy is Dismayed Stanley, however, had no connection with Sperry-Barnes and was, therefore, in no position to get the golden stuff for Andy. When he found this out, Andrew was naturally very, very unhappy. His dreams had been blasted. So Andy appealed to the authorities for, of all things, protection. The cops lost no time in picking up Stanley and a charge of taking money under false pretenses was lodged against him. The article was based solely upon information gathered from the police record and the proceedings in the New Haven City Court. It was charged that the publication was false and defamatory and resulted in a marked loss of busi- ness by the store following the publication of the article. The Supreme Court of Errors upheld the verdict against the newspaper, Judge Inglis reading the unanimous opinion. Whether a published article is libelous per se must be determined upon the fact of the article itself. The statements contained therein, taking them in the sense in which common and reasonable minds would understand.them, are determinative, and they may not for this purpose be varied or enlarged by innuendo. Two of the general classes of libel which, it is generally recog- nized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling. The question is: Does the publication complained of in this case, taken on its face, fall within either of those classes? To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached. Because of the fact that at the time the article was published there was no longer any law or government regulation limiting the quantity of butter which might be sold, the charge of black-market trading might more properly be interpreted as a charge of unethical rather than illegal practice. But if the article were to be interpreted as charging an illegal act or practice, still there is nothing in the finding to the effect that the plaintiff claimed to have proved that it was a crime either involving moral turpitude or carrying an infamous penalty. Ac- Libel: What It Is 122 Hubbard v. Associated Press cordingly, the article was not libelous per se on the ground that it charged a crime. If the charge was open to the construction that the article was libelous per se because it charged a crime, it was in error. It does not follow that such error was prejudicial. The jury were also in- structed that the article was libelous per se because it charged the plaintiff with improper conduct and lack of integrity in his business. It is well settled that a libel is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is cal- culated to cause injury to one in his profession or business. A distinction is recognized, however, in this connection between slander and libel. Spoken words are actionable per se only if they charge a general incompetence or lack of integrity. They are not slanderous per se if they charge no more than spe- cific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity. Written words, on the other hand, are libelous per se if they charge only a single act, provided that act is some- thing derogatory to the plaintiff in the operation of his business or in the practice of his profession; and if the charge is of such a nature that it is likely to injure the plaintiff in that business or profession . In the case now before us the statement that the plaintiff would have en- gaged in black-market trading and tie-in sales if only he had been able to get the butter he thought he was going to get is clearly a charge of highly improper conduct in the operation of his business. As regards the question whether the article was of a nature which would be likely to result in harm to the plain- tiff's business, it must be borne in mind that it is not essential that a charge such as this be one which would drive away a majority of people or even a large minority. All that is essential is that it is calculated to affect a substantial number of customers. Certainly a substantial number of people would not trade with a grocer who they believed was dealing in the black market, with that term's connotation of exorbitant prices. Probably a still larger number would refrain from patronizing a store where they thought they would be re- quired to purchase, by way of tie-in sales, merchandise they did not want in order to be allowed to purchase butter that they did want. There can be no serious question that a publication which alleged that a grocer was engaging and intending to engage in the black market and in tie-in sales would result in that grocer's losing the patronage of a substantial number of otherwise po- tential customers. It follows that the trial court was right in refusing to charge the jury in this case that the libel was not actionable per se. PROTO V. BRIDGEPORT HERALD CORP., 136 Conn. 557; 72 Atl. 2d 820 (1950) 4. Libel per quod depends upon the particular circumstances surrounding the statement to render it libelous. The Associated Press was sued for libel on the basis of the following story: Aiken, S. C., Feb. 12 (AP)-The trial of Mrs. Eliza Warth's $200,000 suit against the Varn Cattle and Turpentine Company, Inc., of Beaufort, for the 123 death of her brother, Lawrence H. Harrison, began in United States District Court here today. Harrison was fatally wounded Nov. 23, 1933, by Grayson T. Hubbard, a range rider on the company's property near Bluffton. When a criminal case against Hubbard was made, the Beaufort County grand jury did not indict him. The defense claimed that Harrison with others was poaching on posted prop- erty by hunting deer at night. There was no evidence that Hubbard had inflicted the fatal wound. The trial court permitted plaintiff's counsel to introduce several witnesses to testify that they understood the news story to charge Hubbard with murder. The trial court directed a verdict in favor of the newspaper, holding that the statement was neither libel per se nor per quod; but the state circuit court of appeals re- versed the judgment. Circuit Court Judge Dobie said: We are of the opinion that the allegedly libelous article involved here is susceptible of being construed as having a defamatory meaning by those to whom it was addressed or by whom it was read. This ipso facto brands it as a jury question. The article admittedly stated that Grayson K. Hubbard fatally wounded Harrison, and without further explanation of the killing, added that the defense claimed that Harrison was poaching on posted property. Without deciding whether the publication complained of actually imputes the commis- sion of a criminal homicide, we believe the language used is clearly capable of such a construction; for a fatal wounding is not justified or excused because of a mere trespass upon real estate under the circumstances stated. In the Chaloner case, supra, the publication was: ". . . Chaloner . . . is recuperat- ing at Shadeland . . . where he had gone to recuperate following a nervous breakdown as a result of the tragedy at his home . . . when he shot and killed John Gillard, while the latter was abusing his wife, who had taken refuge at Merry Mills, Chaloner's home .. ." The defendant relies heavily on the fact that the article contained a state- ment that when a criminal charge was advanced against the plaintiff, the Beaufort County grand jury did not indict him. Counsel contends that this miraculously purged the publication of any latent defamatory meanings which might lie embedded within it. There is no merit in this contention. A refusal by the grand jury to indict does not by itself exonerate a man from guilt and such a refusal may be caused by numerous factors. To many readers of this article, it is probable that the refusal to indict meant that insufficient evidence was then available; this is but one of several possible constructions. Suffice it to say that the previous stigmatization, if any there was, was not thus easily eradicated. As was said by Mr. Justice Holmes: "If the [publication] obvi- ously would hurt the plaintiff in the estimation of an important and respecta- ble part of the community, liability is not a question of a majority vote." Peck v. Tribune Co., 214 U.S. 185, 190, 29 S. Ct. 554, 556, 53 L. Ed. 960, i6 Ann. Cas. 1075. Accordingly, we feel it was the plaintiff's right to prove Libel: What It Is 124 Coats v. News Corporation his case and go to the jury upon the question of whether or not the article was libelous. HUBBARD v. ASSOCIATED PRESS, C.C.A. 4th; 123 Fed. 2d 864 (1941) A national magazine published an article entitled, "I Object to My Union in Politics," in which an individual was described as a legislative representative for the Communist Party. It was charged in the suit that this damaged the plaintiff's reputation since by innuendo it was suggested that he sympathized with the objectives of that party and that, in a period of pronounced anti- Communist feeling, this materially injured his reputation. The trial court dismissed the complaint, but upon appeal the judgment was reversed. Circuit Judge Learned Hand delivered the opinion: The interest at stake in all defamation is concededly the reputation of the person assailed; and any moral obliquity of the opinions of those in whose minds the words might lessen that reputation, would normally be relevant only in mitigation of damages. A man may value his reputation even among those who do not embrace the prevailing moral standards; and it would seem that the jury should be allowed to appraise how far he should be in- demnified for the disesteem of such persons. That is the usual rule.. Any difference is one of degree only: those who would take it ill of a lawyer that he was a member of the party, might no doubt take it less so if he were only what is called a "fellow-traveler"; but, since the basis for the reproach ordinarily lies in some supposed threat to our institutions, those who fear that threat are not likely to believe that it is limited to party members. Indeed, it is not uncommon for them to feel less concern at avowed propa- ganda than at what they regard as the insidious spread of the dreaded doc- trines by those who only dally and coquette with them, and have not the courage openly to proclaim themselves. GRANT V. READER'S DIGEST AssN., C.C.A. 2d; 151 Fed. 2d 733 (1946); aff. 326 U.S. 797; 66 S. Ct. 492; 90 L. Ed. 485 (1946) 5. To sustain a charge of civil libel, there must be definite and specific identification of the person claiming injury. The courts have generally required that the identification of the individual claiming to have been injured by a publication be clear beyond any reason- able doubt. When an individual is a member of a group,* or when the identification is by description or other indirect means, the burden of proof of identification is upon the plaintiff. On the other hand, the determination of sufficiency of identification rests with the judge or jury and does not depend * See the related subject of "group libel," discussed in Ch. 5. 125 upon what the newspaper intended to mean or whom the story's author in- tended to identify. A common danger for news media is the story which uses the name of one individual which turns out also to be the name of another-often unknown to the news writer and usually having no connection with the facts published in the story. If the story is carelessly written, or if by any other accident a slip of the facts occurs which amounts to an identification of an innocent party in the story, the newspaper is liable for damages. A Missouri newspaper printed the following article at the climax of a criminal activity which had been followed in its news columns for several days: Charles C. Coates, the twenty-eight-year-old St. Joseph jail-breaker, found yesterday that a career in small-time banditry could lead a man to within the shadows of the death house. He was in jail at Atlanta, charged with murder. Being in jail was nothing new to Coates, and probably not very disturbing to him, but being charged with the murder of a Georgia highway patrol corporal was a serious climax to the crime career of a former ticket agent for the old interurban company. This new charge, filed after Coates had admitted killing Corp. W. F. Black at Ringgold, Ga., last Friday night while he was fleeing after his escape from jail here the night of Nov. 29, looked like the end of his career of crime-and probably his life. Back in the days when Coates sold tickets at the old interurban depot at Eighth and Charles streets, he was a pleasant, good-looking and affable young fellow. His father was a doctor here. His wasn't the picture of a budding young criminal. But in Atlanta yesterday he told authorities, "I had things too easy as a youth -I stole food, but there wasn't any need to because I was well off and wasn't hungry." Coates left the interurban company under a shadow because of his handling of funds, and then began his series of more serious crimes, mostly drug store robberies. At first he was just a "punk," as police call young bandits who are not really tough, but soon officers began to regard him as a dangerous character. It developed that Charles C. Coates had never been employed by the inter- urban company, but the plaintiff, Willis R. Coats, had sold tickets in the company's St. Joseph office for five years. No other person of similar name had ever been employed in that office. Upon the mistake being called to the newspaper's attention, a story and picture of Willis R. Coats was published in both the evening and morning editions of the newspapers. The story in- cluded a statement that while both of the men concerned had lived within a block of each other, had attended the same grade school and Sunday school, "Charles C. Coates has been constantly in trouble with the law since grade school days, Willis R. Coats has at all times had an excellent reputation." The cutlines for the photograph of Coats included the statement that Charles Libel: What It Is X26 Coats v. News Corporation C. Coates had never worked for the interurban company, "and Willis R. Coats, the man who did, has never been in trouble." In the libel suit arising from this error, the newspaper contended that its identification of the arrested man was sufficient in that it had used his cor- rect name, his photograph, and his parentage; and that the reference to "a ticket agent of the interurban" was not sufficient to identify plaintiff as the person intended because the company had other ticket agents. Although the damages allowed in the trial were nominal ($i.oo compensatory damages and $1.00 punitive damages) the newspaper was found liable for the story. In up- holding the judgment, Judge Hyde of the Missouri Supreme Court said for a unanimous bench: Defendant contends that it was entitled to a directed verdict. It says that the article is unambiguous and clearly identifies the person of whom it was written by his correct name, his photograph and his parentage; and that plain- tiff is not entitled to recover merely because some readers may have thought the article applied to him. It further says that the reference to "a ticket agent of the interurban" would not be sufficient to identify plaintiff as the person intended because the company had other ticket sellers, citing Helmicks v. Stevlingson, 212 Wis. 614, 250 N.W. 402, 91 A.L.R. 1158. However, in that case the reference was merely to a former cashier of a bank (there having been several) with no name being stated. Likewise, in Kassowitz v. Sentinel Co., 226 Wis. 468, 277 N.W. 177, the reference was to part-time doctors em- ployed at a hospital (several being employed at the time) with no name be- ing stated. In each of these cases it was held that the plaintiff (who was one of several who might be meant) had no cause of action because the article did not sufficiently identify him. Here the name Coates was stated, which would be pronounced the same way as plaintiff's name, and there is no con- tention that any other Coates or Coats ever sold tickets for the interurban. The rule is thus stated in the American Law Institute Restatement of Torts, Section 564: "A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands it as intended to refer." The Restatement makes the following comment: If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is immaterial that the defamer did not intend to refer to him. It is not enough, however, that the defamatory matter be actually understood as intended to refer to the plaintiff; such inter- pretation must be reasonable in the light of all the circumstances. It is not necessary that the plaintiff be designated by name; it is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended. . . . If the applicability of the defamatory matter to the plaintiff depends upon extrinsic circumstances, it must appear that some person who saw or read it was familiar with the circum- stances and reasonably believed that it referred to the plaintiff. 127 Thus the question for the court, in ruling on the request for a directed verdict in such a case is: Could the article be capable of being reasonably understood to apply to plaintiff? If the court decides that it reasonably could be so understood, then the questions to be submitted to the jury are: Would the article reasonably be interpreted, by some of those who read it, as refer- ring to plaintiff? And did any so interpret it? We think that a person knowing only plaintiff's last name, and not knowing his present location, but knowing that he sold tickets at the interurban station designated in the article (espe- cially in view of the description of the ticket agent which could fit plaintiff) could reasonably although mistakenly understand the article to mean that plaintiff was the bandit. We, therefore, hold that defendant was not entitled to a directed verdict. COATS V. NEWS CORPORATION, 355 Mo. 778; 197 S.W. 2d 958 (1946) 6. Only the specific individual affected may bring an action for civil libel. An important rule which is almost universally recognized is that civil suits for libel are personal actions which die with the individual. This means that no other persons or groups of persons, or corporations, can bring such a suit even in cases where the statements concerned are false and defamatory. Typical of this rule is the case of a wife who seeks to recover damages for an alleged libel on her husband. In entering a judgment for the defendant newspaper, Justice Ronan of the Supreme Judicial Court of Massachusetts reviewed the principles of law which apply: A falso statement that Hughes ended his own life charged him with the commission of a crime, for self-destruction is a criminal offense in this Com- monwealth. The publication of that statement gave the plaintiff no cause of action. One who defames the memory of the dead, whatever his responsibility may be under the criminal law, is not liable civilly to the estate of the dece- dent or to his relatives. The general rule is that a libel upon the memory of a deceased person that does not directly cast any personal reflection upon his relatives does not give them any right of action, although they may have thereby suffered mental anguish or sustained an impairment of their social standing among a considerable class of respectable people of the community in which they live by the disclosure that they were related to the deceased. The false statement that Hughes committed suicide and left a widow did not constitute a libel on the latter. That statement, which was entirely di- rected against Hughes, charged him with having committed suicide in ac- cordance with an agreement with his business associates, and clearly implied that no one else had any connection with his death. His widow was not charged with any wrongdoing or with any connection with her husband's act. There are instances where the publication of a written statement concerning one person is of such a nature that it imports misconduct upon the part of another. To publish that a third person is an illegitimate child or that he is the husband of a faithless wife or that a married man is single and about to 228 Libel: What It Is Curry v. Journal Publishing Co. be married imputes immorality to the mother or wife. This principle is not applicable where, as here, the natural effect of the mere statement that the husband took his own life would not cast any aspersion upon his widow. The plaintiff, however, contends that she is the person referred to as the widow and that this reference to her, considered with the rest of the article, was a defamation upon her. If the publication was directed against her and tended to expose her to public hatred, contempt and ridicule and to induce an evil opinion of her among a considerable class of right-thinking persons or to cause her to be deprived of their confidence and social intercourse, then it would result in injuring her reputation and entitle her to damages. . . . The article no doubt focused public attention upon the plaintiff and caused her some embarrassment and mental anguish, and while these may be taken into account where the plaintiff has a cause of action, they do not alone furnish any foundation for recovery, because the only basis upon which an action for defamation may be grounded is damage to one's reputation. Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217; Themo v. New England Newspaper Publishing Co., 306 Mass. 54, 57, 27 N.E. 2d 753. The only harm that the plaintiff sustained from the publication arose entirely from the statements about her deceased husband and not from anything pub- lished concerning her. At most it disclosed merely her marital relationship to one who was falsely accused of having committed suicide. A wife has no cause of action for libel on account of a publication that did nothing more than state that her husband took his own life. HUGHES V. NEW ENGLAND NEWSPAPER CORP., 312 Mass. 178; 43 N.E. 2d 657 (1942) The Albuquerque Journal published a news story to the effect that a man who had formerly been the territorial governor of the present state of New Mexico had died. The report was false. The son and daughter-in-law of the former governor brought suit for damages, claiming that both had suffered severe shock upon reading the news and that both had incurred permanent physical injury as a result. Justice Brice of the New Mexico Supreme Court, with all associates concurring, affirmed the lower court judgment in favor of the newspaper. Generally, though not without dissent (Hambrook v. Stokes Bros., [1925] L.K.B. [Eng.] 141; Bowman v. Williams, 164 Md. 397, 165 A. 182), recov- ery for the physical consequences of fright at another's peril, caused by the negligence of a third person, has been denied; not only by the courts which hold that a physical impact is necessary to such recovery, but by those courts which hold that it is not. .. The same rule should apply to this case. The wrong, if any, was done to Governor Curry, not his relations or friends. That emotional distress may fol- low from acts of negligence is quite apparent; but no more than to a mother who witnesses the negligent killing of her child, in which case the consequen- tial damages cannot be recovered. Not every negligent act that results in dam- I29 age to some one is actionable. There must be a duty owing to the injured by the person whose negligent act inflicts the injury, and such duty does not extend to the protection of third persons not directly involved except under special circumstances not appearing in the facts alleged by plaintiffs. . The common law (and as we have seen, the English law of today) does not recognize, as actionable, injuries resulting from negligently spoken or written words. To what extent, if any, the liberty of the press and speech, as we understand it, is involved, we need not decide. An American doctrine has grown up in recent years holding that in certain instances such negligence is actionable, but this case does not come within any rule or decision on the question. We hold that damages cannot be recovered from the publishers of a news- paper for the consequences of grief resulting in physical injury, occasioned by reading in such paper a negligently published false report of the death of the reader's parent. CURRY V. JOURNAL PUB. Co., 41 N.M. 318; 68 Pac. 2d 168 (1937) 7. What constitutes "publication" of a libel? When A writes something defamatory of B and shows it to C, a libel has been published in the classic common law sense. Theoretically, then, a news- paper could publish a libel before it ever went to press, whenever a reporter or rewrite man put down a false story on paper and the editor or copyreader saw it. In practice, of course, no action ever begins at such a stage; the libelous story obviously must make the published editions of the paper and be dis- tributed to the general public before action is likely. What is more to the point is the rule that every periodical which publishes an injurious statement, whether prepared in its own office, copied from another paper, or received from a wire service or syndicate, is liable for a separate publication.* Time, Inc., was sued on April 13, 1943, to recover damages for an alleged libel published in an issue of Life dated April 13, 1942. The defense moved to strike the complaint on the ground that although the publication bore the date of April 13, 1942, on its issue, the issue had actually been distributed at least two days earlier and hence the action brought on April 13, 1943, was de- feated by the one-year Statute of Limitations. Although the Illinois Appellate Court accepted this plea and thus the periodical avoided liability on a tech- nicality, Justice Friend took the opportunity to review the general principles of modern law bearimg upon publication of a libel: Historically each delivery and sale of an article containing defamatory mate- rial was considered a publication that, defenses aside, gave rise to a separate * "Chain libel" actions growing out of syndicated matter are illustrated in the Sweeney cases, pp. 231-234. Libel: What It Is 130 Winrod v. Time, Inc. 131 cause of action. However, with a few exceptions, courts and legal writers have recently recognized that this ancient rule "is ill-suited to the needs of a culture demanding mass publication. . . . Hence, to escape multiplicity of suits and to make effective the statute of limitations, publication has been redefined in the light of the realities of this century" and "is now defined so as to include all the steps in the economic process by which news is disseminated .. Therefore, the composition, printing, and distribution of libelous material constitute only one cause of action." 59 Harvard Law Review, pp. 136, 137. Section 578 b of the Restatement of the Law of Torts defines republication of libel as follows: "Each time a libelous article is brought to the attention of a third person, a new publication has occurred, and each publication is a separate tort. Thus, each time a libelous book or paper or magazine is sold, a new publication has taken place which, if the libel is false and unprivileged; will support a separate action for damages against the seller." This viewpoint is the subject of comment in the recent case of Hartmann v. Time, Inc., D.C. 1946, 64 F. Supp. 671, 679, and because that case, citing substantially all recent decisions, reflects the established authority on the question in this country, we quote therefrom at length. Plaintiff there brought a libel suit in the District Court, Eastern District of Pennsylvania, exactly one year subse- quent to the date appearing on the cover of the January 17, 1944, issue of Life magazine. In support of its motion for summary judgment defendant submitted affidavits setting forth facts substantially the same as those alleged in the case at bar relating to composition, editing, publishing, printing and distribution of the magazine. In granting defendant's motion for summary judgment the court, after quoting the pertinent portions of comment b in section 578 of the Restatement of the Law, made the following observation: There is discernible, however, to a marked degree, a reluctance among the modern courts to apply that law when confronted with a controversy involving large distributions of printed matter such as are made by present day newspaper and magazine publishers. This turn in the law is highlighted in the case of Age- Herald Publishing Co. v. Huddleston, 1921, 207 Ala. 40, 92 So. 193, at page 196, 37 A.L.R. 898, where the court said: "These old common law principles undoubtedly had their origin in relation to the single acts of individ- uals, in a primitive society, and cannot, either as a matter of principle or com- mon sense, be applied without qualification to the publication of modern news- papers." The rule of law to be applied in such circumstances is that the one issue of a newspaper or magazine, although it consists of thousands of copies widely distributed, gives rise to one cause of action, there being but one publication, and the statute of limitations runs from the date of such publica- tion. The number of copies is considered as aggravating the seriousness of the publication, and therefore, being evidence of the extent of the injury, goes only to the matter of damages. .. These decisions, while the reasons therefor are variously given by the differ- ent courts, are grounded chiefly upon the practical realization that, under the doctrines expounded in the Restatement, a multiplicity of suits would result, and the purpose of the statute of limitations would be avoided. Although all the decisions cited were not rendered without express dissent, the views adopted have, in the main, been favorably commented upon. A careful examination of the cases leads to the conclusion that the decided weight of authority in this country is, where large distributions of published matter are involved, that the cause of action accrues, for the purpose of the statute of limitations, upon the first publication, when the issue goes into circulation generally. Plaintiff is constrained to admit that under the foregoing rule "publication" of the alleged defamatory matter in this case occurred on April 11, 1942, the date of general release, but he contends that copies of the April 13, 1942, issue of Life were subsequently circulated. Defendant's affidavits admit that after the general release of the magazine was completed throughout the na- tion by April 11, 1942, certain miscellaneous copies were circulated to the general public up to and including April 18 and for some time thereafter, consisting of replacement copies for those reported lost or damaged, back- number copies supplied in response to occasional requests, copies mailed by special request on new subscription orders received within a few days before April 11, and news-stand copies sold for several days following April 11; and it is urged that these isolated transactions constituted publication or republi- cation of the alleged libel. There is also considerable authority on this subject. Cases cited in Hartmann v. Time, Inc., D.C., 64 F. Supp. 671, hold in ef- fect that where any distribution takes place after the original sale, no new cause of action will accrue if the subsequent distribution is reasonably con- nected, by trade practice relating to the type of printed matter involved, to the original distribution; but the partial validity of the conventional or older theory of libel, namely, that each sale constitutes a new publication, is recog- nized in so far as the number of people reached or to be reached by the libelous matter is considered in the computation of damages. In Backus v. Look [39 F. Supp. 6631, brought in the District Court for the Southern District of New York, the court held that "the issue of the magazine complained of was never reprinted, published or released by the defendant, but several miscellaneous copies were mailed out later to replace copies lost or damaged in distribution, or in response to requests for the pur- chase of single copies. This did not constitute a republication. Means v. Mac- Fadden Publications, D.C., 25 F. Supp. 993. It is also conceded that copies of this issue remained on public sale from December 5, 1939, to approximately December 19, 1939. The moving affidavits show that on or before Decem- ber 4, 1939, all copies of the magazine Look, dated December 19, 1939, had been mailed to subscribers and all copies sold to wholesale distributors had been placed on common carriers for shipment. Under the authorities this would constitute a publication of the libel." In Means v. MacFadden Publications [25 F. Supp. 995], plaintiff sued on April 25, 1938, for an alleged libel appearing in the April 17, 1937, and two succeeding weekly issues of Liberty magazine. Defendant's affidavits in sup- port of its motion for summary judgment showed that the last of the three issues was placed on public sale April 21, 1937. The plaintiff there con- tended that the magazines remained on the news-stands for a much longer period than the dates of publication claimed by the defendant, and that each new sale constituted a new publication. Commenting on this contention, the court said that "this does not constitute a republication of the alleged libelous articles. The contention of the plaintiff cannot be correct. If her contention is Libel: What It Is 132 correct, the Statute of Limitations would never toll; certainly never as long as there was in existence an issue of these magazines which was capable of being passed about or sold. . . . The Statute of Limitations is a statute of repose. If the contention of the plaintiff is correct, the very purpose of the Statute would be defeated." With respect to the sale of back-number copies on January io, 1938, the court continued as follows: "There was no republica- tion of the alleged libelous articles on January 10, 1938. That was nothing more or less than a purchase of old copies of this magazine, which had been published, circulated and put on the news-stands for sale and circulation on the dates set forth in the affidavits herein, to wit, April 7th, April 14th and April 21st, at which times the harm done to plaintiff, if any, was in- flicted... ." The theory for which plaintiff contends evidently originated with the Duke of Brunswick v. Harmer, 14 Q.B. 185, in 1849. That was an action for libel in respect to a newspaper published more than 17 years before the action was brought, and the court ruled that a plea of the statute of limitations was nega- tived by proof that a single copy had been purchased from the defendant publisher within the statutory period before the filing of suit. The court held that defendant, by the sale and delivery of that single copy of the newspaper, "published" the libelous matter, and that as to that particular "publication" the statute of limitations had not run. Although that may have been the law of England a century ago, the great weight of authority in this country is directly contrary. The Duke of Brunswick case has been criticized for its in- validation of the statute of limitations, for it holds in effect that there can never be any repose by limitation in a libel suit. One of the first decisions in the United States to challenge that doctrine was the leading case of Wolfson v. Syracuse Newspapers, 1938, 2:4 App. Div. 211, 4 N.Y.S. 2d 640, affirmed by the New York Court of Appeals, 279 N.Y. 716, 18 N.E. 2d 676, 677. Plaintiff there brought suit May 7, 1937, on a cause of action for an alleged libel which had expired, with reference to defendant's original publication thereof, on April 8, 1937, contending that the statute of limitations had not run because defendant had made accessible to the public bound copies of the newspaper containing the issue complained of. Mr. Justice Lewis, speaking for the majority of the court, held that this did not prevent the statute from running, and in granting defendant's motion to dismiss the complaint; said [254 App. Div. 211, 4 N.Y.S. 2d 642]: If the bar of the statute of limitations can be lifted by means such as plaintiff now seeks to employ, we may no longer term it a "statute of repose" which makes effective a purpose which the Legislature has conceived to be imperative -to outlaw stale claims. [Citing authorities.] The rule for which the plaintiff contends would not only permit libel actions against news publishers without limitation as to time but its scope would extend beyond the field of journalism. For example, if plaintiff's position is correct in law it must follow that, although a book may have had but one publication 20 years ago, if the publisher con- tinues to make unsold copies of the single publication available to the public to-day, by sale or otherwise, such conduct amounts to a republication of any libel which the book contains and thereby becomes actionable. Believing that Winrod v. Time, Inc. 133 such a rule would nullify the clear purpose of the statute of limitations, we affirm the order dismissing the amended complaint. In discussing the fact that defendant had made accessible to the public bound volumes of the newspaper containing the alleged libel, the court char- acterized that conduct of the newspaper as merely "passive," citing Seelman on the Law of Libel and Slander of New York, whose treatise, published in 1933, first proposed the test of the conscious intent of the defendant as de- termining whether an article is a republication or repetition of the defamatory material. He summarized the law on the subject, and proposed certain rules, as follows (chap. VI, par. 130, p. 120): The conflict in these cases [decisions which he had previously discussed] and the necessity of clear definition and simple practice lead to the following suggestion of what should constitute a separate publication and how suit should be brought therefor: First: The plaintiff should be required to unite in one complaint, all causes of action for all publications of all libels, published by the same defendant, prior to the commencement of the action, to the end that in one suit all damages to plaintiff's reputation shall be awarded. In such suit he should be allowed to prove all subsequent libels of the same or similar accusa- tions up to the time of the trial. In this suit all republications may be considered by the jury on the question of malice, and a judgment should be a bar to all sub- sequent suits for any similar publication up to the trial. Second: The test of whether the article is a republication or a repetition should not depend on an interval of time, or a separate sale but upon the answer to the question. Was the act of the defendant a conscious independent one? The individual who sends the same letter to different persons at the same or another time, consciously and intentionally and independently does so. Each separate mailing is a separate conscious act. Each would then be provable as showing conscious intent. Whereas, in the case of a newspaper, as the circulation is considered one of the chief items of damage, and plaintiff recovers for all the distribution, no con- scious intent arises until the defendant consciously as a second edition repub- lishes the article. In each case it is the conscious act which determines. If these simple rules are followed, the plaintiff will be compelled, as he should, to liti- gate in one action all his claims for damage arising from all libelous publications of the defendant, up to and including the trial (except libelous publications of a different character arising after the action has been com- menced); and the question of malice or intent from repetition of the libel can be submitted to the jury, as it should be, upon the conscious act of republication by the defendant. It thus appears that the majority in the Wolfson case supported their con- clusion and reasoning on the theory enunciated in Seelman that only where there is a new edition or reprinting of a certain issue of a newspaper or maga- zine the conscious intent of the defendant to republish the libel becomes ef- fective. WINROD V. TIME, INC., 334 Ill. App. 59; 78 N.E. 2d 708 (1948) Libel: What It Is 134 CHAPTER V Libel: Special Aspects The readings and background note to Chapter IV apply also to this chapter, which deals with particular aspects in the judicial definition of libel. 8. Headlines and other news-writing problems peculiar to journalism do not relieve the journalist of responsibility. What might be called the occupational hazards of journalism in respect to libel law are the techniques required for reporting news: the physical limita- tions placed upon words in headlines, making it virtually impossible to make a complete and properly qualified statement within the confines of a one- column or two-column count; the pressure of deadlines which puts a premium on speed and heightens the chance of typographical errors, inadvertent shift- ing of photographs, and so on; and the mistakes which arise from paraphras- ing the original data in the composition of the news story itself. Courts have been disposed to sympathize with newspapers in occasional instances where liability was incurred for reasons other than gross negligence or deliberate ef- fort to falsify-but at best the judicial cognizance of these journalistic prob- lems has taken the form of pleas in mitigation of damages and not of defenses which relieve the newspaper of all responsibility at law. Headlines present various legal questions. Are they to be considered as an integral part of a news story, or as a brief digest of what is in the story, or only as advertisements of the news story to attract the reader? If they are a part of the whole story, does an inaccurate headline contaminate the body of the story in which the misleading impression of the headline is corrected? In a leading case, Judge Paine of the Nebraska Supreme Court, affirming the dis- missal of a libel action in a trial court, said: Many decisions have discussed the law relating to the headlines set out in the newspaper, and in the case on trial the headline, going across six columns and reading, "Claims He Suspected Imaginary Lover," is strongly objected to by the plaintiff. The readers of newspapers have a right to expect that the bold headlines constitute a summary of the news to follow, but they are often lacking in this respect. It frequently happens that they mildly distort the account and offer 135 an enticing bit of the article that is most sensational. Instead of being a short summary, they are just the paper's advertisement of its news to attract atten- tion. The decisions of our courts limit the use of headlines in two ways: First, by holding that libel may be found in the headlines; and, second, that the headlines are only privileged when they give a fair idea of the article which follows. "The title or heading of a published article is a part thereof and must be considered in determining whether the publication is libelous." 17 R.C.L. 350, S97. Courts have wisely held that the sting of libel is frequently contained in the headlines which "are privileged only when they are a fair index of a truth- ful report." Brown v. Globe Printing Co., 213 Mo. 611, 112 S.W. 462, 127 Am. St. Rep. 627. And in this case the bold-type headings, which were fairly suggestive of the facts to be given below, are held to be within the rule an- nounced. ... A newspaper publication, to be privileged as a publication of judicial pro- ceedings, must be fair; that is, just, impartial, and free from animus against the party complaining; and it must be correct and accurate so as to give the public a reasonably correct statement of the matter involved. Jones v. Pulitzer Pub. Co., 240 Mo. 200, 144 S.W. 441. "Although a person may publish a correct account of the proceedings in a court of justice, if he discolors or garbles the proceedings or adds comments and insinuations of his own in order to asperse the character of the parties concerned, it is libelous." 17 R.C.L. 346, S92. A newspaper is allowed to make comments, draw deductions, and slightly add to court documents, if such inferences are fair, honest, and truthful de- ductions from the privileged proceedings, but of course it does not follow that a newspaper has permission to publish a lie at any time. We hold that the report of the divorce action was reasonably fair to the plaintiff, and printed in good faith, solely as a matter of news and of public interest. The above is a brief discussion of the points of law involved in this case. Much of the evidence taken was directed to matters about which there was no dispute between the parties. The matter published was privileged, and the few comments and headlines, while not in good taste, were within the limits of the law as set forth above. The evidence for the plaintiff was in the opin- ion of the trial court so slight that a verdict for the plaintiff could not have been sustained, and we are satisfied that the trial court was justified in dis- posing of the case by a dismissal, and the case is hereby Affirmed. FITCH v. DAILY NEWS PUB. Co., 116 Neb. 474; 217 N.W. 947; 59 A.L.R. 1056 (1928) The Fitch case establishes the proposition that a headline, if it is mislead- ing, will be sufficient cause of action alone. In another case Judge Gore of the federal court for the middle district of Tennessee, in agreeing that a head- X36 Libel: Special Aspects DuPont Engineering Co. v. Nashville Banner Pub. Co. line alone could be the basis of a libel suit, said that this was so because the headline was inseparable from the story itself: In determining whether or not the publication in question is libelous per se, one must read the entire publication, including headlines, and, from-the whole, say whether or not the charges contained therein would necessarily produce in the minds of sensible persons that plaintiff had been guilty of fraud or misconduct in the management of its business, in its contract with the United States government. Referring to the publication in question, the first thing the reader would see upon opening the paper would be the sensational headline, reaching en- tirely across the first page, in large, boldface black type, "McLane Bares Old Hickory Fraud Charges"; next, in large, boldface black type, but not so large, "Claims Government Lost Many Millions," and next follows: "Detailed Fig- ures on Alleged Irregularities Connected with Powder Plant Revealed by Dis- trict Attorney." And then, throughout the entire publication, is a charge that the government auditors had unearthed "wholesale frauds," "amounting to millions of dollars," and that these charges were made after an "extensive" survey of the records at Old Hickory, "and which covered a period of time extending over several months"; that "after many months of work on the pre- liminary investigation, during which time the matter was fully presented to the War Transactions Board, the work of investigation has been going on, and additional information and evidence has been obtained by the govern- ment for its use in prosecuting the case"; that "District Attorney McLane, who, in presenting the matter to the officials of the Department of Justice, War Department and War Recovery Board, has made no less than i5 trips to Washington, on his return from Washington last week expressed himself as being hopeful that the department would order a full investigation of the matter at an early date. The whole matter is now before the board for their determination, Mr. McLane said." .. It is obvious to my mind that the publication in question could have no other effect than to create the impression that the plaintiff had by fraud, stealth, unfair and dishonest practices defrauded the government out of mil- lions of dollars by means of overcharges, duplicate vouchers, payment of ex- orbitant bonuses, falsifying the records, and then sought to destroy the evi- dence of its guilt by the destruction of the files kept by it at the plant, and the fair inference would be that plaintiff had entered into a conspiracy with the E. I. Du Pont de Nemours & Co., whereby the latter had unloaded its surplus stock of antiquated and nonusable material at an exorbitant price upon the government, and, worst of all, it had been shockingly inhuman in the burial of the dead bodies of its employees, who were the victims of the ravages of disease, while working for plaintiff at the powder plant, and it had reaped an unholy profit off the government in this particular. .. If the publication is so unambiguous as reasonably to bear but one inter- pretation, it is for the judge to say whether it is defamatory or not; but if it is capable of two meanings, one of which would render it actionable and libelous, and the other not, it is for the jury to say, under all the circum- stances surrounding its publication, including extraneous facts admissible in 137 138 Libel: Special Aspects evidence, which of the two meanings would be attributed to it by those by whom it might be read. .... It cannot reasonably be insisted that the publication in question, when con- strued in connection with its headlines, would not tend to prejudice the minds of persons reading it against the plaintiff; that it did not seriously re- flect upon the conduct of plaintiff in the management and conduct of its business with regard to its contract with the United States to construct and operate the Old Hickory Powder Plant, or that it would not tend to lessen plaintiff in the estimation of the business world, and thereby affect its busi- ness standing, resulting in pecuniary loss. DUPONT ENGINEERING CO. V. NASHVILLE BANNER PUB. Co., 13 Fed. 2d 186 (1925) Still another court, commenting upon the effect of an erroneous headline upon an otherwise innocent or protected news story, has held that because the headline is an integral part of the whole, a story which upon full reading corrects an erroneous impression given by the headline will not be action- able. The issue arose from a story in the Topeka State Journal as the after- math of a disbarment proceeding. Judge Harvey of the Kansas Supreme Court, which upheld a lower court's judgment in favor of the newspaper, said: It will serve no useful purpose to set out in full the publication complained of and the report of the commissioner Johnson, both of which were attached as exhibits to the proceedings. It is sufficient to say that we have examined these documents carefully and find but two things which may be said to be inaccuracies. At one place in the news item a date was given as 1933 when it should have been 1935. The entire news item, however, disclosed that the proceedings examined by our commissioner started in 1935. One reading the news item would not be misled by this inaccuracy. The other was a state- ment in the headlines of the news item, "Findings by Supreme Court." Ac- curately speaking, the findings were made by a commissioner appointed for that purpose by the court, but that is the usual method by which the court ascertains in the first instance the facts in any original proceeding in which there are controverted questions of fact. The findings made by a commis- sioner in such case are not binding on the court, but are persuasive. The headline would have been more accurate had it said that a commissioner ap- pointed by the court had made the findings of fact and conclusions of law than the subject of the news item. However, the body of the news item itself made it clear from the start, and repeatedly throughout, that it was the report of the court's commissioner that was being summarized and commented upon. While headlines may be so misleading and so detached from the body of the article as themselves to be libelous, ordinarily they are but a brief index to the body of the article and are designed to do no more than to direct the attention of the reader to the article itself. In determining whether they are libelous, ordinarily they should be read with the article. In this case no one Gunder v. New York Times Co. reading the headlines and the article would be misled by the slightly inac- curate statement in the headlines. LITTLE V. ALLEN, 149 Kan. 414; 87 Pac. 2d 510 (1939) In dealing with complicated data and seeking to simplify it for readers, or simply committing an error in compilation of the material, a news story will frequently contain a statement which is technically false. The courts will decide under the circumstances of each case whether the false statement amounts to a defamation. The New York Times, for example, published a story of a judgment secured by a trustee in bankruptcy against one whop while serving as chairman of the board of directors of the corporation con- cerned, had allegedly voted to pay dividends out of capital in violation of law. The plaintiff in the libel suit admitted that the story as a whole was accurate, but claimed that he was damaged by the erroneous statement in the story as to the amount of the illegal payments. Federal District Judge Conger dismissed the suit. In a case such as this where only a specific portion of the writing is al- legedly libelous, the whole article must be read in order to determine whether it is defamatory, and it must be construed as it would be by an average in- telligent reader. In the paragraphs of the article preceding the offending sentence, it is re- vealed that the amount of the judgment was $746,234, representing the losses. caused by the illegal dividends, plus interest, less a sum paid by another de- fendant; that the aggregate losses were $569,471; that the corporation was capitalized at $750,000; and that the dividend referred to in the quoted sen- tence was voted on Dec. 3, 1927. The sentence complained of is a part of the news item, of which the fol- lowing is also a part, found in the headnotes: "Defendant Was Found Liable for Payments Out of Capital, Voted Against Law." Then follow the facts, figures and different items which go to make up the news article purported to be taken from the judgment rendered against the plaintiff herein, and fur- ther enumerate the times and dates when the court found the plaintiff had voted to pay dividends out of capital which caused the said loss of $569,471. No complaint is made to any other part of the article which certainly would be libelous, if not true. In setting down one of the times when the plaintiff herein was found to have voted dividends out of capital, the writer apparently set down incorrect figures, which this plaintiff claims libeled him. There is no dispute, however, that on this occasion plaintiff did violate the law by his action. His complaint is, apparently, that the figures are not correct. I am unable to see how these incorrect figures libeled the plaintiff herein. They do not aggravate or add to the article in question; nor do they add anything to it by way of libelous matter. Certainly if the entire article is not libelous, then this single sentence is not. Even if it is assumed that the sen- 139 tence in question is susceptible of the meaning which the plaintiff ascribes to it, the balance of the article does not make this meaning. The article which is admittedly true reiterates the meaning of the sentence in question. It seems clear to me that the sentence which the plaintiff objects to is at variance with the preceding material, because such a result, as outlined in the sentence, could not follow even if the entire dividend was out of capital, un- less the capital previously had been impaired, a fact rebutted by the sense of the entire article. And it becomes quite obvious that the sentence itself is in- correct by what follows. In the remaining paragraphs five additional dividends are described as having been voted after the first, aggregating $440,000. This sum, it will be noted, equals many times the $93,000 of assets described as remaining after the first dividend, and the conclusion is inescapable that the sentence complained of is an error which becomes immaterial in the light of the entire article. As the court stated in the Schwimmer case [15o Misc. 562, 271 N.Y.S. 85], supra: "Any one reading the first sentence quoted will al- most certainly read the two following. Taken together, they do not form suf- ficient basis for action, even though the first sentence be assumed false. The article must be taken as a whole in order to determine whether it is defama- tory." GUNDER V. NEW YORK TIMES CO., 37 Fed. Supp. 911 (1941) Publishing the wrong photograph over the name of an individual will, presumably, libel both persons in the case. This is one of the most frequent hazards of news editing, and although due care in the editing process is the only safeguard against such an accident, the pressure of getting a daily news- paper to press, the mix-up of "cuts" in the composing room even after page proofs have been checked, and dozens of other mechanical factors involved in production of the edition may cause the error. Courts may be particularly sympathetic in such situations, but they cannot accept these explanations as absolving the publication from liability.* In a typical instance, where the name of a penitentiary inmate was used under the picture of a well-reputed citizen, Judge Montgomery of the Ohio Court of Appeals reviewed the per- tinent legal authorities in overruling a trial court's judgment in favor of the newspaper. It is contended by defendant in error that under conditions confronting publication of newspapers in modern times, the publisher cannot be held to such strict accountability because of the manner in which news is and must be obtained and published. It is to be noted that this decision of the United States Supreme Court, in the case of Peck v. Tribune Co. was rendered as late as 1909, yet Mr. Justice Holmes therein quotes with approval the doctrine of Lord Mansfield, to wit: "Whenever a man publishes, he publishes at his peril." Proceeding further to discuss this proposition, Justice Holmes says: "If a * Whether such incidents may come under the protection of "honest mistake" libel laws, discussed in the note to Ch. 6, is at present merely hypothetical; see pp. 239241. Libel: Special Aspects 140 man sees fit to publish manifestly hurtful statements concerning an individ- ual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable if the statements are false, or are true only of someone else." The court of common pleas in the instant case suggested that the friends and acquaintances of Petransky would not be led to believe that the article referred to him, since if they had the slightest acquaintance with him, they would know that he was not an inmate of the Ohio Penitentiary. In this connection, attention is directed to the third paragraph of the syllabus in the case of Peck v. Tribune Co., supra, which is as follows: "An unprivileged falsehood need not entail universal hatred to constitute a cause of action; to be libelous a statement need not be that the person libeled has done or said something that every one, or even a majority of persons in the community, may regard as discreditable; it is sufficient if the statement hurts the party al- luded to in the estimation of an important and respectable part of the com- munity." And in this connection, attention is again directed to the opinion in the case of De Sando v. New York Herald Co. [88 App. Div. 492] wherein the court says: It is suggested, however, that persons who knew plaintiff's real name, and who read the article through, would be led to the conclusion that the article does not refer to the plaintiff. These considerations may go to mitigate the damages, but they in no sense destroy the libelous character of the act in pro- ducing the plaintiff's photograph in connection with an article which is libelous per se, and which refers to the photograph as that of the person to whom the article relates. It is pure assumption to assert that all who see it will read the arti- cle, or that all who may read it will be acquainted with the real name of the plaintiff. Many will look only at the picture and the headlines of the article, and thus associate the man whose photograph is given with an article describing him as a bandit and a murderer. PETRANSKY V. REPOSITORY PRINTING CO., 51 Ohio App. 306; o200 N.E. 647 (1935) A newspaper is at the mercy of its wire services; except in rare instances it has no practical means whatsoever of checking on the accuracy of news dis- patches gathered and written sometimes hundreds of miles from the local newsroom and presumably checked by the several editors of the news agency itself before being put on the wires. For a libelous story sent by a news agency, it is clear that the agency itself will be responsible. But should a newspaper which receives the story in good faith and which has no means of checking it be held equally responsible for a separate publication of the libel? The Florida Supreme Court thought not. The Tampa Tribune had printed an Associated Press dispatch from Washington, D.C., which was subsequently charged with being libelous. In its defense the newspaper emphasized the Layne v. Tribune Co. 141 practical impossibility of checking such stories through the local newspaper's editing facilities. It was argued that under modern conditions of newsgather- ing and news distribution, a local newspaper should not be held liable, except perhaps for special damages, for a wire story supplied to it. The court agreed; Chief Justice Davis read the unanimous opinion. The mere reiteration in a daily newspaper, of an actually false, but appar- ently authentic, news dispatch, received by a newspaper publisher from a gen- erally recognized reliable source of daily news, such as some reputable news service agency engaged in collecting and reporting the news, cannot through publication alone be deemed per se to amount to an actionable libel by in- dorsement, in the absence of some showing from the nature of the article published, or otherwise, that the publisher must have acted in a negligent, reckless, or careless manner in reproducing it to another's injury. This is in harmony with the theory that under the ancient rules of the common law, one who heard a slander was not liable for repeating it, if he did so in the same words, and at the same time gave in publishing it, his authority for the statement made. That such was the ancient rule of the common law was because of an implied rebuttal of any presumption of malice in such cases. And such implied rebuttal of a presumption of malice, on principle as well as authority, should extend to all matters of ordinary news simply re- peated or republished in a newspaper, where they are not plainly of such nature as to warrant a legal inference of malice through presumptive adoption of another false statement as the publisher's own. But this does not mean that words so published may not in many cases be of such character that on their face, a reiteration or republication of them would amount in law to such an enforcement of them as to render their restatement or republication libelous per se where the published matter later proved to be false. The modern daily newspaper is an institution of news dissemination that was unknown to the early common law. Hence the common-law rules relating to ordinary newspaper publications of libelous words had reference only to those matters of which the newspaper publisher purported to stand sponsor for the truth of. In ancient times, as now, the press was an effective agency commonly employed to push forward those whom it elected to favor, and to do harm to those whom it had disapproved. For this reason the power of newspapers when they came into being was justly feared, and strict rules of law were promptly announced by the courts to redress and punish wrongs deemed to have been maliciously committed by them, through the publica- tion of false and defamatory statements affecting persons in their reputation, professions, or businesses. None of these strict rules, however, was intended to take into account or to have any bearing upon present-day phases of news dissemination, represented by the ordinary news columns of a modern news- paper. Freedom of the press has long been a stated constitutional guaranty, yet it has always been held from an early date that the constitutional guaranty of "freedom of the press" did not secure to libelers immunity from civil or crimi- nal prosecution, but was simply intended to secure to the conductors of the Libel: Special Aspects 142 Wood v. Constitution Publishing Co. 143 press the same rights and immunities, and such rights and immunities only, as were enjoyed by the public at large. That such conception of the law of libel should still be applied to original compositions and published statements of which newspaper publishers made themselves the responsible originators or authors is not to be denied. But with purely news items, simply reproduced from apparently reliable sources of information, without carelessness or recklessness in their publica- tion, and without any showing of malice or intent to do harm to the individ- ual written about, where no special damage is alleged or shown, the legal situation is different. No newspaper could afford to warrant the absolute au- thenticity of every item of its news, nor assume in advance the burden of specially verifying every item of news reported to it by established news- gathering agencies, and continue to discharge with efficiency and promptness the demands of modern necessity for prompt publication, if publication is to be had at all. .. In reprinting in its news columns matters of reported news items broadcast by such established news agencies as the Associated Press, Universal News Service, and the like, a newspaper is simply acting as a local "screen" from which is reflected, without any authorship of its own, dispatches composed and sent out by others. That such is the situation is so well known and gen- erally acknowledged that the courts . . . must take judicial notice of the practice. And taking judicial notice of the practice, the courts must apply to the new condition, which the practice has brought about, a rule of reason with respect to legal presumptions that would otherwise flow from the publi- cation of libelous matters such as occasionally creep into the best regulated agencies for collecting and disseminating the news. We hold, therefore, that a declaration for libel predicated upon the alleged publication of a false news dispatch as to which neither the publisher, nor his agents, may be regarded as the author, must show either wantonness, reckless- ness, or carelessness in its publication, or be counted upon as a libel per quod, in order to set up a good cause of action. LAYNE V. TRIBUNE Co., 108 Fla. '77; 146 So. 234; 86 A.L.R. 466 (1933) Despite the learned argument and review of both historical and con- temporary factors involved, the Layne case has not been followed in any other jurisdiction in the United States. On the contrary, all other courts have ad- hered to the ancient rule that everyone who repeats a libel is separately open to suit. The Atlanta Constitution several years after the Layne decision published an Associated Press dispatch from Gulfport, Miss., which was subsequently charged with being defamatory. The circumstances were almost identical with those of the Tampa Tribune case; the newspaper had no practical means of checking on the wire story and published it in good faith. But Judge Stephens of the Georgia Court of Appeals maintained, in a two-to-one de- cision: Libel: Special Aspects 144 The law does not recognize as privileged the repetition of an untruthful and libelous statement on the ground that it was communicated to the person making the statement by an authority having a reputation for truth and ac- curacy. While the Associated Press no doubt deserves all that is said for it as being a trustworthy, honest, and accurate news-gatherer, a newspaper, in pub- lishing Associated Press news reports, cannot justify itself as publishing a privi- leged communication, or otherwise, on the ground that the Associated Press is a trustworthy, reliable, and truthful organization for the gathering and dis- semination of news. The publication of the alleged libelous article is therefore not privileged as having been received by the defendant from the Associated Press. . It appearing without dispute from the evidence that the alleged libelous article was not privileged as being a fair and honest report of court proceed- ings, or as being a truthful report of information received from any arresting officer or police authority, the court erred in giving in charge to the jury the law with reference to what constituted a privileged publication. WOOD V. CONSTITUTION PUB. CO., 57 Ga. App. 12 3; 194 S.E. 760 (1937); aff. 187 Ga. 377; 200 S.E. 131 (1938) 9. In general, a civil action for libel will not lie when the defamation is against a group rather than against a specific individual. Foregoing cases in Chapter IV have emphasized that the person bringing a civil action for libel (1) must be a specific individual and (2) must be identified in some manner in the defamatory publication. The rule may be stated conversely thus: courts usually will not sustain a civil action for libel against groups. There are certain distinctions, however, between so-called "group libel" and identification of specific individuals. In the first place, cer- tain racial and religious groups, feeling themselves to be minorities which were occasionally maligned in the mass but injured individually by reason of their membership in the group, have sought to have courts or legislatures rule that individual members might, under clearly defined circumstances, re- cover personal damages for defamation of a general body of persons. In the second place, individuals have found themselves included in a group which was made the object of criticism or attack, and have maintained that they were injured because they individually were not guilty of the practices or attributes of the group which was being criticized. Examples of this latter issue are given below, but in neither the first nor second cases have the courts or legislatures as yet been widely disposed to grant relief.* The Chicago Daily News published an article headed, "Capital Sedition Trial Shows True Despicable Nature of Fascism." The article included the * See Beauharnais v. Illinois, p. 15 5 below. Latimer v. Chicago Daily News statement that the defendants were represented by "as craven a group of lawyers as I've seen, not excluding the nickel and dime shysters who used to hang around the racket court on S. State St. as staff attorneys for the gambling and vice syndicate." One of the lawyers in the group representing the defendants in the sedition trial sued for libel. Justice Feinberg of the Illinois Appellate Court upheld a judgment for the newspaper. The defendant's theory is that none of the plaintiffs are identified in the group, and that no right of action accrues to any individual not named in the article or identified therein with certainty. We have considered the several questions raised by the plaintiffs and regard the controlling question to be, whether or not a derogatory article, written about a group, permits a right of action to one or more of the group who are not identified in the article, if the article cannot be said with certainty to include all in the group. In determining whether the article in question clearly includes all of the group referred to, we must consider the article in its entirety and not merely that portion of the article above quoted and relied upon to be libelous per se. The article states that the reporter writing it had been in attendance several weeks upon the sedition trial in Washington, where "the scum of political gangsterdom . . . are represented by as craven a group of lawyers . . ." This language, standing alone, does not indicate which of the defendants he regarded as "the scum." Which of the lawyers represented those particular defendants is not clear nor are they identified in any way. When read in connection with the further language in the article-"There are despicable characters among the defendants"-it would clearly indicate that the writer did not mean to brand all of the defendants as "despicable" and did not intend to refer to all of the defendants as."the scum of political gangsterdom." If, then, all of the defendants were not included in the char- acterization of "scum," we cannot with any more certainty determine who were the lawyers representing the defendants included in that term. That is not clear from any of the language in the article and cannot be held applica- ble or referable to any of the plaintiffs in the instant case. The indicated controlling question upon this record has not before been passed upon by courts of review in this state, but ample authority may be found in other jurisdictions, which sustains the position of defendant that an article such as this, directed against a group but not deemed to include all constituent members of the group, does not give plaintiffs a right of action for libel. Noral v. Hearst Publications, Inc., 40 Cal. App. 348, 104 P. 2d 860; Service Parking Corp. v. Washington Times Co., 67 App. D.C. 351, 92 F. 2d 502. No innuendo, under such circumstances, can render certain the identity of the plaintiffs, which is otherwise uncertain in the article. LATIMER V. CHICAGO DAILY NEWS, 330 Ill. App. 295; 71 N.E. 2d 553 (1947) 145 The Salem Capital Journal published the following story: Slickers Work Radio Racket Established radio dealers and repair plants in the city are becoming alarmed over what appears to be a "radio racket" which causes owners to lose their sets and much embarrassment upon the part of the dealer. "The common practice of these slickers is not to operate from any established shop but just give a phone number to call and offer free pickup service," ac- cording to Ray Moore, 3720 Portland Road, who has had personal experience along this line. "In most instances the name is not listed and since it is impractical to properly service most radios in the home the set is taken away and that is the last the owner sees of his radio. .. ." The plaintiffs claimed that they operated the only radio repair service with free pickups in the community and hence were specifically identified. By a three-to-two decision* the Oregon Supreme Court held that the question of whether there was sufficient identity of the individual plaintiffs to take the case out of the realm of group libel was for the jury to decide; Justice Lusk went on to observe of group libel: The defendants say that innuendo may serve to explain precedent matters but never to establish a new charge or enlarge or change the previous words, citing Peck v. Coos Bay Publishing Co., 122 Ore. 408, 259 P. 307, and Cole v. Neustadter, 22 Ore. 191, 29 P. 550. This, of course, is true, and, if this were a case in which the plaintiffs had alleged facts in their complaint which showed that the article did not apply to them, or if the article itself were susceptible of such a meaning, it would avail them nothing to allege, in the language of the statute, that the defamatory matter was published or spoken concerning them. Innuendo, however, may be "properly used to point the meaning of the words alleged to have been spoken, in view of the occasion and circumstances, whether appearing in the words themselves, or extraneous prefatory matters alleged in the declaration." McLaughlin v. Fisher, 136 Ill. Il., 116, 24 N.E. 60, 62. "Such an innuendo does not extend the meaning of the defamatory matter; it only points out the particular individual to whom such matter does in fact apply. The decision of the jury on the point is prac- tically conclusive." Odgers, op. cit., p. 125. Here the extraneous prefatory mat- ter which justified the claim, so far as the complaint is concerned, that the words were printed of and concerning the plaintiffs, is the allegation that the plaintiffs were the only persons in the city of Salem engaged in the radio repair business who maintained a free pickup service and who advertised said service in the manner described in the article. And the proof tended to sup- port that allegation. The defamatory article here under consideration was . . . "directed toward a restricted subdivision of a particular class," that is to say, toward every per- * The two dissenting justices maintained that the article did not identify the plaintiffs sufficiently to provide a valid cause of action, and that the newspaper's publication of the story performed a valuable public service in warning readers about general practices for which they should be on guard. 146 Libel: Special Aspects Service Parking Corp. v. Washington Times Co. son in the city of Salem who carried on the business of repairing radios in the manner described in the publication; and, under the authorities cited, ev- ery member of the group, if there were more than one, as to whom the charges were false, would have a right of action against the defendants. And, on the evidence before us, the truth of which must be deemed conceded, the plaintiffs were the only persons in the city of Salem to whom the article was applicable. The evidence would justify a finding that it not only hit the plain- tiffs but was aimed directly at them. MARR V. PUTNAM, 196 Ore. 1; 246 Pac. 2d, 509 (1952) The Washington Times published a story with these headlines: Parking Lot Racket Probe Ordered Here Major Brown Says Chiselers Renting Space Move Cars to Streets; Even Pay Fines A corporation engaged in operating parking lots in the city sued for libel, claiming that it was identified by this story as a business engaged in a "racket" and run by "chiselers." The trial court directed a verdict for the newspaper. Associate Justice Stephens of the Federal Circuit Court of Appeals affirmed the ruling. Newell, Slander and Libel (4th Ed. 1924) 5220, pp. 262-263, expresses it: Where defamatory matter is published against a class or aggregate body of persons, an individual member not specially included or designated cannot maintain an action, for this among other reasons that the body may act very corruptly or disgracefully, and yet the individual may have been in the minority and may have opposed measures alluded to; but where many individuals are severally included in the same attack, whether by the language of the satirist or the pencil of the caricaturist, the plaintiff is none the less entitled to redress because others are injured by the same act. But the words must be capable of bearing such special application to the plaintiff . . . Thus in Comes. v. Cruce, 85 Ark., 79, 107 S.W. 185, 14 Ann. Cas. 327, the defamatory article in giving an account of a murder attributed the same to fraudulent and illegal practices of persons in the community engaged in growing grapes and making wine. It charged that they sold adulterated wine and hard liquor at "wine joints." The plaintiff asserted that he was engaged in growing grapes and making wine in the community in question. There were a large number of such persons. The Supreme Court of Arkansas, af- firming a trial court's ruling that a complaint embodying such facts was de- murrable because the article pleaded insufficiently identified the plaintiff, said: There is no language in the writing which individualizes the appellant unless it be the following: "The first trouble which led up to the killing occurred in one 147 of these joints, so we understand." But this language alone contains nothing libelous, and, when connected with other parts of the article, it does not appear that any individual was referred to as having violated the law, or that the busi- ness of any individual, as distinct from a class, was specified as being illegal and obnoxious to the penalties denounced by the law against those who sell adul- terated wine. The publication, as a whole, affects only a class, and no malice or ill will of any kind could be legitimately construed to be indulged toward any individual of that class and directed towards him. There being nothing in the article that by proper inducement and colloquium can be given personal applica- tion to appellant, the court was correct in holding that no cause of action was stated [85 Ark. 79, at page 83, 107 S.W. i85, at page 186]. Again, in Louisville Times v. Stivers, 252 Ky. 843, 68 S.W. (2d) 411, 97 A.L.R. 277, the article complained of was disparaging to "the Stivers clan," as a member of which the plaintiff sued. The Kentucky Court of Appeals, reversing a judgment for the plaintiff said, quoting from 17 R.C.L. S127, p. 375: It seems that where the class or group in question is a very large one and there is little or nothing said or written which applies to the particular person who brings his action, the right of recovery will be denied [252 Ky. 843, at page 847, 68 S.W. (2d) 411, at page 412, 97 A.L.R. at pages 279, 280]." On the other hand, in Weston v. Commercial Advertiser Ass'n, 184 N.Y. 479, 77 N.E. 660, the article complained of charged that the New York City coroner's office was graft-ridden, and described methods allegedly used by the coroners and their physicians to extort funds from the public. There were four coroners and each had a physician assistant. Holding that one of the four physicians could maintain an action, the Court of Appeals of New York said: Very likely an article which stated in general terms that all the coroners in the state were a bad and corrupt lot would not be libelous as against some in- dividual who happened to be a member of the office somewhere. Upon the other hand, if an article stated in so many words that every one of the four coroners and of the coroners' physicians at a given time occupying office in the city of New York was corrupt and took bribes, we apprehend that there would be no serious controversy over the proposition that any one of those individuals might maintain an action. The question here is whether the article complained of is analogous to the first or to the last article assumed. It seems to us more nearly akin to the last one, and certainly it would be within the province of the jury to give such meaning, construction, and application to the language used as would bring it within the principles permitting this action to be maintained [184 N.Y. at 479, 485, 77 N.E. at 660, 662]. The rule thus stated by the courts and text writers represents, undoubt- edly, what has been regarded as a sound compromise between the conflicting interests involved in libel cases. On the one hand is the social interest in free press discussion of matters of general concern, and on the other is the indi- vidual interest in reputation. The courts have chosen not to limit freedom of 148 Libel: Special Aspects Cook v. East Shore Newspapers public discussion except to prevent harm occasioned by defamatory state- ments reasonably susceptible of special application to a given individual. SERVICE PARKING CORP. V. WASHINGTON TIMES Co., App. D.C. 92 Fed. 2d 502 (1937) 10. Malice in fact will invalidate any defense to libel. It is rare today for a newspaper or other publication of general circulation to be guilty of calculated spite against someone libeled in a news story. This was more often the case in the days of "personal journalism" which was not only "personal" in the sense of a newspaper's being associated with the name of a great editor but in the sense of vigorous name-calling and attacks upon personalities in the editor's columns. However, express malice or malice in fact (as distinguished from malice in law which is little more than a vestige and a technicality in pleading) may be inferred from the circumstances in which a libelous publication was prepared and produced. Although the pub- lication and its personnel may not even know the individual who is libeled, the law will assume that the failure of the newspaper to verify the particular statement upon which the defamation rests is due to a willful disregard of the rights of the individual generally. If it is established to the satisfaction of the court that malice has played an active part in the commission of the libel, the fact will almost always destroy whatever defense the publication tries to set up. The political reporter for a group of Illinois newspapers happened on a story which charged a state district judge with forcing a court employee to "kick back" part of her salary to the judge in return for the political patronage which resulted in her employment. The employee, following her discharge, had prepared but had not signed a formal statement alleging the "shake- down." The. reporter obtained the torn copy of the statement by tipping the janitress to allow him to get the material from a wastebasket in the office of the lawyer who had first mentioned the story. The copy was pasted together in the newspaper offices. Believing that they were on the trail of a major news beat, the paper's staff went into action, contacting the former court employee and persuading her to go to the state capital in a car provided by the publication to consult with the state attorney general. The paper arranged for a new affidavit to be prepared which the ex-employee signed and swore to; on the assumption that the attorney general's office would proceed with an investigation, the paper and its associated publications "broke" the story with the publication of the affidavit. However, no investigation was held. The judge named in the story thereupon brought a libel suit, charging express malice on the part of the as- 149 sociated newspapers. Justice 0Bartley of the Illinois Appellate Court read a unanimous opinion upholding a judgment of $20,000 damages against the newspaper. Malice is the gist of the action of libel. The differentiation between things which are malice per se, that is, in themselves, and those which are actionable per quod, is that in those words which are actionable per se, damages need not be specially proven and malice will be implied, whereas in those words which are actionable per quod only, malice and damages must be proven . The existence of malice may be inferred. Actual malice may be inferred from falsity, absence of proper cause, or other relative circumstances, or it may be deduced from the libel itself; or from the communication of which it forms a part. All circumstances surrounding the transaction are proper for consideration, including the failure to make a proper investigation . . . As has hereinbefore appeared, the defendants were the moving forces in the events leading up to the publication of the libel. No investigation of the facts was made, but the statements of a discharged, disgruntled employee were accepted by them as being true. The evidence showed that they did not know Judge Cook other than who he was, and they were content with the issue simply by publishing his denial and making the charges without further investigation. Judge Cook had lived in East St. Louis practically all of his life and had lived at the same address for more than 20 years. He had been elected City Judge by the people of East St. Louis; his father before him had been City Judge. The newspaper in which the alleged libelous statements were published consisted of o0 pages. Five-eighths of the front page was devoted to the subject matter of the alleged libel. The headlines of Mrs. Kelly's affidavit and the ar- ticle in which [were] the direct charge of "Judge selling jobs-" and the like, extended across 5 columns of the 8-column newspaper. The headlines across the 5 columns were: First line, "Shakedown Charges Against"; second line, "Judie Cook Made by Widow." The capital letters in the headlines were in 72 Cheltenham size type; were in upper case letters; and were 5/ths inch in height. The sub-headlines, "Employee Says Payment Made to Keep Job," were in 48 point type. Mrs. Kelly's affidavit was 3 columns wide and ex- tended downward about a foot in length. The newspaper print of the pub- lication was that ordinarily used by newspapers. The lead paragraphs were in type slightly larger than the ordinary type used. Below Mrs. Kelly's affidavit appeared a picture of Judge Cook with a notation over it of "Charged," and 3 columns were devoted to his denial of Mrs. Kelly's accusation. Across the top of these three columns were the words: " 'G D- Liar,' Cook says in Flat Denial." These were in letters about 7/6ths inch in height. In all, %ths of the front page of the paper was devoted to the subject matter, and in addition thereto about %/ths of the second page, which was devoted to news. On this second page appeared a 2-column picture of Mrs. Kelly under the heading of "Makes Shakedown Charges." The articles were run with headlines in type 1th and 5/16ths inch in height. They are: "Mrs. Kelly and Judge Cook Were High School Companions"; "Widow Ready to Lose Job for Sake of Justice." Libel: Special Aspects 150 The population of East St. Louis, according to the 1930 census, was 74,347. There were printed 14,609 copies of the Journal containing the alleged libel- ous articles; 12,815 were distributed in East St. Louis; 1,794 were distributed outside of East St. Louis. As before stated, the officers and employees of the defendant publisher's newspaper who testified in the cause, all said that none knew Judge Cook before the publication other than to know who he was. About one-half of page 3 of the newspaper was devoted to news, and the other to ads. The 4th page consisted of the editorials of the newspaper and feature articles by special writers. Page 5 was the society news, including some ads. Pages 6 and 7 were the sport news. Page 8 consisted of comics and a crossword puzzle. Page 9 was classified advertisements, and Page 1o was photo- graphs. The matter was handled all out of proportion to any news value or any reasonable construction of fair comment and criticism. As before stated, page 4 was set aside as the editorial column. This is the place ordinarily used by newspapers for comment and criticism, and not the lead paragraphs of alleged news stories. We conclude the trial court was right in its conclusion that the defendants were guilty of malice in fact. CooK v. EAST SHORE NEWSPAPERS, 327 Ill. App. 559; 64 N.E. 2d 751 (1945) A Georgia newspaper printed an article in which the plaintiff charged that he was made to appear to be a member of a "subversive group." The article was in general an accurate report of a court case, but the plaintiff insisted that the newspaper's failure to print the statement that the plaintiff's membership in the group was made "upon information and belief" of the witness testi- fying was evidence of express malice. Judge Gardner of the Georgia Court of Appeals held that although there was no other liability in the story, it was for the jury to decide whether the omission of these words was evidence of intent to misrepresent the plaintiff as being a member of the "subversive group." The publication of untrue statements which may tend to injure the reputa- tion of another and expose him to public hatred, contempt, or ridicule, is presumed to have been malicious until sufficient evidence rebuts that pre- sumption. "In all actions for printed or spoken defamation, malice is inferred from the character of the charge. The existence of malice may be rebutted by proof, which in all cases shall go in mitigation of damages, and in cases of privileged communications it shall be in bar of the recovery." Code, Sec. 105-706. When language used is actionable per se, malice is implied, except where the utterance is privileged. Lack of malice in cases of privileged communica- tions will prevent recovery. . . . While the article alleged here to be libelous as appears from the petition, as amended, constitutes a fair and correct report of the allegations of the petition in the suit against the plaintiff and the oth- ers in said U.S. Court in Valdosta, it is alleged that the same was maliciously Shiver v. Valdosta Press 151 published by the defendant as a cloak for "venting private malice" against the plaintiff. While it is not charged by the plaintiff that this article contains statements not embodied in the allegations of the petition in the suit filed in said federal court and on which the newspaper article was based, while on its face the article shows that the reporter was either merely quoting from the federal court petition verbatim or was repeating the substance of the alle- gations thereof, such article would not constitute a privilege, if the defendant acted with express malice and a desire to injure the plaintiff and expose him to public hatred, contempt and ridicule in the publication of the article in its newspaper. The petition, as amended, so charged, and the special demurrers were overruled and no error assigned here thereon. It is true that newspapers are not originally held to the exact facts or to the most minute details of the transactions they publish; what is usually re- quired is that the publication shall be substantially accurate; and if the article is published by the newspaper in good faith and same is substantially accurate, the newspaper has a complete defense. But this is not true where express malice is charged generally and the overruling of the special demurrers is not excepted to in this court. A newspaper is required to exercise due care in gathering and publishing news. See 39 Am. Jur. 19. There is no privilege as to judicial proceedings where the report published is not accurate and correct, or where the same is not done in good faith but with an express desire to vent "private malice" on another. See Wood v. Constitution Pub. Co., 57 Ca. App. 123, 194 S.E. 760, affirmed 187 Ga. 377, 200 S.E. 131; Atlanta News Pub. Co. v. Medlock, 123 Ga. 714, 51 S.E. 756, 3 L.R.A., N.S., 1139; At- lanta Journal Co. v. Doyal, 82 Ga. App. 321, 6o S.E. 2d 802. SHIVER V. VALDOSTA PRESS, 82 Ga. App. 406; 61 S.E. 2d 221 (1950) The Atlanta Journal published a story containing testimony in a divorce proceeding. In the testimony the plaintiff was named as one of a group of "gamblers" who frequented the home of the parties in the divorce case. The plaintiff charged that the statement in the testimony was false and that it had in fact been ruled out as hearsay. The newspaper's failure to report this was cited as evidence of malice in fact. Judge Townsend of the Georgia Court of Appeals, affirming in part and reversing in part a lower court ruling against the newspaper, agreed that if a reporter had malicious objectives in writing a story his newspaper would incur liability, and whether this was the case was for the jury to determine. It should be further noted that, should the jury find the report to be fair and honest, they would then consider the evidence in the case regarding malice on the part of the defendants for the purpose of deciding whether or not the privilege extended the publisher of the libelous material was used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege was granted. Code, S105-710. The only effect of privilege is to require the plaintiff to prove actual malice. If the jury Libel: Special Aspects 152 finds that such actual malice exists, punitive damages may be awarded under this theory . Aside from the general averment that the article was maliciously published, paragraph 22 of the petition contains the following specific allegation: "That the defendant Nix wrote said article, well knowing same was untrue, for the spiteful and malicious purpose of destroying petitioner's reputation and exposing him to public hatred, contempt and ridicule. On the 7th day of November, 1949, after a meeting of the Fulton County Commissioners, de- fendant Nix stated to petitioner that he would put petitioner in his grave many years before his time with the articles he would write about petitioner in his paper, meaning The Atlanta Journal." By amendment the following is added: "That at the time defendant Nix made said statement to petitioner, Nix was in the course of gathering news to defendant The Atlanta Journal Company and was acting within the scope of his authority and employment by said company. In making said statement defendant Nix was acting within the scope of his authority and employment." This allegation is sufficient, as against general and special demurrer, to show malice on the part of Nix under the above rules. It is sufficient to show that he acted as agent of the news- paper in gathering news. It is also sufficient as a basis for the allowance of punitive damages, which are properly allowed in cases involving malice or wil- ful misconduct. The question next arises whether it is sufficient to impute malice to the principal, the Atlanta Journal Company. It is recognized that a corporation can act only through its agents, and that the malice of one hav- ing the direction and control of the corporation is, in contemplation of law, the malice of the corporation. Few cases have been found which deal with the exact point of imputation of malice in libel cases, but the general rule was formerly that the malice of one defendant in a libel suit cannot be imputed to the codefendant without connecting proof. See Krug v. Pitass, 162 N.Y. 1 4, 56 N.E. 526, 76 Am. St. Rep. 317; Egan v. Dotson, 36 S.D. 459, 155 N.W. 78;, Ann. Cas. 1917A, 296; Robertson v. Wylde, 2 Moo. & Rob. 191; Clark v. Newsam, 1 Exch. 131; Stevens v. Sampson, ~ Ex. D. 56; Odgers, Libel and Slander, p. X69. The American cases above cited seem to follow the earlier English rule laid down in Clark v. Newsam and Robertson v. Wylde, supra. However, in England the doctrine has been broadened, and it has been held in more recent cases that the malice of the agent is imputable to the prin- cipal so as to deprive the defendant of the defense of privilege, in which case he would have to rely upon a plea of justification to prevail. See Citizens Life Assurance Co., Ltd. v. Brown, A.C. 423; Finburgh v. Moss' Empires, Ltd., S.C. 928; Fitzsimons v. Duncan, 2 Ir. R. 483. In the Duncan case it was held as follows: "In the present case Duncan in the course of his authorized employment took advantage of the opportunity to gratify his personal malice, yet between them the libel was published so as to inflict the wrong, and thereby damage was caused to the plaintiff, and each and every one con- cerned in the common transaction is liable to the plaintiff in libel." In America, the Pitass case was later discussed and limited to the facts set out in that case in the decision of Crane v. Bennett, 177 N.Y. o106, 69 N.E. 274, 101 Am. St. Rep. 722. The history of the evolution of this rule there- Atlanta Journal Co. v. Doyal 153 fore seems to be that our American courts in Krug v. Pitass, supra, and Egan v. Dotson, supra, were following the English rule as originally laid down that malice cannot be imputed in libel cases. The limitation of the Krug case by the Crane case, supra, and the modification of the rule by the English courts to the effect that such malice is imputable establishes the later rule as the bet- ter authority in this country. ATLANTA JOURNAL CO. v. DOYAL, 82 Ga. App. 321; 6o S.E. 2d 802 (1950); aff. 84 Ga. App. 122; 65 S.E. 2d 432 (1951) * The intent of the publisher of the libel is immaterial-it is the effect of the published defamation which determines the existence of liability. The Augusta Chronicle published a photograph showing an attractive young woman seated with a baby in her lap. The name under the picture was that of a prospective bride-to-be. It was alleged that the picture was defamatory since :it was not a picture of the plaintiff but those who saw the picture and did not recognize that it was-not a picture of the plaintiff would infer that she actually was the mother of an illegitimate child. The plaintiff further alleged that al- though written notice of the damaging publication had been made to the newspaper in accordance with the state's "honest mistake" libel law, no adequate retraction had been published. Judge Felton of the Georgia Court of Appeals read a four-to-two opinion affirming the judgment against the newspaper, although the dissenting jurists insisted that any reasonable person would have recognized that the publication had made an error. Counsel for the defendant insist that the plaintiff must have alleged that the defendant intended the publication to be understood in the guilty sense attributed to it by the plaintiff. We do not apprehend this to be the law. "The sense in which the publisher meant the language cannot be material. The dicta which apparently sanction such a rule will, on comparison with their context, be found in reality to be, not what did the defendant mean, but what properly he may be taken to have meant. How might the language be understood by those to whom it was published? It cannot, therefore, be cor- rect to say that the language is to be construed in the sense in which the pub- lisher intended it to be understood. When a party has made a charge that clearly imputes a crime, he cannot afterwards be permitted to say, 'I did not intend what my words legally imply.'" Townshend, On Slander and Libel (2d Ed.), S139, p. 176. "In an action for defamation it is immaterial what meaning the speaker intended to convey. He may have spoken without any intention of injuring another's reputation, but if he has done so he must compensate the party. He may have meant one thing and said another; if so he is answerable for so inadequately expressing his meaning. If a man in jest * Atlanta Newspapers v. Doyal, 84 Ga. App. 122; 65 S.E. 2d 432, is an interesting tech- nical case growing out of the appeal sited above. In it the court ruled that although a newspaper corporation is reorganized while a libel suit is pending against it, the new cor- poration assumes the liabilities of the old. Libel: Special Aspects 154 conveys a serious imputation he jests at his peril. Or he may have used ambig- uous language which to his mind was harmless, but to which the bystanders attributed a most injurious meaning; if so he is liable for the injudicious phrase he selected. What was passing in his own mind is immaterial save in so far as his hearers could perceive at the time. Words cannot be construed according to the secret intent of the speaker. 'The slander and the damage consist in the apprehension of the hearers.' " Newell, Slander and Libel (4th Ed.), $264, p. 301. "Intent, except as a part of express malice, is immaterial in libel. When the press issues a story, it accepts full responsibility for any er- ror or mistake which results in injury to reputation. According to the opin- ion stated in Hatfield v. Gazette Printing Co., lo3 Kan. 513, 175 P. 382, 3 A.L.R. 1276, 'the law looks to the tendency and consequences of a publi- cation, rather than to the intention of the publisher.' " Under the rule applicable to such cases the intention of the author of the allegedly libelous matter does become a material and essential ingredient and it is necessary that the plaintiff aver that the defendant exceeded his priv- ileges in that the publication was not merely for the purpose of protecting the defendant's interest, but that the defendant made the publication with the intention of injuring the plaintiff by either imputing to him a crime, subject- ing him to public hatred, contempt or ridicule, or with the intention of in- juring him in his business, trade, or profession. . Where words are clear and unambiguous, they will be construed in their ordinary and natural sense, and the court will hold as a matter of law that they are not libelous. However, it would seem that the courts have extended the rule, with regard to the necessity of alleging the intention of the author of the allegedly libelous matter, to include those situations where though the words are clear and unambiguous they are used with a covert meaning and the au- thor intended them in such covert sense, for as said in Giddens v. Mirk, 4 Ga. 364 ". . . it is impossible for a man to slander in one sense and defend in another; to cover vituperation under irony, untechnical hints, covert in- sinuations, or any form of words, which skillfully avoiding a legal definition of crime yet communicate the poison of slander." Under such circumstances it becomes necessary to allege and prove that the defendant intended the ap- parently harmless words in the covert sense. The instant case, however, does not come within that class of cases. In this case there is more than mere un- ambiguous, innocent, words. There is the portrait and the portrait with the words result in an ambiguous imputation, and where there is ambiguity it is for the jury to say whether or not the persons reading the publication under- stood it in its criminal or innocent sense. SOUTHEASTERN NEWSPAPERS V. WALKER, 76 Ga. App. 57; 44 S.E. 2d 647 (1947); aff. 78 Ga. App. 434; 50 S.E. 2d 81 (1948) 11. Criminal libel rests upon the tendency of a defamatory publication to disturb the public peace. Many of the elements which restrict action in civil libel are absent in crim- inal cases. Libels upon the dead are not recognized in civil actions, but they Beauharnais v. Illinois 155 may be the subject of a criminal prosecution. "Group libels" are also denied validity in civil cases, but may provide the basis for criminal action. Publica- tion need not involve a third party. Nor need the publication impute a criminal act to the individual, group or institution to give rise to a prosecution. The prime test is whether the defamation tends to disturb the public peace or, in more recent decisions, whether it is unlawful simply because it injures another. One of the most recent developments in the field of criminal libel has been the enactment of a 1949 law in Illinois which states: It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publica- tion or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. This statute was challenged as violating the guarantee of freedom of expres- sion protected from state encroachment by the Fourteenth Amendment. The issue involved a leaflet containing the statement: "If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns and mari- juana of the negro surely will." The Illinois Supreme Court sustained the conviction of the publisher under this law, and the question was then taken to the Supreme Court of the United States, which by a five-to-four ruling upheld the Illinois court. Mr. Justice Frankfurter delivered the opinion of the court. Libel of an individual was a common-law crime, and thus criminal in the colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that the crime of libel be abolished. Today, every American jurisdiction-the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico-punish libels directed at individuals. "There are certain well-defined and narrowly limited classes of speech, the prevention and pun- ishment of which have never been thought to raise any Constitutional prob- lem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest of order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, X56 Libel: Special Aspects and its punishment as a criminal act would raise no question under that in- strument.' Cantwell v. Connecticut, 310 U.S. 296, 309-31o." Such were the views of a unanimous Court in Chaplinsky v. New Hampshire [315 U.S. 568]. No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether the protection of "liberty" in the Due Process Clause of the Fourteenth Amendment prevents a State from punish- ing such libels-as criminal libel has been defined, limited and constitution- ally recognized time out of mind-directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law. It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary crim- inal libel statutes. We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is a wil- ful and purposeless restriction unrelated to the peace and well-being of the State. Illinois did not have to look beyond her own borders or await the tragic ex- perience of the last three decades to conclude that wilful purveyors of false- hood concerning racial and religious groups promote strife and tend power- fully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Lovejoy in 1837 to the Cicero riots of 1951, Illinois has been the scene of ex- acerbated tension between races, often flaring into violence and destruction. In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a sienificant part. In the face of this history and its frequent obbligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false and malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. "There are limits to the exercise of these liberties [of speech and of the press]. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish." This was the conclusion, again of a unanimous Court, in 1940. Cantwell v. Connecticut, supra, at 310. It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply imbedded in our society than the rantings of modern Know-Nothings. Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions at- tributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, Beauharnais v. Illinois 157 158 Libel: Special Aspects provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in prac- tice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial-and- error inherent in legislative efforts to deal with obstinate social issues. "The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically con- sists in little more than the exercise of a sound discretion, applied to the ex- igencies of the state as they arise. It is the science of experiment." Anderson v. Dunn, 6 Wheat. 204, 226. Certainly the Due Process Clause does not re- quire the legislature to be in the vanguard of science-especially sciences as young as human ecology and cultural anthropology. Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. Such group-protec- tion on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractly recognized as belonging to its members. It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrogant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois legislature may warrant- ably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and re- ligious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be in- extricably involved. We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party. Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. "While this Court sits" it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel. Of course discus- sion cannot be denied and the right, as well as the duty, of criticism must not be stifled. ... We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack. But it bears repeating-although it should not -that our findings that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law. Affirmed. Beauharnais v. Illinois 159 Mr. Justice Black, with whom Mr. Justice Douglas concurs, dissenting. ... This statute imposes state censorship over the theater, moving pictures, radio, television, leaflets, magazines, books and newspapers. No doubt the statute is broad enough to make criminal the "publication, sale, presentation or exhibition" of many of the world's great classics, both secular and religious. The Court condones this expansive State censorship by painstakingly anal- ogizing it to the law of criminal libel. As a result of this refined analysis, the Illinois statute emerges labeled a "group libel law." This label may make the Court's holding more palatable for those who sustain it, but the sugar-coating does not make the censorship less deadly. However tagged, the Illinois law is not that criminal libel which has been "defined, limited and constitutionally recognized time out of mind." For as "constitutionally recognized" that crime has provided for punishment of false, malicious, scurrilous charges against individuals, not against huge groups. This limited scope of the law of criminal libel is of no small importance. It has confined state punishment of speech and expression to the narrowest of areas involving nothing more than purely private feuds. Every expansion of the law of criminal libel so as to pun- ish discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment . Unless I misread history the majority is giving libel a more expansive scope and more respectable status than it was ever accorded even in the Star Cham- ber. For here it is held to be punishable to give publicity to any picture, moving picture, play, drama or sketch, or any printed matter which a judge may find unduly offensive to any race, color, creed or religion. In other words, in"arguing for or against the enactment of laws that may differently affect huge groups, it is now very dangerous indeed to say something critical of one of the groups. And any "person, firm or corporation" can be tried for this crime. "Person, firm or corporation" certainly includes a book publisher, newspaper, radio or television station, or even a preacher. It is easy enough to say that none of this latter group have been proceeded against under the Illinois Act. And they have not-yet. But emotions bubble and tempers flare in racial and religious controversies, the kind here involved. It would not be easy for any court, in good conscience, to narrow this Act so as to exclude from it any of those I have mentioned. Furthermore, persons tried under the Act could not even get a jury trial except as to the bare fact of publication. . . . Such trial by judge rather than by jury was outlawed in England in 1792 by Fox's Libel Law. ... Mr. Justice Douglas, dissenting. S. . This to me is an ominous and alarming trend. The free trade in ideas which the Framers of the Constitution visualized disappears. In its place there is substituted a new orthodoxy-an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of society. Free speech in the constitutional sense disappears. Limits are drawn 16o Libel: Special Aspects -limits dictated by expediency, political opinion, prejudices or some other desideratum of legislative action. An historic aspect of the issue of judicial supremacy was the extent to which legislative judgment would be supreme in the field of social legislation. The vague contours of the Due Process Clause were used to strike down laws deemed by the Court to be unwise and improvident. That trend has been re- versed. In matters relating to business, finance, industrial and labor condi- tions, health and the public welfare, great leeway is now granted the legisla- ture, for there is no guarantee in the Constitution that the status quo will be preserved against regulation by government. Freedom of speech, however, rests on a different constitutional basis. The First Amendment says that freedom of speech, freedom of the press, and the free exercise of religion shall not be abridged. That is a negation of power on the part of each and every department of government. Free speech, free press, free exercise of religion are placed separate and apart; they are above and beyond the police power; they are not subject to regulation in the manner of factories, slums, apart- ment houses, production of oil, and the like. The Court in this and other cases places speech under an expanding legis- lative control. Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a Negro will be haled before a court for denouncing lynch law in heated terms. Farm laborers in the West who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds em- ployment going to members of the dominant religious group-all these are caught in the mesh of today's decision. Debate and argument even in the courtroom are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intemperate speech is a distinctive characteristic of man. Hot- heads blow off and release destructive energy in the process. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of ortho- doxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today. . . . It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it repre- sents a philosophy at war with the First Amendment-a constitutional inter- pretation which puts free speech under the legislative thumb. It reflects an influence moving ever deeper into our society. It is notice to the legislatures that they have the power to control unpopular blocs. It is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says. Mr. Justice Jackson, dissenting. The assumption of other dissents is that the "liberty" which the Due Proc- ess Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical "freedom of speech or of the press" which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not "incorpo- rate" the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not. . More than forty State Constitutions, while extending broad protections to speech and press, reserve a responsibility for their abuse and implicitly or ex- plicitly recognize validity of criminal libel laws. We are justified in assuming that the men who sponsored the Fourteenth Amendment in Congress, and those who ratified it in the State Legislatures, knew of such provisions then in many of their State Constitutions. Certainly they were not con- sciously cancelling them or calling them into question, or we would have some evidence of it . Certainly this tolerance of state libel laws by the very authors and partisans of the Fourteenth Amendment shows either that they were not intending to incorporate the First Amendment or that they believed it would not prevent federal libel laws. Adoption of the incorporation theory today would lead to the dilemma of either confining the States as closely as the Congress or giving the Federal Government the latitude appropriate to state governments. The treatment of libel powers corroborates the conclusions against the incorpora- tionist theory reached by the most comprehensive and objective studies of the origin and adoption of the Fourteenth Amendment. The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms. Criminality of defamation is predicated upon power either to protect the private right to enjoy integrity of reputation or the public right to tranquillity. Neither of these are objects of federal cognizance except when necessary to the accomplishment of some delegated power, such as protection of interstate commerce. When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquil- lity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting so- cial issues. For these reasons I should not, unless clearly required, confirm to the Fed- eral Government such latitude as I think a State reasonably may require for orderly government of its manifold concerns. The converse of the proposition is that I would not limit the power of the State with the severity appropriately prescribed for federal power. ... What restraints upon state power to punish criminal libel are implied by the "concept of ordered liberty"? Experience by Anglo-Saxon peoples with defamation and laws to punish it extends over centuries and the statute and case books exhibit its teachings. If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. Oppressive application of the English libel laws was partially checked when B eauharnais v. Illinois i61 Fox's Libel Act of 1792 allowed the jury to determine whether an accused publication was libelous in character and more completely when Lord Camp- bell's Libel Act of 1843 allowed truth to be proved as a defense. American experience teaches similar lessons . Because of these safeguards, state libel laws have presented no threat to a free press comparable to that from federal sources and have not proved in- consistent with fundamental liberties. Attacks on the press by States which were frustrated by this Court in Near v. Minnesota and Grosjean v. American Press Co. were not by libel laws. For near a century and a half this Court's de- cisions left state criminal libel prosecutions entirely free of federal consti- tutional limitations.... Group libel statutes represent a commendable desire to reduce sinister abuses of our freedoms of expression-abuses which I have had occasion to learn can tear apart a society, brutalize its dominant elements and persecute, even to extermination, its minorities. While laws or prosecutions might not alleviate racial or sectarian hatreds and may even invest scoundrels with a specious martyrdom, I should be loath to foreclose the States from a con- siderable latitude of experimentation in this field. Such efforts, if properly applied, do not justify frenetic forebodings of crushed liberty. But these acts present most difficult policy and technical problems, as thoughtful writers who have canvassed the problem more comprehensively than is appropriate in a judicial opinion have well pointed out. No group interest in any particular prosecution should forget that the shoe may be on the other foot in some prosecution tomorrow. In these, as in other matters, our guiding spirit should.be that each freedom is balanced with a re- sponsibility, and every power of the State must be checked with safeguards. Such is the spirit of our American law of criminal libel, which concedes the power to the State, but only as a power restrained by recognition of individual rights. I cannot escape the conclusion that as the Act has been applied in this case it lost sight of the rights. BEAUHARNAIS V. ILLINOIs, 343 U.S. 250; 72 S. Ct. 725; 96 L. Ed. 919 (1952) The state of Washington provided in its criminal code: Every malicious publication by writing, printing, picture, effigy, sign or other- wise than by mere speech, which shall tend: . . . (2) To expose the memory of one deceased to hatred, contempt, ridicule or obloquy; . . . shall be a libel. Every person who publishes a libel shall be guilty of a gross misdemeanor. (Laws of 1909, p. 940; Rem. & Bal. Code, sec. 2424.) An article was published in a newspaper of the state vilifying the memory of George Washington. The state brought a criminal action under this statute, which was duly upheld by the state supreme court. Judge Parker of the state supreme court read a unanimous judgment. In 3 Wharton's Criminal Law (11th Ed.) sec. 1920 and 1921, we read: Writings vilifying the character of persons deceased are libels, and may be made the subject of an indictment; but the indictment in such a case must 162 Libel: Special Aspects charge the libel to have been published with a design to bring contempt on the family of the deceased, or to stir up the hatred of the people against them, or to excite them to a breach of the peace, otherwise it cannot be sustained. But there should be a limit as to time. The Roman law here offers some salu- tary restrictions for our guidance. . . . A time arises when the interests of just historical criticism demand that the liberty of speech should be unrestrained; and when, even of the most illustrious of the dead, censures the most injurious must be permitted, without penal amenability. The modern Roman law declares that this time arrives when the generation living at the death of the person libeled has passed away. ... Here we have in substance the common-law definition of such libel. That is, the publication was required to be one designed to "blacken and vil- ify the memory of one who is dead," and also one "tending to scandalize or provoke his surviving relatives or friends"; from which it might well have been argued, as is done by counsel for appellant, that there could be no surviving relatives or friends to be injured by the publication of libelous language con- cerning the deceased [Washington] when such period had elapsed after the death of the deceased that there would be no surviving relatives or friends of the deceased. . . . It seems to us that the later enactment of section 2424 . evidences a clear legislative intention to eliminate prior limitations of the law touching the publisher's intent and the injury to living relatives and friends of the deceased, as an element of the offense. So we conclude that the reasons of the common law are no longer controlling, and that under this new statutory definition of the offense it is not a question of whether the memory of the deceased is defamed to the injury of his living relatives and friends to the end that they be not provoked to breaches of the peace, but it is simply a question of whether or not the libelous publications tended "to expose the memory of one deceased to hatred, contempt, ridicule or ob- loquy." If such is the tendency of this publication and it was maliciously made, we see no escape from the conclusion that the act was an offense within the meaning of this new statute. If it be necessary to look for a reason prompting the Legislature to thus broaden the definition of the offense, we may well presume that it can be found in the conclusion of the Legislature, which clearly is within the bounds of reason, that all publications tending to defame the memory of deceased persons might have the tendency to excite some persons to breaches of the peace, whether they be relatives or friends of the deceased or others who may have a high regard for the deceased, though such regard rest only upon traditional or historical knowledge. STATE V. HAFFER, 94 Wash. 136; 162 Pac. 45; L.R.A. 1917C, 61o; Ann. Cas. 1917E, 229 (1916) A newspaper article under the heading, "The Finest of the Fine," delivered a sweeping attack upon a veterans' organization, including the following passages: The American Legion, this instrument bought with British money' to suppress the truth, to gag freedom of conscience, to beat down every free expression of 163 People v. Spielman opinion, to betray organized American labor-this American Legion demands the scalp of Police Commissioner Miller of St. Louis. Mr. Miller has in plain terms given expression to a naked truth, in that he has established the fact that the number of crimes in America show an actually fearful increase, and that in the second place, 85 per cent of all crimes must be attributed to the war veter- ans. The American Legion, as you know, goes about peddling the claim that it embodies the cream of the nation. It tries to make people believe that in itself the best and noblest elements in the American people are united. . . . Those who in the year 1917 (as already previously in the years of American neutral- ity) voluntarily took up arms, were quite other than the cream. They were sim- ply the refuse of the nation. Those who really had adopted the trade of war as a means of making a living, were indeed the best among them, and they were al- most without exception, tramps, vagabonds, and bums who did not make any specially brilliant guard for the starry banner . When the American Legion claims as its nucleus those volunteers, it is natu- rally treading upon dangerous ground, for the possibility of a relapse of those elements into their earlier pursuits is imminent, and a criminal warrant may ef- fect their undoing. The other members of the Legion were simply conscripts, S. . and when not in the immediate war zone, subjected to only loose discipline anyway, the less firm characters among them were in danger of a moral bewil- derment. The rise in crime shows that this danger has become an actuality. . Judge De Young of the Illinois Supreme Court, in upholding a judgment for criminal libel, pointed out: The words of an alleged libelous act must be taken in the sense which per- sons of common and reasonable understanding would ascribe to them, and all the words used in the article must be considered. The plaintiff in error not only charged members of the American Legion with indolence and at- tempts to obtain their livelihood by criminal means, but also accused them of crime, venality, and lawlessness. Obviously, these charges are within the statute, and the article is libelous both as to the membership of the Amer- can Legion, generally, and the individual members of that body mentioned in the second count of the indictment. ... Criminal liability or libels rests upon their tendency to provoke breaches of the peace. The libel need not be on a particular person. It may be upon a family, class, corporation, or other body. A libel upon a class or group has as great a tendency to provoke a breach of the peace or to disturb society as has a libel on an individual, and such a libel is punishable, even though its appli- cation to individual members of the class or group cannot be proved. PEOPLE V. SPIELMAN, 318 Ill. 482; 149 N.E. 466 (1925) A Montana newspaper published the following article: There can no longer be a particle of doubt that Constable Bert Christie is still acting as stool pigeon for Byron DeForest, also there is a grave suspicion that 164 Libel: Special Aspects Judge Wilson's court is strangely biased whenever DeForest is concerned in a court issue. It all works out something like this: Byron DeForest, wishing to make an at- tachment on account calls in Bert, the constable, and instructs him to go and find out who is indebted to such and such a person; after obtaining this in- formation he is further instructed to carry out the legal function of attachment, which Bert does unhesitatingly. . However, whatever the circumstances may be, Bert Christie is acting in an unlawful manner, not only in this instance, but in other cases previous to this. He has taken accounts personally for collection and then turned these accounts over to the DeForest Collection Agency, thus forming a sort of collusive part- nership between the Bad Bill Collector and the office of Constable Bert Christie. The publication was convicted of criminal libel. In upholding the con- viction, Judge Stark of the Montana Supreme Court said: The necessary inference to be drawn then is that Christie, who, according to the article, has acted in an unlawful manner in other cases and who had formed a collusive partnership with the bad bill collector, had been guilty of graft in connection with the administration of the affairs of his office of con- stable. .. From these considerations it is apparent that the article in question was libelous per se in that it tended to impeach the honesty of Christie and to impute to him a want of integrity in connection with his office, thereby ex- posing him to public contempt, from which it follows that counsel's objection that the information does not state a public offense cannot be sustained. STATE V. WINTERROWD, 77 Mont. 74; 249 Pac. 664 (1926) 265 State v. W interrowd CHAPTER VI Libel Defenses: Truth and Privilege SUPPLEMENTARY READING Ashley, Essentials of Libel, c. 7-11 J. J. Bierbower, "Fair Comment on a Political Candidate," Georgetown Law Journal, v. 37 (March, 1949), pp. 404-17 Chafee, "Possible New Remedies for Errors in the Press," Harvard Law Re- view, v. 60 (November, 1946), pp. 1-43 R. C. Donnelly, "Right of Reply-An Alternative to an Action for Libel," Virginia Law Review, v. 34 (November, 1948), pp. 867-900 Gray, "Plea of Justification Must Sustain 'Sting,'" Editor 6 Publisher, v. 84 (July 21, 1951), p. 37 ---, "Retraction Laws Lack Supreme Court Decision," Editor 6 Pub- lisher, p. 84 (February 3, 1951), p. 39 B. Hartnett and J. V. Thornton, "Truth Hurts-A Critique of a Defense to Defamation," Virginia Law Review, v. 35 (May, 1949), pp. 425-45 *Thomas M. Newell and Albert Pickerell, "California's Retraction Statute- License to Libel?" Journalism Quarterly, v. 28 (Fall, 1951), pp. 474-82 Frank Thayer, "Fair Comment as a Defense," Wisconsin Law Review, 1950, pp. 288-307 Wittenberg, Dangerous Words, c. 4, 7, 8, 10, 1 1 Yankwich, "It's Libel or Contempt If You Print It," c. 8, lo, 11 , "Protection of Newspaper Comment on Public Men and Public Af- fairs," Louisiana Law Review, v. 11 (March, 1951), pp. 327-46 Swindler, Bibliography, nos. 254, 325, 348, 359, 368, 371, 372, 374, 379, 380, 390 BACKGROUND NOTE There are essentially two defenses to libel: either the matter published is true, or it is protected fron4 suit by some other circumstances with which public policy has seen fit to surround it. These other circumstances consti- * See Werner v. Southern California Assoc. Newspapers, p. 234. i66 tute a defense called privilege; in recent years certain jurists have preferred to group under that heading all defense pleas which cannot rely solely upon truth. But most legal scholars tend to distinguish between privilege which attaches to various public or quasi-public records and the protection which derives from the right to comment on public affairs, so that fair comment usually is regarded as a third type of libel defense. Aside from these three defenses, however, the protection afforded is only partial or is limited to certain jurisdictions where special statutory efforts have been made to deal with libel in terms of modern conditions of journalism, as in the case of the so-called "honest mistake" plea or the compliance with a statutory provision for retraction and/or apology. Quite rare today is the strategy of attempting to turn aside a libel action by proving the bad character of the plaintiff. The right of reply, a standard feature of the press law of most of Continental Europe, is given only a limited recognition in Anglo-American cases. As we have already seen, truth as a defense in cases of criminal libel was the key to the struggle for press freedom in the Anglo-American legal systems. Truth seems always to have been a defense in civil actions, however, and in most cases still serves as a complete defense without reference to the "good motives" or the "justifiable ends" for which it was published. On the other hand, the criminal law in most jurisdictions still qualifies the defense of truth by requiring proof of justification for publishing the words. This is illustrated in the modern statutory provisions on libel in American state legal systems- more than three-quarters of the state laws recognize truth alone as a defense in civil libel; but more than three-quarters of the states also require truth plus good motives and/or justifiable ends as a complete defense in criminal libel. Since these two groups of states are not identical, it may be helpful to list the minority states in each case, as follows: (1) Truth is a complete defense in civil libel in all except the following: Delaware, Florida, Illinois, Maine, Massachusetts, Nebraska, New Hampshire, Pennsylvania, Rhode Island, West Virginia, Wyoming. (New Hampshire's rule rests upon judicial interpretation rather than upon statute.) (2) Truth is a complete defense in criminal libel only in the following: Arkansas, Colorado, Connecticut, Georgia, Indiana, Maryland, Missouri, North Carolina, Texas, Vermont, Virginia. (The Texas and Virginia statutes confine the defense to certain specific instances.) (1) Truth. "What is truth?" Pontius Pilate is said to have asked in an ancient sophistry. The Anglo-American courts have undertaken to answer only in general terms: it is what the "reasonably prudent man" (a com- posite of society presumably represented in a jury) recognizes as accepted fact. What have been of more concern to courts and authors of treatises on libel are the reasons for accepting truth as a defense. Blackstone put it in sententious Background Note 167 Libel Defenses: Truth and Privilege Latin: "Eum qui nocentum infamat, non est aequum et bonum ob earn rem condemnari; delicta enim nocentium nota esse oportet et expedit." ("Him who defames a wrongdoer, it is not just and right to condemn on that account; it is fitting and expedient, indeed, that the crimes of a wrongdoer be known".) Alexander Hamilton, who had once seen no practical advantage in having a constitutional guarantee of press freedom, was convinced by 1804 that this freedom rests upon the right to publish truth with good motives without fear of liability, and argued his point eloquently enough in court (People v. Croswell, 3 Johns. Cas. 337) so that the New York legislature the following year wrote the proposition into its. new libel statute. The English judge Little- dale in 1829 said: "The truth is an answer to the action . ... because it shows that the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect to an injury to a character which he either does not, or ought not, to possess." (McPherson v. Daniels, 10 B. & C. 263) To the question, "What is truth?" the libel law does have one answer which it is important for laymen to mark: truth is what can be substantiated by evidence acceptable in a court of law. It is not enough for the publisher of an injurious statement to be morally certain that the statement is right; he must be able to prove it by the standards which the law defines. Thus as a practical matter, although truth is the strongest defense against libel, it appears less frequently as the chief defense in defamation cases involving modern news media, for two reasons: in the first place, newsgatherers and news editors put more emphasis on accuracy of published stories; and in the second place, when it is apparent that the stories can be proved true, a libel action is less likely to be brought. The aphorism attributed to Boss Tweed-"Never sue for libel, they may prove it on you"-illustrates how truth may be as much a deterrent as a defense to libel suits. (2) Privilege. Statements which are not true, or at least may not be prova- bly true at law, may yet be protected from libel action if they are privileged. Anglo-American law has recognized the desirability that the proceedings of legislative, executive, and judicial agencies of government be conducted with- out the inhibiting threat of private liability for whatever might be said in the course of these proceedings. Whether this absolute privilege of men in public office may not be wantonly abused has become a subject of some significance in recent years; but the journalist relies in any case on qualified or conditional privilege for his defense against libel. This second type of privilege is derived from the first; a fair and accurate report of a public meeting, or a story based upon public records, is protected from civil libel action by the same reasons of public policy which are behind the doctrine of absolute privilege-it is in the general interest that the electorate in a democracy be fully informed of i68 the conduct of the affairs of government and of the arguments upon which this conduct of affairs is based.* For the journalist this defense is obviously of great practical value, for such a great proportion of his news copy is based upon public meetings and public records-court proceedings, city council and county commissioners' sessions, hearings before legislative committees and administrative agencies, school board meetings, and the meetings of many other public groups. "To a fair and true publication of his case a litigant must submit. It is only an extension of the publicity of the courtroom itself," a court observed in 1903 (Brown v. Providence Telegram Pub. Co., 25 R.I. 117; 54 Atl. 1061); and the rule applies equally well to all official occasions which are open to the public. Obviously, privilege is strictly limited to the occasion which creates it; i.e., only statements made while the public body is officially in session are clearly protected. Supplementary information which the reporter gathers from sources outside the records of the session-interviews with witnesses or officers following a hearing, for example-does not come under this defense. In many jurisdictions the records of meetings or proceedings preliminary to the main action of the public body, such as complaints listed on the "police blotter" or the statements filed in complaints initiating a civil suit, are denied the protec- tion of qualified privilege. But for the vast quantity of news matter which is excerpted or paraphrased from public records which do lie within the scope of this defense, it is a fundamental means of promoting the flow of news. (3) Fair comment. An Iowa newspaper at the turn of the century pub- lished an account of a stage performance in which the writer said, among other things: "Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35. 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." To an action for libel brought by the three perform- ers the court said: Freedom of discussion is guaranteed by our fundamental law and a long line of judicial decisions. As said in the Gott case, supra [Gott v. Pulsifer, 122 Mass. 238], the editor of a newspaper has the right, if not the duty, of publishing, for the information of the public, fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls within the class of privileged communications, for which no action will lie without proof of actual malice. Surely, if one makes himself ridiculous in his public per- formances, he may be ridiculed by those whose duty or right it is to inform the public regarding the character of the performance. Cooper v. Stone, 24 Wend. * See the statement in Wason v. Walter in Ch. 3, P. 78. Background Note X69 170 Libel Defenses: Truth and Privilege 434. Mere exaggeration, or even gross exaggeration, does not of itself make the comment unfair. . . . A public performance may be discussed with the fullest freedom, and may be subject to hostile criticism and hostile animadversions, pro- vided the writer does not do it as a means of promulgating slanderous and mali- cious accusations. Ridicule is often the strongest weapon in the hands of a public writer; and, if it be fairly used, the presumption of malice which would otherwise arise is rebutted, and it becomes necessary to introduce evidence of actual malice, or of some indirect motive or wish to gratify private spite. There is a manifest dis- tinction between matters of fact and comment on or criticism of undisputed facts or conduct. (Cherry v. Des Moines Leader, 114 Iowa 298; 86 N.W. 323; 54 L.R.A. 855; 89 Am. State Rep. 365 11901]). This case has often been cited as a clear illustration of the third major defense to libel-fair comment or criticism. In a democratic system where full and vigorous discussion of all subjects is essential to a well-informed public, newspapers and periodicals may discover as a practical matter that this is the most important libel defense of all. A great newspaper is much more than a passive, impersonal medium for the transmission of news facts to the reader; in most cases it will seek to interpret, and in many cases will speak out in scathing terms upon public issues. George III was castigated in the Letters of Junius; Washington and Jefferson were the targets of lavish press criticism, and they were not the last American Presidents to be so treated. Nor do the comments have to do only with persons in public office; literary offerings are fair game for the critics, as Byron admitted by his very act of writing the satiric English Bards and Scottish Reviewers. So are sports and the theater; on all these the news writer may pronounce judgment, "commendatory when justified, deprecatory if required, and, while such criticisms are fair and sub- stantially correct, the newspaper is not only not blameworthy, but is thereby rendering a valuable service to the public." (Cleveland Leader Printing Co. v. Nethersole, 85 Ohio 118; 95 N.E. 735; Ann. Cas. 1912B, 978) The New York Court of Appeals made an excellent summary of the defense in a 1904 case, in which it concluded: The single purpose of the rule permitting fair and honest criticism is that it promotes the public good, enables the people to discern right from wrong, en- courages merit, and firmly condemns and exposes the charlatan and the cheat, and hence is based upon public policy. The distinction between criticism and defamation is that criticism deals only with such things as invite public attention or call for public comment, and does not follow a public man into his private life, or pry into his domestic affairs. It never attacks the individual, but only his work. A true critic never indulges in personalities, but confines himself to the merits of the subject-matter, and never takes advantage of the occasion to attain any other object beyond the fair discussion of matters of public interest, and the judicious guidance of the public taste. (Triggs v. Sun Printing 6 Publishing Assn., 179 N.Y. 144; 71 N.E. 739; 66 L.R.A. 612; 103 Am. State Rep. 841; 1 Ann. Cas. 326) One of the most celebrated newspaper lawsuits in recent years, which strik- ingly illustrated the importance of the defense of fair comment to practical freedom of the press, involved the American Press of Lake Charles, La. For several months the editorial staff of this newspaper engaged in a vigorous campaign of publicity on gambling activities in Calcasieu parish (county), with accompanying editorials castigating public officials for their laxity in en- forcing the state antigambling laws. At length a grand jury was impaneled to consider, among other things, the elaborate evidence which the newspaper had uncovered. Instead of returning indictments against any public officers, however, the grand jury indicted five of the newspaper's staff for "defaming" certain officials and three civilians charged by the newspaper with promoting gambling in the county. The Louisiana grand jury's action touched off a violent public outcry, both within the state and throughout the country. The court refused to quash the indictments, however, and compelled the newsmen to stand trial for exposing the alleged gambling activity and thus presumably "libeling" those who might be responsible for it. This trial, virtually without precedent since the ill-advised prosecutions under the Alien and Sedition Acts of 1798, resulted in the acquittal of the journalists, the court saying: "Any citizen or newspaper has the right to criticize the public acts of officers. . . . Without that right, we would have a dictatorial form of government and the discussion of important public issues would be only such as might be permitted by those holding authority."* (4.) Honest mistake. In recent years several states have enacted laws seeking to relieve news media of a certain degree of liability arising from publications over which they have no practical control in the matter of checking for ac- curacy. The great volume of wire news and syndicated matter received from points many hundreds of miles from the local city rooms of newspapers has been cited as a practical reason for such legislation. In general the statutes have provided that where a newspaper publishes a statement in good faith and in the honest belief that it is true, if it then publishes a correction or retraction upon the mistake being called to the editors' attention, the plaintiff in any libel action thereafter will be required to furnish proof of special damages. Actually, courts have often been disposed to view with favor any evidence that a newspaper has published a libel through an "honest mistake" and has * Since this case did not go beyond the trial stage, it is not reprinted in any official or unofficial law reports. For details of the incident, consult the New York Times for August 9 and December 6, 1951, and for April 19, 1952, and Editor 6 Publisher for the comparable dates. Background Note 171 Libel Defenses: Truth and Privilege sought to make amends by publishing a correction or retraction, usually with a statement of apology. In such instances, however, such evidence has only been received in mitigation of damages; the plaintiff still was entitled to "wage his law" without any prior conditions or limitations. Lawyers generally have been opposed to "honest mistake" or retraction laws which sought to extend this defense to libel. In general they have argued that such statutes tend to "do away with the newspaper's financial interest in accuracy." Lawyer-dominated legislatures have often killed off bills seeking to establish such a defense, and in Georgia, where a "model" law on "honest mistakes" was passed in 1939, the statute was repealed ten years later by a legislature whose majority was resentful of the vigorous newspaper criticism of the administration in power. Of the few other states having such laws, California has one of the most recent and most comprehensive; it has success- fully passed a series of court tests in which it was first held unconstitutional and eventually ruled valid.* Except where such statutes exist, however, the defense of "honest mistake" and retraction is only a partial defense offered in mitigation of damages. The generally recognized defenses to libel are still the classic trilogy of truth, privilege, and fair comment.. GENERAL PRINCIPLES 1. Truth alone is a complete defense in most civil actions and in a few criminal actions for libel. The Kansas Supreme Court in 1877 handed down an opinion on the ques- tion of truth as a justification or defense in civil actions for libel which so strikingly summarized the development of American legal thought on the subject that it has remained a ruling case ever since in all but a small number of jurisdictions. The question grew out of an article published in the Leaven- worth Daily Commercial, which read: The insurance department of our state will in all probability be subject to a thorough investigation, as a bill has already been introduced into the Senate to investigate. This is right. Every insurance company in the state is willing an in- vestigation be had. Mr. Russell, ex-superintendent, invites it, and the present superintendent is anxious for the same. There is a cadaverous-looking individual of Leavenworth loafing around here, who seems exceedingly anxious for an investigation, in hopes that the superin- tendent will be done away with and the department presided over by the audi- tor. A clerkship in the dim distance makes him enthuse. I cannot blame Castle much, knowing that board and other bills too numerous to mention have been pressing him for some time, and then doubtless the Northwestern Life would be glad to hear from him as he was published as a defaulter to that company. He is * For this and other cases on retraction, see Ch. 7. 172 one of the most promising individuals (to his landlords) I know of, and the cry of fraud from such a completely played-out insurance agent has but little bear- ing with an intelligent body of legislators. If his caliber was as big as his bore, he would be a success. Jack. In the original trial of the case, the plaintiff was awarded damages for libel, but the court granted the request for a new trial on the ground that the jury had been wrongly instructed that "truth is not alone an answer to the charge.' Chief Justice Horton, speaking for a unanimous stale supreme court, upheld the trial court's reasoning in favor of the defense. It was at one time the rule of the common law that the truth of the charger however honorable and praiseworthy the motives of the publisher, could not be given in evidence in a criminal prosecution. Hence originated the famil- iar maxim, "The greater the truth the greater the libel." This doctrine was based upon the theory that where it was honestly believed a particular person had committed a crime, it was the duty of him who so believed or so knew to cause the offender to be prosecuted and brought to justice, as in a settled state of government a party grieved ought to complain for an injury to the set- tled course of law; and to neglect this duty, and publish the offense to the world, thereby bringing the party published into disgrace or ridicule, without an opportunity to show by the judgment of a court that he was innocent, was libelous; and if the matter charged was in fact true (thereby insuring social ostracism), the injury caused by the publication was much greater than where the publication was false. A false publication, jt was contended, could be ex- plained and exposed; a true one was difficult to explain away. As an additional reason for this rule, it was also held that such publications, even if true, were provocative of breaches of the peace, and the greater the truth contained therein the greater the liability of hostile meetings therefrom. That this was the true rule of the common law has been denied by many of the ablest jurists in both England and America, who maintained that the liberty of the press consisted in the right to publish, with impunity, truth, with good motives and for justifiable ends, whether it respected government, magistracy, or individuals. It certainly was derived from the polluted source of the Star Chamber, and was considered at the time an innovation, but like some other precedents, although arbitrarily and unjustly established, it came to be followed generally by the courts, and sustained as the law of the land. In 1804, in the state of New York, this principle of law was recognized and asserted in the case of People v. Croswell. In that case the defendant was pros- ecuted for libel for having published in his newspaper, at Hudson, in that state, called the Wasp, the charge against Thomas Jefferson, then President, that he (Jefferson) paid Callender for calling Washington a'traitor, a robber, and a perjurer. The defendant, through his counsel, Alexander Hamilton, ap- plied to the judge at the circuit to put off the trial to obtain the testimony of Callender to prove the publication true. Lewis, C. J., presiding, denied the motion, because the testimony was inadmissible, as the truth of the facts charged as libelous did not amount to a complete justification. 3 Johns. Cas. Castle v. Houston 173' Libel Defenses: Truth and Privilege (N.Y.) 337. This case attracted so much attention that, after a verdict of guilty had been rendered, and while the case was pending in the courts of New York on a motion for a new trial, the Legislature of that state passed a law providing that, in every prosecution for writing or publishing any libel, it should be lawful for the defendant, upon the trial, to give in evidence, in his defense, the truth of the matter contained in the publication charged as libelous, and that such evidence should not be a justification, unless it should be further made satisfactorily to appear that the matter charged as libelous was published with good motives and for justifiable ends. Since the adoption of the New York statute declaratory of the law of libel in criminal actions, nearly every state in the Union has made the subject a matter of constitu- tional or statutory provision. The wise framers of our own Constitution, peculiarly acquainted with the beneficial influences of free discussion and a free press, as participants in the historical incidents and conflicts surrounding the settlement of the territory of Kansas, modified the tyrannical and harsh rule of the common law as stated in the Star Chamber of England, and thereafter generally understood and interpreted, by providing in section 1 of our Bill of Rights that- "The liberty of the press shall be inviolate; and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the al- leged libelous matter was published for justifiable ends, the accused party shall be acquitted." Nevertheless, these framers, in a spirit Of wisdom, and to preserve order, were careful not to give, as against the interests of the public, complete license even to the truth, when published for the gratification of the worst of passions, or to affect the peace and happiness of society. They prescribe that the accused should be acquitted, not on proof of the truth of the charge alone, but if it should further appear the publication was made for justifiable ends. Following the intendment of the Constitution, the Legislature afterward provided in the act relating to crimes and punishments that- "In all prosecutions or indictments for libel, the truth thereof may be given in evidence to the jury, and if it appears to them that the matter as charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted." Section 272, Gen. Stat. 376. But the lawmakers, jealous of the liberty of the press, and fearing the con- struction of the law by the courts in such prosecution, further provided, in a succeeding section of the same act, that- "In all indictments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine at their discretion, the law and the fact." Section 275, Gen. Stat. 377. While the rule of the common law, as generally applied, was so exacting and rigorous to the defense of justification in criminal prosecutions for libel, a different doctrine was applicable in civil cases. .. Blackstone, in his Commentaries, asserts that the truth could always be given in civil cases in justification of libel, and seems to consider the-defend- -74 ant's exemption in such instances as extended to him in consideration of his merit in having warned the public against the evil practices of a delinquent. He says that it is damnum absque injuria [i.e., damage without legal wrong],. intimating that the acts of the defendant, who justifies a libelous publication, do not constitute a wrong in its legal sense, and then proceeds to observe that this is agreeable to the reasoning of the civil law. This is illogical; and Starkie bases this exemption on the better reason, that in such instances the plaintiff has excluded himself from his right of action at law by his own misconduct, and not to any merit appertaining to the defendant. When a plaintiff is really guilty of the offense imputed, he does not offer himself to the court as a blame- less party, seeking a remedy for a malicious mischief; his original misbehavior taints the whole transaction with which it is connected, and precludes him from recovering that compensation to which all innocent persons would be entitled. There are many good and sufficient reasons why a publisher of a statement, true in fact, yet given to the public with a malicious design to create mischief, should be amenable to the criminal laws, and not be liable in a civil action. On general principles, no right to damages can be founded on a publication of the truth, from the consideration that the reason for awarding damages in every case fails. The right to compensation in point of natural justice is founded on deception and fraud, which have been practiced by the de- fendant to the detriment of the plaintiff. If the imputation is true, there is no deception or fraud, and no right to compensation. The criminal action in libel is supported to prevent and restrain the commission of mischief and incon- venience to society. Take the case of two men who agree to engage together in fisticuffs: The law for the protection of the peace of society, and to prevent greater collisions, may arrest and punish both combatants, and yet neither may be able to recover from the other personal damages. Where a person makes the publication solely to disturb the harmony and happiness of society, or maliciously to annoy and injure the feelings of others, or to create misery by exposing the latent and personal defects of associates or acquaintances, the in- terests of the public require some preventive, notwithstanding the truth of the publication. This is furnished by the criminal law. But mere injury to the imagination or feeling, however malicious it may be in its origin, or painful in its consequences, is not properly the subject of remedy by an action for damages. Such offenses, being unconnected with any substantive right, are incapable of pecuniary admeasurement and redress. They admit of no exact definition, and therefore to extend a remedy to such injuries generally would be productive of great uncertainty and inconvenience, and open far too wide a field of litigation. Again, it seems to be clear that a party who acquires an advantage by concealing the truth, which he could not have attained to had he divulged it, so far is guilty of fraud in the concealment that he cannot upon any principle claim a right to acquire that benefit, and therefore cannot complain that he is injured by the publication of the truth. In this view the truth hurts no one. .. From our review of the authorities, the provision of our Constitution, the Civil and Criminal Codes, we deduce these important principles: Castle v. Houston 175 Libel Defenses: Truth and Privilege First. In all criminal prosecutions, the truth of the libel is no defense un- less it was for public benefit that the matters charged should be published; or, in other words, that the alleged libelous matter was true in fact, and was pub- lished for justifiable ends; but in all such proceedings the jury have the right to determine at their discretion the law and the fact. Second. In all civil actions of libel brought by the party claiming to have been defamed, where the defendant alleges and establishes the truth of the matter charged as defamatory, such defendant is justified in law, and exempt from all civil responsibility. In such actions the jury must receive and accept the direction of the court as to the law. Under this view, the court below misdirected the jury in a very material point, and properly, on attention being again called to the matter by a mo- tion for a new trial, granted such motion, and set the case again for hearing. The instructions given might have been applicable in a criminal proceeding, where the motive of the publication is important, and where the jury have the right to determine the law as well as the fact, but were erroneous in a civil action, where the facts charged were proved in justification. The instructions assumed that the truth is not a full and complete defense, unless it was shown to have been published for good purposes and justifiable ends. This is not cor- rect. If the charges made by the defendant are true, however malicious, no action lies. CASTLE V. HOUSTON, 19 Kans. 417; 27 Am. Rep. 127 (1877) Colorado is one of the minority of states which accept truth alone as an adequate defense in criminal libel actions. Article lo, sec. 2 of the state constitution provides that "in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact." One Leighton was arrested and tried for publication of a criminal libel. The lower court found him guilty, but on appeal the. state supreme court reversed the finding. Although the state supreme court based its decision upon the failure of the state to prove that the defendant was the actual publisher of the libel, Judge Hilliard took occasion to point to the effect of the constitutional provision upon criminal prosecu- tions for defamation: The authorities support the view of the Attorney General that at common law there was a distinction between the proof requirements in a civil action for libel and a criminal proceeding charging libel. . . . It was likewise true at common law that the truth could not be shown in defense in a criminal prose- cution for libel. In Colorado "criminal libel" is defined along different lines. By the clear intendment of our statute it is not only necessary that publication be proved, but the truth of the libel may be shown in justification. "The pur- pose of the Legislature in stating its definition was the same as the purpose of Kent and Blackstone and Blount: To stabilize and standardize the meaning of the term 'libel.'" Jerald v. Houston, 124 Kan. 657; 261 Pac. 851, 853 X76 Spriggs v. Cheyenne Newspapers . . . The prosecution here is based on the statutory definition, and not that of the common law. ... LEIGHTON V. PEOPLE, 90 Colo. 106; 6 Pac. 2d 929 (1931) 2. Truth plus "good motives" and "justifiable ends" is required as a complete defense in most criminal actions and in a few civil actions for libel. The law takes the position in most civil suits for damages in defamation that where a private party is seeking to recover for injuries to reputation, truth by itself is enough to refute the charge. But in criminal cases the injury to a private reputation is not the primary question-it is the real or potential disturbance of the peace through a disregard of another's rights which provides the basis of the criminal action. Hence it follows that truth as a defense must be supplemented with evidence that the publisher had "good motives" and "justifiable ends" in view when he produced the defamatory material. For the clearest and most recent statement of the law of criminal libel and the requirement of truth-plus-good-motives as the defense, see Beauharnais v. Illinois, p. 155" The Wyoming State Tribune and the Wyoming Eagle, daily newspapers in Cheyenne, published several stories received from Associated Press and United Press services giving details of an action by the state board of bar examiners to disbar an attorney. To a civil action for libel the newspapers set up the defense of truth plus good motives. The trial court found in favor of the newspapers, and in upholding the judgment the state supreme court said in a per curiam opinion: The language in Article I, Section 20 [of the state constitution], "pub- lished with good intent and [for] justifiable ends," though it appears substan- tially in many other state constitutions with the substitution of the word "motives" for the word "intent," does not seem to have been construed or analyzed by the adjudicated cases, perhaps because it was regarded as unnec- essary. However, it may not be amiss to make a few observations concerning it. These words, which require more than the mere truth of the published article to be established in evidence, appear to have been first used by Alex- ander Hamilton in his argument in the case of People v. Croswell, supra, 3 Johns. Cas. N.Y., 337, 360, the first paragraph of his recapitulation of the substance of his contentions reading: "The liberty of the press consists in the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals." These words were also given the approval of Chancellor Kent in his opinion in that case, 3: Johns. Cas. at page 394. The reason for qualifying the truth only as a defense to the charge of libel was stated by Lord Brougham in his testimony before the House of Lords 177 Libel Defenses: Truth and Privilege Committee on Libel in 1843 in these words: "I am quite clear that the truth ought not to be made decisive in either civil or criminal proceedings, for cases may be put where the truth, instead of being a justification, would not even be any mitigation, nay, where it would be an aggravation." Many other lawyers and judges gave opinions to like effect when called be- fore this Committee. That body after careful and exhaustive research and examination of testimony received, recommended to the House of Lords (Re- port of the House of Lords Committee on Libel, July, 1843) that in criminal cases the truth be made a good plea if it was published for the benefit of the community and in civil cases they recommended the same. The Committee's advice was taken only as to criminal cases in the English Libel Act of 1843. It is perhaps regrettable that they did not take the advice of the Committee in full. That body evidently realized that great hardship was often caused by raking up some forgotten sin of the past at a time when a man had turned over a new leaf and was leading a respectable life. It seems well stated therefore that: The truth needlessly and maliciously published does no social good, but often considerable harm to the individual right to reputation. To state that one is a criminal because he had years before served time in prison following his con- viction as an embezzler would hardly be true even though the individual had been so convicted and imprisoned. That debt to society had been paid and it is conceivable that the individual had lived a clean, useful life for many years fol- lowing his incarceration; the criminal charge against him had been absolved. To publish needlessly that because of an early mistake the man is a criminal or to infer that he is a criminal would be stretching the truth and might well be libel- ous, though the newspaper might offer in evidence the record of his earlier of- fense against society. Thayer's Legal Control of the Press, p. 289. Passing to a brief examination of the language "with good intent and [for] justifiable ends" (Constitution of Wyoming, Article I, Section 20) we find this court saying in First National Bank v. Swan, 3 Wyo. 356, 23 P. 743, 745, that: "An intent-that is, a purpose, an aim, a design-is, in jurispru- dence, whatever may be said of it in metaphysics, as much a fact as is a physi- cal act performed. The one is the exertion of the power of the mind; the other, the exertion of the power of the body. .. " Taking the testimony of defendant's witnesses pertinent to the issues as true as we should where the jury has found in favor of that party and specifi- cations of error are presented that the judgment of the district court was not sustained by sufficient evidence and that it was contrary to law, we find that the news editor of the Wyoming State Tribune on the witness stand told the court and jury the article printed in the June 14, 1943, issue of that paper involved in the action at bar was received by him from the Associated Press, a reliable news-gathering agency, in the ordinary and general form he daily received news; that he determined that the article had "spot news value," i.e., that the public would not know of it prior to reading it in the paper; that at the time he printed the article he did not personally know Mr. Spriggs; that this story which came to his desk regarding an attorney was one which he thought people were entitled to know; that in authorizing the article to be 178 Wilson v. United Press Associations published in the paper he had no malicious intent in mind; that the same facts were true as regards the publication of the article herein involved under date of December 29, 1943, in the same newspaper. The news editor of the Wyoming Eagle as a witness for the defendant stated that the article printed in that paper on June 15 was received by him from the United Press news-gathering agency; that to his knowledge no one in the Wyoming Eagle news department knew Mr. Spriggs personally at that time; that the article was published as a news item, one that the public would be interested in just as any news item; that there was no purpose or intention to exhibit malice towards Mr. Spriggs by the contents of the publication; that the foregoing statements were also true of the article in question published in the Wyoming Eagle on December 30, 1943; that there was no intent to injure the plaintiff by this publication. It does not appear that the foregoing testimony on behalf of the defendant was contradicted, but if so the jury concluded evidently that these statements were to be believed and so decided. The testimony afforded substantial evi- ence tending to establish that in addition to being true the published articles in question here were published with good intent and for justifiable ends. The general public is entitled to know when an attorney becomes involved in a disbarment proceeding, such a proceeding being one definitely for the wel- fare of the citizens of the state as an entirety in accord with the authorities heretofore reviewed. The publication of information in aid of the public welfare and in its interest can unquestionably be regarded as done for "a good purpose" and for a "defensible ultimate object." The proceedings to call members of the bar to account for their misbehavior towards the court or their clients are not lightly instituted but only after careful investigation and upon considered grounds. It is of the highest importance that the public should know when attorneys, as officers of the court, are charged with disloyalty thereto. It is only through the possession of such knowledge that the people can intelligently deal with the members of the legal profession and intrust business to them. SPRIGGS V. CHEYENNE NEWSPAPERS, 63 Wyo. 416; 182 Pac. 2d 8o (1947) 3. The truth must be "reasonably near" the facts upon which the story is based. Literal truth of every published statement is not feasible in many instances, and the courts have recognized this. Rather, the law requires that the publisher state the facts in his story adequately and accurately enough that the average reader will gain a clear understanding of what has happened. If the main theme of the news is truthfully stated, the law is disposed to discount sec- ondary details which may be in error. The United Press distributed a story describing the action of a state su- preme court in granting a new trial to one previously convicted on a charge of assault with intent to kill. A suit for libel was brought for reasons set forth 179 Libel Defenses: Truth and Privilege by the Illinois Appellate Court in its opinion upholding a judgment dismiss- ing the suit. Justice Friend said: Plaintiff admits that the entire report concerning his conviction, sentence and the action of the Supreme Court was all true except that part of the first paragraph which states that he was "now serving a 1o-year sentence for assault with intent to kill his estranged wife." In other words, plaintiff feels ag- grieved because of defendant's report that he was actually serving his term pending review of his conviction by the Supreme Court, whereas he was really free on bail during the pendency of the appeal: and the sole question pre- sented is whether this circumstance can be made the basis of an action for libel. It is evident that the pertinent news angle in the release and article was the fact that plaintiff had been improperly convicted and had been granted a new trial. Whether he was or was not serving his sentence or was free on bail was of secondary importance. Defendant was reporting the decision of the Supreme Court, and anyone reading the article in full would take as its salient points the information that the Supreme Court had reversed plaintiff's con- viction for the reasons stated and that he would be accorded a new trial be- cause of prejudicial error in the first hearing. It was the granting of a second trial, rather than the erroneous report of plaintiff's imprisonment, that was the highlight of the article. In this connection it should be noted that a read- ing of the Supreme Court opinion would suggest that plaintiff had actually begun to serve his sentence, since the court states that the case had come be- fore it on writ of error and does not say that supersedeas had been granted. The United Press release and the Kankakee Daily Journal dispatch as a matter of fact constituted accurate reportage of the Supreme Court opinion. There are numerous decisions in New York where similar situations have been considered from time to time and decided by the courts of that state, even before the enactment of section 337, chapter 561 of the New York Civil Practice Act (1940), which provides that "a civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial, legislative or other public and official proceedings, or for any heading of the report which is a fair and true headnote of the state- ment published." The public policy which motivated the enactment of that statute in New York and decisions in that state should be persuasive in other states as affording sound reasons for holding that a writing such as this is not libelous because it does not tend to injure the complaining party. In Hughes v. New York Evening Post Co., 115 App. Div. 611, 10oo N.Y.S. 982, 983, a news- paper article reporting a certain lawyer's story that he was thrown into jail by a magistrate, without an opportunity to tell his side of the case, on the com- plaint of a woman for whom he had collected a debt and from the amount of money collected had deducted the legal percentage for collection, was held not libelous, either as holding the lawyer up to public reproach and ridicule, as tending to injure him in his profession, or as charging him with having been convicted of a criminal offense. After setting forth the ar- ticle in full, the court observed that considering the language used in its ordinary meaning according to the scope and object of the whole article, 18o Wilson v. United Press Associations persons of ordinary understanding would not differ respecting its fair import and meaning, and pointed out that the article was an arraignment of the mag- istrate and "does not purport to impute anything wrong to the plaintiff. His alleged imprisonment is simply used as an illustration of the improper con- duct of said magistrate. Any one of ordinary intelligence, reading the article, would understand that the imprisonment of the plaintiff was illegal and that he had committed no crime. . . . The entire article must be read to deter- mine whether the particular part complained of is libelous, and when so read the only fair import of it is that, notwithstanding the plaintiff had done no wrong, he was thrown into jail by the magistrate without being afforded an opportunity of stating his case, and that the conduct of the magistrate in con- nection with the case was so grievous as to afford a basis for his removal from office." In Rein v. Sun Printing 6 Publishing Ass'n, 196 App. Div. 873, 188 N.Y.S. 608, 610, the article complained of stated that plaintiff had been arrested on the charge of selling stolen securities, but it also stated the details of the trans- action which showed that he was innocent of the charge. In holding that the statement was not libelous, the court said that "this innuendo that the ar- ticle charged plaintiff with a crime, it seems to me, is absolutely unwarranted by the article itself, which makes no such charge. On the contrary, it shows that both Cowl and the plaintiff were innocent and the victims of a plot on the part of criminals. Under the terms of this pleading, the plaintiff might well in fact have been arrested, and the article therefore in that respect be true." Outside of New York we find a case strikingly in point, Skrocki v. Stahl, 14 Cal. App. 1, 110 P. 957, 958. The article there complained of stated that "Skrocki was an anarchist and a brother of Walter Skrocki, who, when Presi- dent McKinley was assassinated, remarked to a fellow workman on Mare Island, 'He ought to be killed.' He was placed under arrest and held at the city jail, but the complainant refusing to press the charge, the prisoner was released." Skrocki had not actually been placed in jail, and the article was inaccurate to this extent. Defendant interposed the plea that Skrocki's state- ment about President McKinley was true. The court pertinently stated that "in relation to the failure to prove that plaintiff was arrested and detained in jail, it is entirely clear that this was without prejudice to any of his substantial rights. The rule established here by the authorities and manifestly based on right reason, is that the defendants were not required to justify every word of the defamatory matter. It was sufficient if the gist or sting of the libelous charge was justified, and immaterial variances and defects of proof upon minor matters are to be disregarded if the substance of the charge be justified. Hearne v. De Young, 119 Cal. 670, 52 P. 150, 499. The sting of the charge here is that the plaintiff said that President McKinley 'ought to have been killed.' The clear implication is that plaintiff was a man of abandoned char- acter, opposed to the reign of law and order, and favoring the assassination of public officials. In comparison with such a charge how insignificant is the accusation that he was arrested therefor and detained in jail. It would require certainly a good deal of temerity for any one to argue to a jury that, although defendants were justified in declaring in effect that plaintiff was an anarchist, i8r Libel Defenses: Truth and Privilege he was damaged by the false publication in regard to his arrest. If this conten- tion were made, the jury would probably conclude that such a man could not be and was not injured by such a comparatively trivial accusation." Applying the same reasoning to the case at bar, it seems fair to state that the gist of the report is that the plaintiff has been unfairly convicted, and not the inconsequential accusation that he had begun to serve the sentence im- posed upon him by the lower court. . .. We think the article complained of is a substantially true and accurate report of the official proceedings of the Supreme Court of Illinois. WILSON V. UNITED PRESS ASSOCIATIONS, 343 Ill. App. 238; 98 N.E. 2d 391 (1951) The Binghamton Republican-Herald published a story under the head- line, "Public School Teachers' List is Announced," including the following :statement: "Miss Florence Cafferty, supervisor of music, charged with . incompetency by Superintendent Kelly is another of those not appointed." The newspaper was sued for defamation, the plaintiff charging that the state- ment was inaccurate and reflected upon her competence to teach. In its de- fense the newspaper submitted evidence that, although the teacher had not in fact been charged with incompetence by the superintendent, she had been charged with having "spitefully and abusively ill-treated" subordinates in the school system, with having antagonized and inconvenienced her principal, and with having "systematically caused and attempted to cause dissensions" in the school system. Judge Crane of the New York Court of Appeals ac- cepted this defense as "reasonably near" the facts, and concluded: It is well settled that when the publication complained of is libelous per se no innuendo is necessary, and, if the innuendo alleged is not borne out by the words, it may be treated as surplusage, and a recovery had on the words them- selves. ... Construed by this rule the complaint alleges that the plaintiff was charged with incompetency as supervisor of music, and that the charge meant and was intended to mean (a) that the plaintiff was unqualified and unfitted for su- pervisor; (b) that she lacked the ability, special education, training, and equipment necessary to enable her to perform the duties of a supervisor of music with intelligence and efficiency; (c) that the plaintiff was unfitted to retain the position as supervisor of music in the public schools of Bingham- ton. The attempted justification met these charges fully and completely. It stated five things wherein the plaintiff has shown herself to be unqualified, unfitted, without training and equipment to intelligently and efficiently per- form her duties as supervisor of music in the public schools. These things were (a) that she had a vexatious and perverse temper; (b) that she spitefully and abusively ill-treated teachers who were required to work under her direction; (c) that she willfully antagonized the principal of .182 Duncan v. Record Publishing Co. the high school whom she was to obey; (d) that she willfully inconvenienced the principal and other teachers; (e) and systematically caused dissensions among the teaching force. A supervisor is one having authority over others, and to supervise is to super- intend and direct. Incompetence, as applicable here, is a general lack of ca- pacity or fitness for directing, controlling, and supervising the teaching of music. This is an entirely different matter from incompetence as a teacher or the lack of requisite knowledge, equipment, and ability to teach. A peculiar adaptability is frequently necessary to make one fitted for the control and direction of subordinates, and a person perfectly able to do the work himself may be wholly incapable of acting as a superintendent over others. Every busi- ness and profession is familiar with this distinction. But even if the article means that the plaintiff was incompetent to teach music to children in the public schools, we would still be of the opinion that the justification was sufficient. A teacher who had a vexatious and perverse temper, ill-treated her associates, antagonized the rules, and willfully incon- venienced superiors could hardly be fitted for her place. Education in part at least consists in knowing how to behave. However this may be, the plain- tiff was a supervisor of music and not merely a teacher. So reads the charge. If the defendant were able to prove the statements alleged, the plaintiff certainly was incompetent as a supervisor or director of music, and the pub- lished article was therefore true. ... The libel law is not a system of technicalities, but reasonable regulations whereby the public may be furnished news and information, but not false stories about any one. When the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done. Com- petency, therefore, as applicable to the plaintiff's position would be accepted by the ordinary person as a synonym for fitness and ability to do the work re- quired in the public schools as a supervisor of music, and would not be un- derstood or taken to refer to the plaintiff's learning or culture as a musician. True, some might take her discharge to mean all this, but the law cannot take words from their setting and association; rather it must receive them for what they fairly and reasonably state. CAFFERTY V. SOUTHERN TIER PUB. Co., 226 N.Y. 87; 123 N.E. 76 (1919) The truth must be sufficient to bear out the main point of the story as the average reader understands it; if this test is met, the courts will generally ac- cept the defense. But by the same token, the truth "must be as broad as the charge"; and where a story is based upon a true statement of facts but in the opinion of the court is carried beyond those facts by innuendo, the defense will fail. A vigorous public discussion was carried on in South Carolina over the settlement of litigation relating to certain canal facilities. Involved were the state canal commission, a privately owned street railway company, and var- 183 Libel Defenses: Truth and Privilege ious newspapers including those in Columbia, S. C., which gave extensive publicity to the issues. One Robertson, who owned the controlling interest in the street railway company, also was president of a Columbia bank. Plaintiff, who was a member of the canal commission and a member of the state senate, delivered a speech on the floor of the senate on the subject of the canal litigation, in which he accused the Columbia newspapers of distributing "the most appalling propaganda ever put out in South Carolina," and criti- cized a plan for settlement of the litigation as a scheme promoted by "the powerful newspapers of Columbia." The address also referred to "the gentle- man who sits in the offices in the back of the Loan & Exchange Bank." On the same day as this speech, the Columbia Record published a front-page story headed, "Facsimile of a Letter from Senator T. C. Duncan to Edwin W. Robertson, of Columbia." The story said: Senator Duncan is a member of the Canal Commission. He was appointed a member of the commission on March 23, 1923. The act creating the com- mission was passed by the General Assembly during the session of 1923, and was approved March 26, 1923. Senator Duncan's letter is dated March 28, 1923. The loan solicited was not granted. The first meeting of the Canal Commission was held in Columbia April 13, 1923. The story then reproduced Duncan's letter to Robertson; it requested a loan of $25,000 for a period of three years, and invited the bank's represent- atives to inspect the security offered for the loan. In the suit it was argued that the publication of the letter at that particular time was intended to create the impression that the lawmaker was inviting a bribe to influence him in the canal litigation in which the Robertson-owned street railway was interested. The defendants insisted, among other things, that the publication was true. The South Carolina Supreme Court, in rejecting the defense, observed in its opinion read by Judge Blease: That the publication was "absolutely true," in the sense that each and every statement therein contained was literally true, we do not understand to be disputed. But it does not follow that such literal truth was a complete de- fense, as appellants contended. The plaintiff's cause of action for libel was predicated upon the charge that the publication, literally true as it was, was intended to convey and conveyed to the readers thereof the defamatory meaning attributed thereto by the innuendo of the complaint. The trial court having properly held as a matter of law that the publication was capable of the construction placed upon it by the plaintiff, and the issue of fact as to whether the statement was published and understood in the sense charged having been properly submitted to the jury, it was necessary that the truth of the publication, pleaded by way of justification, in order to constitute a com- plete defense, should be established in the sense that the publication was alleged to convey a defamatory meaning. .. X84 Griffin v. Opinion Publishing Co. The rule is thus stated in Newell, Libel and Slander (4th Ed.), p. 766, 5699: "A plea is bad which falls short of a justification of the slanderous words in the sense imputed to them by the declaration, for the plea necessarily con- fesses that such sense is correctly imputed. . . . The whole libel must be proved true, not a part merely. ... Justification must be of the very charge it is attempted to justify, and it is not permissible to set up a charge of the same general nature, but distinct as to the particular subject." The author of the note to Hutchins v. Page, 31 L.R.A. (N.S.) at page 140, states the law as follows: "In order that the truth constitute a complete defense, it must be estab- lished in the sense in which it is charged. As said by Lord Chief Justice De Grey in R. v. Horne, Cowp. pt. 2, p. 687, a man cannot defame in one sense, and defend himself in another. Hence the sufficiency of evidence to justify a defamatory matter depends upon the question whether the facts are charged with an innuendo, since if this is the case, according to the weight of author- ity, it is necessary to allege and prove the truth of the charge according to the imputation of the innuendo, or the defendant seeks to justify according to that meaning. Thus, "where the innuendo imputes to the facts a charge involving dis- honesty, corrupt or criminal intent, it is necessary, in order to justify the charge, not only to allege the truth of the facts, but also their truth according to the intent imputed to them." Since appellants do not contend, but, on the contrary, expressly disclaim, that they sought to justify by showing the truth of the charge which plaintiff's innuendo imputed to the publication, it is clear that their contention that the "literal truthfulness" of the publication constituted a complete defense is untenable . DUNCAN V. RECORD PUB. CO. ET AL., 145 S.C. 196; 143 S.E. 31 (1927) 4. What are the differences between truth and privilege as libel defenses? In most modern libel cases, the defendants will offer both truth and privilege as defenses (and sometimes the plea of fair comment as well). Legal purists have pointed out that there is, at least in theory, a contradiction in such joint defenses; if truth is alleged, it amounts to a claim that there is no falsity in the statements, whereas if privilege is pleaded it amounts to an admission that the statement may be false. Truth is a plea of justification, while privilege is a plea of confession and avoidance. Nevertheless, as a practical matter, courts generally accept both defenses to the same charge. The Montana Supreme Court defined the differences between the de- fenses of truth and privilege in a suit involving a weekly newspaper, the Chinook Opinion, which published an article containing the following: The Chinook City council last Thursday night had a hot one tossed on the table when they were asked to settle a claim of James Griffin rather than con- 18. Libel Defenses: Truth and Privilege tinue a law suit that James Griffin has brought against the city. The claim is of dubious legality as the court has not had a chance to say whether the city should or shouldn't pay. Mr. Griffin was represented by his attorney, Mr. Harry Burns, who also hap- pens to be our duly elected city treasurer. This in itself is a new wrinkle in civic affairs as few men can both serve and sue the city at the same time. . The original trial court had found the newspaper liable. Justice Adair of the Montana Supreme Court reversed the ruling and ordered a judgment for the defendant. Absolute privileges are of two general classes, they being (1) the privilege which arises from the consent of the person defamed and (2) the privileges which are conferred by law because of the occasion on which the defama- tory matter is published. "Privileges of the second class are based upon a public policy which recog- nizes that it is desirable that true information shall be given whenever it is reasonably necessary for the protection of one's own interests, the interests of a third person or certain interests of the public. In order that such information may be freely given it is necessary to protect from liability those who for the purpose of furthering the interest in question give information which, though in fact untrue, they reasonably believe to be true and appropriate for the furtherance of such interest." Restatement of the Law of Torts, c. 25, S584, pp. 224, 225. As before stated, we find nothing false nor defamatory in the two published articles, but even though the published matter were both false and defamatory still it is the law that "one who publishes false and defamatory matter of an- other is not liable therefor if (a) it is published upon a conditionally privi- leged occasion and (b) the occasion is not abused." Restatement of the Law of Torts, c. 25, S593, P. 241. "An occasion is conditionally privileged when the circumstances induce a correct or reasonable belief that (a) facts exist which affect a sufficiently im- portant public interest, and (b) the public interest requires the communica- tion of the defamatory matter to a public officer or private citizen and that such person is authorized or privileged to act if the defamatory matter is true." Restatement of the Law of Torts, c. 25, S598, pp. 260, 261 . . . The articles were neither false nor unprivileged. The public and the tax- payers of Chinook had a right to know of the claim which plaintiff had pre- sented against the city. They had a right to know the facts concerning the suit which plaintiff filed against the city. They had a right to know that plain- tiff had employed the city's treasurer as his attorney to force the city to pay his special improvement district bonds. They were entitled to know of the at- tempt made to compromise the suit for $400. Every person has a right to comment on matters of public interest and gen- eral concern, provided he does so fairly and with an honest purpose. The management of local affairs by the various authorities such as town or city 186 councils, school boards, boards of health and the like is a matter of public con- cern. "The editor of a newspaper has the right, if not the duty, of publishing, for the information of the public, fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of pub- lic exhibition, as upon any other matter of public interest; and such a pub- lication falls within the class of privileged communications for which no action can be maintained without proof of actual malice." Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322. "The right of freedom of speech, of fair comment with an honest purpose in matters of public concern, is on the foot of pro bono publico and founded on public policy. Free discussion is the foundation on which free government itself is builded. That lost, all is lost; the two exist or perish together. They mean the same thing. It is only in despotisms that one must speak sub rosa, or in whispers, with bated breath, around the corner, or in the dark on a sub- ject touching the common welfare. It is the brightest jewel in the crown of the law to seek and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other [Diener v. Star-Chronicle Pub. Co., 230 Mo. 6131." In this action no special damage having been alleged nor proven, the plain- tiff to be entitled to damages was required to plead and prove that the pub- lished language and words complained of, in themselves, alone and unaided by any innuendo whatever, were actionable per se. This plaintiff has wholly failed to do. Defendant's demurrer to the complaint, defendant's objection to the introduction of any testimony made at the outset of the trial, and defendant's motion for a directed verdict in its favor at the close of all the testimony in the case were meritorious. Failure to sustain them constituted prejudicial error, for no cause of action for libel is stated in the complaint nor is any such cause established by the evidence in the case. The judgment is therefore reversed and judgment for defendant is ordered. GRIFFIN V. OPINION PUB. Co., 114 Mont. 502; 138 Pac. 2d 580 (1943) As in the defense of truth, the publication relying upon the defense of privilege must contain statements which are "reasonably near" the facts in the privileged record or situation. The Richmond News-Leader published the story of a court case in which the official wording of the warrant read that the accused "did unlawfully be a person not of good fame in that he did curse and abuse and did threaten bodily harm" to another. The news story read that the warrant charged the defendant "with being 'a person not of good fame.'" The newspaper was sued on the grounds that this abridged statement changed the connotation of the charge in the mind of the average reader sufficiently to be defamatory. The newspaper relied on the defense of privilege, and the trial court instructed the jury that if it found that the newspaper had made "a fair, impartial and substantially accurate report the privilege . . . to publish it is a Vaughan v. News-Leader X87 Libel Defenses: Truth and Privilege complete defense." The judgment for the newspaper was affirmed by Judge Northcott of the Federal Circuit Court of Appeals. The publication of public records to which everyone has a right of access is privileged. " 'The rule attaches to judicial proceedings even if preliminary or ex parte in their nature, if any judicial action has been had thereon. . . . As a general rule the reports of criminal proceedings are privileged.' . . . The policy of the law which, under certain circumstances, permits newspapers to publish court proceedings, finds its justification in its beneficent influence upon those charged with the trial and conduct of litigation . . ." Times-Dis- patch Pub. Co. v. Zoll, 148 Va. 850, 139 S.E. 505, 507- A more recent Virginia case on the same subject is James v. Powell, 154 Va. 96, 152 S.E. 539, 545, where the court said: "It is not necessary that the published report be verbatim, but it must be substantially correct . "... but every principle of public policy and good faith requires that these publications be substantially correct." In this case the Virginia Court cites with approval Newell on Slander and Libel, 4th Ed., Section 459, which reads in part as follows: "The report need not be verbatim; it may be abridged or condensed but it must not be partial or garbled. It need not state all that occurred in extenso; but if it omit any fact which would have told in a person's favor, it will be a question for the jury whether the omission is material. . . . But a report will be privileged if it is 'substantially a fair account of what took place' in court. 'It is sufficient to publish a fair abstract.' " While the law as laid down by the Virginia Court is controlling, a review of the cases, other than Virginia cases, relied upon on behalf of the plaintiff, particularly Sweet v. Post Publishing Co., 215 Mass. 450, 102 N.E. 66o, 661, 47 L.R.A., N.S., 240, Ann. Cas. 1914D, 533, supports the same principle. In that case the court said: "The same principle which requires that they should be fair and impartial requires that they should be accurate, at least in regard to all material matters." The question whether the published report was a "fair, impartial and ac- curate report" was one for the jury. Whether the plaintiff suffered any damages from an inaccurate report was also a question for the jury. ... NOTE: Since the writing of this opinion our attention has been called to a decision of the Supreme Court of Appeals of Virginia, handed down on June 12, 1939, in the case of The News Leader Company v. Bessie Kocen, 3 S.E. 2d 385. In that case the newspaper article complained of gave the wrong address of the person charged with a crime. At the address given an- other person of the same name resided. The majority opinion of the court makes the following statement of the law: "The fact that defendant was en- gaged in publishing the proceedings of a criminal case, which is a matter of more or less public concern, does not relieve it of the duty of being fair and accurate in identifying persons charged with criminal offenses." We do not think this decision changes the rule as above stated. Absolute accuracy in identifying a person charged with a crime is necessary in order that some innocent person may not suffer. When the name and address of the per- 188 son charged with a crime is accurately given all that is required in the pub- lication of the account of the proceedings is substantial accuracy. VAUGHAN V. NEWS-LEADER, C.C.A. 4th, 105 Fed. 2d 360 (1939) 5. What constitutes privilege? The Oregon Supreme Court had an unusual opportunity to describe the general principles of privilege and tae relationship between the absolute privilege attaching to judicial proceedings and the conditional or qualified privilege extending to journalistic media reporting these proceedings. In a murder trial the judge, with the consent of counsel in the case, had permitted the installation of a microphone in the courtroom for broadcasting of the trial. A libel suit was brought, based upon certain testimony broadcast from the courtroom which was alleged to be defamatory. On this question Justice Belt of the Oregon Supreme Court ruled for the broadcaster. The defendant Ashurst was judge of a court having competent jurisdiction over the subject-matter at the time the judicial proceedings were broadcast. There is no evidence tending to show that he participated in any conspiracy to defame the character of the plaintiff. It is well settled in England and in this country, on the ground of public policy, that a judge has absolute im- munity from liability in an action for defamatory words published in the course of judicial proceedings. The mere fact, in itself, that the defendant Ashurst permitted the installation of a microphone to report judicial proceed- ings affords no basis for liability. Counsel for plaintiff recognizes the force and effect of the rule above stated, but asserts it has no application here for the reason that the installa- tion of the microphone in the courtroom for the purpose of broadcasting the alleged defamatory matter was an "extra-judicial and illegal act." In other words, plaintiff contends that the absolute privilege of the court "does not ex- tend beyond the four walls of the court room." Undoubtedly there is a diversity of opinion as to the propriety of installing a microphone in the courtroom for the purpose of broadcasting judicial pro- ceedings, especially in cases involving sordid details of crime. This court is not prepared to say that it is unlawful per se to install a microphone in a courtroom to report judicial proceedings. The American Bar Association frowns upon such practice. It is a matter for the determination of the trial judge. It is difficult to see any difference in principle between radio broadcasting of court proceedings and the publication of the same in newspapers. The funda- mental principles of the law of libel applicable to the publication of judicial proceedings by newspapers apply also to the broadcasting of such proceedings by radio stations. In the instant case there was no comment by the radio company concerning the proceedings. All it did was to transmit to the public a true and accurate report of what was going on in the trial of the murder case. Eliminating from further consideration the alleged liability of the defend- ant Ashurst, we now discuss the case against the defendant Vandenberg, who Irwin v. Ashurst 189 Libel Defenses: Truth and Privilege acted as. counsel and whose argument to the jury is alleged to have been li- belous per se. Of course, if no cause of action exists against Vandenberg, it follows that the defendant broadcasting company and its manager are not liable. Otherwise stated, if the argument made by Vandenberg in a court proceeding was qualifiedly privileged, the publication thereof by the defend- ant broadcasting station would likewise be privileged. IRWIN v. ASHURST ET AL., 158 Ore. 61; 74 Pac. 2d 1127 (1938) 6. Privilege in reporting judicial proceedings. The Oregon case quoted above affirms a long-recognized rule of the law, that pertinent matter introduced into a trial while the court is officially in session is absolutely privileged, and that anyone reporting such matter is conditionally privileged. But news of court business usually develops long before the trial stage of an important case. So the question has arisen: At what stage in judicial proceedings does privilege attach to the record from which the news story is to be taken? Does it attach at the beginning of a civil action, which usually takes the form of a filing of a complaint or petition; or at the beginning of a criminal action, which frequently involves the taking of con- fessions, holding of preliminary hearings, or the taking of testimony before asking for an indictment? The courts are divided on the question, although the. majority are disposed to deny privilege to preliminary proceedings, particularly in criminal actions. In a case where the details of a confession were published by a Texas news- paper before an indictment had been returned, Chief Justice Smith of the Texas Court of Civil Appeals refused to accept the defense of privilege, saying: It appears from the record that persons charged jointly with plaintiff in the indictments in question, and prior to the return of those indictments, made written confessions under oath to an assistant district attorney, in which they implicated plaintiff in the commission of the alleged crimes. The sub- stance of these confessions was incorporated in the publications complained of by plaintiff as libelous, and constitute the gravamen of the alleged libel. Defendants contend that those confessions were privileged, by virtue of . . . statute, and that defendants are therefore excused from liability for the publi- cation thereof. We overrule this contention. We are of the opinion that those purely ex parte statements, not made in the course, or under the sanctity, of a judicial proceeding, were not privileged within the contemplation of the statute. CALLER TIMES PuJB. Co. V. CHANDLER, 122 S.W. 2d 249 (1938); aff. 134 Tex. 1; 130 S.W. 2d 853 (1939) 9o Sanford v. Boston Herald-Traveler Corporation The reasoning set forth in the Texas case is generally followed by courts in respect to preliminary proceedings in matters of criminal actions. Although by specific statutory description several states have apparently intended to widen the defense of privilege to include some or all of these preliminary proceedings, only Ohio has been explicit enough to set up a rule of law distinct from the Caller Times holding: The publication of a fair and impartial report of the return of any indictment, the issuing of any warrant, the arrest of any person accused of crime, or the filing of any affidavit, pleading or other document in any criminal or civil cause in any court of competent jurisdiction, or of a fair and impartial report of the contents thereof, shall be privileged, unless it be proved that the same was published maliciously, or that the defendant has refused or neglected to publish in the same manner in which the publication complained of appeared a reasonable written explanation or contradiction thereof by the plaintiff, or that the pub- lisher has refused, upon request of the plaintiff, to publish the subsequent deter- mination of such suit or action; provided, that nothing in this act shall author- ize the publication of blasphemous or indecent matter. (Page's Ohio General Code, 11343-2) In civil actions there is less unanimity of the courts. A Massachusetts news- paper published a story to the effect that one Sanford was to be a defendant in an alienation suit, basing its statements upon details set forth in the writ and declaration filed in the case. When the suit came to trial, however, no evi- dence was submitted and Sanford was awarded the verdict. Whereupon he brought an action for libel against the newspaper on the basis of the story of the first filing in the alienation case. In holding the newspaper liable, Justice Lummus of the Supreme Judicial Court of Massachusetts said: The first question argued concerns the defense of privilege. The defendant contends that the writ and declaration in the "alienation" case were public records, and that it had the right to publish their contents as soon as they were filed, without waiting for any judicial action. Doubtless the writ and declaration fell within the definition of "public rec- ords" in G.L. (Ter. Ed.) c. 4 $7, Twenty-sixth. But that definition exists merely for the purpose of construing the words "public records" when used in a statute. A public record or public document is not admissible in evidence merely because it is such. ... Moreover, we are not prepared to concede that the general right of inspec- tion of public records enables one in every instance to publish such records broadcast without regard to the truth of defamatory matter contained in them. The doctrine long established in this Commonwealth is that the right to re- port proceedings in the courts does not extend to reporting accusations con- tained in papers filed by a party and not yet brought before a judge or magis- trate for official action. "The right of a party to make charges gives no right to others to spread them." It is elementary law that a defendant cannot free 191 Libel Defenses: Truth and Privilege himself from responsibility for spreading defamation by stating that the charges were made by another, and not by the defendant. Maloof v. Post Publishing Co., 306 Mass. 279, 280, 28 N.E. 2d 458. The defendant urges us to abandon the doctrine of the Cowley and Lun- din cases, and to adopt instead the innovation made by a distinguished court in Campbell v. New York Evening Post, Inc., 245 N.Y. 320, 157 N.E. 153, 52 A.L.R. 1432 and note, followed in Lybrand v. State Co., 179 S.C. 208, 184 S.E. 580, 104 A.L.R. 1118, and Paducah Newspapers, Inc., v. Bratcher, 274 Ky. 220, 118 S.W. 2d 178. The defendant contends in sub- stance that the doctrine of our cases does not prevent grievous harm to an in- dividual falsely accused at some preliminary hearing and later exonerated, and that the adoption of the doctrine of the Campbell case would result in the removal of uncertainty and danger from the business of newspapers with only a small additional risk of harm to maligned individuals. We confess that we are little moved by that argument. Public policy requires a glare of pub- licity upon the doings of courts, even though individual litigants suffer un- merited harm. But the publication of accusations made by one party against another in a pleading is neither a legal nor a moral duty of newspapers. En- terprise in that matter ought to be at the risk of paying damages if the accu- sations prove false. To be safe, a newspaper has only to send its reporters to listen to hearings rather than to search the files of cases not yet brought before the court. The older doctrine of the Cowley and Lundin cases still seems to us well founded in principle and without injustice in its practical operation. It is supported by the great weight of authority in other jurisdictions. We adhere to it. SANFORD V. BOSTON HERALD-TRAVELER CORPORATION, 318 Mass. 156; 61 N.E. 2d 5 (1945) A New York newspaper, immediately following the filing of a complaint in a civil action for fraud, published the details of the complaint with names of the defendants. In the libel suit which was brought on the basis of this story, it was alleged that such preliminary proceedings were not privileged. The state court of appeals acknowledged the preponderance of judicial rulings in favor of this view, but in upholding the newspaper the curt declared that it was "incongruous" that if a document such as a complaint is filed at one stage of a judicial proceeding it becomes privileged, but if the same document is filed at an earlier stage it is not privileged-. To publish truly and without malice of one that an action has been brought against him for fraud, seduction, assault, breach of promise, divorce, et cetera, has become so common that the opportunity is seldom passed in silence, ex- cept when forbearance or obscurity protects the victim. So general has this practice become that the public has learned that accusation is not proof, and that such actions are at times brought in malice to result in failure. . . . The service of the summons begins the suit. . . . Judicial proceedings in New York include in common parlance all the proceedings in the action. We may 192 Paducah Newspapers v. Bratcher 193 as well disregard the overwhelming weight of authority elsewhere, and start with a rule of our own, consistent with practical experience. CAMPBELL V. NEW YORK EVENING POST, 245 N.Y. 320; 157 N.E. 153; 52 A.L.R. 1432 (1927) The Campbell case, succinct as it was, commanded wide judicial attention because, among the justices on the bench who concurred in the opinion written by Judge Pound, was Benjamin Cardozo, a future justice of the United States Supreme Court and a brilliant logician in the law. The Campbell case illustrates how legal principles may be implanted through the reasoned opinion of influential jurists, while the case which follows illustrates how legal principles may be stated through a review of important precedents. A suit was filed following a divorce case, the former husband seeking to obtain permanent custody of two children. In an answer and counterclaim the ex-wife cited reasons why the father should be considered unfit to be given custody of the children. A Kentucky newspaper published a story giving the substance of the charges in the answer. The question of the privilege of these proceedings was referred to the state court of appeals, where Justice Clay reversed the lower court's judgment against the newspaper. Always it has been the rule that a fair report of judicial proceedings without malice is privileged. The reason for the rule is thus stated by Mr. Justice Law- rence in Rex v. Wright, 8 T.R. 293, 298: "Though the publication of such proceedings may be to the disadvantage of the particular individual con- cerned, yet it is of vast importance to the, public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings." There is disagreement among the authorities as to what stage of the proceedings the privilege may be invoked. It may be conceded that for a long time the great weight of authority has supported the view that the filing or service of a pleading without any judicial action thereon was not a judicial proceeding within the meaning of the rule giving a qualified privi- lege to a report of such a proceeding. This rule was applied in Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318, where it was held in an opinion by Judge Holmes, afterwards Mr. Justice Holmes of the United States Su- preme Court, that the publication in a newspaper of the contents of a peti- tion for the disbarment of an attorney, filed in vacation and not presented or docketed, was not privileged. In discussing the matter Judge Holmes said: "If these are not the only grounds upon which fair reports of judicial proceed- ings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will Libel Defenses: Truth and Privilege of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity." Later on the same court held that the publication of libelous matter stated in a complaint which has not been brought to the attention of the court, ex- cept so far as necessary to secure leave to file it after the return day, was not privileged. Lundin v. Post Publishing Co., 217 Mass. 213, 104 N.E. 480, 52 L.R.A. (N.S.) 207. Among numerous other cases so holding are Park v. Detroit Free Press Co., 72 Mich. 56o, 40 N.W. 731, 1 L.R.A. 599, 16 Am St. Rep. 544; Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 61 So. 345" Recently the question arose in Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153, 155, 52 A.L.R. 1432, where the court in an able opinion by Judge Pound, concurred in by all the other judges, held that the publication by a newspaper without malice of a fair and true statement that the complaint filed in a specified action charged the defendants with obtain- ing a stated sum of money by fraudulent practices, is privileged, although the pleading had not yet come before the court, and was withdrawn before it did so, on the ground that the filing of a pleading is a public and official act in the course of judicial proceedings within the meaning of a statute denying a right of action for the publication of reports of such proceedings. In reaching this conclusion the court used the following language: Mr. Justice Holmes in Cowley v. Pulsifer, 137 Mass. 392, 5o Am. Rep. 318, after putting aside various rhetorical and politic reasons for the rule, says that it rests on "the plain distinction between what takes place in open court, and that which is done out of court by one party alone." But with us the act of one party institutes the action. The service of the summons begins the suit. A newspaper may publish of A that B has begun an action against him by the service of a sum- mons. No reticence is demanded on that score. It may go further and state that the complaint has been filed in the county clerk's office. To stop there and hold that the newspaper states the contents of the complaint at its peril is to revive a rule of privacy in relation to litigation that no longer has substance. To say that privilege protects the publication of the complaint when the summons is served by order of the court on a nonresident and does not protect the publication when the defendant is a resident is to state a distinction that has no basis in com- mon sense. We are not bound to keep up such frivolous legal fictions. Judicial proceedings in New York include in common parlance all the proceedings in the action. We may as well disregard the overwhelming weight of authority else- where, and start with a rule of our own, consistent with practical experience. In the more recent case of Lybrand v. State Co., 179 S.C. 208, 184 S.E. 58o, 584, 104 A.L.R. 1118, the Supreme Court of South Carolina, after an elaborate discussion of the question, followed the New York rule, and held that the privilege attaching to the publication of reports of judicial proceed- ings extends to the publication by a newspaper of defamatory matter as hay- 194 Paducah Newspapers v. Bratcher 195 ing been alleged in a complaint filed, as required by law, in the office of the clerk of the court, although the case has not otherwise come before the court. In discussing the question the court said: To hold that an ex parte proceeding, which is privileged, such as an applica- tion for an injunction, an order of arrest, an attachment, or an order of publica- tion-all of which may be done at chambers and in all of which the judge in- spects the pleadings-is logically distinguishable from an action started by a summons, or a summons and complaint, filed in the office of the clerk of the court, does not commend itself to sound reason; especially when it is borne in mind that in such ex parte proceedings the judge hearing the motion does not in any sense pass upon the merits of the case. It would seem that even the old rule would furnish very poor protection against the privileged publication of pleadings. If any one were really actuated by malice and wished to get scandal- ous charges before the public, such a one could easily have scandalous charges incorporated in a complaint filed in the proper public office, and then in due time before trial make a motion to amend the pleading in some respect. On such motion, which would come up before a circuit judge, the pleading would ipso facto become privileged, whether such motion were granted or refused. We are unembarrassed by any precedent in this state in reaching a conclusion in this case. In this state of affairs, our main concern is to reach that conclusion which we believe to be logical and based upon sound reason. We would not turn our backs upon old precedents merely because of their antiquity nor adopt new doctrines merely because of their novelty. But we cannot escape the conclusion reached by the circuit court that the filing of a pleading is a public and official act in the course of a judicial proceed- ing, and that a publication thereof is privileged if it be a fair and impartial re- port of such proceeding, and without malice. Not only does the reasoning of the New York Court of Appeals and of the Supreme Court of South Carolina appear the sounder, but this court is com- mitted to the more liberal side of the question. Thus we held in Beiser v. Scripps-McRae Publishing Co., 113 Ky. 383, 68 S.W. 457, 24 Ky. Law Rep. 259, that an application to a justice of the peace . . . for the purpose of instituting a prosecution was one step in a judicial proceeding, and, even though the application was denied, a fair and impartial report of the charge thus made was a privileged publication. Not only so, but in this state an ac- tion is commenced by the filing in the office of the clerk of the proper court a petition stating the plaintiff's cause of action, and causing a summons to be issued or a warning order to be made thereon. Section 39, Civ. Code Prac. Manifestly, when that is done the controversy is no longer a private one be- tween two individuals, but is in all respects a judicial proceeding. The argu- ment that one might file a petition for the purpose of having it published and then withdraw it is not very persuasive. In the first place, the probability of such action is very remote, and, as one may dismiss his suit at any time before verdict, the only way to forestall such action would be to postpone the privilege of publication until after final judgment, and few, if any, of the authorities go that far. 196 Libel Defenses: Truth and Privilege Here the answer and counterclaim was filed in open court after the action was regularly begun by the filing of the petition and the making of the warn- ing order, and, there being no evidence of actual malice, we are constrained to hold that the publication, to the extent that it is a fair and accurate report of the charges contained in the answer and counterclaim, was privileged. PADUCAH NEWSPAPERS V. BRATCHER, 274 Ky. 220; 118 S.W. 2d 178 (1937) The courts are unanimous on the point that material gathered from sources other than records in a judicial proceeding, even though bearing upon a case which has reached a trial stage, is not privileged. A newspaper reporter covering the first day of a trial added to his story statements made after the close of the day's session, including accusations exchanged between the assist- ant prosecutor and the chief of police. In holding the newspaper liable for defamation in this story, Justice Ackerson of the New Jersey Supreme Court, speaking for a unanimous bench, reversed a trial court verdict of no cause of action (i.e., favorable to the newspaper). A full, fair and accurate report of a judicial proceeding is qualifiedly privi- leged, although the report contains matters that would otherwise be defama- tory and actionable, and no action will lie therefor except on proof of malice in making it. However, the protection of this privilege does not extend to reports of defamatory statements not made in the actual course of a judicial proceeding, and the report must not contain defamatory observations and comments from any quarter whatsoever, in addition to what forms properly the legal proceeding. So oral statements made after the legal proceeding has been concluded, or after the court has adjourned, although uttered in a court room, are no part of a judicial proceeding and not protected by the privilege under consideration. The uncontradicted proofs show conclusively that all of the statements re- ferring to the plaintiff, whether in the headlines or in the bodies of the arti- cles, and hereinabove quoted, were made after the Roberts case had been concluded for the day and the court had adjourned. The only witnesses called with respect to this subject testified that, while all of the statements about the plaintiff were made partly in the court room and partly in the judge's cham- bers, nevertheless they were all made after the court had adjourned and the judge had left the court house. ROGERS V. COURIER-POST Co., 2 N.J. 393; 66 Atl. 2d 869 (1949) A New York newspaper published details of a divorce case awaiting trial, basing its information on data contained in the private file of papers which had been prepared by the attorney for the defendant in the case in anticipa- tion of the trial. Rejecting the defense of privilege, Justice Hill of the Appel- late Division of the New York Supreme Court ordered the newspaper to stand trial in the lower court. Swearingen v. Parkersburg Sentinel Co. There is no evidence as to the date when the answer was filed, but the respondent argues that the service thereof made it a public document and permitted privileged comment thereon the same as if it had been filed. Should we extend the rule of the.Campbell case and determine that service of i pleading gives the same right of comment as though it had been filed, yet this article was not privileged, as it was published twenty days before the an- swer was served. Upon the question of privilege, the language of the charge permitted the jury to consider the visit of the reporter to the office of the attorney for the defendant, the conversations had there and the information obtained from an examination of the papers in the attorney's private files. Comment upon the information thus gained was not privileged. In Sanford v. Bennett, 24 N.Y. 20, 24, which has recently been cited with approval by the'Court of Appeals, particular stress is laid upon that portion of the section (337) which provides that privilege does not extend to "the report of any thing said or done at the time and place of the public and official proceedings which was not a part thereof." The libel involved in the Sanford case was the publication of a speech made by a convicted murderer from the scaffold, immediately prior to his execution. It was there determined that while "the execution of a capital sentence upon a convict is no doubt a public proceeding of a very solemn and impressive character," the speeches of the participants and even the prayers of the divine were not a necessary part thereof and their publica- tion not privileged. If these utterances were not a necessary part of such a proceeding, conversations in private between the attorney for one party and a reporter are not. It was for the court to determine as matter of law whether this answer and affidavit had become a part of the pending judicial proceeding so that comment thereon was privileged. Had the court decided in the affirmative, then it would have been proper for the jury to determine whether the article was a "fair and true report." Neither the answer nor the affidavit was a part of the judicial proceeding, and as the alleged libelous part of the article is a comment on these documents, it was not privileged and nothing on that is- sue should have been submitted to the jury. The fact that the answer became a public document subsequent to the publication is without significance, for the statutory privilege does not protect a newspaper when it states anticipated events to be facts. Schaffran v. Press Publishing Co., 258 N.Y. 207, 179 N.E. 387. MAY V. SYRACUSE NEWSPAPERS, 25o0 App. Div. 155; 294 N.Y.S. 867 (1937) 7. Privilege in reporting other official proceedings. The Parkersburg Sentinel published a lengthy article containing the follow- ing statements: The city of Parkersburg began the fiscal year 1940-1941 with a $16,007 indebtedness and facing charges that city council had transferred into the gen- 197 Libel Defenses: Truth and Privilege eral fund nearly twice that amount of money from sums intended for other pur- poses, according to the annual audit of the state tax commissioner . According to the audit for the fiscal year just past, some $33,262.04 has been transferred into the general fund under one pretense or another, or without pretense, when it was intended for other uses. Plaintiff, a member of the city council and i candidate for mayor, sued on a charge that these statements were libelous. The paper offered the defense of privilege, stating that its story was taken from the official record represented by the auditor's report. Judge Lovins of the state supreme court upheld the defense, saying: It is reasonable to suppose that citizens and taxpayers of the city of Parkers- burg were interested in fiscal affairs of their city, and that the audit thereof, made pursuant to statute, was a matter of general concern and interest. Plain- tiff was a public officer in whose actions the citizens of the city of Parkersburg had an interest, as well as the right to information relative to the manner in which he performed his official duties. The article and editorial related en- tirely to the finances and financial records of the municipality, and the official records of the municipality, and the official duties of the plaintiff were directly connected with the subjects discussed and criticized in the article and edito- rial. Anything connected with the plaintiff's official duties was a proper sub- ject of discussion, which, if made without malice, was not libelous. The pub- lisher of a newspaper has no greater privilege to publish defamatory matter than any other person. But it cannot be overlooked that the publisher of a newspaper has a duty, as distinguished from the privilege, the former giving rise to the latter, to make known and discuss matters which relate to govern- ment and the welfare of the citizens in the community which it serves. Such duty may be self-assumed, but that fact in no wise lessens its compelling force. That duty has been epitomized as follows: "A communication made bona fide upon any subject-matter in which the party communicating has an interest or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain crimina- tory matter which without this privilege would be slanderous and actionable. The duty referred to need not be one binding at law; any moral or social duty of imperfect obligation will be sufficient." A communication made on a subject in reference to which a person owes a moral duty is privileged. Applying the foregoing principles to the publication here under considera- tion, we reach the conclusion that the publication was made on an occasion qualifiedly privileged, and that the defendant did not abuse or exceed the privilege of such occasion. SWEARINGEN V. PARKERSBURG SENTINEL CO., 125 W.Va. 731; 26 S.E. 2d 209 (1943) Paraphrasing or restating the substance of official proceedings, an almost universal newspaper practice in the interest of making the stories more read- 198 Leininger v. New Orleans Item Publishing Co. able for laymen, sometimes raises a question of the accuracy of a report from an otherwise privileged record. The New Orleans Item published the follow- ing story: When the detectives were in the courtroom, Judge Leininger of the first re- corder's court, fined three men, John Cassidy, Harry Tobler and Gasper Damaria, $15 or 30 days in jail. "When we left the court the fines were canceled by Judge Leininger and the men were turned loose," the detectives discovered, according to the report of Safety Commissioner Ray, submitted to the commission council Tuesday. The rest of the story carried a verbatim quotation from the report of the safety commissioner. On a suit against the newspaper for libel, the defense of privilege was offered and accepted by the court. In upholding the judgment, Judge Overton of the state supreme court said: A report, by a newspaper, of proceedings had at a public meeting of a mu- nicipal council, in which proceedings the public has an interest, when the re- port is a fair and accurate one of the proceedings had, is privileged, even though it contains matter defamatory of another. Reports of such proceedings are privileged in the same manner as are reports of judicial proceedings. It is not necessary in reports of judicial proceedings, and hence of the proceed- ings of municipal councils, "that the report should be verbatim; nor is abso- lute accuracy essential so long as the report is substantially correct. A few slight accidental errors will not destroy the privilege, provided the whole re- port, as published, produces materially the same effect on the mind of the reader as an absolutely correct report would have done." An examination of the first two paragraphs of the article published in the Item shows that these paragraphs are in strict accord with the substance of the report of the commissioner of public safety made to the council in open session concerning the case against Cassidy and others. As the report of the commissioner of public safety is based upon a report made to him by others, the third paragraph, read in connection with the second, is intended to indi- cate that fact. The fourth and fifth paragraphs are a copy of the report made to the commissioner of public safety, and incorporated in the commissioner's report as his report oh the case, and are a verbatim copy of the commissioner's report thereon. From the foregoing, in so far as concerns the body of the article published in the Item, we conclude that it is an accurate statement of the report made by the commissioner of public safety to the council, which report was nothing less than a proceeding had before the council in a matter over which it had jurisdiction-the abuse of the power to release on parole by virtue of its power to remove recorders from office. The only possible objection which there could be to the publication from a legal standpoint is its title or head- lines. The title or heading of the article, in a measure, goes beyond the report of the commissioner. However, this may be said to be only slightly so, and not sufficiently to make the publication actionable or to destroy it as a privi- 199 200 Libel Defenses: Truth and Privilege leged one, especially as the first two paragraphs of the article, which are short, serve to explain the headlines clearly and fully. It is urged, however, that the publication was prompted by actual malice; and therefore that the defense that the publication was a privileged one is destroyed. We have considered the evidence offered to show malice, but fail to find that it discloses any. To the contrary, we find that the publication was prompted by a desire to advise the public concerning a matter in which they had an interest, and in an effort to correct an abuse concerning which complaint had been made. It is true that the report made by the commis- sioner, and published by the Item, that plaintiff after having convicted and sentenced the three prisoners named, remitted their fines and released the prisoners as soon as the detectives who reported the case left the courtroom, is not correct. However, as the Item published the report of the commissioner in good faith and without actual malice, the fact that the report of the latter was incorrect in whole or in part, and therefore that the publication by the paper does not reflect the truth, does not have the effect, after the discovery of the error, of destroying the privilege exercised and of rendering the pub- lication actionable. LEININGER V. NEW ORLEANS ITEM PUB. Co., 156 La. 1044; 101 So. 411 (1924) A Wisconsin newspaper published a story as follows: Although the proceedings of a grand jury must remain secret and no names are mentioned, because of legal restrictions, in the report of the jury returned to Judge George A. Shaughnessy Tuesday afternoon, it has been possible to in- vestigate public records and obtain facts concerning practically all of the activi- ties that the jury so severely condemned. ... The report says: "Our attention has been called to instances where a mem- ber of the City Attorney's staff has, while so employed, accepted retainers from a local carrier. . . . We believe this to be bad in principle opens a wide field of temptation-raises grave question of positive damage in case of future con- flict of interests." Although the grand jury report upon which the story was based was ruled illegal by the state supreme court and removed from the records, Justice Fritz of the Wisconsin Supreme Court held that so long as' it remained on the record a news report based on it was privileged. In so far as that article of May 8, 1929, upon which the . . . cause of ac- tion is based, was a true and fair report of a statement in the grand jury's report, which was filed with the court on May 7, 1929, and continued on file until stricken after May 8, 1929, the publication of that statement in defendant's newspaper was unconditionally privileged under the provision in section 331.05, Stats., that: "The proprietor, publisher, editor, writer or re- porter upon any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judicial, legislative or other public official proceeding authorized Warren v. Pulitzer Publishing Co. by law or of any public statement, speech, argument or debate in the course of such proceeding." The privilege which exists by virtue of that statute is unconditional. The grand jury's report was a public statement made in a judicial proceeding, and the municipal court permitted it to be filed on May 7, 1929, and remain on file until it was subsequently ordered stricken, after a decision on an appeal to this court. In the meantime it was on record by order of the municipal court as a public statement in a judicial proceeding, which continued from the time of the impaneling of the jury until its discharge. Although, as this court subsequently decided, it was error for the municipal court to receive the report and to refuse to strike it from its files, nevertheless it was for the time being on record as a public statement made in the course of a judicial pro- ceeding. Until it was subsequently stricken from the files, it was like any other irrelevant or incompetent matter that has become part of the record by reason of an erroneous judicial ruling. If by judicial error defamatory matter, which is wholly irrelevant, was incorporated in findings of the court, the pro- prietor of a newspaper, in which the findings have been reported, should not be denied the privilege from liability afforded by section 331.05, Stats., if, subsequent to the publication of the report, the court ordered the defamatory matter stricken from the findings. Proprietors, publishers, editors, writers, or reporters upon newspapers are not liable under such circumstances by virtue of section 331.05, Stats., even though others, who are not within that class, may be liable for any report of such defamatory matter if it is not pertinent and relevant to the issue. WILLIAMS V. JOURNAL CO., 211 Wisc. 362; 247 N.W. 435 (1933) 8. Conditional privilege arising from reports in quasi-official proceedings or in confidential news communications. The St. Louis Post-Dispatch ran a detailed story of the trial of a clergyman conducted by a duly authorized ecclesiastical court of his church. The trial involved charges of illicit relations between the clergyman and a young woman employed in his home. The ecclesiastical court found the clergyman guilty and he was dismissed from his post. He brought suit against the news- paper for defamation, alleging that the story was based on proceedings which had no status as official judicial functions. The newspaper in its defense claimed that such a regularly constituted ecclesiastical court was of a quasi- official nature. Commissioner Hyde for the Missouri Supreme Court upheld the plea of the newspaper. [N]othing is better settled than the proposition that no one is justified in stating false facts about another merely because some one else has done so. It is usually not in the public interest for a person to do either, concerning other persons, because there is no surer way of stirring up strife and because, in the language of the street, it is usually "nobody's business." However, in a 201 Libel Defenses: Truth and Privilege government "of the people" there are matters which, although they concern individuals, become "everybody's business." This is where the doctrine of privilege steps in. If a person is charged with violating the law or the rights of others and the matter is brought into court, there is an absolute privilege from an action for libel or slander to state before the court, even falsely and maliciously, facts relevant to the proceedings. The proceedings in such cases may be related by publication of the charge, the evidence, and the result reached by the court; but this right is only quali- fiedly privileged. These proceedings are permitted to be published, "not be- cause the controversies of one citizen with another are of public concern," but because the administration of justice is, and "every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Not only must the subject be one which the publisher is privi- leged to report, but his motive in doing so must be proper (free from malice) and his report must be fair and accurate. To keep within his privilege, the publisher need not publish the entire proceedings, but whatever summary or abridgement he chooses to make must be a fair statement, and when he un- dertakes to state additional facts, not brought out in the hearing but gleaned from his own investigation, he does so at his peril, if they are false, exactly the same as he would in connection with an unprivileged matter. . Although the question has not often come before the courts, there is good authority for holding that a trial before a church body or other voluntary association which has jurisdiction over the case is a quasi-judicial proceeding and that there may be a qualified privilege to report such proceedings just as in the case proceedings before courts of justice. In Shurtleff v. Stevens [51 Vt. 501; 31 Am. Rep. 698] the court held that charges of unfitness against a minister, made before a church tribunal, were such as to "justify public comment in a denominational publication"; that "if the publication reached the general public, the privilege is not lost"; and that "the only limitation that attaches to the privilege is [as in the case of proceedings of courts] that the publication must not be made for the purpose of inflicting an injury but to promulgate facts which duty or interest require to be promulgated." The court gave as reasons for its holding that: "The gen- eral public not immediately related to these clergymen by the ties of church covenant or society relationship are more or less directly within the range of that moral influence which they are charged to exert. Thus the general cause of public morality which underlies all good government, and which every good citizen, be he priest or layman, is bound to promote, is affected by the fidelity with which ministers of the gospel discharge the high trust of their appoint- ment. In order to be successful public teachers of morality, they must be un- spotted public exemplars of it. Hence, if it be suspected that a wolf in sheep's clothing has invaded their ranks, and sits at their council board, it is not only for the interest of all the members of the association to know the fact, but it is their imperative duty to make inquiry and ascertain the fact." (It would seem, therefore, that the public would have some interest in knowing the re- sult.) ... The determination that the rule of qualified privilege applies to a 202 Warren v. Pulitzer Publishing Co. case where, as here, charges made by persons other than the publisher are reported, narrows the issue which defendant must meet and adds to the bur- den which plaintiff must carry, in the following particulars: Defendant does not have to prove that such charges are true, but only that it is true that they were made and that the account of them and the trial upon them is fair and accurate; if that is shown by defendant, plaintiff must prove express malice (improper motive) in publishing them. If there is no privilege, the truth not only of the publisher's statements but also of any he reports to have been made by another must be proven, and therefore, under a plea of justification only, malice may be inferred from any false statement whether it be the publisher's own or his report of another's statement. Of course, when a publisher of a privileged matter steps outside of his privilege and adds state- ments upon his own authority or states his conclusions as facts, and not as comments, the rule of justification rather than that of privilege applies as to those statements. Ministers of the gospel are spiritual teachers and leaders of the people. Their influence and the influence of the church which sponsors them is great. It must be obvious, therefore, that proper qualifications and character for such a position are matters of public concern, especially in a country, such as ours, where there is complete religious freedom and the appeal of every church is solely the character of its teachings and the sincerity of its leaders. Facts relating to these things are news, which we think are matters of importance both to members of the church everywhere and to the general public as well, because "the general cause of public morality which underlies all good govern- ment . . . is affected thereby." This public interest certainly extends to charges affecting these matters publicly made and tried before a tribunal which has jurisdiction, even though the tribunal be that of a church. Upon both reason and authority, we think the rule of qualified privilege should be applied here. The charges were made for the purpose of determining the fitness of plaintiff to cdntinue in the min- istry as one of the leaders of his church and its communicants, and not to punish him for a crime against the law of the land. No other tribunal had jurisdiction of this matter, a fact which plaintiff recognized in submitting his case to it. Its decision was final upon this question, except for appeal to its appellate body, and plaintiff did not perfect an appeal, whether that was his fault or not, in accordance with its regulations. We therefore hold that de- fendant did have a qualified privilege to publish an account of the charges which Hazel Lamb made against plaintiff before the church tribunal, whether they are true or not, and also the proceedings and result there. We further hold that this privilege was necessarily not lost by printing it as a feature arti- cle in the magazine section. Merely because this matter was no longer "spot news" to be published on the news pages, as was done by the Chicago and Rockford papers while the trial was going on, does not mean that it was not still a matter of sufficient public concern to keep alive the qualified privi- lege. There are many matters of public interest which may be proper subjects of editorials, or feature articles long after they cease to be front page news. However, the manner of its publication was a matter for the jury to consider 203 Libel Defenses: Truth and Privilege in determining whether defendant's motive in printing it was to report a pro- ceeding of public interest or was mere sensationalism to give its readers a thrill. WARREN V. PULITZER PUB. Co., 336 Mo. 184; 78 S.W. 2d 404 (1934) Following a routine news agency practice of sending out advance stories with instructions to hold for release, the Associated Press in Wisconsin filed a story on various pending cases before the state supreme court. The story included the following: "Circuit Judge C. H. Davison, Dodge county, was- was 'not justified in setting aside a divorce decree which had been awarded Ewalt H. Kelm, Princeton, the state supreme court ruled today." Member papers were told not to publish the story until instructed to do so by the AP, at which time either the word "was" or the words "was not" were to be deleted from the story according as the supreme court ruled for or against the lower court. As it happened, the court dismissed this particular case without a ruling one way or the other, and the AP therefore sent out no release instructions to its members. However, two AP newspapers published the story on their own initiative, editing it so that in their judgment it was correct. The publication was charged with being libelous, and the Associated Press was sued for writing and circulating the story. The news agency offered as its defense the confidential nature of its relationship with member newspapers and the fact that, since it had sent no release instructions, it was not responsible for publication. Jus- tice Fowler of the Wisconsin Supreme Court agreed. The article complained of is substantially the same as that involved in Lehner v. Berlin Publishing Co., 211 Wis. 119, 246 N.W. 579, and was there held not to be a true report of a court proceeding, and therefore not privi- leged and libelous per se. The publication of it in a newspaper would there- fore render the publisher liable in an action based thereon, unless it were proved in defense that the defamatory matter was true. No proof of its truth appears in the evidence herein. The publication of the article in the Oshkosh Northwestern and other newspapers would render the defendants herein lia- ble, if such publication was made at their direction or by their procurement. However, if the article was published without authorization by the defend- ants, they are not liable for any such publication. The defendants claim that publication in the newspapers of the members of the corporation was not directed or authorized by them, because they never released the article for publication. We discover no evidence of such release. There was an express direction on March to to withhold publication. There was no authorization of publication thereafter. The original instructions were, in effect, that the article might be published if the Kelm case were affirmed or reversed, using the word "was" in event of affirmance and the words "was not" in event of reversal. Dismissal of an appeal is neither an 204 affirmance nor reversal. Therefore there was never any authorization by the defendants of publication of the article. It is urged that whether the publication of the article under the facts ex- isting was authorized by the defendants was for the jury to determine. But the facts respecting the matter are without dispute and permit of only one factual inference. In this situation the inference to be drawn from them is one of law. It is contended by the appellants that the sending of the article by the de- iendants to the members of the defendant corporation was itself an actiona- ble publication, just as the sending of a defamatory letter to persons other than the one to whom it refers is such a publication as renders the sender liable in an action for libel. The defendants submit as meeting this conten- tion that the sending of the article is conditionally privileged and not actiona- ble except on proof of malice, and that the evidence herein contains nothing to warrant an inference of malice. We are unable to discover anything in the evidence that would justify an inference of malice on the part of the defend- ant Almen. Almen alone acted for the defendant corporation in preparing and transmitting the article upon which the suit is based, and as there is no evidence of malice as to him there is none as to the defendant corporation. We are of opinion also that the contention of the defendants that the arti- cle is conditionally privileged is sustained both upon authority and principle. . The rule is stated in 26 L.R.A. (N.S.) io81 as follows: "It is the gen- eral rule that where two persons have a common interest, every communica- tion made by one to the other in an honest attempt to protect such common interest is privileged, in the absence of malice. This rule would seem to have especial force when applied to members of a corporation or of an association, where the parties may have a legal, as well as a personal responsibility, the one to the other; and'such communications if bona fide and without malice may reflect upon other members, or upon the officers or employees of the corporation or association, or even upon third persons with whom it may have dealings. The cases are very harmonious in observing and following the rule, so far as corporations are concerned." The basis of the rule is the mutuality of interest, the common interest, of the corporations or officers or persons between whom the communications pass. In Gattis v. Kilgo, 140 N.C. io6, 52 S.E. 249, it is stated respecting slander: "Any statement or communication is conditionally privileged when made bona fide about something in which (1) the speaker has an interest or duty, (2) the hearer has a corresponding interest or duty, and (3) when the statement or communication is made in protection of that interest or in per- formance of that duty." This, of course, applies to writings claimed to be libel- ous as well as to statements claimed to be slanderous. In the instant case, the defendant Almen and the defendant the Associated Press had a duty to per- form to the members of the defendant corporation. The defendant corpora- tion and its members had a common interest in the dissemination of news; the common duty of dissemination of news to perform. In Montgomery v. Knox [23 Fla. 5951, the rule is stated in effect that a publication in regard to business, made by one having an interest therein only to others having an interest therein, is privileged and affords no basis for an action of libel, al- Lehner v. Associated Press 205 206 Libel Defenses: Truth and Privilege though defamatory, unless actuated by express malice. Here the article was sent in performance of the defendant corporation's business, and only to those having an interest in that business. LEHNER V. ASSOCIATED PRESS, 215 Wisc. :254; 2z54 N.W. 664 (1934) CHAPTER VII Libel Defenses: Fair Comment and Other Pleas The readings and background note to Chapter 6 apply also to this chapter, which considers other pleas that may be offerd,- ither in defense or in mitigation of damages, in cases of libel. 9. The principle of fair comment. R. A. Scott-James once wrote that the right to describe anything implies the right to criticize it. Criticism, moreover, may be vigorous-even vehement-if the writer feels strongly about the issue. The question naturally arises, when individuals are censured in print, whether the defamation is actionable. Since the matter usually turns upon the opinion and evaluation of the writer, truth is hardly feasible as a defense; and since the statement is usually not made in a privileged situation, that defense will not be available, except as some legal writers prefer to describe the defense of fair comment as a type of privilege. It is distinct enough, however, to be considered as a separate type of defense plea as a practical matter. In 1925 the dirigible "Shenandoah" of the United States Navy was wrecked in a disaster which killed the commanding officer, Commander Lans- downe. There was widespread criticism of the Navy Department and of the manner in which it conducted its official inquiry into the catastrophe. In her testimony before the court of inquiry, the widow of the airship's commander alleged that the judge advocate of the court had undertaken, before she appeared as a witness, to influence her testimony so as to favor the Secretary of the Navy. Thereupon the court of inquiry turned its attention to her accusa- tions and absolved the judge advocate of blame. The New York World published an editorial on the inquiry which said in part: Let us stick to the point at issue in this Lansdowne inquiry. Let us not be diverted from that point by speculations as to . . . how accurately Mrs. Lans- downe remembers what Capt. Foley said, and how accurately Capt. Foley re- 207 Libel Defenses: Fair Comment and Other Pleas members everything. Let us stick, instead, to facts about which there is no dis- agreement, has been no disagreement and can be no disagreement. For these facts are written in the record: i. On the morning of Sept. 3 the airship "Shenandoah" was wrecked in an Ohio storm. 2. On the afternoon of Sept. 3 Mrs. Zachary Lansdowne, widow of the dead commander of the "Shenandoah," told reporters that her husband had protested against the timing of the "Shenandoah's" flight on account of the danger of just such a storm. 3. On the same afternoon Secretary Wilbur denied the truth of Mrs. Lans- downe's statement. "That is not correct," he said, "Commander Lansdowne was allowed to choose his time. His judgment was that it was safe to make the flight at this time." 4. Six days later, on Sept. 9, Secretary Wilbur repeated and elaborated on this statement: "Commander Lansdowne never protested against the flight in person or by communication to me or anyone in the department, and, on the contrary, expressed his satisfaction with it to his superiors and associates." 5. On Sept. 13 the correspondence between Commander Lansdowne and the Navy Department was made public before the "Shenandoah" court of inquiry. 6. This correspondence showed that Commander Lansdowne did officially protest against the timing of the "Shenandoah's" flight and filed his protest twice. His letters of protest are dated June 15 and Aug. 4. Secretary Wilbur was thus caught in what was either a plain lie or a culpable ignorance of facts, on the score of Lansdowne's protest. . Let us see what happened next. . 1. Mrs. Lansdowne was due to testify in person before the Shenandoah court of inquiry on October 9. 2. Two days before she was due to testify she received a visit from Capt. Paul Foley, technical aide to Secretary Wilbur, and Trial Judge Advocate of the "Shenandoah" court. 3. It was explained that this visit was simply in the nature of a routine duty on Capt. Foley's part, since navy regulations require a Trial Judge Advocate to interview prospective witnesses before they testify, and discover what they pro- pose to say. This is all very well, but the point is this: Do navy regulations also require the Trial Judge Advocate to furnish prospective witnesses with canned versions of what the Navy Department would like to have them say? 4. On his own admission Capt. Foley furnished Mrs. Lansdowne with a "state- ment." And the crux of that statement, as Capt. Foley himself had reconstructed it, was that Mrs. Lansdowne no longer wished to testify and preferred to leave everything to Capt. Foley and his court. Capt. Foley, technical aide to Secretary Wilbur, had undertaken to do a little fixing. .. In a second editorial castigating the court of inquiry for its action in absolving its judge advocate of the charges brought by the witness, the newspaper said: What set out to be an inquiry into the loss of the airship "Shenandoah" has ended in exoneration of Capt. Foley and an attempt by the court of inquiry to 208 Foley v. Press Publishing Co. put Mrs. Lansdowne in her place. By bestowing privileges upon one witness and withholding them from another witness, the gentlemen of the navy have come off with a gallant victory. S. . The public, that is, was deliberately to have been misled. In this state- ment, Mrs. Lansdowne was to say that having thought things over she no longer wished to testify. What does it matter if Capt. Foley explains that this extraor- dinary action on his part was motivated solely by a desire to spare Mrs. Lans- downe the embarrassment of an appearance in the court? Capt. Foley would have been better off if he had left the embarrassment to Mrs. Lansdowne and kept the legitimate duties of a Trial Judge Advocate for himself. On his own admission, an attempt was made to keep Mrs. Lansdowne off the stand. He was not successful. But the court did what it could to help him out. It voted itself a new piece of business, and that piece of business has been to whitewash the bureaucracy of the navy . In the action for libel brought against the World, the defendants offered the defense of truth as to part of the statements and the defense of fair comment as to other statements in the editorials. In upholding these defenses Judge Proskauer of the Appellate Division of the New York Supreme Court said, on behalf of a unanimous bench: In order that defeasible immunity may attach to a publication purporting to be fair comment on a subject of public interest, it must be: (1) A com- ment; (2) based on facts truly stated; (3) free from imputations of corrupt or dishonorable motives on the part of the person whose conduct is criticized, save in so far as such imputations are warranted by the facts truly stated; and (4) the honest expression of the writer's real opinion. The plaintiff in the case at bar contends that the expressions employed in the editorials are not comments, but false statements of fact, and that they are not entitled to immunity because they impute dishonorable and corrupt motives. Factually, it is often difficult to distinguish between comment and state- ment of fact. As Lord Wrenbury remarked: "A libel may and generally does contain both statements of fact and statements of opinion. . . . It is for the jury to say which of the statements are statements of fact and which are state- ments of opinion." Sutherland v. Stopes, L.R. [1925] A.C. 47, 87. Field, J., in O'Brien v. Marquis of Salisbury, [18891 54 J.P. 215, 216, made a similar observation: "Comment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduc- tion or conclusion come by the speaker from other facts stated or referred to by him. . . . If, although stated as a fact, it is preceded or accompanied by such other facts, and it can be reasonably based upon them, the words may be reasonably regarded as comment, and comment only, and, if honest and fair, excusable; and whether it is to be regarded as a fact or comment is a question for the jury, to be determined by them upon all the circumstances of the case." Other authorities point out both the similarity and the distinction. "An inference or comment may take the form of a statement of fact. The 209 Libel Defenses: Fair Comment and Other Pleas question is not whether the words which the defendant used stated a fact or not, but whether, reading them in their environment, the impression con- veyed to the audience was that the defendant was merely making a bald state- ment that the deported men were criminals, or that that was an inference which the speaker thought should be drawn from certain facts which he men- tioned or referred to." Bristowe, J., in Crawford v. Albu, [1917] So. African L.R. [App. Div.], at page 10o6. "If one states that a candidate is a thief, without qualification, he com- municates a fact pertaining to his fitness; but it is a slander if untrue, whether made in good faith or not, although, had he stated the exact facts, and ex- pressed the opinion that they amounted to stealing, though they did not tech- nically constitute the offense of larceny, the communication might be privi- leged." Hooker, J., in Eikhoff v. Gilbert, 124 Mich. 353, 360, 83 N.W. 11o, 113 (51 L.R.A. 451). And Gatley, in his treatise on Libel and Slander (page 373), thus clearly explains the distinction: "To write of a man that he is 'a disgrace to human nature' is a defama- tory allegation of fact. But if the words were, 'He murdered his father, and therefore is a disgrace to human nature,' it is clear from the context that the latter words are merely a comment on the former ones. So the context may show that the defendant, in alleging that a public man has been guilty of some disgraceful or dishonorable conduct, or has been actuated by corrupt or dishonorable motives, bases such allegations on facts which he truly states in the article complained of or clearly refers to therein. In such a case his allegations, if fairly warranted by the facts truly stated or referred to, may be defended as a comment on, or reasonable inference from, such facts. It is a question for the jury to decide, subject to the direction of the judge, whether in the particular case the defendant's allegations are allegations of fact or ex- pressions of opinion, and, if expressions of opinion, whether such expressions of opinion are fairly warranted by the,facts truly stated or referred to." See, also, Odgers, Libel and Slander (5th Ed.), p. 203; Aga Khan v. Times Publishing Co., L.R. [1924] 1 K.B. 675, 68o. Here from the text of the libels, the circumstance that they were printed as editorials and not as news, and the other relevant facts, a jury may determine what portions of the editorials were comment and what portions were statements of fact. The plaintiff also insists that the plea of fair comment cannot avail this de- fendant because the editorials contain imputations of corruption or dishon- orable motive; and there are undoubtedly authorities which suggest that "any imputation of wicked or corrupt motives is unquestionably libelous." Parke, B., in Parmiter v. Coupland, (1840) 6 Mess. & W. 105, 1o8. As early as 1863, however, Cockburn, C. J., in Campbell v. Spottiswoode, 3 Best & S. 769, 776, began to make the rule more flexible. "One man," he said, "has no right to impute to another . . . base, sordid, or wicked motives, unless there is so much ground for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements, but that his be- lief was not without foundation." Odgers notes this change in the trend of authority. "Can it ever be 'fair comment,' " he asks, "to impute dishonorable motives to the person whose conduct is criticised? At first, the courts held 210 Foley v. Press Publishing Co. that such an inference could not possibly be a legitimate criticism on a public man. .... Now, however, greater liberty prevails." Odgers on Libel and Slander (5th Ed.), p. 222. Although dicta still persist that an imputation of corrupt or dishonorable motive will render comment unfair, still the great weight of modern authority justifies the imputation as fair comment if it is "an inference which a fair-minded man might reasonably draw from such facts." Gatley on Libel and Slander, p. 383. Thus Vaughan Williams, L. J., in Joynt v. Cycle Trade Pub. Co., L.R. [1904] 2 K.B. 292, 297, remarked that "a criticism which contained such a suggestion could not be justified un- der the plea of fair comment, unless facts were proved which made it reason- able to make such a suggestion." This test was approved by Cozens-Hardy, M. R., in Hunt v. Star Newspaper Co., [1908] 2 K.B. 309, 317, and Buckley, L. J., in the same case said (at page 323): "Comment which tends to prej- udice may still be fair; it may convey imputations of bad motive so far as the facts truly stated justify such an imputation. It is for the jury to say whether the facts justify the imputation or not." Similarly Lord Atkinson said in Dakhyl v. Labouchere, L.R. [1908] 2 K.B. 325, 329, "a personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts-in other words, in my view, if it be a reasonable inference from those facts." .. We concur in the principle enunciated by these authorities that the publica- tion to be justified must contain no imputations of corruption or dishonorable motive, except in so far as they are an inference which a fair-minded man mright reasonably draw from the facts stated and represent the honest opinion of the writer. If the imputations are thus inferable and honestly stated, the libel is justified. The mere circumstance that comments are exaggerated will not render them unfair. Nor is the defense destroyed by the circumstance that the jury may believe that the comment is logically unsound or in conflict with the opinion which the jury itself may entertain. It suffices that a reason- able man may honestly entertain such opinion, on the facts found by the jury to be true, that the writer did so entertain it and expressed it without malice. And of course it is further requisite that the opinion be expressed as to some matter or person of public importance or interest, and that the imputa- tion does not reflect upon the plaintiff save as the person concerned in or connected with the particular conduct which constitutes the subject of the comment. Thus circumscribed, this defense preserves a fair balance between the social interest in free comment upon public affairs and the interest of the individual in the preservation of his good repute. The law, as worked out by the Eng- lish authorities, affords both free scope to that fair discussion which "is essen- tially necessary to the truth of history and the advancement of science," and ample protection to the individual who dedicates his service to promote the public welfare. Thus limited, the law does not unduly hamper public discus- sion if it insists that only reasonable inferences be drawn from facts truly stated; it likewise protects the reputation of public servants by its insistence that opinions imputing dishonorable conduct be accompanied by facts truly stated, so that the public may draw its own conclusions as to the fairness of the comment. And finally it entrusts to the jury, drawn from the community 211 Libel Defenses: Fair Comment and Other Pleas itself, the duty and privilege of holding the scales between fair comment and unjustifiable defamation. ... Judged by these principles, the second defense here pleaded is sufficient. The libel in this case illustrates the sound reasons for the existence of the de- fense. Captain Foley's conduct is described in the title of the first editorial as "A Smelly Business." It is stated that he had "undertaken to do a little fix- ing," that he had been guilty of "bullyragging tactics," and that there was "too much whitewash." The editorial sets forth as the facts which prompted the writer so to describe the conduct, the attempt to dissuade Mrs. Lansdowne from giving oral testimony, the advice to her "not to make any statement as to the political aspects of the flight," the circumstances surrounding the preparation of the written statement intended to be read before the naval court by Mrs. Lansdowne, and the falsity of that prepared statement in mate- rial respects. The position of the defendant is that such statements as are clearly of fact are actually true; that the publication is an editorial, not a news story, and purports to state opinions as well as facts; that phrases such as "rigging testimony," "fixing," "too much whitewash," and "a smelly business" are fairly to be regarded as expressions of opinion; and that a jury may say that they reasonably characterize Captain Foley's conduct. We cannot say as a matter of law that such expressions are statements of fact, nor can we deter- mine as matter of law that they are unfair comment upon the facts pleaded as true. A jury must decide these issues. As a partial defense the defendant realleges its "rolled-up" plea. The valid- ity of this defense is attacked on the ground that the defense is either in- complete or insufficient and that it cannot in its nature be a partial defense. We think it is clear, however, that where there are several distinct charges in a libel, it is competent for the defendant to justify some of them and for a jury to say that some of them are justified and some are not. It is proper, therefore, for the defendant to set up this plea as a partial defense, to the end that if the jury finds it unsustained as a complete defense, it may none the less find it sufficient answer to some of the libels charged. The so-called second separate and partial defense is really a defense in mitigation of punitive damages, and as such we sustain it. In it the defendant alleges that all the facts set forth in the foregoing defenses were communi- cated to it from reliable sources prior to the publication of the libels and that they in good faith relied on such communications without malice. The de- fendant has a right, by showing the truth of these allegations, to seek to es- cape the imposition of punitive damages or to reduce the amount thereof. For these reasons the order appealed from should be affirmed, with $io costs and disbursements. FOLEY V. PRESS PUB. Co., 226 App. Div. 535; 235 N.Y.S. 340 (1929) A West Virginia newspaper published an editorial in which it said that "a prominent politician" of the state had taken an option on a privately owned bridge for $990,000 prior to the sale of the bridge to the state for $1,040,000 "-a neat cleanup of $50,000." The editorial further alleged that the state 212 Bailey v. Charleston Mail Assn. bonds financing the purchase of the bridge were sold to a bonding house "whose representative in West Virginia is our same old friend, the Cabell county politician!" A libel suit was brought, the plaintiff claiming that the comments in the editorial were based upon an inaccurate statement of facts. Judge Lovins of the state supreme court upheld a lower court ruling in favor of the publication. The authorities are in accord that fair comment and criticism of the official acts of a public officer made in good faith, if properly supported by factual statement, are qualifiedly privileged. But there is a divergence of opinion in the various jurisdictions as to whether a misstatement of fact made concerning a public officer is privileged. A majority of the courts in the United States hold that there is no distinction between false statements made with reference to the official conduct of a public officer and the conduct of a person in private life, and that a false statement relative to official acts of a public officer is not privileged. In other jurisdictions it is held that a misstatement of fact concerning official conduct of a public officer is within the rule of qualified privilege, if the other essentials for such privilege are present. Typical of au- thorities supporting the rule first mentioned are the cases of Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N.E. 1, 13 L.R.A. 97, and Post Pub- lishing Co. v. Hallam, 6 Cir., 59 F. 530. The second rule noted above is enunciated in the cases of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L.R.A., N.S., 361, 130 Am. St. Rep. 390, and Jackson v. Pittsburgh Times, 152 Pa. 406, 25 A. 613, 34 Am. St. Rep. 659. The two rules above men- tioned are stated and annotated in iio A.L.R. p. 412 et seq. . The principal reasons assigned for the majority rule is that honest men will be deterred from seeking and holding public offices and that the press will become depraved and assume a license to publish libelous matter. On the contrary, cases which follow the minority rule advance the reasons that denial of qualified privilege shields the dishonest official from criticism and lowers the standard of official conduct; that the honest public officer will suffer no harm by permitting official acts to be canvassed with a freedom and latitude consistent with good faith and that freedom of statement is conducive to a high standard in the activities of the public press. We accept and approve the reasons adduced for the last-mentioned rule. .. The constitutional provision relating to the freedom of the press forbids the passage of a law by which such freedom may be curtailed or diminished, and authorizes the passage of laws providing for punishment of libel and re- covery of civil damages by persons defamed. Article III, Section 7, Constitu- tion of West Virginia. The constitutional provision relative to the freedom of the press confers no special privilege or right upon a publisher of a news- paper in relation to the law of defamation. Any person has the same right as a publisher of a newspaper. No person has a right maliciously to defame an- other. Improvements in mechanical appliances for printing and advances in the methods of collecting and disseminating news and writings on matters of pub- lic interest have made modern newspapers a powerful and effective instrument 213 Libel Defenses: Fair Comment and Other Pleas in molding and guiding public opinion. This power imposes a moral and so- cial duty upon the publishers of newspapers to make no statement with ref- erence to official conduct until an honest and diligent effort has been made to ascertain the truth of the matter stated. No allegation is made in the plea as to the effort made by the defendants to ascertain the truth of the statements made in the editorials, but it is clearly pleaded that defendants actually and honestly believed in their truth. An hon- est belief presupposes an effort to ascertain the truth, in the absence of which the belief would be groundless. If the inquiry is such as to generate an honest belief in the truth of the matters investigated and publication is made in good faith, for worthy pur- poses, malice should not be imputed to the publisher as a matter of law. The majority rule makes no distinction between a statement with reference to a person in private life and a public officer. The distinction between a state- ment with reference to private gossip and scandal and one concerning an act or conduct of public interest is so palpable as to require no elucidation. Con- sideration of peace and order between individuals calls for repression and punishment of false and defamatory statements of fact concerning the private person. There are equally cogent reasons for liberality of statement in matters of public concern. A citizen of a free state having an interest in the conduct of the affairs of his government should not be held to strict accountability for misstatement of fact, if he has tried to ascertain the truth and, on a reasonable basis, honestly and in good faith believes that the statements made by him are true. BAILEY V. CHARLESTON MAIL ASSN., 126 W.Va. 292; 27 S.E. 2d 837; 150 A.L.R. 348 (1943) 10. Public interest in the issue commented upon enhances the defense. In an election for district attorney, a Sacramento paper published an article in which a local attorney challenged one of the candidates to a debate. The story contained a question asked of the candidate, as follows: "How is it possible for you, Mr. Babcock, going into office dead broke, on a salary of $4,500, to buy an office building at a purported price of $8o,ooo?" The plaintiff sued for libel, alleging that by innuendo this question suggested that he was dishonest and guilty of corruption. The trial court upheld the newspa- per, and upon the plaintiff's refusal to testify as to the truth or falsity of the statements of fact in the question* the suit was dismissed. Justice Thompson of the California District Court of Appeals upheld a lower court ruling for the newspaper. * The original trial was interrupted while a question of procedure was referred to the state supreme court. The question was whether a plaintiff in libel should be required to answer questions as to the truth or falsity of statements on which the libel suit was based. The court answered affirmatively. See McClatchy Newspapers v. Superior Court, 26 Calif. 2d 386; 159c Pac. 2d 944 (1945)) 214 Babcock v. McClatchy Newspapers That seems to be a fair and legitimate question to ask a public officer who is a candidate for re-election, provided the assumed basis for the state- ment is truthfully stated. It contains the assumption of facts that plaintiff was dead broke when he took office; that his salary was $4,500 per year, and that he thereafter bought an office building for which he paid $80,0oo. Those facts are not denied. To state an actionable cause for libel it would be nec- essary to specifically allege that the said essential elements of that question were false. In the interest of public welfare, an individual or a newspaper is privileged to challenge the fitness or qualifications of a candidate for public office, pro- vided the statements with relation thereto are true. In the case of Eva v. Smith, 89 Cal. App. 324, 264 P. 803, 804, a member of the city council of San Mateo published in the San Mateo Times regarding the defendant and other candidates for re-election, among other things, that "I am strongly in favor of keeping the city council free from any suspicion or taint of unfairness in the city's contracts. No contractor should be influenced to buy from any one particular firm. . . ." The complaint contained an innuendo alleging that defendant intended thereby to charge plaintiff with dishonesty in per- formance of his official duties as a member of the city council. A demurrer to the complaint was sustained without leave to amend. The order sustaining the demurrer was affirmed. On appeal the Supreme Court said: Taking the article as a whole, it seems clear to us that it amounts to no more than a criticism of plaintiff's qualifications for office and one which defendant was entitled to make. No malversation on the part of plaintiff is charged. . Nor does the article charge that plaintiff was guilty of dishonest conduct with reference to any public contracts. An individual who seeks or accepts public office invites and challenges public criticism so far as it may relate to his fitness and qualifications, and it is a proper subject of comment. It is therefore justifia- ble for one to communicate, bona fide, to the constituency any matter respecting a candidate material to the election. . . . No one, of course, has a right wrong- fully to impute dishonesty to him. . . . The conduct of public officers being open to public criticism, it is for the interest of society that their acts may be freely published with fitting comment or strictures. . . . It would be absurd to hold it libelous to say of a candidate for office that he was utterly unworthy of public confidence. . . . And, again, it has been said that it 'is one of the in- felicities of public life that a public officer is thus exposed to critical and often unjust comment. . . . The purpose of the rule permitting fair and honest criti- cism is that it promotes the public good and hence is based upon public policy. Triggs v. Sun Printing 6 Pub. Ass'n, supra [179 N.Y. 144, 71 N.E. 739, 66 L.R.A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326]. In thus permitting criti- cism the law gives a wide liberty, there being an honest regard for the truth. Within this limit public journals, speakers, and private individuals may express opinions and indulge in criticism upon the character or habits, or mental or moral qualifications of official candidates. Cooley on Torts, vol. 1, p. 443" Section 256 of the Penal Code provides that a communication made by one who is interested in the subject, to one who is also interested therein, is not presumed to be malicious, "and is a privileged communication." We must 215 Libel Defenses: Fair Comment and Other Pleas presume that newspapers and the electors of a particular locality are interested in the character and fitness of their public officers. As the Eva case, supra, from which we have quoted, says, such statements should be made with an "honest regard for the truth." In Snively v. Record Publishing Company, 185 Cal. 565, at page 574, 198 P. 1, 4, it is said: "Since a libel is 'a false and unprivileged communication' (section 45), it follows that the publication must be both false and unprivi- leged in order that it shall constitute an actionable libel." From the foregoing it follows that since the plaintiff did not deny the truth- fulness of the essential facts upon which the inquiry complained of was clearly based, we must assume those facts were true, and that the complaint, there- fore, fails to state an actionable cause for libel per se. BABCOCK V. MCCLATCHY NEWSPAPERS, 82 Calif. App. 528; 186 Pac. 2d 737 (1947) The Glendale News-Press published a series of letters on both sides of a hotly contested recall election. Among these letters was one which, after reviewing the various issues involved in the election, made the following statement: "Mr. Howard and his entire recall committee have proved them- selves a disgrace to Glendale, and it should be the desire of every citizen to destroy this dangerous and unjust element by casting his vote against the recall." The plaintiff charged that this statement was libelous and demanded that the newspaper publish a retraction under the California libel statute.* This was done, but the court in reviewing the ensuing libel action based its opinion not upon the retraction but upon the question of the newspaper's right to comment upon public issues. Presiding Judge Shinn of the California District Court of Appeals upheld the Los Angeles County Superior Court which had dismissed the suit. Publications by which it is sought to convey pertinent information to the public in matters of public interests are permitted wide latitude. In contro- versies of a political nature, in particular, the circumstances often relieve state- ments, which might otherwise be actionable, of possible defamatory imputa- tions. Mere expressions of opinion or severe criticism are not libelous if they clearly go only to the merits or demerits of a condition, cause or controversy which is under public scrutiny, even though they may adversely reflect upon the public activities or fitness for office of individuals who are intimately con- nected with the principal object of the attack.... The statements of the portion of the article protested by plaintiff were prefaced by a reference to the parking meter issue and to the asserted fact that the sponsors of the recall had made no specific charges or accusations against the officials. It was asserted that no "pointed" charges of misconduct had been made againt the councilmen, no proof offered to connect them * On the California retraction statute see Werner v. Southern California Associated News- papers, p. 234. 216 Kulesza v. Chicago Daily News with the "deplorable" conditions which plaintiff claimed to exist, and that plaintiff had conceded as much. The concluding paragraph, which assumed the truth of the preceding statements, appears to be only an expression of the opinions and views of the author respecting the merits of the recall move- ment. It was devoid of statements of fact. It denounced the recall movement, calling it "illegitimate," "a mala fide attempt" to discredit the officials, a "sin- ister movement," and it referred to the recall committee as a "disgrace to Glendale" and as a "dangerous and unjust element" that must be destroyed by defeating the recall. Considered with the preface, as the author said it should be, the final paragraph merely enlarged upon the idea that no sufficient cause was being advanced for the recall of the councilmen. The justness and good faith of the recall were questioned without any words casting doubt upon the character of the members of the recall committee or the integrity of their actions apart from their active support of the recall. In the words of the court in Taylor v. Lewis, 132 Cal. App. 381, 386, 22 P. 2d 569, 572, the article "does not charge anything that would follow ap- pellant into his private life and stamp him as dishonest or bring upon him in the capacity of a private citizen the contempt of his fellows, etc." This, we take to be a proper test on a charge of libel of words spoken or written con- cerning those who are participating on one side or the other of a political issue. It is a common practice for newpapers to publish communications from their readers dealing with matters of news or public interest. Expressions of views which are addressed to the merits or demerits of the issue are not ac- tionable if they appear as opinions only and not as direct or covert statements of fact which are detrimental to the character of the individuals upon whom they may reflect. We conclude that the article in question was not libelous per se. Although it is unnecessary to carry this opinion further, we may add that the retraction published by the newspaper, as quoted, appears to us to be as full and fair as plaintiff had a right to expect. We do not see how anyone who read the communication from Mr. Close, and also the retraction, could have failed to regard the latter as an adequate and forthright withdrawal of any implied charges against the good character and motives of plaintiff. HOWARD V. SOUTHERN CALIFORNIA ASSOCIATED NEWSPAPERS, 95 Calif. App. 58o; 213 Pac. 2d 399 (1950) The Chicago Daily News published a story under the headline, "They Dream of Millions While Paying to Ghost." The story contained the fol- lowing passages: The "Rev." Elbert R. Robinson has been in his grave these 15 years, but his dreams of wealth go marching on among thousands of Chicagoans who still be- lieve they will soon be millionaires through his activities. "Dr." Robinson, it may be remembered, was once a Nashville chiropodist, who came to Chicago after the turn of the century and became an inventor, and became known equally well as the South Side's leading "philanthropist" and as 217 Libel Defenses: Fair Comment and Other Pleas "the Negro Ponzi." In 1908 he was given a patent for a process of molding hard and soft steel that is used in the manufacture of railroad car wheels. Soon after- ward he launched a dozen suits . . . alleging infringement of his patents. "Dr." Robinson was no piker. The smallest of his suits was for $50,000,000. One was for $1,200,000,000. At any rate the sums were too alluring for many of Chicago's Negroes and white people to resist. When "Dr." Robinson went around selling "interests" in his lawsuits, he found ready buyers. For $50 Robinson would sign a note saying: "When suit ends, I promise to pay John Doe $50,000 .. ." The chief trouble now is that no one group of noteholders has proved clear title to the Robinson patent. Louis Kulesza of 1950 West Potomac street claims to be the rightful heir. Every Sunday morning he holds a meeting of his faith- ful, hopeful "Robinson Club" members . . . and whips up enthusiasm for pressing the suits . It is not the original cost of the Robinson notes that is expensive, but the up- keep. "We need $1,400 to appeal our case," said a speaker. His hearers, which have heard that story for lo these 30 years, were not dismayed. As they have many times in the past, they filed up to the front of the hall, signed a petition blank and plunked a dollar on the table. "We'll have the $1,400 by next Sunday," said a committee member. To a suit charging defamation in this story, the newspaper offered the defense of fair comment, which was upheld by Presiding Justice Friend of the Illinois Appellate Court. It is evident from a reading of the article that this was a newspaper's description of a campaign for the solicitation of money, and that the subject matter of the article constituted matter of public interest and concern, which under the current weight of authority is legitimate subject of criticism and comment by a newspaper, so long as it does so fairly and with an honest purpose. "Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously." 17 Ruling Case Law, Libel 6 Slander, 1ioo, p. 352. The evident purpose of the public gatherings spon- sored by the members of the club and conducted by plaintiffs was to enlist further and continued support for the infringement suits and to get new and additional contributions. The conduct of the litigation had long been a mat- ter of public interest, and was therefore the subject of legitimate criticism and comment by the press. It may well be true, as is pointed out by defendants, that some of the "unfortunate noteholders," after reading the article, gave more careful and intelligent consideration than theretofore to the pouring of their savings into this project, and it was not amiss for a newspaper to point out to the unin- formed element of the population the pertinent facts of the enterprise. The attention of the Daily News was called to the situation by reason of public hearings that were being held at the time, in which noteholders were being urged to invest more money in what was undoubtedly a hazardous undertak- ing, since the litigation had been dismissed by the U.S. District Court, and 218 Hoeppner v. Dunkirk Printing Co. the newspaper committed no libel upon the committee in printing its com- ments on the project. In so doing, no attack was made upon the individuals who sponsored the enterprise, and neither plaintiff committee nor the note- holder group were charged with perpetrating a fraud; the article merely com- mented upon the history of the litigation and its recently unsuccessful termi- nation before Judge Wilkerson, together with an implication that investors would probably lose their hard-earned savings and that the time had come when not too many gullible persons should continue to join in supporting the cause with their contributions. In Williams v. Chicago Herald Co., 46 Ill. App. 655, the court in commenting upon a newspaper's description of a cam- paign for the solicitation of money, which was charged to be libelous, said, "We can not treat seriously, and thereby give a sort of dignity to, the claim of the appellant to damages for a publication, the tendency of which was simply to warn gullible fools against loss." KULESZA V. CHICAGO DAILY NEWS, 311 Ill. App. 117; 35 N.E. 2d 517 (1941) 11. Whatever is offered for public approval is subject to comment. The Dunkirk Evening Observer published two sports stories highly critical of the high school football coach. One story included the following: The terrific drubbing handed the Dunkirk High School football team by War- ren on last Saturday afternoon, following hard on the North East setback of the previous week, has swung the vast group of local "bleacher coaches" into vocal activity and innumerable remedies have been suggested as a means of eradicat- ing or at least subjugating some of the more apparent faults displayed by the Maroon eleven. Lack of knowledge of the fundamentals of the game, low morale particularly when the "breaks" are going against them, paucity of plays furnished, antiqueness of plays and formations being used, the lack of a modern coaching system and other causes too numerous to mention have been enumerated by the dopesters in their indignant discussions following last Saturday's slaughter. ... That the Hoeppner-coached squad is in dire need of a good drill in the rudi- ments of the game was apparent to even the casual spectator at last Saturday's contest. The work of the ldcal youngsters in catching punts, blocking and charg- ing, and particularly in tackling was slip-shod and demonstrated a lack of knowledge. ... The fact that the same five or six plays are used constantly throughout the game by Dunkirk makes things much easier for the Maroon's opponents and after the first few minutes the visitors know in exactly what directions to look for the action. On some occasions when the team has played Dunkirk several preceding years even the above mentioned few minutes are not necessary. A local quarterback of quite a few seasons back recently made the remark that he believed he could run this year's team, as the plays this season looked to be the same ones his outfit used at the high school in the dim and dusty past. Perhaps some one will claim that the old plays and formations still work. They do sometimes-North East used the old Statue of Liberty play here suc- 219 Libel Defenses: Fair Comment and Other Pleas cessfully and Warren dug the shoe string play out of its grave and failed only because of a poor pass to the "sleeper" near the sidelines. However, an alert, well-coached team would smother plays of this sort before they were well started. The coach brought suit for libel and the newspaper offered the defense of fair comment. The New York Court of Appeals upheld the publication, Judge Crane reading a five-to-one opinion which turned upon certain technical points of procedure not included here. The number of pages devoted to sports in the daily issues of all our news- papers gives some idea of the keen interest which the public takes in these affairs. Any one who has attended a college baseball or football game has ex- perienced the keen enjoyment and satisfaction which the spectators take in shouting advice and criticism to the players. It is impossible to disassociate a sport contest of any magnitude from public criticism, hero worship, and ex- cuses for defeat. The chief reason why sports make an appeal to the Ameri- can public is because they afford an outlet for pent-up feelings and enthusi- asm. Sport is the safety valve which prevents us from blowing up through other and more dangerous forms of excitement. It does much to keep the body politic in a healthy and happy frame of mind. When the plaintiff assumed the position of physical instructor and coach to the football team of the Dunkirk High School, he was no exception to the habits and customs which have become a part of the game. His work and the play of his team were matters of keen public interest; victories would be her- alded, defeats condemned. The same enthusiasm which welcomed the home- coming of the Roman conqueror now finds expression in the plaudits of the bleachers and the grandstand. The conquered now appear, not in chains, but what may be far worse, amidst ridicule and derision-the boo-hoos of the crowd. The Dunkirk High School football team and its coach were therefore the subjects of fair comment and criticism in the public press and in sporting circles, and no matter how severe, caustic, or ridiculous this criticism was, it afforded no occasion for an action of libel or slander. Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Such comments or criticisms are not libel- ous, however severe in their terms, unless they are written maliciously. Thus, it has been held that books, prints, pictures, and statuary publicly exhibited, and the architecture of public buildings, and actors and exhibitors are all the legitimate subjects of newspaper criticism, and such criticism fairly and hon- estly made is not libelous, however strong the terms of censure may be. ... The question arising out of personal attacks or criticism upon the acts and conduct of a public character has been stated by Gatley on Libel and Slander (2d Ed.) p. 387, as follows: "Is the inference the honest expression of the opinion which the defendant held upon the facts truly stated, and warranted by the facts in the sense that a fair-minded man might reasonably draw from them that inference?" If the facts stated by the Observer were correct, such, for instance, as the antiquated plays, ignorance of the game upon the part 220 of the players, lack of discipline, and the like, would it not be reasonable to draw the inference that the coach was not thorough and up to date in his work? A criticism or comment of this nature, if fairly and honestly made, even if it reflects upon the plaintiff personally, is not libel. HOEPPNER V. DUNKIRK PRINTING CO., 254 N.Y. 95; 172 N.E. 139; 72 A.L.R. 913 (1930) 12. Comment o political affairs. As the Babcock case indicates, the courts have been inclined to grant a reasonably wide degree of latitude to editorial comment upon political affairs. Not only does a high degree of public interest attach to such subjects, but the whole theory of the function of a free press in a democracy rests upon the premise that the public is best served by encouraging the widest possible dis- cussion of political issues. It is well known, however, that in the heat of political argument allegations are freely made which cannot be proved-and, indeed, are often misstated in whole or in part. The question then becomes: Shall the freedom of political discussion be limited by permitting prosecution for misstatements of fact with reference to political issues, or shall the law permit a certain degree of immunity for such misstatements in the interest of insuring that every possible aspect of a given political issue may be brought to public attention? The immunity would obviously not apply at all in cases of deliberate lying, personal malice, or statements attacking the individual rather than his competence in office. A classic Kansas case reviews the arguments in favor of the special immu- nity rule. The Topeka State Journal published an article about a candidate seeking re-election to the commission in charge of state school funds. The statements of fact in the article were charged with being false and hence invalidating the plea of fair comment. In sustaining the newspaper's defense, however, Judge Burch of the Kansas Supreme Court spoke for a unanimous bench. In some situations an overmastering duty obliges a person to speak, al- though his words bring another into disrepute. Such is the case of a witness testifying to relevant facts in court. Reasons of public policy forbid that the question of malice in his mind should be investigated, and the communica- tion he makes, although damaging in the extreme, is absolutely privileged. He may be prosecuted for perjury, but a civil action based upon his state- ments is not permitted. "A man may be defamed by an unjust removal from office on unfounded charges, by injurious testimony given in courts of justice, by the unwarranted deductions of counsel in presenting his case adversely to the jury, and in many other ways where notwithstanding the agent in the in- jury was wholly free from legal fault. Thus a great public character may per- Coleman v. MacLennan 221 Libel Defenses: Fair Comment and Other Pleas haps suffer in reputation all his life from an impeachment for an offense never in fact committed; yet if the impeachment was instituted in good faith, and on grounds apparently sufficient, those concerned in it only performed a pub- lic duty. We unhesitatingly recognize the fact that in many cases, however damaging it may be to individuals, there should and must be legal immu- nity for free speaking, and that justice and the cause of good government would suffer if it were otherwise. With duty often comes a responsibility to speak openly and act fearlessly, let the consequences be what they may; and the party upon whom the duty was imposed must be left accountable to con- science alone, or perhaps to a supervising public sentiment, but not to the courts." Cooley, Torts (2d Ed.) 246. In other situations there may be an obligation to speak, which, although not so imperative, will under certain con- ditions prevent the recovery of damages by a party suffering injury from the statements made. There are social and moral duties of less perfect obligation than legal duties which may require an interested person to make a commu- nication to another having a corresponding interest. In such a case the occa- sion gives rise to a privilege qualified to this extent. Any one claiming to be defamed by the communication must show actual malice, or go remediless. This privilege extends to a great variety of subjects and includes matters of public concern, public men, and candidates for office. Under a form of gov- ernment like our own there must be freedom to canvass in good faith the worth of character and qualifications of candidates for office, whether elective or appointive, and by becoming a candidate, or allowing himself to be the candidate of others, a man tenders as an issue to be tried out publicly before the people or the appointing power his honesty, integrity, and fitness for the office to be filled. ... The law of libel which the Constitution takes for granted gives expression to and room for the operation of these fundamental principles of public pol- icy and the Bill of Rights must be interpreted accordingly. Section 11 of the Bill of Rights sets off the inviolability of liberty of the press from the right of all persons freely to speak, write, or publish their sentiments on all subjects, and this fact has given rise to claims on the part of newspaper publishers of special privileges not enjoyed in common by all. Whether such claims are just need not be decided in order to determine the rights of the parties to this litigation. So far they have been rejected by the courts, and the present con- sensus of judicial opinion is that the press has the same rights as an indi- vidual, and no more. The basis of the contention for a more liberal indul- gence lies in the modern conditions which govern the collection of news items and the insistent popular expectation that newspapers will expose, and the popular demand that they shall expose, actual and suspected fraud, graft, greed, malfeasance, and corruption in public affairs and questionable conduct on the part of public men and candidates for office without stint, leaving to the people themselves the final verdict as to whether charges made or opin- ions expressed were justified. Neither is it necessary in this case to define the word "sentiments" used in section 11 of the Bill of Rights. If that word means no more than thoughts, judgments, opinions, or notions, and the section does not protect freedom to make assertions of fact, still a more liberal libel law would not violate it. 222 The Constitution guarantees to the individual a minimum of liberty. Other law is not forbidden to secure a larger measure. There is great diversity of opinion regarding the extent to which discussions of the fitness of candi- dates for office may go. In England and Canada the limit is fixed at criticism and comment, which, however, may be severe, if fair, and may include the inferring of motives for conduct in fact exhibited if there be foundation for the inference. In some of our own states the rule is more liberal, while in others it is more narrow. According to the greater number of authorities, the occasion giving rise to conditional privilege does not justify statements which are untrue in fact, although made in good faith, without malice and under the honest belief that they are true. A minority allows the privilege under such circumstances. The district court instructed the jury according to the lat- ter view, and the instruction given has the sanction of previous decisions of this court . The fact that so many courts of this country, all of high character, of great learning and ability, and all equally interested in correctly solving the prob- lems of free government, differ from us, makes us pause; but a reversal of pol- icy and the overturning of what has been so long accepted as settled law would be tantamount under the circumstances to legislation. Such a step ought not to be urged upon the court except for conclusive reasons. What are the reasons supporting the majority rule? The decision most freely quoted since it was rendered in 189; and chiefly relied upon by the plaintiff here is that of the United States Circuit Court of Appeals for the Sixth Circuit in the case of Post Pub. Co. v. Hallam, 16 U.S. App. 61;, 8 C.C.A. 201, 59 Fed. 530. Counsel in the case had argued from the duty of newspapers to keep the public informed concerning those who are seeking their suffrages and confidence, and had asked, if it were possible, that the privilege allowed in discussing the character of public servants should be less than that which protects defamatory statements made concerning a private servant. The opinion states this argument, and then pro- ceeds as follows: The existence and extent of privilege in communications are determined by balancing the needs and good of society against the right of an individual to enjoy a good reputation when he has done nothing which ought to injure it. The privi- lege should always cease where the sacrifice of the individual right becomes so great that the public good to be derived from it is outweighed. Where conditional privilege is extended to cover a statement of disgraceful fact to a master con- cerning a servant or one applying for service, the privilege covers a bona fide statement on reasonable around to the master only, and the injury done to the servant's reputation is with the master only. This is the extent of the sacrifice which the rule compels the servant to suffer in what was thought to be, when the rule became law, a most important interest to society. But, if the privilege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with a single person or a small class of persons, but with every member of the public, when- ever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable ground. We think that not Coleman v. MacLennan 223 Libel Defenses: Fair Comment and Other Pleas only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good. We are aware that public officers and candidates for pub- lic office are often corrupt when it is impossible to make legal proof thereof, and, of course, it would be well if the public could be given to know, in such a case, what lies hidden by concealment and perjury from judicial investigation. But the danger that honorable and worthy men may be driven from politics and public service by allowing too great latitude in attacks upon their character out- weighs any benefit that might occasionally accrue to the public from charges of corruption that are true in fact, but are incapable of legal proof. The freedom of the press is not in danger from the enforcement of the rule we uphold. No one reading the newspaper of the present day can be impressed with the idea that statements of fact concerning public men and charges against them are unduly guarded or restricted; and yet the rule complained of is the law in many of the states of the Union and in England. Here the rule by which privilege is to be measured is correctly stated, as in Wason v. Walter, the balance of public good against private hurt. The argu- ment of counsel is then answered, and the statement is made that a candidate ought not suffer a loss in reputation with the whole public for the public good. That is the question to be decided, and not a reason why it should be so decided. Then the sole reason for the decision is stated-that honorable and worthy men will be driven from politics. Then the consequences of the decision are commented upon: Freedom of the press will not be endangered -an assertion, as shown by the manner in which public men are handled by the press at the present time, an appeal to experience for proof. The single reason upon which the Hallam decision is based is also in the nature of a prediction, and is not new. It was advanced in this country in 18o8 by Chief Justice Parsons (Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212). and by Lord Chancellor Walworth in 1829 in the case of King v. Root, 4 Wend. (N.Y.) 114, 21 Am. Dec. 102. Speaking in opposi- tion to the liberal doctrine, that chancellor said: It is, however, insisted that this libel was a privileged communication. If so, The defendants were under no obligation to prove the truth of the charge; and the party libeled had no right to recover unless he established malice in fact, or showed that the editors knew the charge to be false. The effect of such a doctrine would be deplorable. Instead of protecting, it would destroy, the freedom of the press, if it were understood that an editor could publish what he pleased against candidates for office, without being answerable for the truth of such publica- tions. No honest man could afford to be an editor, and no man who had any character to lose would be a candidate for office under such a construction of the law of libel. The only safe rule to adopt in such eases is to permit editors to pub- lish what they please in relation to the character and qualifications of candidates for office, but holding them responsible for the truth of what they publish. These predictions call to mind that of Lord Thurlow, who, when protest- ing against the passage of the Fox libel act, said it would result in "the con- fusion and destruction of the law of England." 2 May, Const. History of 224 Coleman v. MacLennan England, p. 122. The actual results of the struggle ending in the enactment of that law are stated by the author cited as follows: S. . The press was brought into closer relations with the state. Its functions were elevated, and its responsibilities increased. Statesmen now had audience of the people. They could justify their own acts to the world. The falsehoods and misrepresentations of the press were exposed. Rulers and their critics were brought face to face, before the tribunal of public opinion. The sphere of the press was widely extended. Not writers only, but the first minds of the age, men ablest in council and debate, were daily contributing to the instruction of their countrymen. Newspapers promptly met the new requirements of their position. Several were established during this period whose high reputation and influence have survived to our own time, and, by fullness and rapidity of intelligence, fre- quency of publication, and literary ability, proved themselves worthy of their honorable mission to instruct the people. In opposition to the high authority of King v. Root and the Hallam case may be placed Thomas M. Cooley, who must be reckoned with in the dis- cussion of any question upon which he has deliberately expressed himself. Commenting on the foregoing quotation from King v. Root, he says: Notwithstanding the deplorable consequences here predicted from too great license to the press, it is matter of daily observation that the press in its com- ments upon public events and public men proceeds in all respects as though it were privileged. Public opinion would not sanction prosecutions by candidates for office for publications amounting to technical libels, but which were never- theless published without malice in fact; and the man who has a "character to lose" presents himself for the suffrages of his fellow citizens in the full reliance that detraction by the public press will be corrected through the same instru- mentality, and that unmerited abuse will react on the public opinion in his favor. Meantime the press is gradually becoming more just, liberal, and digni- fied in its dealings with political opponents, and vituperation is much less com- mon, reckless, and bitter now than it was at the beginning of the century, when repression was more often resorted to as a remedy. Const. Lim. (7th Ed.) 644n. This statement of the results of Judge Cooley's observation is in full accord with our own local experience. Without speaking for other states in which the liberal rule applied in Balch's case [31 Kans. 465; 2 Pac. 609] prevails, it may be said that here at least men of unimpeachable character from all politi- cal parties continually present themselves as candidates in sufficient numbers to fill the public offices and manage the public institutions, and the conduct of the press is as honest, clean, and free from abuse as it is in states where the narrow view of privilege obtains. The fact that the public welfare has been promoted in England by liberalizing the law of libel is freely acknowledged in Wason v. Walter. Our view of libel has in many respects only gradually developed into any- thing 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 225 Libel Defenses: Fair Comment and Other Plea times been recognized. Comments on government, on ministers and officers of state, on members of both houses of Parliament, on judges and other public functionaries are now made every day which half a century ago would have been the subject of actions or ex officio informations, and would have brought down fine and imprisonment on publishers and authors. 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? . . . Facts and the truth never have been much in favor in that branch of the law. Its early use as a weapon and shield of caste and arbitrary power would have been impaired. Suppose a serious charge to be made. By a fiction it is presumed to be false. By a fiction malice is inferred from the fiction of falsity. By a fiction damages are assumed as the consequence of the fictions of malice and falsity. Publication only is not presumed, and until recent times the offer to show the truth of the charge as having some bearing upon liability was a sacrilegious insult to this beautiful and symmetrical fabric of fiction. Then a defendant was made to suffer additional smart for venturing to obtrude the truth as a defense, if, although his proof were abundant, he barely failed in the opinion of the jury to make out a preponderance. It is, however, in the field of malice, where the rule stated in the quotation lies, that truth and fact are most superfluous. In the first place, it is said that malice is the gist of the action for libel. This is pure fiction. It is not true. The plaintiff makes a com- plete case when he shows the publication of matter from which damage may be inferred. The actual fact may be that no malice exists or could be proved. Frequently libels are published with the best of motives, or perhaps mistakenly or inadvertently, but with an utter absence of malice. The plaintiff recovers just the same. Therefore "the gist of the action" must be taken out of the case. This is done by another fiction. It is said that, of course, malice does not mean the one thing known to fact or experience to which the term may apply, but it is just a legal expression to denote want of legal excuse. In this state a statutory definition of libel making malice an essential ingredient as at the common law compels this court to say that the intentional publication of libelous matter implies "malice" whatever the motive in fact may be. So a fic- tion was invented to meet an unnecessary fiction which became troublesome, and the courts go on gravely ascending the hill for the purpose of descending, meanwhile filling the books with scholastic disquisitions, verbal subtleties, and refined distinctions about malice in law, malice in fact, express malice, implied malice, etc. Now what is the fact? Instead of malice being the gist of the ac- tion, it may come into a libel case and be of importance in two events only- to affect damages and to overcome a defense of privilege. If the occasion be absolutely privileged, there can be no recovery. If it be conditionally privi- leged, the plaintiff must prove malice, actual evil-mindedness, or fail. When it comes to this proof, there is no presumption, absolute or otherwise, attaching to a charge of crime. The proof is made from an interpretation of the writ- ing, its malignity, or intemperance by showing recklessness in making the charge, pernicious activity in circulating or repeating it, its falsity, the situa- 226 Washington Times Co. v. Bonner tion and relations of the parties, the facts and circumstances surrounding the publication, and by other evidence appropriate to a charge of bad motives as in other cases. ... Speaking generally, it may be said that the narrow rule leaves no greater freedom for the discussion of matters of the gravest public concern than it does for the discussion of the character of a private individual. It is a matter of common experience that whatever the instructions to juries may be, they do not, and the people do not, hold a newspaper publisher guilty and brand him a calumniator if in an effort in good faith to discharge his moral duty to the public he oversteps that rule. In a political libel suit, if a nonpolitical jury be secured, the newspaper usually gets a verdict if, in, the language of Balch's case, "the whole thing was done in good faith." Otherwise damages are as- sessed. Although he adhered to the narrow rule, Sir Frederick Pollock, when Chief Baron of the Exchequer, came near stating its rival when he said: "I think it quite right that all matters that are entirely of a public nature-con- duct of ministers, conduct of judges, the proceedings of all persons who are responsible to the public at large-are deemed to be public property, and that all bona fide and honest remarks upon such persons and their conduct may be made with perfect freedom, and without being questioned too nicely for either truth or justice." Gathercole v. Miall, 1 M. & W. 318. The liberal rule offers no protection to the unscrupulous defamer and traducer of private character. The fulminations in many of the decisions about a Telemonian shield of privilege from beneath which scurrilous newspapers may hurl the javelins of false and malicious slander against private character with impunity are beside the question. Good faith and bad faith are as easily proved in a libel case as in other branches of the law, and it is an everyday issue in all of them. The history of all liberty, religious, political, and economic, teaches that undiue restrictions merely excite and inflame, and that social progress is best facilitated, the social welfare is best preserved, and social justice is best pro- moted in presence of the least necessary restraint. Aside from other reasons for adhering to it, the court is of the opinion that the rule in Balch's case ac- cords with the best practical results obtainable through the law of libel under existing conditions, that it holds the balance fair between public need and private right, and that it is well adapted to subserve all the high interests at stake-those of the individual, the press, and the public. COLEMAN V. MACLENNAN, 78 Kan. 711; 98 Pac. 281; 20 L.R.A. (n.s.) 361; 130 Am. St. Rep. 390 (1908) The Coleman case represents what has been termed "a strong minority" view which many legal scholars believe may eventually become the majority rule. The present majority rule was stated by Associate Justice Stephens of the United States Circuit Court of Appeals in 1936 in a review of leading cases on the subject. Two newspapers in Washington, D.C., ran a series of articles about a mem- ber of the Federal Power Commission which were described by the court as follows: The stories represented that the plaintiff actually controlled or in- 227 Libel Defenses: Fair Comment and Other Pleas fluenced the commission; that he had been appointed to his post through the influence of private power companies whose interests he was promoting at the expense of a public power program; that he had removed from the com- mission's files letters from private power companies recommending his ap- pointment and hence was subject to possible criminal action for rifling the files. The plaintiff averred that these statements of fact were false and libelous. To the newspapers' defense of the right to comment on affairs of public interest, particularly those having to do with politics and government, the court replied: The law recognizes also, as a defense in defamation actions, a right of fair comment upon matters of public interest. There is a division of authority, however, upon this subject. The courts in a few states hold that the right of fair comment on matters of public interest extends, in the absence of malice, to misstatements of fact. The leading case representative of that view is Cole- man v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L.R.A.(N.S.) 361, 130 Am. St. Rep. 390. Other cases to the same effect are: Mulderig v. Wilkes-Barre Times, 215 Pa. 470, 64 A. 636, 114 Am. St. Rep. 967; Bays v. Hunt, 6o Iowa 251, 14 N.W. 785; Ross v. Ward, 14 S.D. 240, 85 N.W. 182, 86 Am. St. Rep. 746. An annotation in L.R.A. 1918E, pp. 68 et seq., discusses the minority rule. The theory underlying that view seems to be that free press discussion of matters of public interest is so important to the public that there should be no restriction upon newspaper statements except good faith in making them, i.e., honest belief in their truth, regardless of their actual verity-that it is better to expose individual reputation to misstatement than to lay any restric- tion, except an absence of malice, upon public discussion. But the great weight of authority in the state courts, and the rule in the Federal courts, is to the contrary-that the right of fair comment does not extend to misstatements of fact. More than a score of the state courts take this view. See L.R.A. 19 i8E, pp. 54 et seq. The leading case in the state courts for the majority view is Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N.E. 1, 13 L.R.A. 97. There the defendant's newspaper articles charged the plaintiff with fraud in the conduct of his duties at the New York Custom House. The trial court had ruled that the publication was not privileged if the statements made therein were false, however reasonable the defendant's be- lief in their truth. This view the Supreme Judicial Court of Massachusetts held correct. The opinion was by Judge Oliver Wendell Holmes, who said: But there is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest, and the privilege ex- isting in the case, for instance, of answers to inquiries about the character of a servant. In the latter case, a bona fide statement not in excess of the occasion is privileged, although it turns out to be false. In the former, what is privileged, if that is the proper term, is criticism, not statement, and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libelous, he will not be privileged if those facts are not true. The rea- 228 Washington Times Co. v. Bonner son for the distinction lies in the different nature and degree of the exigency and of the damage in the two cases. In these, as in many other instances, the law has to draw a line between conflicting interests, both intrinsically meritorious. When private inquiries are made about a private person, a servant, for example, it is often impossible to answer them properly without stating facts, and those who settled the law thought it more important to preserve a reasonable freedom in giving necessary information than to insure people against occasional unin- tended injustice, confined as it generally is to one or two persons. But what the interest of private citizens in public matters requires is freedom of discussion rather than of statement. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood is much greater than in the other case. If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer [154 Mass. 238, at pages 242, 243, 28 N.E. 1, 4, 13 L.R.A. 971" In the Federal courts the leading case is Post Pub. Co. v. Hallam (C.C.A.) 59 F. 530. In that case a newspaper article published by the defendant insinu- ated that the plaintiff, a candidate for public office, had received a money consideration for using his influence to procure the nomination of his rival. The United States District Court for the Southern District of Ohio had at the trial instructed the jury in substance and effect that "the public acts of public men (and candidates for office were public men) could be lawfully made the subject of comment and criticism, not only by the press, but also by all members of the public, for the press had no higher rights than the indi- vidual; but that while criticism and comment, however severe, if in good faith, were privileged, false allegations of fact, as, for instance, that the candi- date had committed disgraceful acts, were not privileged, and that, if the charges were false, good faith and probable cause were no defense. . . ." [(59 F. 530, at page 539)] This instruction was held correct by the Circuit Court of Appeals for the Sixth Circuit in an opinion written by then Circuit Judge Taft: The existence and extent of privilege in communications are determined by balancing the needs and good of society against the right of an individual to en- joy a good reputation when he has done nothing which ought to injure it. The privilege should always cease where the sacrifice of the individual right be- comes so great that the public good to be derived from it is outweighed. Where conditional privilege is extended to cover a statement of disgraceful fact to a master concerning a servant or one applying for service, the privilege covers a bona fide statement, on reasonable ground, to the master only, and the injury done to the servant's reputation is with the master only. This is the extent of the sacrifice which the rule compels the servant to suffer in what was thought to be, when the rule became law, a most important interest of society. But, if the privilege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with a single person or a small class of persons, but with every member of the public, 229 Libel Defenses: Fair Comment and Other Pleas whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable ground. We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good. We are aware that public officers and candidates for public office are often corrupt, when it is impossible to make legal proof thereof, and of course it would be well if the public could be given to know, in such a case, what lies hid- den by concealment and perjury from judicial investigation. But the danger that honorable and worthy men may be driven from politics and public service by allowing too great latitude in attacks upon their characters outweighs any benefit that might occasionally accrue to the public from charges of corruption that are true in fact, but are incapable of legal proof. The freedom of the press is not in danger from the enforcement of the rule we uphold. No one reading the news- paper of the present day can be impressed with the idea that statements of fact concerning public men, and charges against them, are unduly guarded or re- stricted; and yet the rule complained of is the law in many of the states of the Union and in England [59 F. 530, at pages 540, 541]. In Russel v. Washington Post Co., 31 App. D.C. 277, 14 Ann. Gas. 820, and in Ashford v. Evening Star Newspaper Co., 41 App. D.C. 395, we quoted with approval from cases representing the majority rule, and in A. S. Abell Co. v. Ingham, 43 App. D.C. 582, we applied it. But in the last case the contrary view was not seriously urged, and we did not discuss the authorities; hence we have in the instant case considered the question anew and have examined with care the leading cases, including those cited by the defendant, and we feel constrained to follow the majority rule as the better view. It follows that we must sustain the rulings of the trial court assigned as error in this aspect of the present case. WASHINGTON TIMES Co. V. BONNER, 66 App. D.C. 280; 86 Fed. 2d 836; 11o A.L.R. 393 (1936) The Denver Post published an article on the eve of an election containing the following statement: In publishing these marked ballots the Denver Post is not trying to tell any- body how to vote. It is merely passing on to the voters the results of its investiga- tions of the merits of the various candidates. Few voters know personally all the candidates. Few have an opportunity to check up for themselves on all the can- didates. As a public service, the Post has investigated carefully the candidates on both, Democratic and Republican tickets. For the convenience of the voting public, the Post's conclusions are presented in the form of these marked ballots: Two of the candidates for governor were listed with the statement, "Both qualified." Plaintiff's name was then listed with the statement, "Not quali- fied." On the issue of fair comment in political affairs, the Colorado Supreme Court said, in the opinion of Justice Goudy affirming dismissal of the suit: 230 Sweeney v. Schenectady Union Publishing Co. 231 Considering the complaint in the light of the alleged facts set forth by way of innuendo, we do not find the words "worst" and "not qualified" fairly capable of the meaning which plaintiff ascribes to them, or of any meaning which is defamatory. In construing words alleged to be libelous we cannot travel into the realm of conjecture, but must confine ourselves to the natural, ordinary and commonly accepted meaning of the words themselves, consid- ered in connection with the other facts alleged in the complaint. The expres- sion of the opinion of representatives of the Post, that plaintiff is not quali- fied for the public office to which he aspires, is not actionable per se. The word "worst" is a relative term, and did not refer to the plaintiff alone; but even if it did, it would not carry the meanings which plaintiff by his allega- tions attempts to ascribe to it. .. A newspaper may state of a candidate for public office that he has no quali- fications for the place, and this statement contains no possible reflection upon the plaintiff's personal or professional character, but, being confined to a criti- cism of his fitness for the place sought, is clearly permissible. Walsh v. Pu- litzer Pub. Co., 250 Mo. 142, 157 S.W. 326, Ann. Gas. 1914C, 985. One who is a candidate for an office at the hands of the people invites con- sideration of his qualifications, and tenders, as an issue to be tried out pub- licly before the people, his honesty, integrity and fitness for the office to be filled. Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L.R.A., N.S., 361, 130 Am. St. Rep. 390. Liberty of the press must remain an undefined term, and while certain boundaries within which it must be exercised are discernible, precise rules to govern it on particular occasions cannot be formulated in advance. It im- plies a right to publish freely whatever the citizen may please, and to be pro- tected against responsibility therefor, unless such publication is a public of- fense because of blasphemy, obscenity or scandalous character, or, because of falsehood and malice, it injuriously affects the standing, reputation or pecuni- ary interests of individuals. It is one of the hazards which a candidate for public favor must face that he is exposed to critical, and perhaps unjust, comments, but these, unless they transcend the bounds of what the law permits, must be borne for the sake of maintaining a free press. Where actions for libel based upon such criticism have been sustained, the words used have been adjudged to contain a charge of positive misconduct. There is authority which places candidates for public office in the same situation as other private individuals and denies the applica- tion of any doctrine of privilege in publishing matters concerning such can- didates. We do not believe that such a rule is compatible with a free press. KNAPP V. POST PRINTING & PUBLISHING CO., 111 CobO. 492; 144 Pac. 2d 981 (1943) A syndicated Washington column published by a large number of newspa- pers carried this statement: A hot behind-the-scenes fight is raging in Democratic Congressional ranks over the effort of the Rev. Charles E. Coughlin to prevent appointment of a Libel Defenses: Fair Comment and Other Pleas Jewish U. S. District Judge in Cleveland. . . . This has aroused the violent op- position of Representative Martin L. Sweeney, Democrat, of Cleveland, known as the chief Congressional spokesman of Father Coughlin. Basis of the Sweeney-Father Coughlin opposition is the fact that Freed is a Jew, and one not born in the United States. The congressman brought a series of libel suits for this column against all parties who, under the well-recognized rules of libel, were separately liable for each separate publication of the statement.* However, the courts in the several states where the cases came to trial were generally disposed to accept the newspapers' insistence upon the right to give full publicity to political affairs. The law applied in each case, whether by state or federal courts, was the law of the state in which the alleged libel was published. Thus in a New York suit the federal Circuit Court of Appeals emphasized that in consideration of the specific prohibitions set forth in the New York libel statute, and also in consideration of the large Jewish element in the state's population, an action might be maintained. Chief Justice Chase read the two-to-one ruling, Judge Learned Hand concurring. The New York law, as stated in Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217, 218, makes libelous per se the publica- tion of "words which tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion in the minds of right-thinking persons, and to deprive one of . . . confidence and friendly intercourse in soci- ety. . ." The test is whether right-thinking persons would be reasonably expected to be induced by the publication to believe that it truthfully represented the plaintiff's attitude on the subject of Freed's appointment and would be likely to regard him as a consequence in such a way that his reputation was injured in one or more of the respects above noted. It is, of course, not easy to apply the general test to a case of this nature. Opinions and prejudices concerning the matter in hand might well lead to different conclusions .. And certainly the time and place of publication must be given due weight and effect. . . . [W]here Jews make up a sizable portion of the population as they are known to do in a part of the territory in which it is alleged that the defendant's newspaper circulated when the publication was made, it may be taken for granted that there will be an appreciable number who will hate or hold in contempt one who discriminates against a Jew merely because he is a Jew whether born in this country or not. A majority of the court is of the opinion that the complaint is sufficient under the principles above stated and that the defendant should be required to meet it on the merits. SWEENEY V. SCHENECTADY UNION PUB. Co., C.C.A. 2d, 122 Fed. 2d 288 (1941); aff. 316 U.S. 642; 62 S. Ct. 1031; 86 L. Ed. 1727 (1942) * Sixty-eight newspapers, the syndicate, and the coauthors of the "Washington Merry-Go- Round" were originally listed as separate defendants in suits for which a total of $7,500,000 in damages was asked. 232 Sweeney v. Beacon-Journal Co. Applying the same general argument, that the time and place of the publica- tion must be considered in an action for libel, District Judge Allred of the Texas federal court ruled that this publication was not actionable. The test is: "What effect would the publication have upon the mind of an ordinary reader? What construction would he have put upon it?" A. H. Belo 6 Co. v. Smith, 91 Tex. 221, 42 S.W. 850o, 851. It would be a rather violent presumption to say that the effect of the publication upon the mind of the "ordinary reader" would be that plaintiff is not a man of integrity or was guilty of any misconduct in office. As stated by the majority opinion in the New York case (Sweeney v. Schenectady Union Pub. Co., supra), "certainly the time and place of publication must be given due weight and effect." It seems to me this Court should not close its eyes to the fact that the "ordinary reader" of defendant Corpus Christi, Texas, Caller-Times probably never heard of Congressman Sweeney before the publication, didn't remember his name five minutes afterward and did not care whether he opposed the ap- pointment of Freed, or on what grounds . While a public officer or candidate cannot be libeled any more than any other citizen, he cannot go about with his feelings an his sleeve. Public offi- cials and candidates are legitimate subjects for news and corument. While they cannot be libeled, they must reconcile themselves to occasional "yarns" which, however hurtful to their feelings, are not actionable. . It is not enough to say this privilege shall never be denied and then extend it only as a matter of defense. It would in effect be a denial of the freedom of the press to say that reputable newspapers would have to defend themselves from such suits as this. It would make them unduly hesitant, fearful. It would lead to endless litigation even though the "pickings" at the hands of juries be small. In my judgment enough facts are admitted to justify, as a reasonable deduction or comment, the columnist's statement as to the basis of plaintiff's opposition to Freed's appointment. It is, therefore, entitled to the qualified privilege recognized in Texas without defendant being put to the burden of proving the truth of every item or deduction. SWEENEY V. CALLER-TIMES PUB. Co., 41 Fed. Supp. 163 (1941) The Ohio Court of Appeals likewise upheld the newspaper's right to com- ment in defense of this suit. Judge Doyle said: It is common knowledge that political appointments are greatly influenced by the political effect of the appointment. And it is common practice to ap- point to various offices, persons who are representative of different nationali- ties, creeds and groups. To oppose a person for political reasons because he is a Methodist, a Baptist, a Catholic, a Jew, or one foreign born, for a particular appointment, does not carry the necessary implication that the person op- posing is influenced by his own intolerance. . .. We are concerned only in this appeal with a technical rule of law having to do with the matter of proof of a claimed injury resulting from a claimed 233 234 Libel Defenses: Fair Comment and Other Pleas defamatory publication. Our decision cannot be bottomed upon social im- plications which might attach to such language, nor to its governmental effect. It is not our province to approve or disapprove such argument, and our hold- ing in this case in no wise indicates that this court approves of opposition to the appointment of a man to public office based on the religious or social heritage of the proposed nominee. ... It is therefore our opinion that in taking the entire article, keeping in mind the theme of the composition, the circumstances and the occasion, the language employed relates solely to political views and activity on a matter of public interest; that the language does not attack the character of the plaintiff nor does it impute to him immorality or a violation of the law of the land. SWEENEY V. BEACON-JOURNAL Co., 66 Ohio App. 475; 35 N.E. 2d 471 (1941) In a second Ohio case, and in cases against newspapers in Idaho, Pennsyl- vania, Tennessee, and Washington, the courts uniformly have dismissed the actions. The reasoning has followed closely the arguments of the Caller-Times and Beacon-Journal cases. Thus one of the most extensive "chain libel" actions against American newspapers in the twentieth century dwindled to a single case, in New York, where the plaintiff was upheld, and this was later settled without any monetary damages being involved. 13. Retraction may mitigate damages or limit the action to proof of special damages. The most painstaking and conscientious periodicals will someimes dis- cover that they have incurred liability for defamation even after every reasona- ble care had been exercised in preparing a particular story. In almost all such cases the periodical will publish a correction, retraction, or apology as soon as the mistake has been brought to the editors' attention. Courts generally have been inclined to accept evidence of retraction in mitigation of damages, on the ground that such action on the part of the publisher and his staff indicated an absence of express malice and a sincere effort to make amends. In a few states legislative efforts have been made to provide statutory protec- tion for publishers who incur liability for defamation through "honest mis- take." In 1945 California enacted a broad statute with this objective, providing among other-things-the--following: 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 dam- ages unless a correction be demanded and be not published or 'iroadcast, as hereinafte-r p.rovfrFd. Plaintiff shal serve uponthe publi her at the place of publication, or broadcaster at the place of broadcast, a written notice specifying Werner v. Southern California Associated Newspapers 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, plain- tiff, 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 dam- ages; provided that no exemplary damages may be recovered unless the plaintiff shall prove that the 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 place 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," . . . are defined as follows: (a) "General damages" are damages for loss of reputation, shame, mortifica- tion 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 occupa- tion, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other. . . . (California Civil Code, Sec. 48a) Since such a law places most of the burden of proof upon the plaintiff, it obviously tends to reduce the practical danger of libel actions being success- fully maintained against newspapers. The California law was criticized by many leaders of the bar as being too broad in its protection of newspapers and too restrictive of an individual's right to initiate actions for defamation. A test case was accordingly brought in 1950, alleging that the retraction law violated the "equal protection" clause of the federal Constitution. The Cali- fornia Supreme Court ruled in a four-to-two decision that the trial court's dismissal of the suit was proper. Justice Traynor read the majority opinion. Article I, section 9, of the California Constitution provides: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being re- sponsible 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 235 Libel Defenses: Fair Comment and Other Pleas 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 con- fer 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 "abuse" exception has been necessarily implied. See Schenck v. United States, 249 U.S. 47, 52, 39 S. Cr. 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. In- deed, 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 Legisla- ture had extended the absolute privilege with respect to statements in judicial, legislative, and other official proceedings, and the qualified privilege with re- spect 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 orig- inal 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. . There are at least two bases on which the Legislature could reasonably con- clude that the retraction provisions of section 48a provide a reasonable substi- tute 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 news. General damages are allowed for "loss of reputation, shame, mortification and hurt feelings," Civil Code S48a, but the extent of such injuries is difficult to determine. At common law it was conclusively presumed that general dam- ages resulted from the publication of a libel. "The practical result is that the jury may award not only nominal damages, but substantial sums in compen- sation of the supposed harm to the plaintiff's reputation, without any proof that it has in fact occurred." Prosser, Torts, S92, p. 797. The Legislature could reasonably conclude that recovery of damages without proof of injury constitutes an evil. .. Nor can we take exception to the second basis upon which the Legisla- ture could justify its limitation of recovery to 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 236 Werner v. Southern California Associated Newspapers 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 un- true 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. Plaintiff contends, however, that no public interest is served by the publication of false news and that it is desirable to enforce full re- sponsibility 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. ... 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 ade- quately 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 stapd, 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 be- lieve that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions." Baldwin v. State of Mis- souri, 281 U.S. 586, 595, dissent, 50 S. Ct. 436, 439, 74 L. Ed. 10o6, 72 A.L.R. 1303. 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 [Nebbia v. People of State of New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A.L.R. 1469], has steadily rejected the due process philosophy enunciated in the Adair-Coppage line of cases [Adair v. United States, 208 U.S. 161, 28 S. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764; Coppage v. State of Kansas, 236 U.S., 1, 35 S. Ct. 240, [9 L. Ed. 441, L.R.A. 1915C, 960]. 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. 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 regard as offensive to the public welfare. Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron 6 Metal Co., 335 U.S. 525, 536-537, 69 S. Ct. 251, 257, 6 A.L.R. 2d 473 � . 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 un- constitutional compromise in enacting section 48a. 237 Libel Defenses: Fair Comment and Other Pleas [Mr. Justice Carter, dissenting.] The legislation here involved is certainly discriminatory in that it protects certain members of a class to the detriment of others. The requirement of proof of special damages means virtual abolition of legal responsibility for both inadvertent and malicious libel. It is a very rare situation where a plain- tiff can trace and prove the special damage he has suffered from libelous mat- ter printed in a newspaper or spoken over the radio about him. This does not mean that he may not have suffered sharply-but it does mean that he may never hear of business opportunities which would have been his had the "li- belous stain" not appeared on his name plate. Those who read the libel may not read the retraction and if he loses business or professional oppor- tunities which would otherwise have been his (although he does not know of them, or cannot prove his actual pecuniary loss as to them), he should be compensated for the probable damage he has suffered and that which he will suffer in the future. Surely Mr. Morris is right when he says that "the tendency toward flamboyance and haste in modern journalism should be checked rather than countenanced." The interest of the public in news cannot be said to outweigh the protection which every person is entitled to be given by the law to have his reputation remain unsmirched through malice or negligence. Under the holding in this case, newspapers and radio may freely malign any person and be liable for only special damages if the plaintiff asks for and re- ceives a retraction, or if he does not ask for one. This will in effect allow these two favored means of publication to escape, in most instances, scot- free, since the plaintiff will not be able to prove the exact special pecuniary loss he has suffered. ... We may now assume that the Legislature (pushed by the powerful pressure groups which play such a shameful but important part in securing the adop- tion of special privilege legislation), having succeeded so well with its initial efforts (present statute held constitutional), may well decide next that all causes of action for libel and slander shall be abolished. In this connection, let me point out that the "guest" statutes and causes of action for alienation of affections and breach of promise to marry, etc., are not good illustrations of the power of the Legislature to abolish a cause of action for an injury. The guest does not have to ride in a car as a guest, and affection is an intangible at- tribute incapable of possession. From the beginning of time in this country it has been understood that marriage is a "commodity" that can not be forced on men and women. An entirely different factual situation is presented where an innocent person is defamed, either negligently or maliciously, and suffers irreparable injury to his professional, occupational or business reputation be- cause of it. The least that can be done by the guilty one is to make such repara- tion in the form of money damages as will enable the maligned one to live until such time as he may again build up his reputation. .. The following statement in the majority opinion deserves some comment: "Moreover, in balancing the danger of recoveries of excessive general dam- ages against leaving plaintiffs with no effective remedy for injury to their repu- tations, the Legislature could properly take into consideration the fact that a retraction widely circulated by a newspaper or radio station would have greater 238 Thorson v. Albert Lea Publishing Co. effectiveness than a retraction by an individual and could thus class newspa- pers and radio stations apart." This argument is clearly and concisely an- swered by Professor G. W. Paton, University of Melbourne, Australia, in his article, "Reform and the English Law of Defamation," 33 Ill. Law Rev. 669. Professor Paton states that the law of torts exists to grant a certain security to a person's reputation, physical integrity and good, and, if that security be in- vaded, to award damages. The power of the press to destroy the reputation of an individual is so great that strict rules are necessary to secure a balance. He says that "it is true that there are speculative litigants whose one desire is to reap a golden recompense for some fancied slight: that sometimes a person, with no real reputation to lose, recovers damages based on the view that he had a reputation: very occasionally a newspaper has suffered because a ficti- tious name it has chosen fits someone in real life. All this is admitted, but the corollary of the great power of the modern press is a strict sense of responsi- bility for the reputation of those who lie at their mercy and, as it is Utopian to consider that such an attitude of mind can be induced save by the severest sanctions of the law, strict liability is justifiable by its effect. It must be re- membered that a newspaper has no professional privilege to traffic in the repu- tation of others." (Emphasis added.) The last statement in the just quoted article is to be found in libel cases against newspapers decided in this state prior to the enactment of the legislation here considered. It should be noted that rather than imposing stricter liability upon newspapers and radio stations because of the great power they possess to ruin the reputation of others, either carelessly or maliciously, the section provides for a lesser liability. To illustrate the utter futility of a newspaper or radio retraction, consider the case of a candidate for public office who has been publicly and falsely accused a few days before election of having committed several crimes, of being a person of low character and of dishonest nature. He requests a retraction which, if time permits, may be given before the election, or if time does not permit, after the election. He is not elected. He can not prove that the libel caused him to lose the election although he and his advisors are certain it was the cause. Consider, too, that he has lost the election because untrue defamatory matter was widely published about him and that this may have been done maliciously for that very purpose. Consider, too, that because of it, the possibility of a favorable outcome of any future election is very remote. Is this candidate for public office to have no restitution from the one guilty of the wrong? The majority opinion says "No." I do not agree. ... WERNER V. SOUTHERN CALIFORNIA ASSOCIATED NEWSPAPERS, 35 Calif. 2d 121; 216 Pac. 2d 825 (1950); appeal dismissed 340 U.S. 910; 71 S. Ct. 290; 95 L. Ed. 657 (1951) One of the commonest mistakes made in a newspaper is in publishing a name which is identical with that of an innocent person not concerned with the story in any way, and usually compounding the offense by including the address of the innocent party. Such a story was published by a Minnesota paper, to the effect that a certain person had been arrested on a charge of 239 Libel Defenses: Fair Comment and Other Pleas having liquor in his possession for sale in violation of the existing law. The complications surrounding such a news incident were outlined by the court in its review of the libel action growing out of the story; but although the court conceded that the newspaper "in a most laudable and praiseworthy manner attempted to correct the wrong that had been done," it declined to reverse the judgment of the lower court which had gone against the publication. Justice Hilton of the Minnesota Supreme Court said: The news item was obtained and written by a young lady reporter who was also an assistant editor of the defendant. She was capable and experi- enced, having been with the paper for over seven years. She obtained her information, except the street address, from the sheriff, who stated to her that Gilbert Thorson had been arrested "in the south part of town" on the eve- ning of November loth, and that he did not know him. The residence ad- dress of plaintiff was in the south part of town. The reporter, who did not know Thorson, examined three directories, one a city telephone directory, one gotten out by a local credit association, and the other a Polk & Co. Free- born county directory. The only Gilbert Thorson appearing in the directories was this plaintiff. The reporter did not call up any one at the residence of plaintiff, nor at the place of his employment. She did, however, attempt to get in touch with the sheriff in the afternoon, but could not locate him in his office. She made no investigation of the records of the court. A complaint was filed in the justice court some time on the day the article was published. The reporter believed the statements in the article were true; she did not bring it to the attention of the editor before its publication, giving as a reason therefor that he was busy, it was a rush day and the hour for going to press was near at hand, and that in such a situation it was not unusual for her to publish proposed articles without first showing them to the editor. The editor lived five houses from the plaintiff and before that time had lived less than four blocks away from him. Plaintiff and his wife testified that the editor knew them, had traded at their grocery store, and that in meeting plaintiff had called him by name. This was denied. The same evening of the publication and within an hour after the same, defendant's editor and the reporter responsible for the article learned through plaintiff's wife that her husband was not the person arrested, and made im- mediate apology and explanation coupled with a promise of correction in the newspaper. In the next evening's issue an apology and retraction was pub- lished, which the court instructed the jury constituted, as a matter of law, a full retraction within the terms of the statute (2 Mason's Minn. St. 1927, S9397). Whether that instruction, favorable as it was to defendant, was correct, we need not here decide. .. The unfortunate occurrence from which this action arose was one that could have happened without malice or wrong intent in the best managed of newspaper offices. In order that information which the public is entitled to receive shall be furnished reasonably, there cannot be long delays in the pub- lication thereof. Newspapers, performing as they do one of the most impor- tant of public services, are entitled to all reasonable protection, especially 240 Cartwright v. Herald Publishing Co. where there is, as here, an absence of malice. The statute providing for a re- traction was passed to afford such protection. It grants immunity to a newspa- per from damages for a libelous publication if, after retraction, it is able to show that the libelous publication was made in good faith, under a mistake of facts. In this case there was an admitted misstatement of facts-the false iden- tification of plaintiff as the criminal. Whether the publication was made in good faith depends upon whether defendant was free from negligence in making it. If it was, there was immunity from damages. If it was not, then general damages were properly awarded. "Mere belief in the truth of the pub- lication is not necessarily enough to constitute 'good faith' on part of the pub- lisher; there must have been an absence of negligence, as well as improper motives, in making the publication. It must have been honestly made in the belief of its truth, and upon reasonable grounds for this belief, after the ex- ercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances." Allen v. Pioneer Press Co., 40 Minn. 117, 41 N.W. 26, 3 L.R.A. 532, 12 Am. St. Rep. 707; Gray v. Times News- paper Co., 74 Minn. 452, 77 N.W. 204, 73 Am. St. Rep. 363. The question of negligence on the part of defendant was for the jury. We cannot say that there was not sufficient evidence to establish negligence. THORSON V. ALBERT LEA PUB. Co., 190 Minn. 200; 251 N. W. 177; 90 A.L.R. 1169 (1933) 14. The law recognizes the right to reply to an attack. Although Anglo-American law has never made the right of reply an essen- tial requisite of defamation as has been done in French law and the law of many European and Latin American countries, the courts have recognized the privilege attaching to a rejoinder to an attack upon one's reputation. Among the letters to the editor published in issues of the Rock Hill (S.C.) Evening Herald, the performance of the local representatives in the state legislature was critically discussed. In reply to several caustic criticisms in these letters a retort on behalf of the legislators was published, containing the following statements: "I fail to find in any record anywhere that these indi- viduals have ever contributed anything to the social or economic life of the county or their respective communities. . . . I say we will not be misled by antisocial hypocrites." The newspaper, as the publisher of this letter, was sued for libel. The defense pleaded the writer's right to reply to an attack, and the state supreme court accepted the argument, saying in a per curiam opinion: The case therefore falls within the well-established rule of self-defense from libel or slander. "Statements made in an honest endeavor to vindicate one's character or to protect one's interests are usually regarded as qualifiedly priv- ileged, even though they are false, if they are made in good faith and without malice. Thus, it seems to be definitely settled that when one person assails an- 241 Libel Defenses: Fair Comment and Other Pleas other in the public press, the latter is entitled to make reply therein, and so long as the reply does not exceed the occasion, he cannot be held responsi- ble for any resultant injury. . . . On the other hand, however, it is clear that a defensive communication will lose its privileged character if the per- son making it goes beyond the scope of the original attack or indulges in lan- guage that is unnecessarily defamatory." 33 Am. Jur. 133, 134, Libel and Slan- der, sec. 134. "It is clearly the general rule that statements made in reply to a defamatory publication enjoy a qualified privilege." See also, annotation, 132 A.L.R. 932, and Thompson v. Boyd, 1 Mill Const. 8o. In the interesting old case just cited, the trial court excluded from evidence under the general issue a provocative former publication by the plaintiff, of and concerning the defendant. The appellate court reversed judgment for plaintiff and said: One libel cannot be pleaded, or set off as a justification in an action brought upon another; but whatever is material to the issue may be given in evidence. In actions for words, either parol or written, which are, in themselves, action- able, and in which it is not necessary to prove special damages, malice is a sine qua non; it is an essential ingredient. The general issue, therefore, puts the question of malice directly in issue; whatever, therefore, goes to prove the exist- ence or want of malice, is clearly admissible. Upon the same principle, the occa- sion and manner of speaking or publishing the words are always admitted as go- ing to show the quo animo. The inquiry, then, is whether the handbill offered in evidence went to show the quo animo with which the libel was published, or the occasion which called it forth. The libel, itself, contains sufficient evidence that the handbill was the occasion which induced its publication; and it is obvious that at the time the defendant was writhing under the libellous matter contained in it, and that to repel it, was, at least in some measure, the quo animo. How far it ought to have had the effect of excusing the wrong done by the defendant, was a question for the consideration of the jury. They might, perhaps, have con- sidered the handbill, itself, as a consequence of the preceding declarations of the defendant, stated in the libel; but whatever influence it might have had, it was clearly admissible. I will not, however, like Lord Kenyon, in Anthony Pasquin's case, throw the plaintiff's parchment at his head, and dismiss him from the court with infamy. But I am, clearly, of the opinion that the motion for a new trial ought to be granted. Additional privilege arose from the fact that the appellant was the holder of public office, which occasioned the publication. "Although there are a few decisions to the contrary, the great weight of authority supports the view that publications dealing with political matters, public officers and candidates for office are entitled to a measurable privilege by reason of the public interest in- volved therein." CARTWRIGHT V. HERALD PUB. Co., 220 S.C. 492; 68 S.E. 2d 415 (1951) A prominent citizen was found shot to death in his apartment. In its cover- age of the investigation of the case, the Portland Oregonian published a story containing the following statements: 242 Israel v. Portland News Publishing Co. Traces of "another woman" in the W. Frank Akin murder mystery were re- vealed yesterday in a startling story unfolded to state police by Mark M. Israel, jeweler and loan broker . "After this affair had lasted some time, Akin told me he had confessed his infidelity to his wife and offered to give her a divorce. .. " The Oregonian then published a story based upon an interview with the widow, which contained the following statements: The scandalous tale related to police by Mark Israel, pawnshop dealer, about a "jealous woman" in the life of W. Frank Akin, slain port investigator, was branded absolutely false Thursday by the widow of the murdered man. "It is silly, in the first place," she said, "to suppose Frank might have confided in Israel on any private matter. He had no regard for Israel's integrity and fre- quently said so after being engaged to audit the books of that firm. "He told me that he knew Israel was stealing from his father-in-law and he said he had no use for that kind of a man. Israel hated him after that, and he hated Israel. .. ." The newspaper's defense to a libel action growing out of this story was the right to reply to an attack. Chief Justice Campbell of the Oregon Supreme Court read a unanimous opinion upholding the defense. The law seems to be well settled that when one is attacked by defamatory matter published in the press, one may resort to the same methods to reply to or rebut the charges made. Every man has a right to defend his character against false aspersion. It is one of the duties which he owes to himself and to his family. Therefore, communi- cations made in fair self-defense are privileged. If a person is attacked in a newspaper, he may write to the paper to rebut the charges, and may at the same time retort upon his assailant, where such retort is a necessary part of his de- fense or fairly arises out of the charges he has made. A man who commences a newspaper war cannot subsequently come to the court as plaintiff to complain that he has had the worst of the fray. But in rebutting an accusation the party should not state what he knows at the time to be untrue, or intrude unnecessar- ily into the private life or character of his assailant. The privilege extends only to such retorts as are fairly an answer to the attacks [Newell, Libel and Slander (4th Ed.), 5429, p. 456]. To the same effect, see Odgers, Libel and Slander (6th Ed.), p. 240; 17 R.C.L. 5 113, p. 364. The text seems to be well supported by the authorities and by common sense and reason. The law does not look with disapproval on an act which a high-class, good citizen would perform. Mrs. Akin was, and still is, a teacher in the public schools of Portland, Ore. One of the essential ele- mental qualifications for that position is a good moral character. She was charged with conniving at and consenting to the alleged adulterous conduct of her late husband. She owed a duty to herself as well as to the community to refute that charge so far as she could, in the same manner in which it was 243 Libel Defenses: Fair Comment and Other Pleas made. If her refutation was pertinent and grew out of or was reasonably con- nected with the defamatory matter published by respondent, and was pub- lished in good faith and without malice, she would not be liable. It is no light matter to a school teacher to be accused of a low moral character. The respondent claimed a confidential, friendly, and intimate relationship with the deceased husband. It is this relationship that naturally would give force and effect to those statements. It is common knowledge that people do not confide their shortcomings except to their very closest friends and only to friends in whom they have the utmost confidence. Mrs. Akin had a right to show that no such confidential or friendly relationship existed between plain- tiff and her late husband. She also had a right to show why such relationship did not exist; that instead of friendship and confidence, the very opposite ex- isted between these two men. It would avail Mrs. Akin but little simply to deny the alleged defamatory matter in the article published by respondent, but if she could show an unworthy motive for the publication of such an article, it would then destroy the effect of the article itself. And this would be true whether the whole article was communicated by Mrs. Akin or part of it by Mrs. Goul, the sister of Akin. The sister would have a right to defend the good name of her dead brother. The communication being qualifiedly privileged on the part of Mrs. Akin and Mrs. Goul, it would also be privileged on the part of the defendant. ISRAEL V. PORTLAND NEWS PUB. Co., 152 Ore. 225; 53 Pac. 2d 529 (1936) 244 CHAPTER VIII The Evolving Law of Privacy SUPPLEMENTARY READING Anon., "Virginia's 'Right of Privacy' Statute," Virginia Law Review, v. 38 (January, 1952), pp. 117-25 W. Feinberg, "Recent Developments in the Law of Privacy," Columbia Law Review, v. 48 (July, 1948), pp. 713-31 Gray, "People in the News Can't Sue for 'Privacy,'" Editor 6 Publisher, v. 83 (January 14, 1950), p. 26 F. K. Sloan, "The Case for the Right of Privacy," Selden Society Yearbook, v. 9 (Fall, 1948), pp. 45-62 Swindler, Bibliography, nos. 398, 412, 414, 416, 421, 423, 427, 428, 430, 433, 437, 446 BACKGROUND NOTE The war decade of the 186o's marked the beginning of mass-circulation newspapers in the United States; as early as 1862 the New York Herald had reached a daily average of oo100,000ooo copies, with several other papers close behind. In the quarter of a century which followed, technological advances in communications and in printing processes made even larger newspapers possi- ble; and by the middle nineties new techniques in photography and photoen- graving adapted to newspaper requirements resulted in the development of pictorial news reporting on a larger scale than ever before. Advertising revenue doubled and redoubled between 1870 and l9oo; advertising agencies were founded and advertising departments were opened in the large, new retail stores which were appearing in the growing cities, and these devised new types of display advertising which changed the appearance of American peri- odicals. A new generation of editors, too, brought greater variety of features and departmentalized news to the newspaper and magazine. These several developments in the latter part of the nineteenth century coincided with a period of sensationalism which reached its climax in the "yellow journalism" of Hearst and Pulitzer on the eve of the Spanish- 245 The Evolving Law of Privacy American War. For almost a decade at the turn of the century some American newspapers seemed to be most conspicuous for their use of screaming head- lines, often in color, "faked" pictures and stories, an excessive emphasis on comics, and a stream of fraud and imposture in the disguise of news. This disconcerting, rank growth of mass periodicals and the abuse of their newly acquired opportunities by numerous editors moved many public leaders to comment. Ministers and public officials occasionally inveighed against the lurid press-to no perceptible effect-and the law found itself confronted with a social development for which it had no applicable rule either in theory or in practice. Judge Cooley observed that there ought to be a legal "right to be let alone"-to defend oneself against the affronts offered by irresponsible sensation-mongers in the press-but no such right could be found in the Anglo-American legal tradition. The law of defamation affords the individual protection with respect to the attitude of other persons toward him as affected by a publication; but it had nothing to say about any injury to his personal feelings, or rather, it specifically excluded such questions from its domain. Nor did any other branch of civil or criminal law appear to offer any grounds for action. American jurisprudence was caught in a "cultural lag" behind the rapid economic and social developments of the latter nineteenth century. The first significant attempt to resolve this impasse took the form of an article on "The Right of Privacy," written by two young Boston attorneys- Louis D. (later Mr. Justice) Brandeis and his law partner, Samuel D. War- ren-and published in the Harvard Law Review for December 15, 1890. The authors traced the historical evolution of the law in response to new social de- mands; they argued that legal remedies for the unauthorized disclosure of trade secrets, breaches of confidence, the violation of implied contracts and the right of protection for personal property in general provided justification for the courts to grant relief from wanton publicity about an individual's personal affairs: That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the com- mon law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broad- ened; and now the right to life has come to mean the right to enjoy life,-the right to be let alone; the right to liberty secures the exercise of extensive civil 246 privileges; and the term "property" has grown to comprise every form of pos- session-intangible, as well as tangible . Owing to the nature of the instruments by which privacy is invaded, the in- jury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action, The principle on which the law of defamation rests, covers, however, a radicalty dif- ferent class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must sub- ject him to the hatred, ridicule, or contempt of his fellowmen,-the effect of the publication upon his estimate of himself and upon his own feelings not form- ing an essential element in the cause of action. In short, the wrongs and correla- tive rights recognized by the law of slander and libel are in their nature ma- terial rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque injuria. Injury of feelings may indeed be taken account of in ascertaining the amount of damages when attending what is recognized as a legal injury; but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the "honor" of another. It is not however necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but in- stances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration. The common law secures to each individual the right of determining, ordi- narily, to what extent his thoughts, sentiments, and emotions shall be communi- cated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. .. These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of Background Note 247 The Evolving Law of Privacy these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed-and (as that is the distinguishing at- tribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily com- prehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private prop- erty, but that of an inviolate personality. If we are correct in this conclusion, the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, nor to products of the intel- lect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should re- ceive the same protection, whether expressed in writing, or in conduct, in con- versation, in attitudes, or in facial expression . We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which pro- tects personal writings and any other productions of the intellect or of the emo- tions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise. The article by Brandeis and Warren created widespread comment in legal circles, and was referred to frequently by courts in the succeeding sixty years; but positive action in the direction urged by the authors was slow in material- izing. Jurists generally took the view that, if a new civil liability were to be devised, it should be done by legislation rather than by judicial rule. In 1902 the New York Court of Appeals, in an exhaustive review of the whole ques- tion, denied the power of the courts to sustain an action for invasion of privacy in the absence of a statute-a hint which the state legislature heeded the fol- lowing year by passing the first civil rights law in the country. In the New York case a woman brought suit against a milling company which had lithographed her portrait on boxes advertising the company's flour and had distributed 25,000 boxes without her consent. By a four-to-three 248 Roberson v. Rochester Folding Box Co. decision the court rejected the plaintiff's argument that the company had in- curred liability for the use of her photograph in a commercial activity. Chief Just e Parker of the New York Court of Appeals read the majority opinion. The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities com- mented upon either in handbills, circulars, catalogues, periodicals or news- papers, and, necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise. While most persons would much prefer to have a good likeness of themselves appear in a responsible periodical or leading newspaper rather than upon an advertising card or sheet, the doctrine which the courts are asked to create for this case would apply as well to the one publication as to the other, for the principle which a court of equity is asked to assert in support of a recovery in this action is that the right of privacy ex- ists and is enforceable in equity, and that the publication of that which pur- ports to be a portrait of another person, even if obtained upon the street by an impertinent individual with a camera, will be restrained in equity on the ground that an individual has the right to prevent his features from becom- ing known to those outside of his circle of friends and acquaintances. If such a principle be incorporated into the body of the law through the in- strumentality of a court of equity, the attempts logically to apply the principle will necessarily result, not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness but must necessarily embrace as well the publication of a word-picture, a com- ment upon one's looks, conduct, domestic relations or habits. And were the right of privacy once legally asserted it would necessarily be held to include the same things if spoken instead of printed, for one, as well as the other, in- vades the right to be absolutely let alone. An insult would certainly be in vi- olation of such a right and with many persons would more seriously wound the feelings than would the publication of their picture. And so we might add to the list of things that are spoken and done day by day which seriously offend the sensibilities of good people to which the principle which the plaintiff seeks to have imbedded in the doctrine of the law would seem to apply. I have gone only far enough barely to suggest the vast field of litigation which would necessarily be opened up should this court hold that privacy exists as a legal right enforceable in equity by injunction, and by damages where they seem necessary to give complete relief. The legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent. In such event no embarrassment would result to the general body of the law, for the rule would be applicable only to cases provided for by the statute. The courts, however, being without authority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by precedents created by 249 The Evolving Law of Privacy an extreme, and, therefore, unjustifiable application of an old principle . An examination of the authorities leads us to the conclusion that the so- called "right of privacy" has not as yet found an abiding place in our juris- prudence, and, as we view it, the doctrine cannot now be incorporated with- out doing violence to settled principles of law by which the profession and the public have long been guided. ... [Judge Gray, dissenting:] . . The right of privacy, or the right of the individual to be let alone, is a personal right, which is not without judicial recognition. It is the complement of the right to the immunity of one's person. The individual has always been entitled to be protected in the exclusive use and enjoyment of that which is his own. The common law regarded his person and property as invio- late, and he has the absolute right to be let alone. (Cooley on Torts, p. 29.) The principle is fundamental and essential in organized society that every one, in exercising a personal right and in the use of his property, shall respect the rights and properties of others . Instantaneous photography is a modern invention and affords the means of securing a portraiture of an individual's face and form, in invitum their owner. While, so far forth as it merely does that, although a species of aggres- sion, I concede it to be an irremediable and irrepressible feature of the social evolution. But, if it is to be permitted that the portraiture may be put to com- mercial or other uses for gain, by the publication of prints therefrom, then an act of invasion of the individual's privacy results, possibly more formidable and more painful in its consequences than an actual bodily assault might be. Security of person is as necessary as the security of property; and for that complete personal security, which will result in the peaceful and wholesome enjoyment of one's privileges as a member of society, there should be afforded protection, not only against the scandalous portraiture and display of one's features and person, but against the display and use thereof for another's com- mercial purposes or gain. The proposition is, to me, an inconceivable one that these defendants may, unauthorizedly, use the likeness of this young woman upon their advertisement, as a method of attracting widespread public atten- tion to their wares, and that she must submit to the mortifying notoriety, without right to invoke the exercise of the preventive power of a court of equity. ROBERSON v. ROCHESTER FOLDING Box Co., 171 N.Y. 538; 64 N.E. 442 (1902) In 1903 the New York legislature passed a law specifically forbidding the use, without consent, of the "name, portrait, or picture" of any living person for commercial or advertising purposes. Utah enacted a similar statute in 1909, and Virginia in 1919. Meantime, in 1905, the Georgia Supreme Court undertook by case law to cope with the problem. A life insurance company had published an advertisement in the Atlanta Constitution containing photo- graphs of two individuals. Over the photograph of one Pavesich was the caption, "Do it now. The man who did." Over the other photograph, of an ill-dressed and sickly-looking person, was the caption, "Do it while you can. 250 Pavesich v. New England Life Insurance Co. The man who did not." Under the picture of Pavesich appeared the state- ment: "In my healthy and productive period of life I bought insurance in the New England Life Insurance Company of Boston, Mass., and today my fam- ily is protected and I am drawing an annual dividend on my paid up policies." Judge Cobb of the Georgia Supreme Court read the unanimous opinion. The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to sur- render all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved, than he has to violate the valid regulations of the organized government under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose in- tellect is in a normal condition recognizes at once that as to each individual member of society there are matters private, and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature. A right of privacy in matters purely private is therefore derived from natural law. This idea is embraced in the Roman's conception of justice, which "was not simply the external legality of acts, but the accord of external acts with the precepts of the law, prompted by internal impulse and free volition." McKeldey's Roman Law (Dropsie), S 123. It maybe said to arise out of those laws sometimes characterized as "immutable," "because they are natural, and so just at all times and in all places that no authority can either change or abolish them." 1 Domat's Civil Law by Strahan (Cushing's Ed.), p. 49. It is one of those rights referred to by some law writers as "absolute"- "such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it." 1 Bl. 123. Among the absolute rights referred to by the commentator just cited is the right of personal security and the right of personal liberty. In the first is em- braced a person's right to a "legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation"; and in the second is embraced "the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without impris- onment or restraint, unless by due course of law." 1 Bl. 129, 134. While neither Sir William Blackstone nor any of the other writers on the principles of the common law have referred in terms to the right of privacy, the illustrations given by them as to what would be a violation of the abso- lute rights of individuals are not to be taken as exhaustive, but the language should be allowed to include any instance of a violation of such rights which is clearly within the true meaning and intent of the words used to de- clare the principle. .. The constitutional right to speak and print does not necessarily carry with it the right to reproduce the form and features of an individual. The 251 The Evolving Law of Privacy plaintiff was in no sense a public character, even if a different rule in regard to the publication of one's picture should be applied to such characters. It is not necessary in this case to hold-nor are we prepared to do so-that the mere fact that a man has become what is called a public character, either by aspiring to public office, or by holding public office, or by exercising a pro- fession which places him before the public, or by engaging in a business which has necessarily a public nature, gives to every one the right to print and circu- late his picture. To use the language of Hooker, J., in Atkinson v. Doherty [121 Mich. 372], "We are loath to believe that the man who makes himself useful to mankind surrenders any right to privacy thereby, or that, because he permits his picture to be published by one person and for one purpose, he is forever thereafter precluded from enjoying any of his rights." It may be that the aspirant for public office, or one in official position, impliedly consents that the public may gaze not only upon him, but upon his picture, but we are not prepared now to hold that even this is true. It would seem to us that even the President of the United States, in the lofty position which he occupies, has some rights in reference to matters of this kind which he does not forfeit by aspiring to or accepting the highest office within the gift of the people of the several states. While no person who has ever held this position, and probably no person who has ever held public office, has ever objected or ever will object to the reproduction of his pic- ture in reputable newspapers, magazines, and periodicals, still it cannot be that the mere fact that a man aspires to public office or holds public office subjects him to the humiliation and mortification of having his picture dis- played in places where he would never go to be gazed upon, at times when and under circumstances where if he were personally present the sensibilities of his nature would be severely shocked. If one's picture may be used by another for advertising purposes, it may be reproduced and exhibited any- where. If it may be used in a newspaper, it may be used on a poster or a placard. It may be posted upon the walls of private dwellings or upon the streets. It may ornament the bar of the saloon keeper or decorate the walls of a brothel. By becoming a member of society, neither man nor woman can be presumed to have consented to such uses of the impression of their faces and features upon paper or upon canvas. The conclusion reached by us seems to be so thoroughly in accord with natural justice, with the principles of the law of every civilized nation, and es- pecially with the elastic principles of the common law, and so thoroughly in harmony with those principles as molded under the influence of American in- stitutions, that it seems strange to us that not only four of the judges of one of the most distinguished and leaxned courts of the Union, but also lawyers of learning and ability, have found an insurmountable stumbling block in the path that leads to a recognition of the right which would give to persons like the plaintiff in this case and the young woman in the Roberson case redress for the legal wrong, or what is by some of the law writers called the outrage, perpetrated by the unauthorized use of their pictures for advertising purposes. PAVESICH V. NEW ENGLAND LIFE INS. Co., 122 Ga. 190; 50 S.E. 68; 69 L.R.A. 101; o106 A.S.R. 104; 2 Ann. Gas. 561 (1905) 252 Melvin v. Reid 253 The Roberson and Pavesich cases dealt with the issue of the unauthorized use of personal photographs in advertising. Both legislatures and courts were at pains to emphasize that the right of privacy, if it existed at all, did not apply in matters affected with a public interest, news, or cases where the individual had given consent to the publication. However, the growth and diversity of mass media in the twentieth century has kept the question alive; in contrast to the problems presented only by newspapers a half-century ago, the law is now confronted with the amplified problems created by the development of national magazines, radio and television, and many supple- mentary means of publicity. GENERAL PRINCIPLES 1. What constitutes the right of privacy? A woman who in her earlier life had been a prostitute had been tried and acquitted of murder. Later she had married and had lived an exemplary life among friends and neighbors who knew nothing of her past, until a motion picture was produced based upon her life history as revealed in the records of the trial. The woman's maiden name was used in the advertisements of the motion picture, and the picture itself was advertised as a true story. Upon a suit for damages in the invasion of privacy, the motion picture producers offered the defense of privilege based upon the public records of the trial. Judge Marks of the District Court of Appeal sustained the argument that the representation of facts of the plaintiff's life were not actionable because they were matters of public record, but found that damages were recoverable for the use of the plaintiff's name in the advertisements and in the picture itself. The law of privacy is of recent origin. It was first discussed in an essay pub- lished in a law journal in 186o. It did not gain prominence or notice of the bench or bar until an article appeared in 4 Harvard Law Review, p. 193, writ- ten by the Honorable Louis D. Brandeis in collaboration with Samuel D. Warren. Since the publication of this article, a number of cases have arisen in various states involving the so-called doctrine of the right of privacy. It is rec- ognized in some jurisdictions, while others have refused to put it into effect. A reading of most of the decisions in jurisdictions recognizing this right leaves the mind impressed with the lack of uniformity in the reasoning em- ployed by the various jurists supporting it. Most of the cases turn upon ques- tions of breaches of contracts, either express or implied, such as the breach of an implied contract on the part of a photographer to print only such pictures as may be ordered by his subject, and not to print others and use them for purposes of advertising. Others are based upon the breach of a trust or con- tidence which one placed in or ga'e to another. Others recognize a property 254 The Evolving Law of Privacy right in private letters and private writings which will not permit their publi- cation without consent. In others, the publication is so nearly akin to a libel that the final conclusions could be supported under the law of libel without involving the doctrine of the right of privacy. In practically all jurisdictions in which this right is not recognized, the decisions are based upon the lack of a statute giving the plaintiff the right to protect a likeness or an incident of life, since the ancient common law did not recognize any such right. In the leading case of Roberson v. Rochester Folding-Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478, 89 Am. St. Rep. 828, the decision was based upon the lack of any statutory enactment giving a cause of action to protect such a right and the failure of the common law to recognize it. Shortly after this decision was handed down the Legislature of New York enacted a law prohibiting the pub- lication of a person's likeness, or the story of, or incidents in, his life, without his consent, for purposes of advertisement or gain. Since 1903, when this legis- lation was enacted, practically all of the New York cases are based upon it, and are therefore of little assistance to us here. The question is a new one in California. The only case to which we have been cited which even remotely relates to it is that of Crane v. Heine, 35 Cal. App. 466, 170 P. 433. This case, however, furnishes us with no authority for adopting in this state the doctrine of the right of privacy as it is known in other jurisdictions. ... The right of privacy as recognized in a number of states has been defined as follows: "The right of privacy may be defined as the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In short, it is the right to be let alone. 21 R.C.L. 1197, 1198. There are times, however, when one, whether willingly or not, becomes an actor in an occur- rence of public or general interest. When this takes place, he emerges from his seclusion, and it is not an invasion of his right of privacy to publish his photo- graph with an account of such occurrence." Jones v. Herald Post Co., [230 Ky. 227; 18 S.W. 2d 972]. A few general principles, founded on authority or reason, seem to run through most of the better considered decisions from the jurisdictions which recognize the doctrine as well as those which do not. We may summarize them as follows: (1) The right of privacy was unknown to the ancient common law. (2) It is an incident of the person and not of property-a tort for which a right of recovery is given in some jurisdictions. (3) It is a purely personal action, and does not survive, but dies with the person. (4) It does not exist where the person has published the matter com- plained of, or consented thereto. (5) It does not exist where a person has become so prominent that by his very prominence he has dedicated his life to the public, and thereby waived his right to privacy. There can be no privacy in that which is already public. (6) It does not exist in the dissemination of news and news events, nor in the discussion of events of the life of a person in whom the pub'lic has a right- ful interest, nor where the information would be of public benefit, as in the case of a candidate for public office. (7) The right of privacy can only be violated by printings, writings, pic- tures, or other permanent publications or reproductions, and not by word of mouth. (8) The right of action accrues when the publication is made for gain or profit. (This, however, is questioned in some cases.) From the foregoing it follows as a natural consequence that the use of the incidents from the life of appellant in the moving picture is in itself not actionable. These incidents appeared in the records of her trial for murder, which is a public record, open to the perusal of all. The very fact that they were contained in a public record is sufficient to negative the idea that their publication was a violation of a right of privacy. When the incidents of a life are so public as to be spread upon a public record, they come within the knowledge and into the possession of the public and cease to be private. Had respondents, in the story of "The Red Kimono," stopped with the use of those incidents from the life of appellant which were spread upon the record of her trial, no right of action would have accrued. They went further, and in the formation of the plot used the true maiden name of appellant. If any right of action exists, it arises from the use of this true name in connec- tion with the true incidents from her life together with their advertisements in which they stated that the story of the picture was taken from true inci- dents in the life of Gabrielle Darley, who was Gabrielle Darley Melvin. In the absence of any provision of law, we would be loath to conclude that the right of privacy as the foundation for an action in tort, in the form known and recognized in other jurisdictions, exists in California. We find, however, that the fundamental law of our state contains provisions which, we believe, permit us to recognize the right to pursue and obtain safety and hap- piness without improper infringements thereon by others. Section 1 of article 1 of the Constitution of California provides as follows: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; ac- quiring, possessing, and protecting property; and pursuing and obtaining safety and happiness." The right to pursue and obtain happiness is guaranteed to all by the funda- mental law of our state. This right by its very nature includes the right to live free from the unwarranted attack of others upon one's liberty, property, and reputation. Any person living a life of rectitude has that right to happi- ness which includes a freedom from unnecessary attacks on his character, social standing, or reputation. The use of appellant's true name in connection with the incidents of her former life in the plot and advertisements was unnecessary and indelicate, and a willful and wanton disregard of that charity which should actuate us in our social intercourse, and which should keep us from unnecessarily hold- ing another up to scorn and contempt of upright members of society. Upon demurrer, the allegations of the complaint must be taken as true. Melvin v. Reid 255 The Evolving Law of Privacy We must therefore conclude that eight years before the production of "The Red Kimono," appellant had abandoned her life of shame, had rehabilitated herself, and had taken her place as a respected and honored member of society. This change having occurred in her life, she should have been permitted to continue its course without having her reputation and social standing de- stroyed by the publication of the story of her former depravity with no other excuse than the expectation of private gain by the publishers. One of the major objectives of society as it is now constituted, and of the administration of our penal system, is the rehabilitation of the fallen and the reformation of the criminal. Under these theories of sociology, it is our ob- ject to lift up and sustain the unfortunate rather than tear him down. Where a person has by his own efforts rehabilitated himself, we, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime. Even the thief on the cross was permitted to repent during the hours of his final agony. We believe that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us, and was a direct invasion of her inalienable right guaranteed to her by our Constitution, to pursue and obtain happiness. Whether we call this a right of privacy or give it any other name is immaterial because it is a right guaranteed by our Constitution that must not be ruthlessly and needlessly invaded by others. We are of the opinion that the first cause of action of appellant's com- plaint states facts sufficient to constitute a cause of action against respond- ents. MELVIN V. REID, 112 Calif. App. 285; 297 Pac. 91 (1931) In the gradual evolution of a law on privacy, the courts were disposed to recognize such a right, if they recognized it at all, only when a name or picture was used without consent in a commercial situation. In 1942 the Missouri Supreme Court ruled for the first time on an issue which involved news or feature material exclusively. The plaintiff was a woman who had been photo- graphed without her consent in a hospital bed where she was under observa- tion for a strange ailment which provoked an abnormal and insatiable ap- petite. Time magazine published her picture under the caption, "Starving Glutton," accompanying a brief story on the novel medical case. Affirming the trial court's finding in favor of the plaintiff, Commissioner Hyde of the supreme court wrote an opinion which was then adopted unanimously by the court. The basis of the right of privacy is the right to be let alone. Cooley on Torts 4th Ed., 444, x 35. It has been suggested that what is actually involved is "appropriation of an interest in personality." "The Right of Privacy"-Green, 27 Ill. Law Rev. 237, 1. c. 254; see also "Interests in Personality"-Pound, 28 Harvard Law Rev. 343. The right to privacy (or personality) is a part of 256 the right to liberty and pursuit of happiness, which recognizes that the in dividual does not exist solely for the state or society but has inalienable rights which cannot be lawfully taken from him, so long as he behaves properly. See discussion in Pavesich v. New England Life Ins. Co., 122 Ga. 19o, 5o S.E. 68, 71, 69 L.R.A. lo0, 106 Am. St. Rep. 104, 2 Ann. Cas. 561. In the Pavesich case, the court said: "The right of privacy within certain limits is a right de- rived from natural law, recognized by the principles of municipal law, and guaranteed to persons in this state both by the Constitutions of the United States and of the state of Georgia, in those provisions which declare that no person shall be deprived of liberty except by due process of law." California has also stated a constitutional basis for recognizing and protecting the right of privacy, in Melvin v. Reid, 112 Cal. App. 285, 297 P. 91, citing many cases. The decision was based on Section 1, Art. 1, of the California Consti- tution: "All men are by nature free and independent, and have certain inal- ienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and ob- taining safety and happiness." Our Sections 1-4 of Art. 2 state the same prin- ciples. Thus the right of privacy (as well as freedom of the press) is, or at least grows out of, a constitutional right. Nevertheless, under our form of governments, citizens have duties and ob- ligations to the community and society as well as rights. In order to preserve rights for himself one must aid in preserving them for all. This requires co- operation with others. No one is entitled to or can have complete isolation. Individual rights must be construed in the light of duties incumbent upon individuals as citizens of a free country. In Sidis v. F-R Publishincs Corp., 2 Cir., 113 F. 2d 806, loc. cit. 809, the court said: "Everyone will agree that at some point the public interest in obtaining information becomes dominant over the individual's desire for privacy." Conduct, either good or bad, or even misfortune, may properly bring persons to public attention and then (as said in Restatement of Torts, comment under Section 867): "They are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims." Likewise, how- ever, freedom of the press was not created merely for the benefit of the press, but because it is essential to the preservation of free government and progress of civilization. "In the ultimate, an informed and enlightened public opinion was the thing at stake," and "the predominant purpose of the grant of im- munity . . . was to preserve an untrammeled press as a vital source of public information." Grosjean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 448, 80 L. Ed. 66o. Therefore, the press, like individual citizens, must not abuse its constitutional rights or overlook its obligations to others. Thus, establishing conditions of liability for invasion of the right of privacy is a matter of harmonizing individual rights with community and social inter- ests. We think they can be harmonized on a reasonable basis, recognizing the right of privacy without abridging freedom of the press. The determination of what is a matter of public concern is similar in principle to qualified privi- lege in libel. It is for the court to say first whether the occasion or incident is one of proper public interest. (As it must say whether an occasion is one to which qualified privilege extends in libel.) Warren v. Pulitzer Pub. Co., Barber v. Time, Inc. 257 258 The Evolving Law of Privacy 336 Mo. 184, 78 S.W. 2d 404. If the court decides that the matter is outside the scope of proper public interest and that there is substantial evidence tending to show a serious, unreasonable, unwarranted and offensive inter- ference with another's private affairs, then the case is one to be submitted to the jury. We think this is the rule to be deduced from the best considered authorities and hold that it is the rule to be followed in this state. We further hold that this rule (applied to the facts of this case) does not interfere with the freedom of the press or its effective exercise, but only limits its abuse; and does not violate any of the constitutional provisions upon which defend- ant relies. Considering the article herein involved, we think plaintiff made a jury case. It was shown that plaintiff not only did'not consent to the publication of any article or picture in connection with her illness, but protested against any publicity to the reporters, who interviewed her, and that her picture was taken by one while the other was trying to persuade her to consent to such publicity. Certainly if there is any right of privacy at all, it should include the right to obtain medical treatment at home or in a hospital for an individual personal condition (at least if it is not contagious or dangerous to others) without personal publicity. ... . Defendant also assigns error in giving plaintiff's instruction authorizing punitive damages. We think this must likewise be decided upon the analogy of qualified privilege. However, since the truth of the matter is not involved in a right of privacy action, it would seem that any action seeking damages for an untrue statement should be in libel. See Themo v. New England News- paper Pub. Co., 306 Mass. 54, 27 N.E. 2d 753, loc. cit. 754, 755. The same article might involve both libel and invasion of privacy, and action could be stated in separate counts. This was done in Sidis v. F-R Publishing Corp., supra. Recovery for untrue statements should be on the libel count (both as to actual and punitive damages), while recovery for invasion of privacy by true statements should be limited to that count. In qualified privilege "the privilege is said to rebut the presumption of express malice implied (in other cases) from the defamatory subject-matter" and plaintiff has the burden to prove express malice; namely, actual improper motive. Warren v. Pulitzer Pub. Co. [336 Mo. 184, 78 S.W. 2d 418]. Therefore, in an invasion of privacy action, since truth or untruth is not an issue, to recover punitive dam- ages the burden should be on plaintiff to prove express malice. In Munden v, Harris [153 Mo. App. 652, 134 S.W. 1079], the court said, "If the element of malice appears, as that term is known to the law, exemplary damages may be recovered." It did not explain the matter, but it was speaking about a case in which the defendant had used the plaintiff's picture without consent in an advertisement. Invasion of privacy for advertising purposes would be a better basis for an inference of improper motive than would publicity by means of news articles and would no doubt require less in supporting circum- stances to prove express malice. Certainly the acts of the reporters shown in this case would be sufficient to prove express malice, against them and their employer, as a wanton intentional invasion of plaintiff's rights. (Coming back with a photographer after being refused her consent to publish an article about her ailment and taking her picture surreptitiously while she was voicing her Leverton v. Curtis Publishing Co. protests against any publicity in a conversation with one of them, by means of which he attracted her attention away from the photographer.) However, it was not shown that these persons had any connection with defendant or that defendant knew what they had done and no such contention is even made. It does appear that defendant's employees first saw an article about plain- tiff's ailment, with her picture, in the New York Daily News. They were also thereafter furnished an article about this by "United Press," the news service to which defendant subscribed. Before the article was published, the representative of defendant's medicine department wrote to their Kansas City representative (a reporter for a Kansas City newspaper) and received a report from him which verified the story. Defendant merely assumed consent of plaintiff because of the prior publication of the article and picture elsewhere. That is not enough to escape liability, but mere lack of further investigation under all the circumstances should not impose punitive damages in this case. It is not contended that defendant had any knowledge to the contrary. We, therefore, hold that there was not sufficient evidence to show express malice on the part of defendant and that it was error to give the instruction authorizing punitive damages. It is therefore ordered that, if plaintiff will within ten days enter a remittitur of the $1,500oo awarded for exemplary or punitive damages, as of the date of judgment, then the judgment will be affirmed for $1,5oo actual damages as of its date. Otherwise, judgment will be reversed and the cause remanded. BARBER V. TIME, INC. 348 Mo. 1199; 159 S.W. 2d 291 (1942) In 1947 a young girl was knocked down by an automobile. As a woman by- stander was helping her to her feet a news photographer took a picture of the scene, which was published in the local newspaper the following day. The photograph was then apparently sold or turned over to a commercial supplier who, twenty months later, sold it to a national magazine. The magazine published the picture as the illustration for an article entitled, "They Ask to Be Killed." In an action for damages, it was argued that the use of the news picture so long after the event itself constituted an invasion of privacy. In sustaining the judgment against the magazine by the district court, Circuit Judge Goodrich said: We do not think that the question, however answered, is determinative of this case. It is agreed on all sides that the original publication of the picture of this traffic accident was not actionable. If it invaded the right of the plain- tiff to stay out of public attention, it was a privileged invasion, her interest in being left alone being overbalanced by the general public interest in being kept informed. As we see the questions in this case, they are two. (1) Is the privilege involved in the original publication lost by the lapse of time between the date of the original publication immediately following the accident and the reappearance of the plaintiff's picture in the Saturday Evening Post twenty months later? (2) The second question is whether, if the privilege has not been lost by lapse of time, is it lost by the using of the plaintiff's 259 picture, not in connection with a news story, but as an illustration heading an article on pedestrian traffic accidents? On the first point the plaintiff urges language from the comment of the Restatement of Torts, S867. That comment, after dealing with writers, candi- dates for public office, and so on, mentions "one who unwillingly comes into the public eye because of his own fault, as in the case of a criminal, . . ." Then it goes on to say: "Community custom achieves the same result with reference to one unjustly charged with crime or the subject of a striking catastrophe. Both groups of persons are 'the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention; until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims." It could be easily agreed that the plaintiff in this case, because she was once involved in an automobile accident does not continue throughout her life to have her goings and comings made the subject of newspaper stories. That, however, is a long way from saying that the occasion of her once becoming a subject of public interest cannot be brought again to public attention later on. Suppose the same newspaper which printed the plaintiff's photograph the day after her accident printed a r6sume sometime later of traffic accidents and supplied pictures dealing with them, including this one, which photog- raphers on its staff had compiled. We cannot think that their publication under those circumstances would subject the publisher to liability. The closest decision we have on this point is the Second Circuit case of Sidis v. F-R Publishing Corporation, 1940, 113 F. 2d 8o6, 138 A.L.R. 15. This had to do with the liability of the publishers of the New Yorker for a sketch which appeared in that magazine about a man named William James Sidis. Mr. Sidis had been a mathematical prodigy when young and was, therefore, said to be the subject of interest by the general as well as the mathematical public. The New Yorker article in question came along nearly thirty years af- terward and described the life of Mr. Sidis subsequent to his childhood prodigy days. The court, reviewing carefully the authorities, came to the con- clusion that the article was not actionable. The case is an authority for us, not binding of course. But it was an effort by a very distinguished court to fashion a common law decision out of materials it found at hand concerning right of privacy cases just as we are trying to do. We conclude that the immunity from liability for the original publication was not lost through lapse of time when the same picture was again published. Now to the second point. The first publication of the plaintiff's photograph was purely news. The second publication was a sort of dramatic setting for the discussion of a traffic problem by Mr. Wittels. Does that much of a change in the purpose of the publication lose the privilege? Something was made at the argument of the point that the use of the photograph by Curtis was "commercial." Of course it was. So was the original publication in the Birmingham newspaper. People who run newspapers and magazines as commercial enterprises run them to make profit if they can, What adds to reader interest adds to circulation and that adds to profit. This 260 The Evolving Law of Privacy Themo v. New England Newspaper Publishing Co. point was met directly by Judge Clark in the Sidis case already referred to. The publication in this case was not an appropriation for a commercial use. Nevertheless, we think this particular publication was an actionable in- v'asion of plaintiff's right of privacy. Granted that she was "newsworthy" with regard to her traffic accident. Assume, also, that she continued to be news- worthy with regard to that particular accident for an indefinite time afterward. This use of her picture had nothing at all to do with her accident. It related to the general subject of traffic accidents and pedestrian carelessness. Yet the facts, so far as we know them in this case, show that the little girl, herself, was at the time of her accident not careless and the motorist was. The picture is used in connection with several headings tending to say that this plaintiff nar- rowly escaped death because she was careless of her own safety. That is not libelous; a count for defamation was dropped out in the course of the trial. But we are not talking now about liability for defamation. We are talking about the privilege to invade her interest in being left alone. The heading of the article was called, "They Ask To Be Killed." Under- neath the picture of the little girl was the heading, "Safety education in schools has reduced child accidents measurably, but unpredictable darting through traffic still takes a sobering toll." In a box beside the title appears the following: "Do you invite massacre by your own carelessness? Here's how thousands have committed suicide by scorning laws that were passed to keep them alive." The sum total of all this is that this particular plaintiff, the legiti- mate subject for publicity for one particular accident, now becomes a picto- rial, frightful example of pedestrian carelessness. This, we think, exceeds the bounds of privilege. An analogous case, though admittedly not right in point, is Mau v. Rio Grande Oil, Inc., D.C.N.D. Cal. 1939, 28 F. Supp. 845. There a man who was a holdup victim had his unhappy experience translated into a radio program with garnishment and embellishment appropriate for that form of entertainment. The news account of the holdup was, of course, comparable to a news account of a traffic accident. But when his account came to be the basis for public entertainment, the Court considered the bounds of privilege exceeded. We think the same is true here. LEVERTON V. CURTIS PUB. Co., C.C.A. 3rd; 192 Fed. 2d 974 (1951) 2. The right of privacy does not apply to news situations. In those cases where an individual appears, voluntarily or involuntarily, in a news situation or becomes a subject of public attention, he may not claim a right of privacy. To the question of whether there may be any recovery for the use of a photograph in a news report, the Massachusetts Supreme Judicial Court answered in the negative, and reviewed the cases in which news is to be distinguished from other publications. Judge Lummus said: Modern cases have made it possible to reach certain indecent violations of privacy by means of the law of libel, on the theory that any writing is a libel 261 The Evolving Law of Privacy that discredits the plaintiff in the minds of any considerable and respectable class in the community though no wrongdoing or bad character is imputed to him. Ingalls v. Hastings 6 Sons Publishing Co., Mass., 22 N.E. 2d 657. Accordingly, it may be found libellous to publish a photograph which repre- sents the plaintiff as being ridiculously though unbelievably malformed (Bur- ton v. Crowell Publishing Co., 2 Cir., 82 F. 2d 154); to exhibit a wax figure representing the plaintiff, who had been acquitted of murder by shoot- ing, with a gun near him (Monson v. Tussauds, Ltd. [1894], 1 Q.B. 671); to publish of a woman that she had been ravished (Youssouppoff v. Metro- Goldwyn-Mayer Pictures, Ltd., 50 T.L.R. 581); to publish of a man that his sister had been arrested for larceny (Merrill v. Post Publishing Co., 197 Mass. 185, 190, 83 N.E. 419); to impute to a woman the publishing of the details of her love affair (Karjavainean v. MacFadden Publications, Inc., Mass., 26 N.E. 2d 538); to impute to a dramatic actress an appearance in burlesque in scanty costume (Louka v. Park Entertainments, Inc., 294 Mass. 268, 1 N.E. 2d 41); to impute to a woman the giving of a testimonial for a brand of whiskey (Peck v. Tribune Co., 214 U.S. 185, 29 S. Ct. 554, 53 L. Ed. 960, 16 Ann. CGas. 1075); to impute to a prominent man the giving of a testimonial for a patent medicine (Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364, 34 L.R.A., N.S., 1137, 135 Am. St. Rep. 417); or to impute to an amateur athlete consent to the use of his name and likeness in advertising chocolate (Tolley v. J. S. Fry 6 Sons, Ltd. [1931], A.C. 333). In Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478, 89 Am. St. Rep. 828, where a majority denied any common law right of privacy, perhaps a result in favor of the plaintiff might have been reached, as in the Tolley case, on the ground that the use of the likeness of a young woman in widespread advertising imputed to her consent to such immodest publicity. See Kunz v. Allen, 102 Kan. 883, 172 P. 532, L.R.A. 1918D, 1151. Likewise the result in favor of the plaintiff in Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, io6 Am. St. Rep. 104, 2 Ann. Cas. 561, where the defendant falsely imputed to the plaintiff the giving for publication of a statement of his fortunate condition because of having ample life insurance, might perhaps have been rested upon libel instead of upon invasion of privacy. The fundamental difference between a right to privacy and a right to free- dom from defamation is that the former directly concerns one's own peace of mind, while the latter concerns primarily one's reputation, although the dam- ages may take into account mental suffering. Markham v. Russell, 12 Allen 573, 90 Am. Dec. 169; Chesley v. Thompson, 137 Mass. 136; Pion v. Caron, 237 Mass. 107, 111, 129 N.E. 369. Another important difference is that truth could not justify an invasion of a legally recognized right of privacy, al- though ordinarily truth is a defense to libel. G. L. (Ter. Ed.) c. 231, S92. In Lyman v. New England Newspaper Publishing Co., 286 Mass. 25 8, 190 N.E. 542, 92 A.L.R. 1124, a newspaper suggested in a column of gossip that the plaintiffs, husband and wife, were unhappy in their married life. That suggestion, it was held, could be found a libel. But even if true that sugges- tion was an outrageous invasion of privacy, from the standpoint of decency, if not from that of law. In Melvin v. Reid, 112 Cal. App. 285, 297 P. 91, the 262 Sidis v. F-R Publishing Corporation plaintiff had been a prostitute, and had been acquitted of murder. She re- formed, married, and for eight years led a blameless life. Then the defendant produced a motion picture truly depicting her evil past. She was held entitled to recover for the invasion of her right of privacy. See also Mau v. Rio Grande Oil. Inc., D.C., 28 F. Supp. 845; Binns v. Vitagraph Co. of America, 210 N.Y. 51, 103 N.E. 11o8, LRA 1915C, 839, Ann. Cas. 1915B, 1024. The present cases do not require us to decide whether any right of privacy is recognized by the law of this Commonwealth. If any exists, it does not protect one from having his name or his likeness appear in a newspaper when there is legitimate public interest in his existence, his experiences, his words, or his acts. The declarations are silent as to the occasion for the publica- tion in question. Whether the newspaper described the occasion or not does not appear. For all the declarations disclose, the plaintiffs may have lost a large sum of money by a robbery of great public interest, and when photo- graphed were consulting the captain of police about apprehending the rob- bers. The counts in question stated no case unless the plaintiffs under all conceivable circumstances had an absolute legal right to exclude from a news- paper any photograph of them taken without their permission. If every person has such a right, no newspaper could lawfully publish a photograph of a pa- rade or a street scene. We are not prepared to sustain the assertion of such a right. THEMO V. NEW ENGLAND NEWSPAPER PUB. CO., 306 Mass. 54; 27 N.E. 2d 753 (1940) One W. J. Sidis had been a noted child prodigy in 1910, lecturing distin- guished mathematicians at the age of 11. He was graduated from Harvard at the age of sixteen, with much attendant publicity. Some years later the New Yorker published a feature story about him in which it described his general breakdown and his ultimate feeling of revulsion for his former life. The magazine described his current mode of living in "a hall bedroom of Boston's shabby south end." On the question of whether the article constituted an in- vasion of privacy, the court conceded that the publication was "a ruthless ex- posure of a once public character, who has since sought and has now been deprived of the seclusion of private life." Nevertheless, Circuit Judge Clark affirmed the dismissal of the suit. But despite eminent opinion to the contrary, we are not yet disposed to afford to all of the intimate details of private life an absolute immunity from the prying of the press. Everyone will agree that at some point the public in- terest in obtaining information becomes dominant over the individual's de- sire for privacy. Warren and Brandeis were willing to lift the veil somewhat in the case of public officers. We would go further, though we are not yet pre- pared to say how far. At least we would permit limited scrutiny of the "pri- vate" life of any person who has achieved, or has had thrust upon him, the questionable and indefinable status of a "public figure." . .. William James Sidis was once a public figure. As a child prodigy, he excited 263 The Evolving Law of Privacy both admiration and curiosity. Of him great deeds were expected. In 1910, he was a person about whom the newspapers might display a legitimate in- tellectual interest, in the sense meant by Warren and Brandeis, as distin- guished from a trivial and unseemly curiosity. But the precise motives of the press we regard as unimportant. And even if Sidis had loathed public at- tention at that time, we think his uncommon achievements and personality would have made the attention permissible. Since then Sidis has cloaked him- self in obscurity, but his subsequent history, containing as it did the answer to the question of whether or not he had fulfilled his early promise, was still a matter of public concern. The article in the New Yorker sketched the life of an unusual personality, and it possessed considerable popular news in- terest. We express no comment on whether or not the news-worthiness of the mat- ter printed will always constitute a complete defense. Revelations may be so intimate and so unwarranted in view of the victim's position as to outrage the community's notions of decency. But when focused upon public characters, truthful comments upon dress, speech, habits, and the ordinary aspects of personality will usually not transgress this line. Regrettably or not, the misfor- tunes and frailties of neighbors and "public figures" are subjects of considera- ble interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day. Plaintiff in his first "cause of action" charged actual malice in the publica- tion, and now claims that an order of dismissal was improper in the face of such an allegation. We cannot agree. If plaintiff's right of privacy was not in- vaded by the article, the existence of actual malice in its publication would not change that result. Unless made so by statute, a truthful and therefore nonlibelous statement will not become libelous when uttered maliciously. A similar rule should prevail on invasions of the right of privacy. "Personal ill will is not an ingredient of the offense, any more than in an ordinary case of trespass to person or to property." Warren and Brandeis, supra at page 218. Nor does the malice give rise to an independent wrong based on an inten- tional invasion of the plaintiff's interest in mental and emotional tranquillity. This interest, however real, is one not yet protected by the law. Restatement, Torts, 46, comment c. If the article appearing in the issue of August 14, 1937, does not furnish grounds for action, then it is clear that the brief and incidental reference to it contained in the article of December 25, 1937, is not actionable. The second "cause of action" charged invasion of the rights conferred on plaintiff by S5o and 51 of the N.Y. Civil Rights Law. Section 50 states that "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person with- out having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor." Section 51 gives the injured person the right to an injunction and to damages. Before passage of this statute, it had been held that no common law right of privacy existed in New York. Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478, 89 Am. St. Rep. 828. Any liability 264 Kelly v. Post Publishing Co. imposed upon defendant must therefore be derived solely from the statute, and not from general considerations as to the right of the individual to pre- vent publication of the intimate details of his private life. The statute forbids the use of a name or picture only when employed "for advertising purposes, or for the purposes of trade." In this context, it is clear that "for the pur- poses of trade" does not contemplate the publication of a newspaper, maga- zine, or book which imparts truthful news or other factual information to the public. Though a publisher sells a commodity, and expects to profit from the sale of his product, he is immune from the interdict of So and 51 so long as he confines himself to the unembroidered dissemination of facts. Publish- ers and motion picture producers have occasionally been held to transgress the statute in New York, but in each case the factual presentation was embel- lished by some degree of fictionalization. The New Yorker articles limit them- selves to the unvarnished, unfictionalized truth. SIDIS V. F-R PUB. CORPORATION, C.C.A. 2d; 113 Fed. 2d 806 (1940); certiorari denied, 311 U.S. 711; 61 S. Ct. 393; 85 L. Ed. 462; 138 A.L.R. 15 (940) A newspaper published a photograph of a child who had been killed in an automobile accident. The parents sued for invasion of privacy, but the court refused to sustain the action. Justice Spalding of the Massachusetts Supreme Judicial Court, upholding the lower court's finding in favor of the newspaper, said: Assuming for the purposes of this case that the plaintiffs have a right of privacy, we fail to see how it was impaired by what the defendant did. Doubt- less many persons at such a time would be distressed or annoyed by a publi- cation of the sort here involved. It is a time above all others when they would prefer to be spared the anguish of wide or sensational publicity. But if the right asserted here were sustained, it would be difficult to fix its bound- aries. A newspaper account or a radio broadcast setting forth in detail the har- rowing circumstances of the accident might well be as distressing to the members of the victim's family as a photograph of the sort described in the declaration. A newspaper could not safely publish the picture of a train wreck or of an airplane crash if any of the bodies of the victims were recog- nizable. The law does not provide a remedy for every annoyance that occurs in everyday life. Many things which are distressing or may be lacking in propriety or good taste are not actionable. Moreover, if the parents had a cause of action in a case like the present there would seem to be no reason why other members of the immediate family, the brothers and sisters, whose sensibilities may also have been wounded should not also be permitted to sue. The only reference to the plaintiffs was that the girl whose body appeared in the photograph was their daughter. This can hardly be said to interfere with their privacy. At least, if there is such a right in this Commonwealth we would not be prepared to extend it to a case like the present. The plaintiffs cite two decisions, Douglas v. Stokes, 149 Ky. 5o6, 149 S.W. 849, 42 L.R.A., N.S., 386, and Bazemore v. Savannah Hospital, 171 Ga. 257, 265 The Evolving Law of Privacy 155 S.E. 194, as supporting their position. In Douglas v. Stokes, the parents of a freak child, who died shortly after birth, engaged the defendant, a photog- rapher, to take photographs of the nude body of the child, it being agreed that he was to make twelve pictures and no more. The defendant made addi- tional photographs without the consent of the parents, one of which he copy- righted. It was held that the parents could recover. That case differs from the present case in that there the defendant published the picture in violation of his agreement with the plaintiffs. However, in a later case, Brents v. Morgan, 221 Ky. 765, 773, 299 S.W. 967, 971, 55 A.L.R. 964, it was said that the de- cision in Douglas v. Stokes, "could have been put on no ground other than the unwarranted invasion of the right of privacy." In Bazemore v. Savannah Hospital, a child, who was a medical curiosity and who died shortly after birth, was photographed in the nude at a hospital where he had been placed for treatment. It was held by a majority of the court that the parents of the child could maintain an action against the hospital, a photographer, and a newspaper for the unauthorized publication and circulation of the picture. The decision appears to be grounded on the theory that the acts of the de- fendants were an unwarranted invasion of the parents' right of privacy. In so far as those decisions are at variance with the conclusion here reached we are not disposed to follow them. KELLY V. POST PUBLISHING CO., 327 Mass. 275; 98 N.E. 2d 286 (1951) The distinction between the individual's right of privacy and the public interest properly served by modern news stories and news pictures was well described by the federal court in Minnesota in 1949. The question arose from incidents during a divorce case and accompanying proceedings regarding the custody of children. During a recess in the hearings a photographer for the Minneapolis Times took a picture of the plaintiff over his protests. The photographer also took a picture of the wife and two children. These were published. In the suit for damages the plaintiff conceded the truth of all that had been published but insisted that the photographs constituted an actionable invasion of privacy. Dictrict Judge Nordbye entered a judgment in favor of the defendant newspaper. Minnesota has no statute which affords plaintiff any relief and the courts of this State have not had any occasion to pass upon the doctrine upon which plaintiff relies, although defendant urges that Minnesota would follow Wis- consin, Michigan, and New York, in that for historical reasons Minnesota has looked to these jurisdictions in determining the common law to be adopted in this State. But, after due consideration, this Court does not find it necessary to decide what the Minnesota courts would determine the common law to be in that regard if and when that question comes before them. For even assum- ing that the courts of this State would embrace as a part of its common law the doctrine of the right of privacy, the showing herein under the admitted facts will not sustain a right of recovery. 266 Berg v. Minneapolis Star 6 Tribune Co. Warren and Brandeis recognized that "the right to privacy does not pro- hibit any publication of matter which is of public or general interest" (p. 214). Undoubtedly, in considering this question, the courts should recognize the rights of privacy of the individual on one hand, and the rights of the press to disseminate news and the rights of the public to obtain legitimate news from the newspapers in their community on the other. When one assumes to determine what constitutes legitimate news, it is undoubtedly true that there may be a wide and marked diversity of opinion as to what should be so designated. Some people would like to see newspapers refrain from publish- ing any items of news regarding the intimacies disclosed in divorce cases or any salacious testimony divulged in matters before the courts, contending that, as stated by Warren and Brandeis, they only seem to satisfy a "prurient taste." Others feel that the public interest is such that the citizens have a right to be informed as to that which takes place in the community, especially at a public trial, and if the news is true and not libelous, fit to print and newsworthy, it should be published. The press blames the public and con- tends that the public demands that it be afforded news coverage regarding such matters, while others contend that the press has overstepped the bounds of propriety in pursuing the trade of gathering all trivial gossip and sensa- tional stories which may be unfolded in any court trial in order to cater to the lowest tastes in our citizenry and thereby increase the sale of their news- papers. That is, the supply of such news creates the demand, not vice versa. That the American public is interested in news concerning court proceedings and court trials is evident. Traditionally, since pioneer days, people have flocked to trials when courts were in session out of curiosity or perhaps in or- der to see drama which their daily lives did not provide, and that this same curiosity and interest is evident today is to be observed in any courtroom when there is a proceeding involving a criminal case of interest or the sensa- tional details of some divorce suit or matrimonial triangle, and to those who cannot attend, the newspapers assume to furnish a daily account of the pro- ceedings. Plaintiff probably does not fully appreciate that, through the force of cir- cumstances, he was required to throw aside the mantle of privacy and the "noiseless tenor of his way, far from the madding crowd's ignoble strife of scandal and notoriety" in his divorce proceedings and his attempt to retain the custody of his children granted him in the divorce suit. But the undenia- ble fact is that he had made public the most intimate and indeed scandalous occurrences of his domestic life and had them, spread on the public records of a court of his choosing, and, in so doing, he departed from his "quiet peace- ful life free from the prying curiosity and unmitigated gossip which accom- panies fame, notoriety and scandal" and in a sense became a quasi-public figure in the community and particularly in his own strata of society. On his wife's petition to set aside and vacate the divorce decree, one of the judges of the court found that a sufficient showing had been made to grant the peti- tion upon the grounds that fraud had been committed, not only upon her, but upon the court. This fact alone tended to place his domestic affairs in the pitiless light of publicity and the case of Berg v. Berg became something more than a routine default divorce suit. As stated in Jones v. Herald Post Co., 267 The Evolving Law of Privacy 1929, 230 Ky. 227, 18 S.W. 2d 972, 973, "The right of privacy may be defined as the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In short, it is the right to be let alone. 21 R.C.L. 1197, 1198. There are times, however, when one, whether willingly or not, becomes an actor in an occurrence of public or general interest. When this takes place, he emerges from his seclusion, and it is not an invasion of his right of privacy to publish his photograph with an account of such occur- rence. Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964." Certainly, this Court should proceed with caution before it attempts to sit as a censor and to interfere with the traditional right of the press to print all printable news which appears in the public records of our courts. Unfortu- nate as it may be for the principals who make charges and defend counter- charges of misconduct in order to obtain freedom from an allegedly erring spouse or the custody of their children in divorce proceedings, the indisputa- ble fact remains that there are many people in the immediate community where the action is pending who look to the press for all such details, and it does not seem to avail that the more intelligent public deprecates that such published details "usurp the place of interest in brains capable of other things." P. 196, 4 Harvard Law Review. Moreover, it cannot be controverted that there is a widespread interest in this very kind of news and perhaps it is not strange that it should be so. Most people are interested in the weather because it generally concerns all classes of people. Domestic disputes, controveries between parents and others as to the custody of minor children, allowances of alimony, and the various acts and conduct recognized by the courts as grounds for divorce, are probably of interest to a large number of people because in their own immediate lives, to a greater or less degree, such problems have concerned their friends and acquaintances and sometimes their own immediate families. And as recog- nized by the eminent writers from whom the doctrine of the right of privacy stems, "it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn." P. 216, 4 Harvard Law Review. Plaintiff does not contend that the article accompanying the photograph in any way presents an inaccurate or distorted picture of the court proceedings. Nor is it contended that the picture depicts him in any other light than in a normal and natural pose. In other words, if the news item constitutes legitimate news, the picture seems entirely appropriate to the news. If the Court, therefore, is correct in holding that the news published by the defend- ant regarding the custody proceedings constitutes a legitimate news item, and it would seem that no other view can be entertained under the admitted sit- uation, it must follow that the publishing of Berg's picture in the manner in- dicated did not violate any right of privacy which the law may afford. That is, if Berg, by his litigation with his wife and the proceedings to retain the cus- tody of his children, made himself a legitimate item of news, it would seem that the personal appearance of the participants by way of photographs is a matter in which the public would have a legitimate interest. The note writer in 138 A.L.R., who covers in an extended article the subject of the right of 268 Metter v. Los Angeles Examiner privacy, states on p. 78 that "it is settled that the publication of a person's name or picture in connection with the news or historical event of legitimate public interest does not constitute an actionable invasion of the right of pri- vacy." The fact that the picture was taken of the plaintiff in the courtroom does not add to, nor detract from, whatever right he may have to recover herein. There is no rule of court in the Hennepin County District Court which pro- hibits the taking of photographs in the courtroom when the judge is not on the bench. The impertinence of newspaper photographers in taking pictures of persons involved in court proceedings when they are in the courtroom or court buildings may well be condemned as a nuisance and often constitutes an unwarranted interference with the orderly functioning of our courts, but the curbing of such practices must rest with the courts by appropriate rules which will tend to limit such activities, or by the enactment of legislation which might place some reasonable limits upon the assumed privileges of newspaper photographers under such circumstances. In any event, it seems clear that, in this proceeding, the Court should not be called upon to attempt to legislate in effect on the subject nor to indulge in the promulgation of any court rule in absence thereof. Warren and Brandeis refer in their article to the press's overstepping "in every direction the obvious bounds of propriety and decency." P. 196, 4 Harvard Law Review. The authors made that observa- tion in the staid days of the nineties, when the standards of our theatres, newspapers, magazines, and current literature were considered to be higher than they are today, but over half a century has passed since that writing and no legislation has been called to the Court's attention which has in any way assumed to limit such alleged improprieties. That we have gone much further since that time in attaching importance in the news to trivial things and sheer gossip regarding the intimate details of the lives of important and near-important people is undoubtedly true, but in proceedings of this kind the courts should not attempt to determine whether the press is to blame or whether it is merely catering to the present mores of the people. By the ac- cepted standards of most of the newspapers in this country, and certainly a goodly number of the people, court proceedings such as the Berg contest over custody of the children constitute legitimate news in view of the circum- stances related, and the publication of Berg's picture in connection with the legitimate news was within the scope of the accepted prerogatives assumed by the press, which is charged with the responsibility of furnishing news to the public. BERG V. MINNEAPOLIS STAR & TRIBUNE CO., 79 Fed. Supp. 957 (1949) Publication of photographs without consent, if the publication is con- cerned with current news, has been held not to constitute invasion of privacy even where the picture was obtained over the protests of the owner or by invasion of private premises. Nor will the courts sustain an action by anyone other than the individual directly affected-like defamation, the right of pri- vacy dies with the individual. The California Court of Appeals pointed this 269 The Evolving Law of Privacy out in a case involving a photograph published by the Los Angeles Examiner, being the picture of a woman who had committed suicide by a plunge from the twelfth floor of an office building. Justice White read the two-to-one opinion in favor of the newspaper; the dissenting justice did not disagree with the reasoning on the question of privacy but questioned the legality of the method by which the photograph itself was obtained. Whatever right of privacy Mrs. Metter had having died with her, we are nevertheless asked to recognize an asserted right by appellant to enforce a right of privacy which he himself possessed, based, as he says, upon what is denominated as a "relational right" of privacy, or in other words, a right to be spared unhappiness through publicity concerning another person because of one's relationship to such person. Neither by the pleadings, at the trial, nor on this appeal is there any complaint made of anything published which directly related to appellant; but nevertheless he claims a right to recover by reason of publicity relating solely to one who was related to him as his wife. In connection with appellant's claim in this regard, the holding by the District Court of Appeals in the California case of Melvin v. Reid, supra, to the ef- fect that when the incidents of a life are so public as to be spread upon a public record, they come into the knowledge and into the possession of the public and cease to be private, has a direct application to the facts presented in the case before us. Mrs. Metter's death, to which publicity was given, and in connection with which her picture was published, immediately set in mo- tion, pursuant to the provisions of section 1510 of the Penal Code, an in- vestigation by the coroner. Manifestly an individual cannot claim a right to privacy with regard to that which cannot, from the very nature of things and by operation of law, remain private. When, therefore, the circumstances sur- rounding the demise of Mrs. Metter became by operation of law the object of an investigation by a public officer and also became the subject-matter of a public record, the publication of the facts in connection therewith violated no one's right to privacy. The manner of Mrs. Metter's death imposed upon the coroner the duty of making an official investigation as to the cause of death, with regard to which all relevant circumstances became the proper subject of official inquiry. The incident described by respondent newspaper had to do with these circumstances, and therefore the publication thereof cannot be held to violate a right of privacy. It is also recognized that the right of privacy does not prohibit any pub- lication of matter which is of public or general concern; and while the gen- eral object in view is to protect the privacy of private life, nevertheless, "to whatever degree and in whatever connection a person's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn." Brandeis-Warren essay, 4 Har- vard L. Rev., 193, p. 214; Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964. In connection with what constitutes news regarding matters of public or general concern, it is said in Associated Press v. International News Service, 2 Cir., 245 F. 244, 248, 2 A.L.R. 317, affirmed 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293, that news is said to have "that in- 270 Metter v. Los Angeles Examiner 27r definable quality of interest, which attracts public attention"; while the court in Jenkins v. News Syndicate Co., 128 Misc. 284, 285, 219 N.Y.S. 196, 198, defines news as a "report of recent occurrences." It seems to us that by her own conduct Mrs. Metter waived any existing right ofprivacy, "relational" or otherwise, that would prevent the publication of her picture in connection with the newspaper story. She went to a public edifice in the heart of a large city and there ended her life by plunging from such high building. It would be difficult to imagine a more public method of self-destruction. For a brief period and in the pitiful and tragic circumstances attending her demise she became an object of public interest. Her own act brought this about. It was her own act which waived any right to keep her picture from public observation in connection with the news ac- count of her suicide. METTER V. Los ANGELES EXAMINER, 35 Calif. App. 2d 304; 95 Pac. 2d 491 (1939) CHAPTER The Changing Law of Contempt SUPPLEMENTARY READING Anonymous, "Free Speech v. Fair Trial in English and American Law of Con- tempt by Publication," University of Chicago Law Review, v. 17 (Spring, 1950), PP. 540-53 , "Right of a Newsman to Refrain from Divulging Sources of his Infor- mation," University of Virginia Law Review, v. 36 (February, 1950), pp. 61-83 T. C. Desmond, "Newsmen's Privilege Bill," Albany Law Review, v. 13 (June, 1949), pp. 1-10 Gray, "Charge of Truth as a Defense to Contempt," Editor 6 Publisher, v. 83 (July 15, 1950), p. 42 J. M. Montgomery, "Treatment of Pending Litigation in the Press," New York State Bar Bulletin, v. 23 (July, 1951), pp. 314-22 Walter Steigleman, "History of Different 'Shield Laws' Traced," Editor 6 Publisher, v. 81 (March 27, 1948), p. 14 John F. Wicklein, "Citations for Contempt: The Courts versus the Press," Journalism Quarterly, v. 26 (March, 1949), pp. '1-56 Yankwich, "It's Libel or Contempt If You Print It," c. 13 Swindler, Bibliography, nos. 450, 453, 482, 496, 498, 510, 514, 516 BACKGROUND NOTE After criminal libel, the criminal law of contempt has been his- torically the greatest issue in the struggle for complete freedom of expression. In his classic History of Contempt of Court, Sir John Charles Fox assembled impressive evidence to indicate that a conservative English judiciary arrogated to itself the power to punish summarily any utterances or actions, in the pres- ence of the court or outside, which embarrassed or impeded the bench- the bench itself determining the nature of the offense and assessing the pun- ishment. In a variety of rulings over two or more centuries, English courts had es- tablished that they had an inherent power to punish any misbehavior within 272 IX the premises of the court itself, any cases of disregard or disobedience of court orders and processes, and any derelictions of duty by officers of the court. To these principles the venerable Blackstone added the proposition that the courts further had the power to punish anyone "speaking or writing contemptuously of the Court or Judges acting in their judicial capacity." Thus defined, con- tempt law came to be distinguished as to "in-court" activities tending to dis- turb the impartial and dignified conduct of justice and "out-of-court" activities which tended to "scandalize" the bench and thus diminish the public re- spect upon which effective enforcement of judicial decisions ultimately rests. This was the theory of contempt law which was held by American jurists in the early days of the new republic; these jurists, for the most part, sought to preserve a continuity of the English common law in the new United States which was vigorously opposed by the egalitarian republican views of the pop- ularly elected legislatures. The Los Angeles Times decision of 1941* may thus be seen as the cul- mination of a juridical and political struggle covering the whole century and a half of national history to that time. The issue between the press, which insisted upon the right to comment upon the business of the courts, and the judiciary, which insisted upon its summary power to punish such comments as it found to impede the conduct of justice, was joined at an early date. A Pennsylvania editor was convicted of contempt and imprisoned while the debate over ratification of the Constitution itself was in progress (Respublica v. Oswald, 1 Dallas 319 [1788]). This decisibn touched off a succession of attempted impeachment proceedings and statutory amendments lasting for more than two decades, until the Pennsylvania legislature in 18o9 passed a law specifically restricting the contempt power to the misconduct of court officers, the disobedience of court orders, and disturbances in the actual presence of the court. A similar statute was enacted by New York in 1829. A dozen cases, in state and federal courts, dealt with the contempt power between 1789 and 183o-and in all of them the Federalist-dominated judiciary affimed the complete, inherent, and elemental authority of the courts to apply the power. The Jeffersonians, despite their control of the executive and legislative branches of government after 18oo, were compelled to spend a generation counterbalanced with a Federalist judiciary enforced in depth by John Adams' famous "midnight judges." It was not until the landslide of Jacksonian democracy in the 1830-1831 Congress that the federal lawmakers found the opportunity to enact a judiciary restraint comparable to the New York and Pennsylvania laws. The opportunity was presented by the impeach- ment proceedings against James H. Peck, the federal judge for the district of Missouri. Peck's ruling in a land title dispute had been devastatingly criti- * In this light, review the opinion in the case in Ch. 2, p. 47. Background Note 273 The Changing Law of Contempt cized in a letter by one Lawless, a St. Louis attorney, which had been pub- lished in a newspaper. Thereupon Peck had cited Lawless for contempt, held him guilty, and suspended him from practice for eighteen months. Lawless thereafter presented a memorial to Congress for Peck's impeachment.* Peck failed of impeachment by a single vote in the Senate trial. Imme- diately upon his acquittal Congress began preparation of an act defining con- tempts of court which, as finally passed and signed into law on March 2, 1831, contained the following provision: Be it enacted, etc., That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehavior of any per- son or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any of- ficer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts. (4 Stat. 487, c. 98; 28 U.S.C. 385) This statute had an immediate effect; in 1835 a federal judge acknowledged that, although he considered it a deplorable curtailment of judicial pre- rogative, the language of the statute was "too plain to doubt the meaning of the law" (Ex parte Poulson, Fed. Cas. No. 11,350). Between 1831 and 186o, twenty-three of the thirty-three states of the union passed laws fixing varying degrees of restraint upon their own judiciary; and in this same period, five of the seven cases involving contempt by publication were decided in favor of the defendant. The courts had not changed their fundamental philosophy of the con- tempt power, however. After 1860, a gradual increase in the number of adverse rulings took place. The clause, "so near thereto," was the key to the restraint embodied in the federal contempt act; and by interpretation courts sought to define these words not merely as a reference to occurrences within sight or earshot, but to any critical statements outside the court. An Arkansas case in 1855 had spoken of "libellous contempts" which the court could punish (State v. Morrill, 16 Ark. 384). By 1900 more than a dozen state courts had broadened the meaning of "out-of-court" contempt, usually by reading this meaning into the words of their state laws defining contempt. This judicial nullification of legislative intent-not an unusual event in American constitutional history-is explained in part by the conviction of many jurists that the contempt power is an essential part of the judicial * For an unusually well-documented and penetrating historical analysis of American law before and since the Peck case, the student is urged to study the article, "Contempt by Publication in the United States," by Walter Nelles and Carol Weiss King in Columbia Law Review, v. 28 (April, May, 1928), pp. 401-11, 525-62. :74 process which cannot be modified or defined by the legislature. The contempt power is, in this view, inseparable from the general power of the judiciary to enforce respect for its official acts-indeed, it is inherent in the similar power enjoyed by the legislative branch itself. In part, however, the resistance of the courts to curtailment of the contempt power was prompted by the behavior of the media of mass communication in the latter half of the nineteenth century. The increasing sensationalism of the press-the flagrant publicity given to crime and pending criminal prosecutions, which gave rise eventually to the term, "trial by newspaper"-and the unhesitating use of editorial attacks upon officers of courts and other public agencies were viewed with consternation by many sensitive or conservative jurists. Although the courts hesitated to devise a law of privacy to cope with certain of these press abuses, they were more than ready to make use of a power they were con- vinced they had always had. The ultimate phase of the nullification process was the disposition of the "so near to" clause in the federal statute by three federal court decisions between 1903 and 1915; with these decisions the judiciary all but re- established the summary power it had claimed prior to 1831. By the mid- 1920's only four states-Kentucky, New York, Pennsylvania, and South Carolina-still had statutes which had withstood any judicial effort to narrow the meaning of the restrictive language on the contempt power. Two other states-Delaware and Maine-had never had any litigation on the subject. But with the federal courts leading the way, forty-three judicial systems had firmly rejected the effort to control the contempt power by legislation. Judge Jones of the federal court for the northern district of Alabama said of the Peck case and the resulting statute of 1831: The acquittal was largely due to the consideration that the common law authorized the judge to treat such criticism as a contempt of court, and that there was not sufficient evidence in other respects to show that the judge had acted corruptly or maliciously. Public opinion, which had not forgotten the passions aroused by the alien and sedition laws, and the partisanship of judges in their enforcement, looked upon the act of Judge Peck as an attempt of the judiciary to revive the principles of these obnoxious laws, and to assert common-law powers which were inconsistent with our constitution and insti- tutions. Congress intended by this statute to put an end to the power of any federal court to prevent, by punishment as for contempt, criticism of judicial acts or decisions, or even mere libels on individuals concerned in the adminis- tration of justice. The statute was drawn by Mr. Buchanan, one of the manag- ers of the impeachment, who afterwards became president. It is doubtful, to say the least of it, whether any of the eminent lawyers in the Congress which adopted this provision, taken from a similar statute in Pennsylvania, had in mind anything more than to prevent the punishment, as for a contempt, of exercises of the right of free speech and liberty of the press in criticising and Ex parte McLeod 275 The Changing Law of Contempt denouncing judicial acts. It is questionable, to say the least of it, whether Con- gress intended to take away from the courts the existing common-law power to punish, as for a contempt, improper efforts, in the guise of published state- ments or comments, pending the trial of a particular case, to secure judgment therein, in obedience to the dictates of passion or prejudice, or to thrust other ulterior considerations before the tribunal, against which justice and the law seeks to guard judge and jury in the trial and decision of causes. The charges to which we have adverted in no way touch the power of the courts, under their contempt power, to deal with physical assaults upon their officers in re- sentment of their official acts. This power remains as at the common law, un- less withdrawn by some statute of the United States. Whatever may be the power of Congress to regulate this matter as regards the supreme court, which is created by the constitution, it is not doubted that it may regulate the exer- cise of the power by inferior courts. Is the power to punish this "misbehavior" as a contempt taken away by any statute of the United States? The judiciary act of September 24, 1789, in- vested the courts of the United States with "power to punish by fine or im- prisonment all contempts of authority, in any cause or hearing before the same." Of this statute the supreme court, In re Savin, 131 U.S. 274, 9 Sup. Ct. 699, 33 L. Ed. 150, observed: "The question whether a particular act constitutes a contempt, as well as the mode of proceeding against the offender, was left to be determined ac- cording to such established rules and principles of the common law as were applicable to our situation. The act of 1831, however, materially modified that of 1789, in that it restricted the power of the courts to inflict summary pun- ishment to certain specified cases, among which was misbehavior in the pres- ence of the court, or misbehavior so near thereto as to obstruct the administra- tion of justice. Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205." It is as true of the later statute, as of the first, that the question whether a particular misbehavior "in the presence of the court, or so near thereto as to obstruct the administration of justice," constitutes a contempt "is left to be determined," as before, by the court. The later statute does not in any way attempt to define a contempt, save by the definition, so far as concerns this case, that it must be "misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice." Neither does the statute of March 2, 1831, "declaratory of the law concerning contempts of court," which, in its second section, creates the criminal offense "of corruptly, or by threats or force, obstructing or endeavoring to obstruct the due administration of justice therein," define what things amount to an obstruction to justice. So the questions of what "misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice," constitutes a con- tempt, and what constitutes an obstruction to the "administration of justice," are left, just as before, to be ascertained by the court; and, if such misbehavior fall within the definition above, it may still be punished summarily by the court as a contempt. Ex PARTE McLEOD, 120 Fed. 130 (1903) 276 Four years after this decision, the Supreme Court of the United States affirmed the full measure of the common law in holding that truth of pub- lished statements is no defense in a contempt proceeding. The question was presented in a case appealed from the Colorado Supreme Court, which had stated the common law rule in upholding the conviction of United States Senator Thomas Patterson, editor and publisher of the Rocky Mountain News and Denver Times, for editorials, letters, and news stories attacking the state supreme court. The court had been considering the constitutionality of a series of laws and constitutional amendments which were challenged by various business interests in test cases brought before the court. The attorney general, in sub- mitting his argument in support of contempt proceedings, insisted that the critical editorials implied that the judges were swayed in their decisions by partisan political considerations. Senator Patterson offered to prove the state- ments in all the publications cited, but the court then held that in such case truth could not be a defense. The Supreme Court of the United States agreed; Mr. Justice Holmes read the seven-to-two opinion. It is argued that the articles did not constitute a contempt. In view of the answer, which sets out more plainly and in fuller detail what the articles in- sinuate and suggest, and in view of the position of the plaintiff in error that he was performing a public duty, the argument for a favorable interpretation of the printed words loses some of its force. However, it is enough for us to say that they are far from showing that innocent conduct has been laid hold of as an arbitrary pretense for an arbitrary punishment. Supposing that such a case would give the plaintiff in error a standing here, anything short of that is for the state court to decide. What constitutes contempt, as well as the time during which it may be committed, is a matter of local law. The defense upon which the plaintiff in error most relies is raised by the allegation that the articles complained of are true and the claim of the right to prove the truth. He claimed this right under the constitutions both of the State and of the United States, but the latter ground alone comes into con- sideration here, for reasons already stated. Ex parte Kemmler, 136 U.S. 436. We do not pause to consider whether the claim was sufficient in point of form, although it is easier to refer to the Constitution generally for the supposed right than to point to the clause from which it springs. We leave undecided the question whether there is to be found in the Fourteenth Amend- ment a prohibition similar to that in the First. But even if we were to as- sume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the United States but also of the States, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional pro- visions is "to prevent all such previous restraints upon publications as had been practiced by other governments," and they do not prevent the subse- quent punishment of such as may be deemed contrary to the public welfare. Patterson v. Colorado 277. 278 The Changing Law of Contempt Commonwealth v. Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald, 1 Dallas, 319, 325. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all. Commonwealth v. Blanding, ubi sup.; 4 Bl. Com. 150. In the next place, the rule applied to criminal libels applies yet more clearly to contempts. A publication likely to reach the eyes of the jury, declaring a witness in a pending cause a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, be- cause even a correct conclusion is not to be reached or helped in that way, if our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside in- fluence, whether of private talk or public print. What is true with reference to a jury is true also with reference to a court. Cases like the present are more likely to arise, no doubt, when there is a jury and the publication may affect their judgment. Judges generally, perhaps, are less apprehensive that publications impugning their own reasoning or motives will interfere with their administration of the law. But if a court regards, as it may, a Publication concerning a matter of law pending before it, as tend- ing toward such an interference, it may punish it as in the instance put. PATTERSON V. COLORADO, 205 U.S. 454; 27 S. Ct. 556; 51 L. Ed. 879; 10 Ann. Cas. 689 (1907) With the sweeping assertion of the contempt power made in the Patterson case, the judicial renunciation of the 1831 statute reached its climax. All that remained was for subsequent decisions to confirm that the court was not going to modify its position. This confirmation came in another sweeping decision in 1918. The case arose from a public discussion of a street rail- way franchise in the city of Toledo, Ohio, and of the steps being taken to settle pronounced differences of view between the city and the railway com- pany in respect of the renewal of the company's franchise. The city sought through the passing of a special ordinance to compel the company to continue service beyond the expiration date of the franchise, without reference to a renewal, at a rate of 3 cents per passenger. Stockholders of the company thereupon filed a bill in court asking an injunction to prevent the company from obeying the ordinance; and the company filed a bill asking an in- junction to prevent the city from enforcing it. At this point the Toledo News-Bee published a series of articles and ed- itorials asserting the complete right of the city to enact the ordinance and challenging the right of the courts to grant the injunctions sought. Upon the court's granting of a temporary injunction the News-Bee redoubled its editorial outcry, reiterating its conviction that the city had the power to make and enforce the ordinance in question and further criticizing the claims of Toledo Newspaper Company v. United States the court to have jurisdiction in the matter. Thereupon an information for contempt was filed against the newspaper and its editor. The defendants were found guilty, the trial court basing its decision on four grounds: (a) Because, leaving aside the attempted ridicule, not to say vituperation, con- cerning the court, which was expressly or impliedly contained in the publica- tions, their manifest purpose was to create the impression on the mind of the court that it could not decide in the matter before it in any way but the one way without giving rise to such a state of suspicion as to the integrity or fairness of its purpose and motives as might engender a shrinking from so doing; (b) because the publications directly tended to incite to such a condition of the public mind as would leave no room for doubt that if the court, acting according to its convictions, awarded relief, it would be subject to such odium and hatred as to restrain it from doing so; (c) because the publications also were obviously intended to produce the impression that any order which might be rendered by the court in the discharge of its duty, if not in accord with the conceptions which the publications were sustaining, would be disregarded and cause a shrinking from performing duty to avoid the turmoil and violence which the publications, it may be only by covert insinuation, but none the less assuredly, invited; and (d) because the publications were of a character, not merely be- cause of their intemperance, but because of their general tendency, to produce in the popular mind a condition which would give rise to a purpose in practice to refuse to respect any order which the court might render if it conflicted with the supposed rights of the city espoused by the publications.* The Circuit Court of Appeals upheld the conviction, and the case was then brought to the Supreme Court, which affirmed the conviction by a five- to-two majority, with two justices abstaining. Mr. Chief Justice White deliv- ered the opinion of the Court. Under the case and the action of the courts below concerning it, nothing further would seem to be required to establish the correctness of that action, since no other course under the statement is possible compatibly with the sacred obligation of courts to preserve their right to discharge their duties free from unlawful and unworthy influences, and in doing so, if need be, to clear from the pathway leading to the performance of this great duty all unwar- ranted attempts to pervert, obstruct, or distort judgment. Nevertheless, in view of the gravity of the subject, we proceed to consider and dispose of the elaborate arguments pressed to the contrary. They are all embraced by the three following propositions: First, that there was a total want of power in the court to treat the matters charged in the information as a contempt and punish it accordingly as a result of the provisions of sec. 268 of the Judicial Code (36 Stat. at L. 1163, chap. 231, 28 USCA S385 [embodying the text of the Act of March 2, 1831, 4 Stat. at L. 487, chap. 99]); second, that,' irrespective of the prohibitions of that act, there was a want of power to * This is a paraphrase of the trial court's opinion by the Supreme Court. In the original trial (220 Fed. 458) Judge Killits made an exhaustive analysis of the case at hand as well as the leading contempt cases then current. 279 The Changing Law of Contempt abridge the freedom of the press by punishing as for a summary contempt comments made by a newspaper upon matters of public concern; and third, that whatever be the view of the two former propositions, as there was an entire absence of proof sustaining the ultimate inferences of fact upon which the court based its conclusion, such conclusion was wholly erroneous as a mat- ter of law. We dispose of these propositions under separate headings. 1. Section 268 of the Judicial Code and its forerunner, the Act of 1831. It is essential to recall the situation existing at the time of the adoption of the Act of 1831 in order to elucidate its provisions. In Marshall v. Gordon, 243 U.S. 521, 37 S. Ct. 448, 61 L. Ed. 881, L.R.A. 1917F, 279, the power of Congress to punish summarily for contempt came under consideration and it was there pointed out that the enlarged legislative power on that subject which prevailed in England prior to the separation, whether based upon the commingling of legislative and judicial authority or upon any other cause, was necessarily in this country greatly restricted and changed by the effect of the adoption of the Constitution and the operation of the division of powers and the guaranties and limitations which that instrument embodied. Consid- ering this condition in the light of the colonial legislation on the subject and the previous state Constitutions, it was pointed out that it had come to be established, either by express constitutional or legislative provisions or by in- evitable implications resting upon the very existence of government, that while the limitations as to mode of accusation of crime and methods of trial had fundamentally changed the situation which had previously existed, such change had not deprived the legislative power of the right, irrespective of its authority by legislation, to provide for the trial and punishment of criminal acts, in addition to deal summarily by way of contempt proceedings with wrongful acts obstructing the legislative power in the performance of its duty. This authority, it was held, was but an incident of the powers conferred, and indeed its exertion in ultimate analysis was a means of securing the effective operation of the constitutional limitations as to mode of accusation and meth- ods of trial. It was pointed out that the authority thus recognized automati- cally inhered in the government created by the Constitution, was sanctioned by a long line of judicial decisions and by state and Federal practice, although the legislative power, doubtless as a mere consequence of a reminiscence of what had gone before, and momentarily forgetful of the limitations resulting from the Constitution, had sometimes exerted authority in excess of that which it was decided was really possessed. While the Marshall case concerned the exercise of legislative power to deal with contempt, the fundamental principles which its solution involved are here applicable to the extent that they maynot be inapposite because of the distinction between legislative and judicial power. Indeed, the identity of the constitutional principles applicable to the two cases, subject to the differences referred to, was pointed out on pages 542 and 543, where it was said: "So, also, when the difference between the judicial and legislative powers is con- sidered and the divergent elements which, in the nature of things, enter into the determination of what is self-preservation in the two cases, the same result is established by the statutory provisions dealing with the judicial authority to punish summarily for contempt; that is, without resorting to the modes 280 Toledo Newspaper Company v. United States of trial required by constitutional limitations or otherwise for substantive of- fenses under the criminal law [Act of March 2, 1831, 4 State. at L. 487, chap. 99, 28 USCA S3851- The pertinent provision of section 268 of the Judicial Code is as follows: "The said courts (United States courts) shall have power . . . to punish, by fine or imprisonment, at the discretion of the court, contempts of their au- thority; Provided, That such power to punish contempts shall not be con- strued to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. .. " Clarified by the matters expounded and the ruling made in the Marshall case there can be no doubt that the provision conferred no power not al- ready granted and imposed no limitations not already existing. In other words, it served but to mark plainly the boundaries of the existing authority resulting from and controlled by the grants which the Constitution made and the limitations which it imposed. And this is not at all modified by conceding that the provision was intended to prevent the danger by reminiscence of what had gone before of attempts to exercise a power not possessed, which, as pointed out in the Marshall case, had been sometimes done in the exercise of legislative power. The provision, therefore, conformably to the whole his- tory of the country, not minimizing the constitutional limitations nor restrict- ing or qualifying the powers granted, by necessary implication recognized and sanctioned the existence of the right of self-preservation; that is, the power to restrain acts tending to obstruct and prevent the untrammeled and unprejudiced exercise of the judicial power given by summarily treating such acts as a contempt and punishing accordingly. The test, therefore, is the char- acter of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty,-a conclusion which necessarily sustains the view of the statute taken by the courts below and brings us to the second question, which is: 2. The asserted inapplicability of the statute under the assumption that the publications complained of related to a matter of public concern and were safeguarded from being made the basis of contempt proceedings by the assuredlv secured freedom of the press. We might well pass the proposition by because to state it is to answer it, since it involves in its very statement the contention that the freedom of the press is the freedom to do wrong with impunity, and implies the right to frustrate and defeat the discharge of those governmental duties upon the per- formance of which the freedom of all, including that of the press, depends. The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions. It suffices to say that, however complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrongdoing. The contention so earnestly pressed, that the express provision found in a statute enacted in Pennsylvania in 1809, following the impeachment pro- ceedings against Judge Peck, dealing with the extent of the power to base a 281 The Changing Law of Contempt contempt proceeding upon a newspaper publication, should be by implica- tion read into the Act of 1831, and by filtration implied in sec. 268, Judicial Code, we think is answered by its mere statement, since if it be conceded, for argument's sake only, that the provision in the Pennsylvania statute relied upon had the significance now attributed to it, and that the Pennsylvania stat- ute was the model of the Act of 1831, the omission from that act of the provi- sion referred to as it existed in the Pennsylvania law is the strongest possible evidence of the purpose not to enact such provision. And thus we come to the third and final subject, which is: 3. The contention that there was no evidence whatever to justify attribut- ing to the publications the consequence of obstruction and therefore no legal basis for the conclusion of guilt and resulting right to impose penalties. It is to be observed that our power in disposing of this objection is not to test divergent contentions as to the weight of the evidence, but simply to consider the legal question whether the evidentiary facts found had any rea- sonable tendency to sustain the general conclusions of fact based upon them by the courts below. Considering the subject in this aspect again we are con- strained to say that the contention on the face of the record is too plainly devoid of merit to require any detailed review. Indeed, we are of opinion that the court below was right in saying, concerning the ultimate conclusions of fact upon which its action was based, that it was "difficult to see how any other findings could have been made." True, it is urged that although the matters which were made the basis of the findings were published at the place where the proceedings were pending and under the circumstances which we have stated, in a daily paper having a large circulation, as it was not shown that they had been seen by the presiding judge or had been circulated in the court room, they did and could form no basis for an inference of guilt. But the situation is controlled by the reasonable tendencies of the acts done, and not by extreme and substantially impossible assumptions on the subject. Again, it is said there is no proof that the mind of the judge was influenced or his purpose to do his duty obstructed or restrained by the pub- lications, and therefore there was no proof tending to show the wrong com- plained of. But here again, not the influence upon the mind of the particular judge is the criterion, but the reasonable tendency of the acts done to influ- ence or bring about the baleful result is the test. In other words, having regard to the powers conferred, to the protection of society, to the honest and fair administration of justice, and to the evil to come from its obstruction, the wrong depends upon the tendency of the acts to accomplish this result with- out reference to the consideration of how far they may have been without influence in a particular case. The wrongdoer may not be heard to try the power of the judge to resist acts of obstruction and wrongdoing by him com- mitted as a prelude to trial and punishment for his wrongful acts. This disposes of the case, for although the court below we think mistakenly considered that it was not under the duty to determine how far the facts sus- tained the charges under counts 2 and 3 because the conviction might be referred wholly to the first count (Gompers v. Buck's Stove 6 Range Co., 221 U.S. 418, 440, 31 S. Ct. 492, 55 L. Ed. 797, 805, 34 L.R.A. [N.S.] 874), 282 Toledo Newspaper Company. v. United States we are of opinion, after examining the facts as to both of those counts, that they also sustain the conviction within the principles which we have just pre- viously stated. Affirmed. Mr. Justice Holmes, dissenting. One of the usual controversies between a street railroad and the city that it served had been going on for years, and had culminated in an ordinance establishing 3-cent fares that was to go into effect on March 28, 1914. In January of that year the people who were operating the road began a suit for an injunction on the ground that the ordinance was confiscatory. The plain- tiffs in error, a newspaper and its editor, had long been on the popular side and had furnished news and comment to sustain it; and when, on March 24, a motion was made for a temporary injunction in the suit, they published a cartoon representing the road as a moribund man in bed with his friends at the bedside and one of them saying, "Guess we'd better call in Doc Killits." Thereafter pending the controversy they published news, comments, and car- toons as before. The injunction was issued on September 12. The Judge (Killits) who was referred to took no steps until September 29, when he di- rected an information to be filed covering publications from March 24 through September 17. This was done on October 28. In December the case was tried summarily without a jury by the Judge, who thought his authority contemned, and in the following year he imposed a considerable fine. The question is whether he acted within his powers under the statutes of the United States. The statute in force at the time of the alleged contempts confined the power of courts in cases of this sort to where there had been "misbehavior of any person in their presence, or so near thereto as to obstruct the administra- tion of justice." Sec. 268, Judicial Code, Act of March 3, 1911, chap. 231, 36 Stat. at L. 1163, 28 USCA S385. Before the trial took place an act was passed giving a trial by jury upon demand of the accused in all but the above-mentioned instances. October 15, 1914, chap. 323, secs. 22, 24, 38 Stat. at L. 738, 739, 28 USCA S387, 389. In England, I believe, the usual course is to proceed in the regular way by indictment. I mention this fact and the later statute only for their bearing upon the meaning of the exception in our law. When it is considered how contrary it is to our practice and ways of thinking for the same person to be accuser and sole judge in a mat- ter which, if he be sensitive, may involve strong personal feeling, I should expect the power to be limited by the necessities of the case "to insure order and decorum in their presence," as it is stated in Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205. See Prynne, Plea for the Lords, 309, cited in McIlwain, The High Court of Parliament and Its Supremacy, 191. And when the words of the statute are read it seems to me that the limit is too plain to be con- strued away. To my mind they point and point only to the present protec- tion of 'the court from actual interference and not to postponed retribution for lack of respect for its dignity,-not to moving to vindicate its independ- ence after enduring the newspaper's attacks for nearly six months, as the court 283 The Changing Law of Contempt did in this case. Without invoking the rule of strict construction I think that "so near as to obstruct" means so near as actually to obstruct-and not merely near enough to threaten a possible obstruction. "So near as to" refers to an accomplished fact, and the word "misbehavior" strengthens the construction I adopt. Misbehavior means something more than adverse comment or disre- spect. But suppose that an imminent possibility of obstruction is sufficient. Still I think that only immediate and necessary action is contemplated, and that no case for summary proceedings is made out if, after the event, publications are called to the attention of the judge that might have led to an obstruction, although they did not. So far as appears that is the present case. But I will go a step further. The order for the information recites that from time to time sundry numbers of the paper have come to the attention of the judge as a daily reader of it, and I will assume, from that and the opinion, that he read them as they came out, and I will assume further that he was enti- tled to rely upon his private knowledge without a statement in open court. But a judge of the United States is expected to be a man of ordinary firm- ness of character, and I find it impossible to believe that such a judge could have found in anything that was printed even a tendency to prevent his per- forming his sworn duty. I am not considering whether there was a technical contempt at common law, but whether what was done falls within the words of an act intended and admitted to limit the power of the courts. TOLEDO NEWSPAPER COMPANY V. UNITED STATES, 247 U.S. 402; 38 S. Ct. 560; 62 L. Ed. 1186 (1918) The view of Mr. Chief Justice White, who delivered the majority opinion in the Toledo Newspaper case, was to prevail over the dissent of Mr. Jus- tice Holmes for almost a quarter of a century. In 1941 the Los Angeles Times case rejected the line of reasoning which had expanded the "so near thereto" doctrine to be all-embracing rather than narrowly exclusive; instead, the later court substituted the "clear and present danger" doctrine, placing upon the judiciary the burden of proof that an occurrence outside the court premises presented a practical obstruction to the administration of justice. The Los Angeles Times decision gave impetus to a trend of reversal which the Supreme Court had begun earlier the same year when it declared: [The] legislative history of this statute [of 1831] and its career demonstrate that this case presents the question of correcting a plain misreading of lan- guage and history so as to give full effect to the meaning which Congress unmistakably intended the statute to have. Its legislative history, its interpreta- tion prior to 1918, the character and nature of the contempt proceedings, admonish us not to give renewed vitality to the doctrine of Toledo Newspaper Company v. United States. NYE V. UNITED STATES, 313 U.S. 33; 61 S. Ct. 810; 85 L. Ed. 1172 284 Since the Nye and Los Angeles Times rulings, a succession of federal and state court decisions has strengthened and enlarged upon the new doctrine, restoring the restraints which had been the legislative intent in the federal statute of 1831 and the state statutes which had succeeded it. There appears to be little prospect at present that the judiciary will again seek to whittle away the effect of these laws as it did in the decades from the case of State v. Morrill to that of Toledo Newspaper Company. There is another journalistic development which has provoked the use of the contempt power by the courts in the past half-century. This has been the growing insistence of newspaper personnel that their sources of information were confidential and that they should not be compelled to disclose these sources on pain of a contempt citation. The journalist, it was said, enjoyed a relationship to his news source fully as valid as the relationship between attorney and client, physician and patient, pastor and parishioner. The courts had generally recognized the immunity of these relationships from the require- ment of disclosure; the press urged that its practitioners be given a compar- able privilege. The judiciary has almost uniformly refused to recognize such an immunity. In one of the earliest tests of the argument, in 1874, an editor of the New York Tribune was'committed to jail until he saw fit to comply with the court's insistence that he reveal the source of a particular news story (People ex rel. Phelps v. Fancher, 2 Hun. 226). A Georgia court found a journalist in contempt for a similar refusal to disclose information in 1887, and two California court rulings to the same effect were handed down in 1897. To the plea that disclosure of news sources violates the journalistic code of ethics, the court has replied that this supposes "a privilege which finds no counten- ance in the law. Such an immunity . . . would be far-reaching in its effect and detrimental to the due administration of law. To admit of any such privilege would be to shield the real transgressor and permit him to go un- whipped of justice." (In re Grunow, 84 N.J.L. 235; 85 Atl. 1o1 [1913].) Failing to win any encouragement from the courts, the newspapers gained a step toward statutory recognition of the right of confidence when the Mary- land legislature in 1896 enacted a law which (as amended in 1939 to include ra- dio journalism) reads: No person engaged in, connected with or employed on a newspaper or journal or for any radio or television station shall be compelled to disclose, in any legal proceeding or trial or before any committee of the legislature or elsewhere, the source of any news or information procured or obtained by him for and published in the newspaper or disseminated by the radio or television Background Note 285. The Changing Law of Contempt station on and in which he is engaged, connected with or employed. (35 Md. Ann. Code 2) The Maryland statute did not start an immediate trend in the legislation of other states, and John Henry Wigmore, the great American authority on evidence, dismissed it with the comment that the law, "as detestable in sub- stance as it is crude in form, will probably remain unique." Not until 1933 did another state-New Jersey--pass a similar law; but within the next ten years nine other states followed suit: Alabama, Arizona, Arkansas, California, In- diana, Kentucky, Montana, Ohio, and Pennsylvania. The latest state law recognizing the right was passed by Michigan in 1949. A number of other states have considered bills on the subject but have rejected them, as has Congress; lawyer-dominated legislatures for the most part have been dis- tinctly hostile to such proposals. Indeed, as a case reported later in this chapter shows, the courts themselves have been most reluctant to accept the full im- port of such laws after they have been passed.* In the absence of state laws on the right of reporters' confidences, the courts have almost uniformly continued to refuse the plea. A de facto recog- nition of a sort was granted by the Supreme Court of the United States in a famous case in 1915 in which the city editor of the New York Tribune de- clined to reveal the sources of his information in a series of articles on customs frauds. The editor was called before a federal grafid jury which demanded disclosure of his sources of information. Upon his refusal he was ordered to appear before the jury at a later date, presumably to be indicted. At the time of his second appearance, however, he was presented with a full pardon from President Wilson. The editor refused to accept the pardon, where- upon a federal district court held him in contempt. This action was appealed to the Supreme Court; by this time the law was not concerned directly with the recognition of the editor's right of confidence but with the right to reject a pardon by one who has neither been convicted of a crime nor admitted the commission of a crime. The Supreme Court ordered the dis- missal of the proceeding in contempt; it upheld the editor's constitutional privilege of refusing to testify on the ground of self-incrimination and de- clared that this privilege could not be circumvented by compelling him to accept the government's assurance that he would not be prosecuted. (Burdick v. United States, 2z36 U.S. 79; 35 S. Ct. 267; 59 L. Ed. 476.) The judicial acceptance of the plea of reporter confidence cannot be said to have been established by the Burdick case. The prevailing attitude of the courts, in the absence of legislation on the subject, is reflected in a 1911 Georgia case: "The citizen . . . owes to the State the duty of testifying, * See State v. Donovan, p. 308. 286 when lawfully called upon to do so, in order that the truth may be ascertained and impartial and complete justice done. . .. A promise not to testify when so required is substantially a promise not to obey the law." (Plunckett v. Hamilton, 136 Ga. 72; 70 S.E. 781.) GENERAL PRINCIPLES 1. What is the status of contempt by publication since the Los Angeles Times case? The Miami Herald published a series of editorials and a cartoon severely criticizing a Florida court for the dismissal of certain proceedings relating to gambling establishments. In one instance it was shown that an editorial had been published after an original indictment had been quashed for techni- cal reasons, but that another indictment had been obtained and a trial was pending. The Florida courts insisted, therefore, that the newspaper publication had been made at such an early stage in the case that it did in fact create a "clear and present danger" that justice would be impeded. The conviction on a contempt citation was then taken to the Supreme Court of the United States. That court, while denying the judiciary power to cite for contempt in this instance, took occasion to express itself on the responsibility which the press, too, owed to the public in the accurate reporting of news; Mr. Justice Reed read the opinion for the eight-to-none majority, with one justice abstain- ing. Without a free press there can be no free society. Freedom of the press, however, is not an end in itself but a means to the end of a free society. The scope and nature of the constitutional protection of freedom of speech must be viewed in that light and in that light applied. The independence of the judiciary is no less a means to the end of a free society, and the proper func- tioning of an independent judiciary puts the freedom of the press in its proper perspective. For the judiciary cannot function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the court. A judiciary is not independent unless courts of justice are enabled to administer law by absence of pressure from without, whether exerted through the blandishments of reward or the menace of disfavor. In the noble words, penned by John Adams, of the First Constitution of Massachusetts: "It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit." A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judici- Pennekamp v. Florida 287 The Changing Law of Contempt ary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press. A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise. No institu- tion in a democracy, either governmental or private, can have absolute power. Nor can the limits of power which enforce responsibility be finally deter- mined by the limited power itself. See Carl L. Becker, Freedom and Responsi- bility in the American Way of Life (1945). In plain English, freedom of the press is not a freedom from responsibility for its exercise. Most State constitu- tions expressly provide for liability for abuse of the press's freedom. That there was such legal liability was so taken for granted by the framers of the First Amendment that it was not spelled out. Responsibility for its abuse was imbedded in the law. The First Amendment safeguarded the right. These are generalities. But they are generalities of the most practical im- portance in achieving a proper adjustment between a free press and an inde- pendent judiciary. Especially in the administration of the criminal law-that most awesome aspect of government-society needs independent courts of justice. This means judges free from control by the executive, free from all ties with political interests, free from all fears of reprisal or hopes of reward. The safety of society and the security of the innocent alike depend upon wise and impartial criminal justice. Misuse of its machinery may undermine the safety of the State; its misuse may deprive the individual of all that makes a free man's life dear. Criticism therefore must not feel cramped, even criticism of the administra- tion of criminal justice. Weak characters ought not to be judges, and the scope allowed to the press for society's sake may assume that they are not. No judge fit to be one is likely to be influenced consciously except by what he sees and hears in court and by what is judicially appropriate for his delibera- tions. However, judges are also human, and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process. While the ramparts of reason have been found to be more fragile than the Age of Enlightenment had supposed, the means for arousing passion and confusing judgment have been reinforced. And since judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. ... Certain features of American criminal justice have long been diagnosed by those best qualified to judge as serious and remediable defects. On the other hand, some mischievous accompaniments of our system have been so perva- sive that they are too often regarded as part of the exuberant American spirit. Thus, "trial by newspapers" has sometimes been explained as a conces- sion to our peculiar interest in criminal trials. Such interest might be an innocent enough pastime were it not for the fact that the stimulation of such curiosity by the press and the response to such stimulated interest have not failed to cause grievous tragedies committed under the forms of law. Of course trials must be public and the public have a deep interest in trials. The public's legitimate interest, however, precludes distortion of what goes on inside the courtroom, dissemination of matters that do not come before the court, or other trafficking with truth intended to influence proceedings or 288 inevitably calculated to disturb the course of justice. The atmosphere in a courtroom may be subtly influenced from without. See dissenting opinion of Mr. Justice Holmes, in Frank v. Mangum 237 U.S. 309, 345, at 349. Cases are too often tried in newspapers before they are tried in court, and the cast of characters in the newspaper trial too often differs greatly from the real persons who appear at the trial in court and who may have to suffer its distorted consequences. Newspapers and newspaper men themselves have acknowledged these prac- tices, deplored their evils and urged reform. See The Attorney General's Conference on Crime (1934) 82-111. One of the most zealous claimants of the prerogatives of the press, the Chicago Tribune, has even proposed legal means for the correction of these inroads upon the province of criminal justice: "The Tribune advocates and will accept drastic restriction of this preliminary publicity. The penetration of the police system and the courts by journalists must stop. With such a law there would be no motivation for it. Though such a law will be revolutionary in American journalism, though it is not financially advisable for newspapers, it still is necessary. Restrictions must come." It is not for me to express approval of these views, still less, judgment on the constitutional issues that would arise if they were translated into legisla- tion. But they are relevant to an understanding of the nature of our problem. They serve also to emphasize that the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. ". . . the liberty of the press is no greater and no less than the liberty of every subject of the Queen," Regina v. Gray [1900], 2 Q.B. 36, 40, and, in the United States, it is no greater than the liberty of every citizen of the Republic. The right to under- mine proceedings in court is not a special prerogative of the press. The press does have the right, which is its professional function, to criticize and to advocate. The whole gamut of public affairs is the domain for fearless and critical comment, and not least the administration of justice. But the public function which belongs to the press makes it an obligation of honor to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility a free press may readily become a power- ful instrument of injustice. It should not and may not attempt to influence judges or juries before they have made up their minds on pending controver- sies. Such a restriction, which merely bars the operation of extraneous in- fluence specifically directed to a concrete case, in no wise curtails the fullest discussion of public issues generally. It is not suggested that generalized discussion of a particular topic should be forbidden, or run the hazard of contempt proceedings, merely because some phases of such a general topic may be involved in a pending litigation. It is the focused attempt to influence a particular decision that may have a corroding effect on the process of justice, and it is such comment that justifies the corrective process. The administration of law, particularly that of the criminal law, normally operates in an environment that is not universal or even general but individ- ual. The distinctive circumstances of a particular case determine whether law is fairly administered in that case, through a disinterested judgment on the basis of what has been formally presented inside the courtroom on explicit Pennekamp v. Florida 289 290 The Changing Law of Contempt considerations, instead of being subjected to extraneous factors psychologi- cally calculated to disturb the exercise of an impartial and equitable judgment. If men, including judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise. It is a condition of that function-indispensable for a free society that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertow of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote . . . Mr. Justice Rutledge, concurring. One can have no respect for a newspaper which is careless with facts and with insinuations founded in its carelessness. Such a disregard for the truth not only flouts standards of journalistic activity observed too often by breach, but in fact tends to bring the courts and those who administer them into undeserved public obloquy. But if every newspaper which prints critical comment about courts without justifiable basis in fact, or withholds the full truth in reporting their proceed- ings or decisions, or goes even further and misstates what they have done, were subject on these accounts to punishment for contempt, there would be few not frequently involved in such proceedings. There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news. Some part of this is due to carelessness, often induced by the haste with which news is gathered and published, a smaller portion to bias or more blameworthy causes. But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blameworthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities. In view of these facts any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule can obtain. There must be some room for misstate- ment of fact, as well as for misjudgment, if the press and others are to func- tion as critical agencies in our democracy concerning courts as for all other instruments of government. PENNEKAMP V. FLORIDA, 328 U.S. 331; 66 S. Ct. 1029; 90 L. Ed. 295 (1946) A Texas newspaper published the story of a local trial in which there was much public interest. The trial court charged that the news story distorted the trial by failing to bring out one of the essential points in the argument of one of the parties. This failure to report the proceedings accurately, the court maintained, inflamed public opinion against the court and threatened to create a disturbance in the courtroom as the trial continued. Thus the Texas court concluded that a "clear and present danger" existed and held the news- paper in contempt. Upon reviewing the case, the Supreme Court of the United States reversed the state court rulings which had convicted the news- paper. The majority was six to three, with two separate opinions respectively being entered for the majority and the dissenting justices. Mr. Justice Douglas wrote, and Mr. Justice Reed read, the opinion of the court. We start with the news articles. A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could pun- ish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. The articles of May 26, 27, and 28 were partial reports of what tran- spired at the trial. They did not reflect good reporting, for they failed to. reveal the precise issue before the judge. They said that Mayes, the tenant, had tendered a rental check. They did not disclose that the rental check was post-dated and hence, in the opinion of the judge, not a valid tender. In that sense the news articles were by any standard an unfair report of what tran- spired. But inaccuracies in reporting are commonplace. Certainly a reporter could not be laid by the heels for contempt because he missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case. Conceivably, a plan of reporting on a case could be so designed and executed as to poison the public mind, to cause a march on the court house, or otherwise so disturb the delicate balance in a highly wrought situation as to imperil the fair and orderly functioning of the judicial process. But it takes more imagination than we possess to find in this rather sketchy and one-sided report of a case any imminent or serious threat to a judge of reasonable fortitude. The accounts of May 30 and 31 dealt with the news of what certain groups of citizens proposed to do about the judge's ruling in the case. So far as we are advised, it was a fact that they planned to take the proposed action. The episodes were community events of legitimate interest. Whatever might be the responsibility of the group which took the action, those who reported it stand in a different position. Even if the former were guilty of contempt, freedom of the press may not be denied a newspaper which brings their conduct to the public eye. Craig v. Harney 291 The Changing Law of Contempt The only substantial question raised pertains to the editorial. It called the judge's refusal to hear both sides "high-handed," a "travesty on justice," and the reason that public opinion was "outraged." It said that his ruling properly "brought down the wrath of public opinion upon his head" since a service man "seems to be getting a raw deal." The fact that there was no appeal from his decision to a "judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly" was a "tragedy." It deplored the fact that the judge was a "layman" and not a "competent attorney." It concluded that the "first rule of justice" was to give both sides an opportunity to be heard and when that rule was "repudiated," there was "no way of knowing whether justice was done." This was strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one "who ventures to publish anything that tends to make him unpopular or to belittle him. . . ." See Craig v. Hecht, 263 U.S. 255, 281, Mr. Justice Holmes dissenting. The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. We agree with the court below that the editorial must be appraised in the setting of the news articles which both preceded and followed it. It must also be appraised in light of the community environment which prevailed at that time. The fact that the jury was recalcitrant and balked, the fact that it acted under coercion and contrary to its conscience and said so, was some index of popular opinion. A judge who is part of such a dramatic episode can hardly help but know that his decision is apt to be unpopular. But the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Conceivably a campaign could be so man- aged and so aimed at the sensibilities of a particular judge and the matter pending before him as to cross the forbidden line. But the episodes we have here do not fall in that category. Nor can we assume that the trial judge was not a man of fortitude. The editorial's complaint was twofold. One objection or criticism was that a layman rather than a lawyer sat on the bench. That is legitimate comment; and its relevancy could hardly be denied at least where judges are elected. In the circumstances of the present case, it amounts at the very most to an intimation that come the next election the newspaper in question will not support the incumbent. But it contained no threat to oppose him in the campaign if the decision on the merits was not overruled, nor any implied reward if it was changed. Judges who stand for re-election run on their records. That may be a rugged environment. Criticism is expected. Discussion of their conduct is appropriate, if not necessary. The fact that the discussion at this particular point of time was not in good taste falls far short of meeting the clear and present danger test. The other complaint of the editorial was directed at the court's procedure 292 -its failure to hear both sides before the case was decided. There was no at- tempt to pass on the merits of the case. The editorial, indeed, stated that there was no way of knowing whether justice was done. That criticism of the court's procedure-that it decided the case without giving both sides a chance to be heard-reduces the salient point of the case to a narrow issue. If the point had been made in a petition for rehearing, and reduced to lawyer's language, it would be of trifling consequence. The fact that it was put in layman's language, colorfully phrased for popular consumption, and printed in a newspaper does not seem to us to elevate it to the criminal level. It might well have a tendency to lower the standing of the judge in the public eye. But it is hard to see on these facts how it could obstruct the course of justice in the case before the court. The only demand was for a hearing. There was no demand that the judge reverse his position-or else. "Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper." Bridges v. California [341 U.S. 252]. But there was here no threat or menace to the integrity of the trial. The editorial challenged the propriety of the court's procedure, not the merits of its ruling. Any such challenge, whether made prior or subsequent to the final disposition of a case, would likely reflect on the competence of the judge in handling cases. But as we have said, the power to punish for contempt depends on a more substantial showing. Giving the editorial all of the vehe- mence which the court below found in it we fail to see how it could in any realistic sense create an imminent and serious threat to the ability of the court to give fair consideration to the motion for rehearing. There is a suggestion that the case is different from Bridges v. California in that we have here only private litigation, while in the Bridges case labor controversies were involved, some of them being criminal cases. The thought apparently is that the range of permissible comment is greater where the pending case generates a public concern. The nature of the case may, of course, be relevant in determining whether the clear and present danger test is satisfied. But the rule of the Bridges and Pennekamp cases is fashioned to serve the needs of all litigation, not merely select types of pending cases. Reversed. Mr. Justice Frankfurter, with whom The Chief Justice concurs, dissenting. Today's decision, in effect though not in terms, holds unconstitutional a power the possession of which by the States this Court has heretofore deemed axiomatic. It cannot be repeated too often that the freedom of the press so indispen- sable to our democratic society presupposes an independent judiciary which will, when occasion demands, protect that freedom. To help achieve such an independent judiciary and to protect its members in their independence, the States of the Union, from the very beginning and throughout our history, have provided for prompt suppression and punishment of interference with the impartial exercise of the judicial process in an active litigation. Interfer- ence was punished not by the ordinary criminal process of trial before a jury, Craig v. Harney 293 The Changing Law of Contempt but through a distinctive proceeding, summary in character in the sense that a judge without a jury might impose punishment. Such protective measures against publications seriously calculated to agitate the disinterested operation of the judicial process in a litigation awaiting disposition have been deemed part of the constitutional authority of the States to establish courts to do justice as between man and man and between man and society . The difference between the issue before us and that raised by the Toledo and Craig cases is basic. In those cases the Court had before it, and Mr. Justice Holmes was concerned only with, the proper application of a federal statute setting a narrowly confined scope to the power to punish for contempt. The Court was not concerned with the Constitutional power of the States to enforce a broader contempt policy. Such a power, in fact, had been as- sumed to be beyond doubt. "When a case is finished, courts are subject to the same criticism as other people, but the propriety and necessity of preventing interference with the course of justice by premature statement, argument or intimidation hardly can be denied." So wrote Mr. Justice Holmes for this Court. Patterson v. Colorado, 205 U.S. 454, 463. To be sure, he wrote this forty years ago, and on several occasions thereafter, as part of the formulation of his profound tolerance for freedom of expression, he spoke out against misuse of the power to punish for contempt. But nothing that that great judge ever wrote qualified in the slightest his conviction that the theory of our system of justice is "that the conclusions to be reached in a case will be in- duced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, supra, at 462. Mr. Justice Holmes had no tolerance whatever for any special claim by judges to immunity from criticism. He was against anything that smacked of summary proceeding for what was known as "scandalizing the court," that is, speaking ill of a court as an institution and thereby argumenta- tively bringing it into disrepute. He would allow summary punishment of conduct calculated to affect a judge in the discharge of his duty only as to matters "pending" before him in the active sense of that term. "It is not enough that somebody may hereafter move to have something done." So he wrote, dissenting, in Craig v. Hecht, supra, at 281. And in his misapplied dissent in the Toledo case he expressed his impatience with federal judges who take notice of newspaper comments to which a judge should be indifferent. But his opinion in that case conveys not a doubt as to the power of States to enforce a policy for the punishment of contempt in relation to a pending case, though the State policy be not limited as Congress limited the power of the federal courts to punish for contempt. There is not a breath of a sugges- tion in the opinion in the Nye case that the restricted geographic meaning which the Court gave to the Act of Congress designed to limit the power of the lower federal courts was required by constitutional considerations. The opinions of Mr. Justice Holmes contain not the remotest hint that the Due Process Clause withdrew from the States the power to base a finding of con- tempt on publication aimed at a particular outcome of a matter awaiting adjudication. And it is worthy of note that in the very opinion in which the phrase "clear and present danger" was first used by Mr. Justice Holmes, he 294 referred to his opinion in the Patterson case, and not with disapproval. See Schenck v. United States, 249 U.S. 47, 51-52. We are not dealing here with criticisms, whether temperate or unbridled, of action in a case after a judge is through with it, or of his judicial qualifications, or of his conduct in general. Comment on what a judge has done-criticism of the judicial process in a particular case after it has exhausted itself-no matter how ill-formed or irresponsible or misrepresentative, is part of the precious right of the free play of opinion. Whatever violence there may be to truth in such utterances must be left to the correction of truth. The publications now in question did not constitute merely a narrative of a judge's conduct in a particular case nor a general commentary upon his competence or his philosophy. Nor were they a plea for reform of the Texas legal system to the end that county court judges should be learned in the law and that a judgment in a suit of forcible detainer may be appealable. The thrust of the articles was directed to what the judge should do on a matter immediately before him, namely to grant a motion for a new trial. So the Texas Court found. And it found this not in the abstract but on the particular stage of the happenings and in the circumstances disclosed by the record. The Texas Court made its findings with reference to the locality where the events took place and in circumstances which may easily impart significance to the Texas Court but may elude full appreciation here. CRAIG V. HARNEY, 331 U.S. 367; 67 S. Ct. 1249; 91 L. Ed. 1546 (1948) The Louisiana legislature in 1940 drew up constitutional amendments aimed at facilitating the reorganization of the state executive department. These amendments were carried in an election by a narrow margin, and a taxpayer's suit was brought to test their constitutionality. The trial court up- held the suit and an appeal was taken to the state supreme court. While the appeal was pending, the New Orleans Item began publishing a series of news stories and editorials discussing the possible effects of an adverse ruling (i.e., one upholding the view that the amendments were un- constitutional) and the possibility of calling a constitutional convention to counter "any undoing or defeat of the People's expressed will, and also deal with the undoers." The newspaper was charged with contempt, the prosecution alleging that the articles not only tended to influence the court while it was considering a case not yet closed, but also posed a threat to the court in the words, "deal with the undoers." Justice Rogers of the Louisiana Supreme Court discharged the ruling which had held the newspaper in contempt. A mere reading of the newspaper editorials, excerpts from which we have hereinabove reproduced, is sufficient to convince the impartial mind that the language employed by the writers to express their disapproval of the decision of this Court holding the reorganization amendment unconstitutional, goes Graham v. Jones 295 The Changing Law of Contempt far beyond fair and reasonable criticism of that decision. No judge should, and no judge does, resent honest and decent criticism of his judicial pro- nouncements. Such criticism may be helpful in the due administration of the law, but it can not be truthfully said that a publication, the clear purpose of which is to ridicule the court's decision, to create an atmosphere of disap- proval therewith in the public's mind, and to intimidate the judges who subscribe thereto, is such a respectful and impartial criticism as will aid the court to rectify error. When the editorials under review here are considered in connection with the extensive publicity that already had been given the pending suit, involving as it did the validity of a constitutional amendment providing for such a drastic change in the form of our State government, and the large circulation throughout the State enjoyed by the three New Orleans newspapers, it can not be disputed that the editorials tended materially to affect the orderly administration of justice in the proceeding to which they refer and which was then pending in this Court. Such being the effect of the editorials, the acts of writing and publishing them were clearly contempts of this Court in which the suit was pending. And if it were not for the repudiation by the decision of the Supreme Court of the United States in the Bridges and Times-Mirror Company cases, of the reasonable tendency rule and the overruling, in effect, of the jurisprudence refusing to extend the constitutional protection of liberty of the press and freedom of speech to such acts, it would be the duty of this Court to inflict such punishment upon the offenders as their contemptuous acts deserved .. . In applying the now recognized limited power of the courts to punish for contempt for indiscriminate publications regarding their judicial pronounce- ments, we can not truthfully say that the result of the publications under review here was to create a clear and present danger of substantive evils. Certainly, they had no influence on the members of this Court in their deliberations and in the conclusions reached by them in the suit involving the constitutionality of the reorganization amendment. Although the obvious purpose of the editorials was to force a decision by this Court in accordance with the conceptions which the writers were sustaining, there never was any clear and present danger that their purpose could or would be accomplished, as clearly appears from the decision itself. In these circumstances, and following the rule laid down by the Supreme Court of the United States in the Bridges and the Times-Mirror Company cases, these proceedings for contempt must be discharged. GRAHAM V. JONES, 200 La. 137; 7 South. 2d 688 (1942) 2. At what stage of a case is a news medium free from liability for publishing news or comment? In 1939 the Supreme Court in Baltimore adopted a rule seeking to protect the rights of prisoners awaiting trial by making it a contempt to photo- graph the accused person without his consent, quoting anyone connected 296 Baltimore Radio Show v. State with the case or quoting any statement or admission by the accused person, forecasting the future course of action in the case, or publishing "any matter which may prevent a fair trial, improperly influence the court or the jury, or tend in any manner to interfere with the administration of justice." In 1948 the Baltimore radio broadcasting stations carried a series of news- casts on developments in a widely followed murder; an eleven-year-old girl was stabbed to death and her assailant was the object of an intensive police search which resulted eventually in the arrest of a man who signed a written confession. The newscasts identified the man, quoted extensively from police interviews on the accused man's statements and behavior, suggested the course the trial might take, and in other respects categorically challenged the court rule on contempt. Citations against the radio stations were soon issued by the court, and the defendants held guilty. An appeal was then taken to the Maryland Court of Appeals, which reversed the lower court. Judge Hender- son read the opinion of the five-to-one majority. In the case at bar, we are not concerned with deliberate attempts to influ- ence the outcome of a pending case. The statements were not argumentative, but factual. "If there was electricity in the atmosphere, it was generated by the facts," not by the "explicit statement of them." Bridges v. California, supra, 314 U.S. at page 278, 62 S. Ct. at page 201, 86 L. Ed. 192, 159 A.L.R. 1346. It was at least a mitigating circumstance that the broadcasts reported statements made or verified by the public authorities. We are asked to hold that disclosure of the fact that the accused had confessed, and had previously been convicted of similar crimes, presented such a clear and present danger as to deprive the accused of his right to a fair trial. It is appropriate to con- sider, in this connection, the legal effect of such disclosures in the course of a trial. . The suggestion of prejudice in the broadcast that the accused was "wary" and "not an obvious mental case" can hardly be maintained. These statements fall short of an expression of opinion that the accused was sane, which would be inadmissible from a witness not qualified to express such an opinion. Assuming that the case at bar was "pending" as soon as the accused was arrested and charged, but before his indictment, Berlandi v. Commonwealth, 314 Mass. 424, 50 N.E. 2d 210, 216, it seems clear that the mere fact of public statements as to matters that might, or might not, be admissible in evidence against him, would not prevent a trial or vitiate a subsequent jury verdict. Our decisions so hold. ... The mere fact of arrest, or indictment, implies that the police believe the accused to be guilty, or that the Grand Jury has found a prima facie case. Knowledge that the public authorities are active may have a tendency to allay public excitement and fears, so often magnified by word of mouth. Trials cannot be held in a vacuum, hermetically sealed against rumor and report. If a mere disclosure of the general nature of the evidence relied on would vitiate a subsequent trial, few verdicts could stand. With due respect for the finding of Judge Gray, we find no direct evidence 297 The Changing Law of Contempt of prejudice in the community because of the broadcast information. The testimony of James' counsel that he felt the disclosures would prevent him from obtaining an impartial jury, were only conclusions of the witness and not statements of fact. Unless we can infer prejudice from the broadcasts themselves, the State has not met the burden of proof. The State earnestly contends, however, that the question is not whether there is such a showing of prejudice as to vitiate a trial, but whether the statements were reasonably calculated to influence a potential jury. We should have grave difficulty in holding that the same statements that would not be so prejudicial as to require the reversal of a death sentence, could still be so prejudicial as to support convictions for contempt. But even drawing the in- ference, we think the proof does not meet the present test laid down by the Supreme Court, which requires more than an inherent or reasonable tendency to prejudice, or even the probability that it will do so. In so holding, we are well aware of the high motives of the Maryland Bench and Bar in attempting to keep the stream of justice undefiled by sensationalism and the dramatization of crime, so prevalent in this country and so roundly condemned in England. We do not suggest that the courts lack the traditional power to discipline officials who are a part of the admin- istration of justice. The question whether they can now deal with the radio stations or the press in cases where the statements are inflammatory, false, or designed to intimidate, is not before us. We simply hold that upon this record the broadcasts did not create such a clear and present danger as to meet the constitutional test. Markell, Judge (dissenting). The gist of the decision in these cases is: (1) The broadcasts in question did not constitute a "clear and present danger" to the administration of jus- tice. (2) Freedom of speech and of the press, under the Fourteenth Amend- ment, is paramount over the right to (a) fair trial (b) by jury, under the Fourteenth Amendment and the Maryland constitution, and includes a right to substitute trial by newspaper or radio for trial by jury. I am unable to con- cur in either of these conclusions-or aspects of one conclusion. ... No case has been cited, and I have found none, in which so much in- flammatory matter, prejudicial to fair trial by jury, has been compacted into one short publication as was done in these broadcasts. The prejudicial nature of the ingredients of these broadcasts has been recognized by various courts, including this court. The words "clear and present danger" are no part of English law, but the fact that trial by newspaper is a clear and present danger to trial by jury is recognized by English judges. After Dr. Crippen murdered his wife and fled from England and had been arrested at Quebec, but be- fore he was indicted, a London newspaper published a report of an alleged confession by him at Quebec. On citation for contempt the King's Bench Division (Mr. Justice Darling, Mr. Justice Pickford and Lord Coleridge) held that the court was not without jurisdiction because the publication occurred before indictment. "It is possible very effectually to poison the fountain of jus- tice before it begins to flow." Rex v. Parke [1903], 2 K.B. 432, 437, quoted 298 Baltimore Radio Show v. State in Globe Newspaper Co. v. Commonwealth, 188 Mass. 449, 450, 74 N.E. 682, 3 Ann. Cas. 761. On the facts, referring to the publication, Mr. Justice Darling said: That was really saying that Crippen had made a confession and that he had confessed to the crime in respect of which he was charged, and that it was only a matter of dispute as to the term whether one calls it an admission or confession. The effect upon the prisoner would be precisely the same by whatever name it was called. It was that he had admitted himself guilty of the crime with which he was charged. Anything more calculated than that to prejudice the defense of a man can hardly be conceived. This statement is circulated among those who will be jurors at the trial, if the accused were committed for trial, because the jurors are drawn from the whole body of the county of Middlesex, in which this paper is widely circulated. No one can suppose that the jurymen entered the box in this case without ever having heard of it; but the less they hear of a case before they come to listen to the evidence the better, and newspapers do not help in the administration of justice by publishing what I can only describe as idle gossip, which at best may have been wormed out of those who had the man in custody or who were engaged in investigating the case when he was being charged before the judge in Quebec. . . . The court, therefore, come to the conclusion that a contempt of court was committed here, as was admitted, once the point of law was got rid of, in the publication of this matter; and we are of the opinion that it was a very grave contempt of court. It is most important that the administration of justice in this country should not be hampered, as it is hampered in some other countries, and it is not enlarging the jurisdiction of this court-it is refusing to narrow the jurisdiction of this court-when we say that we are determined while we are here to do nothing to substitute in this country trial by newspaper for trial by jury; and those who attempt to introduce that system in this country, even in its first beginnings must be prepared to suffer for it [Rex v. Clarke, Ex parte Crippen [1910] K.B.D., 103 L.T.R. 636, 639- 640]. On March 25, 1949, Lord Goddard, Lord Chief Justice, fined the Daily Mirror �io,ooo and sent its editor to prison for three months for contempt of court in publishing a story about a murder case. The charge was that the publication had prejudiced the accused's defense. Lord Goddard (to quote, in the absence of an official report, the Associated Press report in the Balti- more newspapers) said: "Anybody who has had the misfortune, as this court has had, to read these articles must be left wondering how it can be possible for that man to obtain a fair trial after that which has been published in this paper. Not only does it describe him as a vampire and proceed to give reasons why they call him a vampire but in addition to saying he has been charged with the particular murder of which he has been charged, these arti- cles go on to say not merely that he is charged with other murders, but that he has committed others and gives the names of persons, whom, they say, he has murdered." This court politely passes over the English cases, as if they may reflect an un-American prejudice against trial by newspaper. Nelles and King, apolo- gists for trial by newspaper, foes of punishment for contempt by publication 299 The Changing Law of Contempt and prophets of Nye v. United States, 313 U.S. 33, 61 S. Ct. 81o, 85 L. Ed. 1172, offer a less flattering explanation of the comparative paucity of Ameri- can cases on the conflict between trial by newspaper and trial by jury, viz., lack of fortitude on the part of judges. ... The reason why attempts to coerce judges by threats and other attacks are held not to be "clear and present dangers" to the administration of justice is that all judges are expected to have more "fortitude, firmness, wisdom and honor" than can be expected from everyone in private life. In the three cases this is the ratio decidendi and the point of departure between the majority and the minority of the court. Mr. Justice Frankfurter, in his dissenting opin- ions in the Bridges case (Chief Justice Stone, Mr. Justice Roberts and Mr. Justice Byrnes concurring) and the Craig case (Chief Justice Vinson concur- ring) and his concurring opinion in the Pennekamp case, and Mr. Justice Jackson, in his dissenting opinion in the Craig case, sharply deny what Mr. Justice Jackson calls "the myth that judges are not as other men are." 331 U.S. 367, 396, 67 S. Ct. 1249, 1264, 91 L. Ed. 1546. The "myth" is not a fact; it is a working fiction, i.e., it is law. It is not for us to pass upon the wis- dom of these decisions or the philosophy that underlies them. The decisions and the philosophy are at least understandable. Judge-baiting is now a con- stitutional right. The court in effect says that "judges are not regarded as other men are." This is not flattery; it gives judges no rights or protection but imposes on them, and not on their assailants, responsibility for coercion of them. The question that now confronts us is whether these decisions and the un- derlying philosophy deny the state power to prevent or punish poisoning the fountain of justice in trial by jury. The relevant features of the cases are: (a) None of the three cases involved any danger to jury trial. In the Bridges and Craig cases the accused timed their blasts at the judge after the jury had completed their function. (b) The "myth" that judges are regarded as super- men is inapplicable to jurors, who are only a cross-section of the community, hold no office and have only ephemeral existence as jurors. (c) All references to jury trial in majority or minority opinions recognize this difference between judges and jurors. (d) None of the justices have suggested that jurors may be like judges in this respect, though the dissenters, denying the "myth," have suggested that judges may be not wholly unlike jurors . . . I think the judgments should be affirmed. BALTIMORE RADIO SHOW V. STATE, 193 Md. 300; 67 Atl. 2d 497 (1949); cer- tiorari denied, 338 U.S. 912; 70 S. Ct. 252; 94 L. Ed. 562 (1950) During the trial of the first of three men separately charged with murder, the court instructed reporters not to publish any of the testimony in the first case until the others had been tried, on the ground that evidence adduced at the first trial might tend to disqualify prospective jurors for the second and third trials. The editors of three Houston papers, when informed by their re- porters of these instructions, declined to follow them and proceeded to pub- 300 lish the testimony of the first trial while it was still news. The publications were held to be in contempt of court, but Judge Christian of the Texas Court of Criminal Appeals in reviewing the citations said: It appears to us that respondent unduly stresses the tendency of accurate newspaper reports of public trials to embarrass the administration of justice. Under our statute, opinions formed from reading newspaper accounts may not disqualify a juror from sitting in a particular case. In Parker v. State, 91 Tex. Cr. R. 68, 238 S.W. 943,945, this court upheld the action of the trial court in denying a change of venue, and in the course of the opinion, said: "We gather that the evidence of prejudice, upon which the appellant relies, is traceable to the alleged consequences of newspaper publications. Those set out in the document to which we have referred appear to be such only as might come within the scope of the proper functions of a newspaper, in in- forming the public of current events. Such publications alone have not, within our knowledge, been held adequate to support the inference of preju- dice necessary to secure a change of venue. Our statute upon the selection of individual jurors recognizes that even opinions formed from reading news- paper accounts may not disqualify the juror from sitting in a particular case .." In Ex parte Foster, 44 Tex. Cr. R. 423, 71 S.W. 593, 595, 6o L.R.A. 631, oo Am. St. Rep. 866, this court expressly held that the trial court was with- out power to prohibit the publication of the testimony adduced during the trial of a criminal case. We entertain no doubt as to the correctness of such holding. It is in harmony with the general conception, as illustrated in the judicial precedents, that liberty of the press means immunity from previous restraint or censorship. It gives effect to the purpose for which the constitu- tional guaranty was designed, as made evident by its language and historical antecedents. We quote from the opinion as follows: Section 8 of our Bill, of Rights guaranties the freedom of speech and the liberty of the press. Section io guaranties to any accused person a speedy public trial by an impartial jury. If the Constitution guaranties a public trial, is it in the power of the court to make it a private trial? If not, then where is the power of the court to prohibit spectators, or to require or enforce thereafter silence on those who may witness and hear the proceedings? If there is no power on the part of the court to prevent spectators from rehearsing evidence, by the same logic the court has no authority to prevent a publication of the testimony. Our Constitution is but in accord with the genius and spirit of our free institutions, which is intended to guaranty publicity to the proceedings of our courts, and the greatest freedom in the discussion of the doings of such tribunals, consistent with truth and decency. And as has been well said, "When it is claimed that this right has in any manner been abridged, such claim must find its support, if any there be, in some limitation expressly imposed by the lawmaking power." And this imposition must be in accord with the provisions of our Constitution guar- antying the publicity of all trials, as well as the freedom of speech and of the press. We take it that the learned judge who exercised his authority in this in- stance did it, as he believed, in the interest of the due administration of the Ex parte McCormick 301 The Changing Law of Contempt law; but the argument of convenience can have no weight as against those safe- guards of the Constitution which were intended by our fathers for the preserva- tion of the rights and liberties of the citizen. And even if there was a conflict here between the authority and dignity of the court, that should yield to the plain letter of the Constitution. We accordingly hold that the court had no power to prohibit the publication of the testimony of the witnesses in the case, and that his act in punishing the relator for contempt for violating that order was without jurisdiction, and was consequently void. We are of the further opinion that, under the holding in the Foster case, it cannot be said that relators abused their constitutional privilege. It is con- ceded that they published a true and imrArtial statement of the testimony ad- duced during the trial of Thompson, the proceedings of which were public pursuant to the command of the tenth section of the Bill of Rights, Const. In the nature of things, the proceedings of public trials constitute news which newspapers have the right to publish in informing the public of current events. The relators are ordered discharged. Ex PARTE MCCORMICK, 129 Tex. Crim. Rep. 457; 88 S.W. 2d 104 (1935) The St. Louis Post-Dispatch published a series of editorials and cartoons scathingly condemning the judge of a criminal division of the state district court for his action in dismissing certain cases of alleged union racketeer- ing. The editorials contrasted this action with the civil cases against the same parties, in which the unions successfully sued for recovery of funds. One of the editorials read: Did ever rulings in the Circuit Court of St. Louis on two successive days stand out in sharper, starker, more astounding contrast? Monday gave us that burlesque on justice, "The Amazing Case of Putty Nose," in the court of Judge Thomas J. Rowe, Jr. Yesterday, we had justice which was the real article in the court of Judge Ernest F. Oakley. One day, law and order are made a laughing stock. The next day, in another court room, the force of the law strikes with lightning-like retribution. No ease, said Judge Rowe. No case against Putty Nose, just as there was no case against John P. Nick. Oh, Nick might be a known racketeer. He might be a thug who ruled the movie operators' union through coercion and strong-arm methods. He and Putty Nose might have teamed together in a shakedown. They might have stung the movie theater operators before the old wage scale for operators was extended. Payment of $10,000ooo to Putty Nose might have been testified to under oath. Yet no case. No case against Nick. No case against Putty Nose. No case at all-that was what Judge Rowe said. So, having kept Nick's case from going to the jury, he now stopped Putty Nose's trial before a jury could be selected. No use finding out how Putty Nose's lawyers could defend him after having put the blame for the $1io,ooo payment on Putty Nose when they de- 302 fended Nick. No case. No use. Putty Nose and Nick go free on criminal charges. But the law has another side. It has a civil side. On this side union members, striving energetically to clean house, are suing Nick to recover funds for the union. A case? There is nothing remotely resembling doubt in Judge Oakley's decree. He finds that through Putty Nose, Nick secretly received $10,000 paid by the theater men to Putty Nose. He orders Nick to pay the union $1o,ooo, and Nick and Clyde Weston, the union's business agent, together to produce $38,000. A case? WVell, rather! No case, Nick and Putty Nose, said Judge Rowe. Go free. Cough up, says Judge Oakley. That money isn't yours. Pay it into the treasury of the men you sold out. Pay up and get out and take with you all your hench- men and the "known criminals" you smuggled into the union. Disgorge! Clear out! A case? Yes and no. No, if you are in criminal division before Judge Rowe. If you are in civil division before Judge Oakley, yes-emphatically, yes! The court cited the paper for contempt and ordered the imprisonment of the editorial page cartoonist and editorial page editor for the contempt. An appeal was taken to the Missouri Supreme Court to quash the judgment and to discharge the two men sentenced to imprisonment. In upholding the newspaper's appeal, Judge Hays said for a unanimous court: It is said that this rule violates the constitutional guaranty of freedom of the press, sec. 14, Art. II, Const. of Mo.; Amendment 14, Const. of the U.S. The right of freedom of the press is only a specific instance of the general right of freedom of speech enjoyed by all. Persons engaged in the newspaper busi- ness cannot claim any other or greater right than that possessed by their fel- lows. The right of freedom of speech is one of the fundamental safeguards of democratic government. Its recognition distinguishes the governments of the English-speaking nations from those now in power in Europe. It is the duty of this court to safeguard zealously this guaranty of liberty against un- due encroachment. Yet, the right is not absolute and unlimited. Cooley, Con- stitutional Limitations, 7th Ed., p. 6o5. The interest of society in the spread of truth is made possible by untrammeled discussion, and this is most impor- tant. But there are other social interests such as the preservation of order and the right of litigants to a fair trial and a decision based solely on the law and the evidence, which are equally important; and a balance between these interests in case of conflict must be struck. Chaffee, Freedom of Speech, 34" The freedom of speech provisions of the Constitution, for example, do not grant immunity to one who speaks slanderous words of his neighbor, nor pre- vent the punishment of one who solicits another to commit a crime. In the same way they do not give any privilege to utter or publish words which directly interfere with the orderly processes of a court in administering justice in a pending case. Publication of personal and unreasoned criticism of a court before which a case is pending often tends to substitute trial by newspaper for trial by the court and jury, and would tend to bring about a decision based State v. Coleman 303 The Changing Law of Contempt upon the momentary whim of a publisher or the desires of the mob rather than one based upon the law and the evidence. On the other hand, it is true that judges are human beings; that at times ignorant and corrupt men may secure places upon the bench. Under our form of government judges are elected or at least hold their places subject to the approval of the people at an election. Therefore, the judge cannot be immune from criticism. The people who must pass upon his continuance in office have a right to be informed of his weakness, venality, or inefficiency. But such information can clearly be given to them through comment on his actions in closed cases with attempt, through criticism of his conduct in pend- ing cases, to intimidate him or interfere with his unbiased decisions. The power to punish for contempt has always extended to acts done in the pres- ence of the court which tend to interfere with the trial of a pending case. Sir John Fox, Contempt of Court, pp. 51, 52. And the necessity to prevent such interference may be just as great where the obstructing act occurs out of the presence of the court. For example, we have held, In re Elliston, z56 Mo. 378, 165 S.W. 987, that an attempt to intimidate or bribe a juror out of the presence of the court may be punished as a contempt. There is no valid distinction to be drawn between such an act and a personal criticism of the judge with respect to his conduct in a pending case which has a direct tendency to bring about a decision in accordance with the desires of the critic rather than one based upon the law and the evidence . It is our conclusion that in case No. 37053, the judgment of the circuit court should be quashed; that in case No. 37054, the petitioner should be dis- charged; and that in case No. 37055, the petitioner should be discharged. It is so ordered. All concur. STATE EX REL. PULITZER PUB. CO. V. COLEMAN, 347 Mo. 1230; 152 S.W. 2d 640 (1941) 3. What remains of a newspaper's liability for contempt? Except in rare instances where the courts have given express permission, the newspapers are still forbidden to take pictures during a trial session. Al- though professional journalists argue strenuously that with modern photo- graphic techniques there can be little practical reason why the taking of pic- tures should disturb a court in session, most judges have declined to yield on the issue. Photographers for certain newspapers in Baltimore were cited for contempt in taking pictures in defiance of a court ban. One photographer, when his plates were requested by the court, turned over blanks; another used non- flash equipment to take some shots during a trial without the court's knowl- edge. In defense of the actions the editors of the papers declared that they did not believe the court had the authority to forbid the taking of pictures 304 of a public trial. Judge Urner of the Maryland Court of Appeals ruled, in upholding the convictions: The challenge in this case of the court's right to forbid the use of cameras in the courtroom during the progress of the trial presents an issue of vital im- portance. If such a right should yield to an asserted privilege of the press, the authority and dignity of the courts would be seriously impaired. It is essential to the integrity and independence of judicial tribunals that they shall have the power to enforce their own judgment as to what conduct is incompatible with the proper and orderly course of their procedure. If their discretion should be subordinated to that of a newspaper manager in regard to the use of photo- graphic instruments in the courtroom, it would be difficult to limit the further reduction to which the authority of the courts would be exposed. It would be utterly inconsistent with the position and prerogatives of the judiciary, as a co- ordinate branch of government, to require its submission to the judgment of a nongovernmental agency as to a question of proper conduct in the judicial forums. The argument for the appellants concedes that a judge may regulate, as to time, manner, and number, the taking of photographs in the courtroom, but it is contended that the bounds of his discretion are passed when he substitutes prohibition for regulation. The basic theory of the contention is that repre- sentatives of the press have a right to attend and report trials of persons accused of crime, which are public proceedings, and that photographic por- trayals of the trial scene, if obtained without disturbance, are as legally per- missible as verbal descriptions. This theory assumes the right of the persons desiring to procure and publish such pictures to enforce their own views, in opposition to those of the court, as to whether the use of cameras in the court- room to photograph the participants in the trial, during its progress, is conso- nant with a proper and customary standard of decorum and with the concern and responsibility which the court should feel for the protection of the normal sensibilities of the persons to be affected by such a form of publicity. The con- stitutional right of the accused to a public trial is a privilege intended for his benefit. It does not entitle the press or the public to take advantage of his in- voluntary exposure at the bar of justice to employ photographic means of pic- turing his plight in the toils of the law. ... The ability of a photographer to take a picture in court without noise or distraction and without the knowledge of the judge is not a reason why he should be at liberty to ignore a positive judicial order forbidding the use of cameras at the trial. In this instance, the photographer of the Baltimore News was able to obtain the subsequently published views of the trial table group, because he was permitted, through the courtesy of the court, to occupy a seat at a press table conveniently located. He was there ostensibly as a newspaper reporter, and surreptitiously took the pictures in question, under instructions from the city editor, after the judge, from whom the special accommodation was accepted, had declared that the taking of pictures at the trial would not be allowed. The photographer's act was clearly none the less a contempt because the judge was not conscious at the time that his order was being disobeyed. It was an order which the court could reasonably pass in the exercise of a sound Ex parte Sturm 305 The Changing Law of Contempt judgment. It involved no abuse of judicial discretion. There is consequently no occasion to discuss the issue which might arise if such a discretion were to be exercised capriciously and in arbitrary interference with legal rights. The specific question is whether the violation of the order against the use of cam- eras at the trial was a contempt of court with which it could deal summarily, and that question we answer in the affirmative. The privileges of the press under the law deserve the appreciative consider- ation of the judiciary. There are occasions when the vindication of those priv- ileges depends upon judicial action. The high importance of the press as an agency of modern civilization is nowhere more freely recognized than in courts of justice. It is declared in our state Constitution that "the liberty of the press ought to be inviolably preserved." Declaration of Rights, art. 40. But the duty and disposition of a court to accord a justly ample scope to the liberty of the press should not be carried to the point of an undue abridg- ment of the court's own freedom. There are proper spheres within which the courts and the press may operate without any conflict of interest or purpose. In this case the liberty of the press has been invoked in support of acts which were an invasion of the domain within which the authority of the courts is exclusive. A due regard for the integrity of the judicial power forbids, and the legitimate interests of the press do not require, that such an encroach- ment should be sanctioned. Ex PARTE STURM, 152 Md. 114; 136 Atl. 312 (1927) 4. The newsman's right of confidence in news sources is only valid where a statute defines the right. A reporter for the New York American was called as a witness by a grand jury investigating alleged violations of the laws on gambling and lotteries. The reporter had written a series of articles in which he had stated that in spite of the grand jury's investigations "the policy racket" was still going on. He admitted to the grand jury that the articles were based on "contacts" which he had developed for news of this type. The grand jury asked him to furnish names and addresses of people and places mentioned in his articles. He re- fused to do so on the ground that this information was confidential and privileged. The court thereupon held him in contempt and ordered his im- prisonment. A writ of habeas corpus was dismissed and a review of the dis- missal was carried to the New York Court of Appeals, which upheld the ac- tion. Judge Hubbs said: The only question presented on this appeal is whether a newspaper reporter may lawfully refuse to answer pertinent questions relating to communications made to him as a reporter on the ground that such communications are priv- ileged. There is no statute in this state covering the subject. It is urged by appellant that the basis for the privilege granted in the cases where it is conceded to be 306 People ex rel. Mooney v. Sheriff of New York County properly granted exists in the case of a reporter. Attention is called to the fact that in addition to the statutory privileges existing between attorney and cli- ent, husband and wife, physician and patient, and certain others (Civil Prac- tice Act, sees. 353, 349, 351, 352), there also exist certain common-law cases where the privilege is granted, like communications made to a judge, to a dis- trict attorney, and to police officers in the performance of their duties, and it is urged that the principle underlying the granting of those privileges exists in the case of a reporter. Appellant admits that no court has ever so decided, but urges that the development of the law and changes in social relations re- quire that courts now extend the privilege to a reporter. The opinion in the case of People ex rel. Phelps v. Fancher, 2 Hun. 226, 4 Thomp. & C. 467, stated that the editor of a newspaper while a witness before a grand jury was not privileged from disclosing the name of the author of a li- belous article published in his paper. A decision of the question here involved was not, however, necessary to the decision of that case. The conclusion there reached has been reached by the courts of every state which has passed upon the subject. There are no decisions to the contrary at the present time which have not been overruled, although there were early decisions in England which decided in accordance with appellant's contention. Such decisions have been overruled in England and the rule there is now the same as in this country. 5 Wigmore on Evidence (p. 1) contains a discussion on the subject of priv- ileged communications. Section 2286 reads: "In general, then, the mere fact that a communication was made in express confidence, or in the implied con- fidence of a confidential relation, does not create a privilege. This rule is not questioned today. No pledge of privacy, nor oath of secrecy, can avail against a man for the truth in a court of justice. Accordingly, a confidential communi- cation to a clerk, to a trustee, to a commercial agency, to a banker, to a journal- ist, or to any other person, not holding one of the specific relations hereafter considered, is not privileged from disclosure." In addition to the English case cited by the learned author, the following cases in this country have decided that the privilege does not exist in favor of a newspaper editor or reporter: Ex parte Lawrence, 116 Cal. 298, 48 p. 124; People v. Durrant, 116 Cal. 179, 48 P. 75; Joslyn v. People, 67 Colo. 297, 184 P. 375 7 A.L.R. 339; Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781, 35 L.R.A. (NS) 583, Ann. Cas. 1912B, 1259; In re Grunow, 84 N.J. Law, 235, 85 A. o1011. The states of Maryland, New Jersey, and Alabama have by statute extended the privilege to newspaper reporters. Such enactments are severely criticized by Professor Wigmore (sec. 2286, note 7). Various attempts have been made in this state to enact a statute ex- tending the privilege to reporters, but such attempts have uniformly been defeated. Similar bills were introduced at the last session of the Legislature but failed to pass. The policy of the law is to require the disclosure of all information by wit- nesses in order that justice may prevail. The granting of a privilege from such disclosure constitutes an exception to that general rule. In the administra- tion of justice, the existence of the privilege from disclosure as it now exists 307 The Changing Law of Contempt often, in particular cases, works a hardship. The tendency is not to extend the classes to whom the privilege from disclosure is granted, but to restrict that privilege. On reason and authority, it seems clear that this court should not now de- part from the general rule in force in many of the states and in England and create a privilege in favor of an additional class. If that is to be done, it should be done by the Legislature which has thus far refused to enact such legislation. The order should be affirmed, without costs. PEOPLE EX REL. MOONEY V. SHERIFF OF NEW YORK COUNTY, 269 N.Y. 291; 199 N.E. 415; 102 A.L.R. 759 (1936) Even where a statute has been enacted, however, the courts are inclined to construe the law so narrowly as to reduce its effectiveness. This was shown in the strict construction of the New Jersey "reporter confidence" law by the supreme court of that state in a test suit brought before it; Justice Case read the opinion of the eight-to-one majority, based upon procedural issues. The witness, in refusing to answer, replied upon the provisions of R.S. 2:97-11, N.J.S.A. 2:97-11 (formerly ch. 167, secs. i and 2, P.L. 1933) as follows: "No person engaged in, connected with or employed on any news- paper shall be compelled to disclose, in any legal proceeding or trial, before any court, before any grand jury of any county or any petit jury of any court, before the presiding officer of any tribunal or his agent, or before any commit- tee of the legislature, or elsewhere, the source of any information procured or obtained by him and published in the newspaper on which he is engaged, connected with or employed." We shall assume, without deciding, that the statute is constitutional, and we shall consider whether either the wording or the intent of the statute extends to such a refusal. The general rule, where there is no statute, is thus stated in 70 C.J. title "Witnesses," page 377, sec. 504: "The rule of privileged communications does not apply to communications to a newspaper editor or reporter, for, although there is a canon of journalistic ethics forbidding the disclosure of a newspa- per's source of information, it is subject to qualification and must yield when in conflict with the interests of justice. Accordingly, a witness before the grand jury on a complaint for libel published in a newspaper may be required to dis- close the name of the writer, which he admits he knows, over the objection that it is an office regulation that the editors of the paper are not to give the name of the writer of articles published in it." That statement is supported by the cases, which are well reviewed in a re- cent unanimous decision of the New York Court of Appeals, People ex rel. Mooney v. Sheriff of New York County, 269 N.Y. 291, 199 N.E. 415, 102 A.L.R. 769. Justice Kalisch, speaking for this court in the case of In re Julius Grunow, 84 N.J.L. 235, 85 A. 1011, 1012, said with respect to Grunow's stated reason 308 for refusing to answer, namely, that he was a newspaper reporter and could not give up his sources of information: "In effect he pleaded a privilege which finds no countenance in the law. Such an immunity, as claimed by the defendant, would be far-reaching in its effect, and detrimental to the due administration of law. To admit of any such privilege would be to shield the real transgressor and permit him to go unwhipped of justice." Our state is one of a small group (embracing otherwise, so far as we are informed, the States of Maryland, Alabama, California, Kentucky, and Penn- sylvania) where the privilege has now been extended by statute to a newspa- per editor or reporter. Such enactments have been severely criticized by Pro- fessor Wigmore in the third edition (1940) of his work on Evidence (section 2286, subdiv. 3). They are placed by him in a category which he calls "legis- lative novelties." Nevertheless, the argument that the granting of the privilege is contrary to public policy falls because the privilege is statutory and was or- dained by the legislature whose province it is to determine public policy. The critical attitude which courts and text book writers have taken serves, however, to emphasize the rule of construction that statutes in derogation of common law rights are to be strictly construed and that courts are not to infer that the legislature intended to alter the common law principles further than is clearly expressed or than the case absolutely requires. In the instant case we have an indictment which the defendants charge was obtained by political pressure and as the result of a conspiracy, one of the overt acts being the publication of a number of interviews authorized by the public men to whom they are at- tributed. The statements themselves, or some of them, known as "releases," or "newspaper copy," as sent to the newspaper office, are produced. On the postulate of the quoted testimony the sources of the newspaper in- terviews are known. They are the men to whom the interviews are attrib- uted. What is not known is: Who physically transported the statements to their named destination? It will be seen that there is here no onus upon the newspaper; there is no question of the surreptitious acquisition of news, or of the printing of matter that was not authorized. In fine, the inquiry goes not to the source, but to the messenger by whom the article was taken to the publication office where the author or "source" intended it should go-a fact which ordinarily would be merely a minor incident and here assumes ma- teriality only because of an issue which does not involve the newspaper or the actual publication. The acts of communicating the "story" to the newspa- per offices and of publication were the objectives of the author or "source." No reason, legitimate to the legislative intent as we understand that intent, appears why the vehicle of transmission should not be revealed. A phase of the statute which suggests limited application is that the priv- ilege is not made absolute in the sense that the statute forbids a newspaper editor to make answer-such a privilege, for instance, as prohibits an attorney from divulging confidential communications entrusted to him by his client- but leaves the witness free to tell or not to tell as he may choose. Thus, it de- pends, not upon the issue, or upon the rules of evidence, or upon the judg- ment of the court or other impartial arbiter, but upon the uncontrolled deter- mination of the witness whether he will help or hinder an inquiry; and that condition is fraught with such serious consequences upon third persons that State v. Donovan 309 310 The Changing Law of Contempt it ought not be applied unless the facts are clearly within the purview of the statute. We conclude that the question did not go to the source of the publication, wherefore the statute does not, in terms, apply; and we are further of the opinion that the legislative intent did not reach to such a situation as here ex- isted. Mr. Gainsway will answer the posed question. The other newspaper wit- nesses are, of course, subject to the same principle. STATE V. DONOVAN, 129 N.J.L. 478; 30 Atl. 2d 421 (1943); certiorari denied 133 N.J.L. 319; 40 Atl. 2d 546 (1945); aff. 133 N.J.L. 432; 44 Atl. 2d 712 (1945) CHAPTER X Copyright and Property in News SUPPLEMENTARY READING Gray, "Copyrighted Material Permissible in News," Editor 6 Publisher, v. 83 (June 17, 1950), p. 48 , "Form Is Prescribed for Copyright Notice," Editor 6 Publisher, v. 83 (April 22, 1950), p. 68 , "Giving Credit Doesn't Absolve Infringement," Editor 6 Publisher, v. 84 (August 4, 1951), p. 47 - , "Use Not Authorized by Ownership of Copy," Editor 6 Publisher, v. 83 (June 3, 1950), p. 46 Swindler, Bibliography, nos. 535, 544, 550, 553, 554, 564, 566, 582, 589, 595, 605, 606 BACKGROUND NOTE Copyright is, as the word literally says, the right to prepare and dis- tribute copies of an intellectual production. It is a property right, and like other property rights may be retained or sold or given away by its owner; or the owner may dispose of portions of the property or set limits upon its use. Legal recognition of this right took on formal status in the fifteenth cen- tury, both in England and on the Continent. Copyright in this period was as much a device for controlling the output of the printing press as for protecting the authors of original literary works; it was not until 1679 that the control feature was removed from the English copyright law. Modern copyright law in England, from which the American law later derived its fundamental princi- ples, dates from the act of 1709. In this act were several concepts of copy- right which have come to distinguish Anglo-American jurisprudence on this subject from the legal theory of most of the rest of the world. The chief propositions of Anglo-American law are as follows: Unpublished material is protected by the common law, and so long as the owner of this intellectual property chooses not to publish it, his common law copyright 311 Copyright and Property in News continues indefinitely. Upon the instant of publication by the owner, however, common law protection ceases and only that protection provided by statute is available to him. To qualify for statutory copyright the owner of the prop- erty must conform to certain provisions of the law respecting deposit of copies and the printing of a notice of. copyright on each separate portion of the work (e.g., separate parts of a syndicated series and the like). The statutory protection will run for a specific term of years, including an optional period of renewal, after which the work enters the "public domain" and is no longer eligible for copyright. Although this is an oversimplified statement, it repre- sents the basic principles of Anglo-American law and illustrates the funda- mental differences between that law and the law of other countries, which for the most part treats copyright as a perpetual right, or at least coextensive with the life of the original author, and places little or no emphasis upon a printed notice. Because of these essential divergences of legal theory, the United States has been unable to accept membership in the International Copyright Union, which reflects the Continental theory; instead, this country has developed a succession of bilateral treaties with individual nations to gov- ern matters pertaining to the protection of intellectual property abroad. Whether newspapers or news could claim any protection under the copy- right laws has long been a matter of debate. As early as 18o6 an English court observed: "All human events are equally open to all who wish to add to or improve the materials already collected by others, making an original work. No man can monopolize such a subject" (Matthewson v. Stockdale, 33 E.R. 103). In 1835 an American court specifically excluded newspapers from the protection of the copyright law of 1790 (Clayton v. Stone, 2 Paine 382, Fed. Cas. No. 2872). In 1843 another American court went further, declaring that where there had been newspaper publication of portions of a work which later was submitted in book form in application for copy- right, the newspaper publication had destroyed the subsequent privilege of copyright in these portions (Miller v. McElroy, Fed. Cas. No. 9581). By 1900 the courts still held to the view that "there can be no copyright, as an entirety, of a daily newspaper, which is composed in large part of matter not entitled to copyright" (Tribune Co. of Chicago v. Associated Press, 116 Fed. 126). The Tribune case emphasized the need for a revision of the domestic copy- right law, as well as the need for revision of the treaties dealing with the subject on an international scale. The Tribune had contracted with the Times of London to reprint some of the Times' copyrighted war correspond- ence during the Boer War; a Tribune correspondent in London cabled selections from the dispatches to Chicago, where the Tribune obtained a domestic copyright on them. But an American news agency in London also 312 picked up selections from the Times correspondence and distributed them in the United States. The federal district court held that, unless there were simul- taneous publication in Chicago and London, the common law copyright (the only right for news which the American courts would recognize at that time) terminated with the London publication and the news matter became part of the "public domain." The exclusion of news matter from the protection of the copyright statute was justified in part by the conviction that a democratic society is better served by recognizing that general facts are part of the public domain and available to all. In part, also, many courts felt that there was little literary quality and "only a transient value, due solely to its quick transmission and distribution," to news matter (National Telegraph News Co. v. Western Un- ion Telegraph Co., 119 Fed. 294 [1902]). It was clear, however, that news- papers were increasingly devoting space to original works by professional writers, which would be copyrightable if they were produced in any other medium; and it was equally clear that without some legal protection the enter- prising newsgatherer was at the mercy of all manner of piracy. Part of this problem was met by the general revision of the American copyright law in 1909, which for the first time made all periodicals, including newspapers, eligible for protection under the law. This covered those portions of the newspaper which were clearly original literary creations; but it left un- protected the vast proportion of news of the day which could be picked up by any rival agency or publication wishing to do so. Congress never suc- ceeded in dealing with this problem; in 1916 a bill was introduced proposing to amend the copyright law to afford a twenty-four hour protection for news, but this bill died in committee. For all practical purposes, this settled the question of whether news matter could be protected from plagiarism or piracy under copyright it could not. News was property, but not intellectual property; news data were part of the public domain and open to all to gather, and it was the protection of a market value that the newsgatherer sought. This led, logically enough, to the application of the laws of unfair competition to the newsgathering process. Several English cases near the end of the nineteenth and the beginning of the twentieth centuries pointed the way to the development of the doctrine of unfair competition with respect to news. The courts ruled in these cases that "collecting together of materials so as to give knowledge of all that has been done on the Stock Exchange-is something which can be sold. It is property, and being sold to the plaintiffs it was their property." Misappropria- tion of this property by another could be enjoined; a newspaper subscribing to the service could be forbidden to resell the material to a rival news agency; and a rival could be prosecuted for "surreptitiously obtaining or copying any Background Note 313 Copyright and Property in News . . . news collected by the plaintiffs" and sold to the rival's clients ("Ex- change Telegraph Cases" [1896] 1 Q.B. 147; [1897] 2 Ch. 48; [1906] 22 T.L.R. 375). In 1919 the Supreme Court of the United States followed the example of the English courts and established the rule by which news property has been protected from unfair appropriation ever since.* To the extent that a news report reflects an individual writing style and an original literary effort, copy- right privileges are afforded under the 1909 statute; for the rest-which represents considerably the larger proportion of newspaper reporting-the law of unfair competition offers the defense against unfair use. GENERAL PRINCIPLES 1. What is copyrightable in a newspaper? In 1917 a New York newspaper published a copyrighted story on the first large-scale use of submarines by the Germans in the European war. The New York newspaper sold the exclusive right of republication in Chicago to the Chicago Daily News. But before the Daily News could release the story, a competing Chicago newspaper published a digest of the New York publication, giving full credit to the New York newspaper for originating and copyright- ing the item. In the trial for copyright infringement the Chicago paper con- tended that it made use only of news facts which were in the public domain. Circuit Judge Alschuler rejected the plea. The article as published in both papers is set forth umns, as follows: Chicago Herald Germany Pins Hope of Fleet on 300 Fast Submarines New York, Feb. 3, 3 A.M.-(Spe- cial)-The Tribune this morning in a copyrighted article by Louis Durant Edwards, a correspondent in Germany, says that Germany to make the final effort against Great Britain has plunged 300 or more submersibles into the North Sea. These, according to this writer, were mobilized from Kiel, Ham- burg, Wilhelmshaven and Bremerhaven, where for months picked crews were trained. in parallel col- New York Tribune By Louis Durant Edwards Copyright 1917, by the Tribune Assn. (New York Tribune) Germany plays her trumps. Three hundred, or more, submersibles have plunged into the waters of the North Sea to make the final effort against Great Britain. They mobilized from Kiel, Hamburg, Wilhelmshaven, Bre- merhaven, where, for months, picked crews have trained. . .. * See International News Service v. Associated Press, p. 321. 314 Chicago Record-Herald Co. v. Tribune Assn. They form the world's first diving battle fleet, he says, a navy equally pre- pared to fight above or beneath the waves. There are two types of these new boats now in commission, one of 2,400 tons and one of 5,0ooo tons displace- ment. They dive beneath the water in a fraction of the time that it takes the older types to submerge. They mount powerful guns, are capable of great sur- face speeds, and are protected by a heavy armor of tough steel plate. The motors develop 7,000 horsepower and drive the boats under the surface at 22 knots an hour. These small cruis- ers carry a crew of from 60 to 8o men. The submersibles have a radius of action of 8,000 miles. They form the world's first diving battle fleet, a navy equally prepared to fight above or beneath the waves . . . There are two types of these new boats now in commission, one of 2,400 tons and one of 5,ooo tons displace- ment. . They dive beneath the water in a fraction of the time that it takes the older types to submerge. They mount powerful guns, are capable of great sur- face speeds, and are protected by a heavy armor of tough steel plate .. The motors develop 7,000 horsepower and drive the boats under the surface at 22 knots an hour. These small cruis- ers carry a crew of from 6o to 80 men ... They have a radius of action of 8,ooo miles. Following the [ellipses] above shown there appears in the New York Trib- une very much more; the copyrighted article as there published being about tenfold longer than the Herald publication. For plaintiff in error it is contended (1) that its publication was of news only, and that the news feature of the copyrighted article was not properly subject to copyright; (2) that what the Herald published was not any sub- stantial part of the entire copyrighted article. It is true that news as such is not the subject of copyright, and so far as con- cerns the copyright law, whereupon alone this action is based, if the Herald publication were only a statement of the news which the copyrighted article disclosed, generally speaking, the action would not lie. But insofar as the Edwards article involves authorship and literary quality and style, apart from the bare recital of the facts or statement of news, it is protected by the copy- right law. That the entire copyrighted article involves in its production author- ship as generally understood, and manifest literary quality and style in strik- ing degree, is impressively apparent from its perusal. While the appropriated portions comprise in perhaps larger degree the salient facts than do the deduc- tions, descriptions and comments with which the other parts of the copy- righted article more largely deal, they are nevertheless not wholly or strictly confined to recital of mere facts. This appears evident from the perusal of some of the portions appropriated: "They form the world's first diving battle fleet, a navy equally prepared to fight above or beneath the waves. . . . They dive beneath the water in a fraction of the time that it takes the older types to submerge. They mount powerful guns, are capable of great surface speed, and are protected by heavy armor of tough steel plate." 315 Copyright and Property in News This is plainly more than a mere chronicle of facts or news. It reveals a pe- culiar power of portrayal, and a felicity of wording and phrasing, well cal- culated to seize and hold the interest of the reader, which is quite beyond and apart from the mere setting forth of the facts. But if the whole of it were con- sidered as stating news or facts, yet the arrangement and manner of state- ment plainly discloses a distinct literary flavor and individuality of expression peculiar to authorship, bringing the article clearly within the purview and pro- tection of the Copyright Law. We find no merit in the contention that the Herald publication constitutes no substantial part of the copyrighted article. It presents the essential facts of that article in the very garb wherein the author clothed them, together with some of his deductions and comments thereon in his precise words, and all with the same evident purpose of attractively and effectively serving them to the reading public. Whether the appropriated publication constitutes a sub- stantial portion of that which is copyrighted cannot be determined alone by lines or inches which measure the respective articles. We regard the Herald publication as in truth a very substantial portion of the copyrighted article, and the transgression in its unauthorized appropriation is not to be neutral- ized on the plea that "it is such a little one." Nor is here influential the suggestion that the Herald article gives credit to the author, and sets forth as its authority that the article was copyrighted in the New York Tribune. Far from there being an exculpatory virtue in this, it would tend rather to convey to the reading public the false impression that authority to appropriate the extracts from the copyrighted article had been duly secured by the offending publisher. CHICAGO RECORD-HERALD CO. V. TRIBUNE ASSN., C.C.A. 7th; 275 Fed. 797 (1921) The Atlantic Monthly arranged with Alfred E. Smith, then governor of New York, to publish his reply to an article objecting to his prospective candi- dacy for the presidential nomination. Because of the issue of the governor's adherence to the Roman Catholic faith, great public interest attached to Smith's reply, and it was agreed that, following the magazine's exclusive pub- lication of the reply, it should be made available to the press generally. To protect the Smith piece from premature publication by a competitor, the Atlantic Monthly on April 8, 1927, arranged for the copyrighting of the first proofs of the article as it was printed, and a token sale of one copy was made to an officer of the publishing company. The magazine planned to publish the issue containing the article on April 25, 1927. On April 16 the Boston Post, having obtained a copy of the article from the printing plant where the magazine was being produced, ran the story. The court, although ruling that the magazine could not recover damages because of the technical nature of the action (an action in equity rather than in law), indicated that damages were clearly recoverable if the action were amended. District Judge Morton said: 316 Atlantic Monthly Co. v. Post Publishing Co. The first question is whether the copyright of April 8th is valid. It is at- tacked on two principal grounds: First, that the Atlantic Monthly was not the "proprietor" of the article, and therefore had no standing to copyright it; and, second, that the sale to Mr. Jenkins in connection with the deposit of copies with the registry did not amount to the publication which the act re- quires. At common law an author owned his manuscript, and could protect thefts of it as of other property. He also had the right to control the making of copies until he had released or "dedicated" the work to the public. Printing for gen- eral circulation constituted such dedication, and thereafter the author had no control over publication of his work. It was to relieve that situation that copy- right acts were passed, granting to the author or proprietor a monopoly of the right of publication. Under the present act this monopoly is obtained by pub- lishing the article with a copyright notice thereon, and filing with the Reg- ister of Copyrights two copies of the best edition. I see no sufficient reason to disbelieve the testimony of Mr. Jenkins con- cerning the sale of the copy of the Smith article to him. I find that that sale was, as he says, absolute and unconditional, and that he was free to deal with the copy in any way that he saw fit. Both parties to the transaction assumed that Mr. Jenkins would make no use of it adverse to the interest of the At- lantic Monthly; but this assumption did not form part of the contract. In making the sale the plaintiff's representatives relied on Mr. Jenkins' personal and financial interest to prevent him from using his copy in such a way as to harm the magazine. The copies filed with the Register are by statute open to the public. Copyright Act, S58 (17 USCA $58). It seems to me quite inadvisable to introduce into the law of copyright refinements between so-called "colorable" sales-whatever that may mean- and bona fide ones. It will be better, I think, to take the law simply and directly, and to hold that an absolute and unrestricted sale of a printed copy, especially where accompanied by filing similar copies with the Register, amounts to publication under the act; and I think the decisions support this view. ... The other points urged against the validity of the copyright do not require discussion. In my opinion, the copyright was valid in so far as the statutory formalities are concerned. As to the plaintiff's proprietorship of the article: It was the intention of Mrs. Moscowitz, representing Governor Smith, and of the persons with whom she dealt, representing the Atlantic Monthly, that the title to the article should upon delivery vest in the plaintiff, subject to the conditions stated in her testimony, and I see nothing in the facts which precludes giving effect to the arrangement as the parties understood it. It is not necessary that an author, selling a manuscript to a magazine, should do so by a written bill of sale. Delivery of it with the intention of passing title is quite sufficient. In this case, whether the transaction be regarded as a sale or as a gift, the de- livery of the manuscript vested in the plaintiff, not a mere license to print, as the defendant contends, but full and complete property in the article, sub- ject to the reservations or conditions referred to, and left the plaintiff free to deal with the article in any way which did not in fact violate its understand- 3127 Copyright and Property in News ing with Mrs. Moscowitz. The copyright of April 8th was not intended to be, and was not, contrary to the agreement under which the article was obtained. ATLANTIC MONTHLY CO. V. POST PUB. Co., 27 Fed. 2d 556 (1928) "The Act of 1909 was a complete revision of the copyright laws, different from the earlier Act both in scheme and language. It . . . was intended defi- nitely to grant valuable, enforceable rights to authors, publishers, etc.; without burdensome requirements," observed the Supreme Court of the United States in 1938. Under this concept of the copyright law, failure of the copyright owner to comply literally and promptly with each stipulation in the law will not destroy his right if there is reasonable ground for believing that he did not intend to forfeit or abandon his right. A magazine published an article in its copyrighted issue of December lo, 1931, but did not actually deposit copies of the issue in the Copyright Office until February 21, 1933. Meantime, in August of 1932, a book was pub- lished containing material which was substantially the same as the magazine article. In rejecting the argument that the magazine had forfeited its copy- right by failure to make a prompt deposit of the copies with the Register of Copyrights, the Supreme Court by a six-to-three majority ruled in favor of the publication. Mr. Justice McReynolds read. the majority opinion. Under the old Act deposit of the work was essential to the existence of copyright. This requirement caused serious difficulties and unfortunate losses. (See H.R. Report, note 2, supra.) The present statute (S9) declares: "Any person entitled thereto by this Act may secure copyright for his work by publi- cation thereof with the notice of copyright required by this Act [i8]; . . ." And respondents rightly say, "It is no longer necessary to deposit anything to secure a copyright of a published work, but only to publish with the notice of copyright." Section io declares: ". . . Such person may obtain registration of his claim to copyright by com- plying with the provisions of this Act, including the deposit of copies, and upon such compliance the register of copyrights shall issue to him the certifi- cate provided for in section fifty-five of this Act." Section z12: ". . . After copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the copyright office or in the mail addressed to the register of copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, . . . No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with." Section 13: "... Should the copies called for by section twelve of this Act not be 318 Washingtonian Co. v. Pearson 319 promptly deposited as herein provided, the register of copyrights may at any time after the publication of the work, upon actual notice, require the propri- etor of the copyright to deposit them, and after the said demand shall have been made, in default of the deposit of copies of the work within three months from any part of the United States, . . . the proprietor of the copy- right shall be liable to a fine of one hundred dollars and to pay to the Library of Congress twice the amount of the retail price of the best edition of the work, and the copyright shall become void." Sections 59 and 60 were new legislation. They show clearly enough that deposit of copies is not required primarily in order to insure a complete, permanent collection of all copyrighted works open to the public. Deposited copies may be distributed or destroyed under the direction of the Librarian and this is incompatible with the notion that copies are now required in order that the subject matter of protected works may always be available for infor- mation and to prevent unconscious infringement. Although immediately upon publication of The Washingtonian for De- cember, 1931, petitioner secured copyright of the articles therein, respond- ents maintain that through failure promptly to deposit copies in the Copyright Office the right to sue for infringement was lost-in effect, that the provision in S12 relative to suits should be treated as though it contained the words "promptly," also "unless" instead of "until," and read, "No action or pro- ceeding shall be maintained for infringement of copyright in any work unless the provisions of this Act with respect to the deposit of copies promptly and registration of such work shall have been complied with." Plausible arguments in support of this view were advanced by the Court of Appeals. We think, however, its adoption would not square with the words actually used in the statute, would cause conflict with its general purpose, and in practice produce unfortunate consequences. We cannot accept it. Petitioner's claim of copyright came to fruition immediately upon publi- cation. Without further notice it was good against all the world. Its value depended upon the possibility of enforcement. The use of the word "until" in S12 rather than "unless" indicates that mere delay in making deposit of copies was not enough to cause forfeiture of the right theretofore distinctly granted. Section 12 provides that "after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the copyright office" two copies, etc. The Act nowhere defines "promptly," and to make the continued existence of copyright depend upon promptness would lead to unfortunate uncertainty and confusion. The great number of copyrights annually obtained is indicated by note 3, supra. The difficulties consequent upon the former requirement of deposit before publication are pointed out in the Committee Report. These would be enlarged if whenever effort is made to vindicate a copyright it would become necessary to show deposits were made promptly after publi- cation especially since there is no definition of "promptly." Section 13 authorizes the register of copyrights to give notice if he finds undue delay and to require deposit of copies. Upon failure to comply within three months the proprietor shall be subject to a fine and the copyright shall Copyright and Property in News become void. Evidently mere delay does not necessarily invalidate the copy- right; its existence for three months after actual notice is recognized. Without right of vindication a copyright is valueless. It would be going too far to in- fer that tardiness alone destroys something valuable both to proprietor and the public. Section 20 saves the copyright notwithstanding omission of notice; S23 declares that "the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name: . . ." Furthermore, proper publication gives notice to all the world that immediate copyright exists. One charged with such notice is not injured by mere failure to deposit copies. The duty not to infringe is unaffected thereby. A certificate of registration provided for by 55 apparently may be obtained at any time and becomes evidence of the facts stated therein. WASHINGTONIAN CO. V. PEARSON, 306 U.S. 30; 59 S. Ct. 397; 83 L. Ed. 470 (1939) This ruling is of much practical importance to distributors of syndicated matter which is copyrighted; it is manifestly impossible for the syndicate to make sure that each subscribing newspaper has reprinted the copyright notice on each day's selections. In a recent case the United States Circuit Court of Appeals ruled that a newspaper's negligence in failing to run the copyright notice on each new comic strip did not affect the copyright owner's intention not to forfeit his right. Judge Learned Hand read the opinion. On the other hand, as we have already implied, the absence of any notice, or the affixing of an imperfect notice, upon one "strip" had no effect upon the copyright upon another "strip" depicting a different exploit. We do not mean that the "proprietor" of a number of copyrights may not evince such a consistent disregard of his right to copyright them as to justify the inference that he intends to "abandon" all future "works"; but, as we have said, the evidence in the case at bar precludes any such inference. Nor do we forget that every copyrighted "work" must be original, or that the "strips" in question had much resemblance in their subject matter: "Superman" is the same in all; he is only displayed in different magical feats. But a copyrighted "work," unlike a patent, demands no "invention"; and the copyright of a later exploit of "Superman" was valid, in so far as the picture differed from those that had gone before. That follows from S7 which provides for the copyright of "abridgments, adaptations, arrangements . . . or other versions"; for all of these are variants of some already published "work." The same result also fol- lows from the fact that a copyright never extends to the "idea" of the' "work," but only to its "expression," and that no one infringes, unless he de- scends so far into what is concrete as to invade that "expression. .. " Next, and much more important, are any omissions by "McClure" or the "syndicated" newspapers to affix the "required" notices upon those "strips" which were produced and published under the contract of September, 1938. 320 Since "McClure" was the "proprietor" of these "strips," if it omitted to affix the notice upon the copy, or "mat," which it sent to a newspaper to be pub- lished, the copyright upon it was lost upon publication, unless S21 saved it. On the other hand, if upon the "mat" sent to a newspaper "McClure" had affixed the "required" notice, the situation was the same as in the case of a borrowed "strip" i.e., if "McClure" exacted a promise from the newspa- per to affix the notice upon all copies which the newspaper published, per- formance of that promise became a condition upon that newspaper's license to publish; and publication without the "required" notice was not "by authority of the copyright proprietor" and did not "forfeit" the copyright. But, if "McClure" did not exact any such promise from the newspaper to which it sent a "mat," it gave "authority" to the newspaper to publish as it chose, and the copyright was "forfeited" if the newspaper failed to annex the "re- quired" notice. NATIONAL COMICS PUBLICATIONS V. FAWCETT PUBLICATIONS, C.C.A. 2d; 191 Fed. 2d 594 (1951) 2. The law of unfair competition may protect noncopyrightable news matter. The Associated Press brought suit against the International News Service for the copying of AP dispatches to redistribute to INS members. The practice, typical of the competitive philosophy which prevailed in industry in general and in the news services, originating in the era before the fair trade and antitrust laws,* was challenged on the ground of unfair competition. On such an unprecedented action the federal district court, while upholding a substan- tial part of the AP complaint, invited the parties to appeal to the Supreme Court for a review of the case. This the Supreme Court agreed to do in 1918. By a majority of seven to one, with one justice abstaining, the court found for the AP. Mr. Justice Pitney read the court's opinion. The only matter that has been argued before us is whether defendant may lawfully be restrained from appropriating news taken from bulletins issued by complainant or any of its members, or from newspapers published by them, for the purpose of selling it to defendant's clients. Complainant asserts that defendant's admitted course of conduct in this regard both violates complain- ant's property right in the news and constitutes unfair competition in busi- ness. And notwithstanding the case has proceeded only to the stage of a pre- liminary injunction, we have deemed it proper to consider the underlying questions, since they go to the very merits of the action and are presented upon facts that are not in dispute. As presented in argument, these questions are: (1) Whether there is any property in news; (2) whether, if there be property in news collected for the purpose of being published, it survives * See background note to Ch. 12, below. INS v. AP 321 Copyright and Property in News the instant of its publication in the first newspaper to which it is communi- cated by the news-gatherer; and (3) whether defendant's admitted course of conduct in appropriating for commercial use matter taken from bulletins or early editions of Associated Press publications constitutes unfair competition in trade. ... In considering the general question of property in news matter, it is neces- sary to recognize its dual character, distinguishing between the substance of the information and the particular form or collocation of words in which the writer has communicated it. No doubt news articles often possess a literary quality, and are the subject of literary property at the common law; nor do we question that such an arti- cle, as a literary production, is the subject of copyright by the terms of the act as it now stands. In an early case at the circuit Mr. Justice Thompson held in effect that a newspaper was not within the protection of the copyright acts of 1790 and 1802 (Clayton v. Stone, 2 Paine, 382; 5 Fed. Cas. No. 2872). But the present act is broader; it provides that the works for which copyright may be secured shall include "all the writings of an author," and specifically mentions "periodicals, including newspapers." Act of March 4, 1909, c. 320, secs. 4 and 5, 35 Stat. 1075, 1076. Evidently this admits to copyright a contri- bution to a newspaper, notwithstanding it also may convey news; and such is the practice of the copyright office, as the newspapers of the day bear witness. See Copyright Office Bulletin No. 15 (1917), PP. 7, 14, 16-17. But the news element-the information respecting current events contained in the literary production-is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to be supposed that the framers of the Constitution, when they empowered Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (Const., Art. I, sec. 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the ex- clusive right for any period to spread the knowledge of it. We need spend no time, however, upon the general question of property in news matter at common law, or the application of the copyright act, since it seems to us the case must turn upon the question of unfair competition in business. And, in our opinion, this does not depend upon any general right of property analogous to the common-law right of the proprietor of an un- published work to prevent its publication without his consent; nor is it fore- closed by showing that the benefits of the copyright act have been waived. We are dealing here not with restrictions upon publication but with the very facilities and processes of publication. The peculiar value of news is in the spreading of it while it is fresh; and it is evident that a valuable property interest in the news, as news, cannot be maintained by keeping it secret. Be- sides, except for matters improperly disclosed, or published in breach of trust of confidence, or in violation of law, none of which is involved in this branch of the case, the news of current events may be regarded as common property. What we are concerned with is the business of making it known to the world, in which both parties to the present suit are engaged. That business consists in maintaining a prompt, sure, steady, and reliable service designed to place the 322 daily events of the world at the breakfast table of the millions at a price that, while of trifling moment to each reader, is sufficient in the aggregate to afford compensation for the cost of gathering and distributing it, with the added profit so necessary as an incentive to effective action in the commercial world. The service thus performed for newspaper readers is not only innocent but ex- tremely useful in itself, and indubitably constitutes a legitimate business. The parties are competitors in this field; and, on fundamental principles, ap- plicable here as elsewhere, when the rights or privileges of the one are liable to conflict with those of the other, each party is under a duty so to conduct its own business as not unnecessarily or unfairly to injure that of the other . The question, whether one who has gathered general information or news at pains and expense for the purpose of subsequent publication through the press has such an interest in its publication as may be protected from inter- ference, has been raised many times, although never, perhaps, in the precise form in which it is now presented. Board of Trade v. Christie Grain 6 Stock Co., 198 U.S. 236, 250, related to the distribution of quotations of prices on dealings upon a board of trade, which were collected by plaintiff and communicated on confidential terms to numerous persons under a contract not to make them public. This court held that, apart from certain special objections that were overruled, plaintiff's collection of quotations was entitled to the protection of the law; that, like a trade secret, plaintiff might keep to itself the work done at its expense, and did not lose its right by communicating the result to persons, even if many, in confidential relations to itself, under a contract not to make it public; and that strangers should be restrained from getting at the knowledge by inducing a breach of trust. In National Tel. News Co. v. Western Union Tel. Co., 119 Fed. Rep. 294, the Circuit Court of Appeals for the Seventh Circuit dealt with news matter gathered and transmitted by a telegraph company, and consisting merely of a notation of current events having but a transient value due to quick transmission and distribution; and, while declaring that this was not copyrightable although printed on a tape by tickers in the offices of the recipi- ents, and that it was a commercial not a literary product, nevertheless held that the business of gathering and communicating the news-the service of purveying it-was a legitimate business, meeting a distinctive commercial want and adding to the facilities of the business world, and partaking of the nature of property in a sense that entitled it to the protection of a court of equity against piracy. Other cases are cited, but none that we deem it necessary to mention. Not only do the acquisition and transmission of news require elaborate or- ganization and a large expenditure of money, skill, and effort; not only has it an exchange value to the gatherer, dependent chiefly upon its novelty and freshness, the regularity of the service, its reputed reliability and thoroughness, and its adaptability to the public needs; but also, as is evident, the news has an exchange value to one who can misappropriate it. The peculiar features of the case arise from the fact that, while novelty and freshness form so important an element in the success of the business, the very processes of distribution and publication necessarily occupy a good INS v. AP 323 Copyright and Property in News deal of time. Complainant's service, as well as defendant's, is a daily service to daily newspapers; most of the foreign news reaches this country at the At- lantic seaboard, principally at the City of New York, and because of this, and of time differentials due to the earth's rotation, the distribution of news mat- ter throughout the country is principally from east to west; and, since in speed the telegraph and telephone easily outstrip the rotation of the earth, it is a simple matter for defendant to take complainant's news from bulletins or early editions of complainant's members in the eastern cities and at the mere cost of telegraphic transmission cause it to be published in western papers is- sued at least as early as those served by complainant. Besides this, and irre- spective of time differentials, irregularities in telegraphic transmission on dif- ferent lines, and the normal consumption of time in printing and distributing the newspaper, result in permitting pirated news to be placed in the hands of defendant's readers sometimes simultaneously with the service of competing Associated Press papers, occasionally even earlier. Defendant insists that when, with the sanction and approval of com- plainant, and as the result of the use of its news for the very purpose for which it is distributed, a portion of complainant's members communicate it to the general public by posting it upon bulletin boards so that all may read, or by issuing it to newspapers and distributing it indiscriminately, complainant no longer has the right to control the use to be made of it; that when it thus reaches the light of day it becomes the common possession of all to whom it is accessible; and that any purchaser of a newspaper has the right to com- municate the intelligence which it contains to anybody and for any purpose, even for the purpose of selling it for profit to newspapers published for profit in competition with complainant's members. The fault in the reasoning lies in applying as a test the right of the com- plainant as against the public, instead of considering the rights of com- plainant and defendant, competitors in business, as between themselves. The right of the purchaser of a single newspaper to spread knowledge of its con- tents gratuitously, for any legitimate purpose not unreasonably interfering with complainant's right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant- which is what defendant has done and seeks to justify-is a very different mat- ter. In doing this defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complain- ant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspa- pers that are competitors of complainant's members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of com- plainant's legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a 324 court of equity ought not to hesitate long in characterizing it as unfair competition in business . The contention that the news is abandoned to the public for all purposes when published in the first newspaper is untenable. Abandonment is a ques- tion of intent, and the entire organization of the Associated Press negatives such a purpose. The cost of the service would be prohibitive if the reward were to be so limited. No single newspaper, no small group of newspapers, could sustain the expenditure. Indeed, it is one of the most obvious results of defendant's theory that, by permitting indiscriminate publication by anybody and everybody for purposes of profit in competition with the news-gatherer, it would render publication profitless, or so little profitable as in effect to cut off the service by rendering the cost prohibitive in comparison with the return. The practical needs and requirements of the business are reflected in com- plainant's by-laws which have been referred to. Their effect is that publication by each member must be deemed not by any means an abandonment of the news to the world for any and all purposes, but a publication for limited pur- poses; for the benefit of the readers of the bulletin or the newspaper as such; not for the purpose of making merchandise of it as news, with the result of depriving complainant's other members of their reasonable opportunity to obtain just returns for their expenditures. It is to be observed that the view we adopt does not result in giving to com- plainant the right to monopolize either the gathering or the distribution of the news, or, without complying with the copyright act, to prevent the re- production of its news articles; but only postpones participation by complain- ant's competitor in the processes of distribution and reproduction of news that it has not gathered, and only to the extent necessary to prevent that com- petitor from reaping the fruits of complainant's efforts and expenditure, to the partial exclusion of complainant, and in violation of the principle that un- derlies the maxim sic utere tuo, etc. It is said that the elements of unfair competition are lacking because there is no attempt by defendant to palm off its goods as those of the complainant, characteristic of the most familiar, if not the most typical, cases of unfair competition. But we cannot concede that the right to equitable relief is confined to that class of cases. In the present case the fraud upon complain- ant's rights is more direct and obvious. Regarding news matter as the mere material from which these two competing parties are endeavoring to make money, and treating it, therefore, as quasi-property for the purposes of their business because they are both selling it as such, defendant's conduct differs from the ordinary case of unfair competition in trade principally in this that, instead of selling its own goods as those of complainant, it substitutes misap- propriation in the place of misrepresentation, and sells complainant's goods as its own. Besides the misappropriation, there are elements of imitation, of false pre- tense, in defendant's practices. The device of rewriting complainant's news articles, frequently resorted to, carries its own comment. The habitual failure to give credit to complainant for that which is taken is significant. In- deed, the entire system of appropriating complainant's news and transmitting INS v. AP 325 Copyright and Property in News it as a commercial product to defendant's clients and patrons amounts to a false representation to them and to their newspaper readers that the news transmitted is the result of defendant's own investigation in the field. But these elements, although accentuating the wrong, are not the essence of it. It is something more than the advantage of celerity of which complainant is being deprived. The doctrine of unclean hands is invoked as a bar to relief; it being insisted that defendant's practices against which complainant seeks an injunction are not different from the practice attributed to complainant, of utilizing de- fendant's news published by its subscribers. At this point it becomes neces- sary to consider a distinction that is drawn by complainant, and, as we under- stand it, was recognized by defendant also in the submission of proofs in the District Court, between two kinds of use that may be made by one news agency of news taken from the bulletins and newspapers of the other. The first is the bodily appropriation of a statement of fact or a news article, with or without rewriting, but without independent investigation or other expense. This form of pirating was found by both courts to have been pursued by defendant systematically with respect to complainant's news, and against it the Circuit Court of Appeals granted an injunction. This practice complain- ant denies having pursued, and the denial was sustained by the finding of the District Court. It is not contended by defendant that the finding can be set aside, upon the proofs as they now stand. The other use is to take the news of a rival agency as a "tip" to be investigated, and if verified by independent investigation the news thus gathered is sold. This practice complainant ad- mits that it has pursued and still is willing that defendant shall employ. Both courts held that complainant could not be debarred on the ground of unclean hands upon the score of pirating defendant's news, because not shown to be guilty of sanctioning this practice. As to securing "tips" from a competing news agency, the District Court (240 Fed. Rep. 991, 995), while not sanctioning the practice, found that both parties had adopted it in accordance with common business usage, in the belief that their conduct was technically lawful, and hence did not find in it any sufficient ground for attributing unclean hands to complainant. The Circuit Court of Appeals (245 Fed. Rep. 247) found that the tip habit, though discouraged by complainant, was "incurably journalistic," and that there was "no difficulty in discriminating between the utilization of 'tips' and the bodily appropriation of another's labor in accumulating and stating infor- mation." We are inclined to think a distinction may be drawn between the utiliza- tion of tips and the bodily appropriation of news matter, either in its original form or after rewriting and without independent investigation and verifica- tion; whatever may appear at the final hearing, the proofs as they now stand recognize such a distinction; both parties avowedly recognize the practice of taking tips, and neither party alleges it to be unlawful or to amount to un- fair competition in business. .. In the case before us, in the present state of the pleadings and proofs, we need go no further than to hold, as we do, that the admitted pursuit by com- plainant of the practice of taking news items published by defendant's sub- 326 scribers as tips to be investigated, and, if verified, the result of the investiga- tion to be sold-the practice having been followed by defendant also, and by news agencies generally-is not shown to be such as to constitute an uncon- scientious or inequitable attitude towards its adversary so as to fix upon com- plainant the taint of unclean hands, and debar it on this ground from the re- lief to which it is otherwise entitled. There is some criticism of the injunction that was directed by the District Court upon the going down of the mandate from the Circuit Court of Ap- peals. In brief, it restrains any taking or gainfully using of the complainant's news, either bodily or in substance, from bulletins issued by the complain- ant or any of its members, or from editions of their newspapers, "until its com- mercial value as news to the complainant and all of its members has passed away." The part complained of is the clause we have italicized; but if this be indefinite, it is no more so than the criticism. Perhaps it would be better that the terms of the injunction be made specific, and so framed as to confine the restraint to an extent consistent with the reasonable protection of com- plainant's newspapers, each in its own area and for a specified time after its publication, against the competitive use of pirated news by defendant's cus- tomers. But the case presents practical difficulties; and we have not the ma- terials, either in the way of a definite suggestion of amendment, or in the way of proofs, upon which to frame a specific injunction; hence, while not ex- pressing approval of the form adopted by the District Court, we decline to modify it at this preliminary stage of the case, and will leave that court to deal with the matter upon appropriate application made to it for the purpose. The decree of the Circuit Court of Appeals will be Affirmed. Mr. Justice Clarke took no part in the consideration or decision of this case. Mr. Justice Holmes: When an uncopyrighted combination of words is published there is no gen- eral right to forbid other people repeating them-in other words there is no property in the combination or in the thoughts or facts that the words express. Property, a creation of law, does not arise from value, although exchangeable -a matter of fact. Many exchangeable values may be destroyed intention- ally without compensation. Property depends upon exclusion by law from interference, and a person is not excluded from using any combination of words merely because someone has used it before, even if it took labor and genius to make it. If a given person is to be prohibited from making the use of words that his neighbors are free to make some other ground must be found. One such ground is vaguely expressed in the phrase, "unfair trade." This means that the words are repeated by a competitor in business in such a way as to convey a misrepresentation that materially injures the person who first used them, by appropriating credit of some kind which the first user has earned. The ordinary case is a representation by device, appearance, or other indirec- tion that the defendant's goods come from the plaintiff. But the only reason why it is actionable to make such a representation is that it tends to give the defendant an advantage in his competition with the plaintiff and that it is INS v. AP 327 Copyright and Property in News thought undesirable that an advantage should be gained in that way. Apart from that, the defendant may use such unpatented devices and uncopyrighted combinations of words as he likes. The ordinary case, I say, is palming off the defendant's product as the plaintiff's, but the same evil may follow from the opposite falsehood-from saying, whether in words or by implication, that the plaintiff's product is the defendant's, and that, it seems to me, is what has happened here. Fresh news is got only by enterprise and expense. To produce such news as it is produced by the defendant represents by implication that it has been ac- quired by the defendant's enterprise and at its expense. When it comes from one of the great news-collecting agencies like the Associated Press, the source generally is indicated, plainly importing that credit; and that such a repre- sentation is implied may be inferred with some confidence from the unwill- ingness of the defendant to give the credit and tell the truth. If the plaintiff produces the news at the same time that the defendant does, the defendant's presentation impliedly denies to the plaintiff the credit of collecting the facts and assumes that credit to the defendant. If the plaintiff is later in western cities it naturally will be supposed to have obtained its information from the defendant. The falsehood is a little more subtle, the injury a little more in- direct, than in ordinary cases of unfair trade, but I think that the principle that condemns the one condemns the other. It is a question of how strong an infusion of fraud is necessary to turn a flavor into a poison. The dose seems to me strong enough here to need a remedy from the law. But as, in my view, the only ground of complaint that can be recognized without legislation is the im- plied misstatement, it can be corrected by stating the truth; and a suitable acknowledgment of the source is all that the plaintiff can require. I think that within the limits recognized by the decision of the Court the defendant should be enjoined from publishing news obtained from the Associated Press for . . . hours after publication by the plaintiff unless it gives express credit to the Associated Press; the number of hours and the form of acknowledgment to be settled by the District Court. Mr. Justice McKenna concurs in this opinion. INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS, 248 U.S. 21 5; 39 S. Ct. 68; 63 L. Ed. 211; 2 A.L.R. 293 (1918) The INS case was indeed a precedent for the long-unsettled problem of how to deal with noncopyrightable but commercially valuable news property. Two years later the courts were presented with an issue similar to that in the Tribune case of 1900;* the Philadelphia Public Ledger had arranged with the Times of London for the first American publication of Times correspond- ence, which was originally copyrighted in London. Upon receipt of the cabled news matter in Philadelphia, the Public Ledger secured a domestic copyright immediately upon publication in its own paper. On one important news * See above, page 312. Changes in the domestic copyright laws both of Great Britain and the United States between 19oo00 and 1920, of course, account for important technical dif- ferences in the cases. 328 Public Ledger v. New York Times dispatch, however, the heavy volume of messages on the cable to Philadelphia delayed receipt of the story in time for the paper's regular edition, and a New York paper was able to obtain a copy of the story from London and publish it. The New York paper alleged that the Public Ledger's arrangement with the Times simply permitted the correspondents of the Philadelphia paper to examine advance proofs of Times dispatches and did not provide against rival newspapers' picking up the story from the Times after its publication and distribution in London. The federal court dismissed the Public Ledger's plea of infringement of copyright but accepted the companion plea of unfair com- petition. Pointing out that the arrangement between the Philadelphia and London papers clearly did not give the Public Ledger any literary property in the proofs, Judge Learned Hand, then of the district court, dismissed the action on copyright infringement but conceded that the issue of unfair competition might be submitted to trial. The contract only gave the plaintiff the right to examine such "proofs" and make copies of them. It is true that it authorized the plaintiff to sell its "news" to other papers in the United States and Canada, but that I take it is no more than the right to allow them in turn to copy as the Times was to allow it. It is on this that the plaintiff chiefly relies. The parties were, however, thinking only of matter which presumably had a temporary interest to the plaintiff, and in which priority of publication was everything. The plaintiff would have that priority if the Times kept its bargain of dealing only with it, and it needed no other protection. It is argued that this is not true, because any enterprising newspaper might do just what the defendant did, owing to the difference of time between London and the United States. But I think it clear that the parties had no such possibility in mind as that. If they had, it was very strange that they should not have provided against it perhaps by the very assignment of the literary property. However that may be, the plaintiff's right to resell the "news" is amply ac- counted for by the power given it under the contract to give precedence in time to such papers as it chose, a precedence which in most cases would be ample, and, indeed, in all cases, if the plaintiff is right in its position in the sec- ond cause of action [i.e., unfair competition]. Such precedence would protect it and its customers unless against a paper enterprising enough to cable over news copied from the published edition of the Times in time to set it upon the same morning as it appeared in the plaintiff's columns. ... [On the question of unfair competition, having dismissed the plea of copy- right infringement:] As the plaintiff's right to resell the news was dependent in large measure upon the exclusiveness of its relations with the Times, this might, and probably would, be highly injurious to its business as a news seller. . . . Its readers would naturally attribute less value to that service if they learned that it was shared with the defendant. These consequences are real injuries, and, if they result from false statements by the defendant, they are actionable. 329 Copyright and Property in News . . . It may well be that to the degree of the "time differential" news collec- tors have a kind of property in what they collect for publication. Contempo- raneous history may be property in the hands of such collectors for so long as the sun takes to travel from place to place, and, if there is a hitch in the cables, possibly for even longer. PUBLIC LEDGER V. NEW YORK TIMES, 275 Fed. 562 (1922); certiorari denied, 258 U.S. 627; 42 S. Ct. 383; 66 L. Ed. 798 (1922) The English "Exchange Telegraph" cases had emphasized the importance of protecting the property rights in compilations of statistics which had news value because of their timeliness and completeness. These compilations might be stock market quotations or they might be horse-racing forms. The latter have presented several questions of unfair competition to the courts, one of the most recent of which produced an interesting line of reasoning from the Massachusetts court which reviewed the case. A publication specializing in horse-racing information had secured a copyright in its compilations of data. A Boston newspaper for a time quoted directly from this copyrighted material, later discontinuing the practice and using the plaintiff's publication primarily as a "lead" to original compilations of its own. The plaintiff in- sisted, however, that the use of its compilations in this manner amounted to unfair competition and asked for injunctive relief. Judge Wyzanski awarded judgment to the plaintiff. Of the issues of law raised, the most important are three: (1) Are the periodicals of plaintiffs "writings of an author" within Section 4 of the Copy- right Act of March 4, 1909, 35 Stat. 1075, 1076, U.S.C.A. T. 17, S4 so as to be subject to copyright; (2) did defendants infringe plaintiffs' copyrights; and (3) was defendants' conduct unfair competition? A single daily race chart viewed in isolation would be subject to copyright only in part. The whole could not be regarded as copyrightable as a compila- tion under Section 6 of the Copyright Act, 35 Stat. 1077, U.S.C.A. T. 17, S6, because the arrangement includes only about a hundred items with refer- ence to a single event that takes less than two minutes to observe and record, and the majority of those items could be collected without labor, skill or judgment by any spectator. To constitute a copyrightable compilation, a com- pendium must ordinarily result from the labor of assembling, connecting and categorizing disparate facts which in nature occurred in isolation. A compila- tion, in short, is a synthesis. It is rare indeed that an analysis of any one actual occurrence could be regarded as a compilation. For an account of a single event to be subject to copyright, it must have individuality of expression or must reflect peculiar skill and judgment. .. The reasons for holding the daily periodicals of plaintiffs copyrightable ap- ply a fortiori to the monthly periodicals. The indices are clearly copyrightable. They are in the same classification as street directories, telephone books, rail- road timetables and headnotes for law cases. As to the charts the question is 330 Triangle Publications v. New England Newspaper Pub. Co. closer. It may be that if a group of charts had already appeared in the daily periodicals and those charts had been copyrighted at that time, the new copy- right on the monthly periodicals could not apply to those charts. See Section 6 of the Copyright Act of March 4, 1909, 35 Stat. 1077, U.S.C.A. T. 17, S6. An author of a street directory for South Boston could not by incorporating his material in a new street directory covering all of Boston prolong the pro- tection for his earlier work of compilation. It is unnecessary, however, for me specifically to adjudicate this point, for plaintiffs have certificates of copy- right for the group of charts as they appeared in the daily periodicals as well as certificates of copyright for the monthly periodicals. Thus, in any event, they have a standing to complain of a copying of the charts. In 1939 and in 1940 defendants read the symbols, mathematical notations and cryptic expressions in plaintiffs' race result charts and then stated the same information in equivalent words. That was an infringement. Copying need not be in ipsissima verba. Soule's Dictionary of English Synonyms is not a licensed sanctuary for literary pirates. After 1941 defendants also infringed on the occasions when they copied di- rectly into their past performance lines the symbols, notations and cryptic ex- pressions shown in plaintiffs' charts. As my findings state, the infringements went beyond a reasonable and fair use of another's compilation, and there- fore . . . warrant a decree restraining the defendants from further infringe- ments. On the other hand, the plaintiffs seem to have exaggerated the num- ber of recent infringements (Ex. MM), and have overlooked the fact that old infringements rapidly lose potency (fdgs. 53, 72). Therefore, I shall not prior to the master's report enjoin the defendants from using any of the ma- terial they now have set up in type. To do so would be to succumb to the ex- aggerations and suspicions characteristic of a journalistic battle. To an Ameri- can newspaperman meiosis remains a foreign word. . Even if it were to be supposed that the Massachusetts courts would follow the Supreme Court of the United States on the precise facts of International News Service v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293, I believe that that concession would not help plain- tiffs in this case, despite what appear to be the contrary views of Judge Pat- terson in Daily Racing Form v. Cosmopolitan Press and Judge Mack in Regal Press Inc. v. Tru-Sport Pub. Co. [not officially reported]. In the International News case the defendant used the plaintiff's material in virtually the form plaintiff displayed it; here defendants use plaintiffs' indices and charts of races, not to repeat them, but to prepare tables showing the past performances of horses. In the International News case at least Holmes and McKenna JJ. thought (page 246 of 248 U.S., 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293) that the defendant was representing to the public that it had acquired the news; here defendants' past performance tables in no way represent that the information on which the tables were based was derived from their own charts and indices. In the International News case the defendant was re- strained for a limited number of hours (page 246 of 248 U.S., 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293); here plaintiffs seek a restraint presumably for the racing life of a horse. Furthermore, it is to be noted that in the Interna- tional News case it was not held to be unfair competition for one news 331 Copyright and Property in News agency to use the news published by another agency as a "tip" to be inde- pendently investigated (pages 243-245 of 248 U.S., 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293). In the case at bar if defendants used plaintiffs' indices to get clues to defendants' own material, that practice much resembles the use by one news agency of tips gathered from a rival and used for inde- pendent investigation. Moreover, if it were to be supposed that the Massachusetts courts are silent on the precise problem here raised, and I have been left unfettered by a local chain of cases, I could hardly be unmindful of the probability that a majority of the present justices of the Supreme Court of the United States would fol- low the dissenting opinion of Mr. Justice Brandeis in the International News case, page 248 of 248 U.S., 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293, because they share his view that monopolies should not be readily extended, and his faith that legislative remedies are to be preferred to judicial innovations for problems where adjustment of many competing interests is necessary. But though defendants' use of plaintiffs' indices and charts solely for the purpose of securing clues as to where horses previously ran seems to me to be neither an infringement of copyright nor, under the law of Massachu- setts, unfair competition, the decree which I have drawn nonetheless enjoins that use. I am persuaded that in view of defendants' prior record of infringe- ment of plaintiffs' publications it would be unsound to allow defendants an exception from the injunction so that they might use plaintiffs' books for the limited purpose of getting clues to defendants' own material. Such an ex- ception would make the injunction in practice unenforceable. In effect, it would place upon their honor defendants who necessarily rely upon minor sports writers chosen for qualities other than their capacity to make nice dis- criminations respecting the law of literary property. Decree for plaintiffs in accordance with opinion. TRIANGLE PUBLICATIONS V. NEW ENGLAND NEWSPAPER PUB. CO., 46 Fed. Supp. 198 (1942) The question of unfair competition in the use of news was raised in the early thirties with the rise of radio as a major medium of mass communica- tions. A broadcasting station, KVOS, in the state of Washington was charged by the Associated Press with appropriating news sent by the AP to a member newspaper and intended only for publication in that newspaper. The station alleged that its broadcasting of news over the air was a public service and was not done for profit. The federal district court in which the case originated found in favor of the broadcaster; the United States Circuit Court of Appeals then reversed the district court and ruled for the Associated Press. Upon appeal to the Supreme Court, the case was again reversed and the AP's bill for an injunction dismissed. The Supreme Court ruling did not consider the merits of the contending arguments, however; it based its action instead upon 332 Associated Press v. KVOS, Inc. the argument that since the AP was organized as a nonprofit enterprise its sulit for damages had no standing in the district court, and that the total amount of the alleged injury in any case did not exceed the minimum figure of $3,000 necessary to give the courts jurisdiction of the case. Under these circumstances, what the Circuit Court of Appeals had to say about the question of unfair competition, since it was passed on by no higher tribunal, is of value even though as a rule of law its status is anoma- lous. Judge Denman said: KVOS' business of publishing, by the broadcast of combined advertising and the pirated news, for the profit from its advertising income constitutes un- fair competition with the newspapers' business of gathering the news pirated by KVOS and publishing it combined with the advertising, seeking the profit both from the advertising service and from the subscription of its readers. The papers are unconscionably injured in performing a public function as well as in conducting a legitimate business. KVOS lays great stress on the public interest in the news-gathering and distribution and the public obligation of the gatherer and distributer, as like- wise does the Associated Press. We believe these considerations have been properly pressed upon us. The First Amendment to the Federal Constitu- tion has recognized this public function of the press in the provision for its freedom. While no constitutional right is here involved, this constitutional recognition emphasizes the exceptional character of the right which is sought to be protected in a federal court sitting in equity. When the Constitution speaks of the freedom of the press, it refers to the freedom of private and non- governmental persons or bodies, engaged in news-gathering and dissemination, from interference by governmental agencies. That is to say, that the public function in the gathering and dissemination of news is presumed by the Con- stitution to be in private hands. Under our capitalistic system this means that news distribution as a public function will be in large part by businessmen acting under the inducement of the profit motive. The public therefore has an interest in protecting the business of news-gathering and disseminating agencies against the impairment of their efficiency, by the inevitable reduction of their business income through the misappropriating of news prior to the expiration of the time during which the Supreme Court has held that there exists in it a "quasi-property" interest. It is therefore proper to say that the Associated Press is here seeking protec- tion not only of its legitimate business, but also, as both parties assert, in its discharge of a public function of fundamental value and importance. The radio performs a function in the publication of news similar to that of the press. It has the advantage of greater speed and the disadvantage of the absence of a printed record for more deliberate absorption. If radio communi- cation had been discovered in the eighteenth century, it is arguable that the businessmen and others utilizing its process would have received in the First Amendment of the Constitution a recognition like that accorded the own- ers of newspapers. Congress has apprecitated radio's importance and sought 333 to make it effective against the confusion of distribution in the peculiar and little-understood medium through which it passes, by regulation of the use of wave lengths. While this court takes judicial notice of radio's enormous business expan- sion, we cannot assume that its resources from its advertising income are not sufficient to support its own news-gathering agency, the "Radio News Associa- tion of New York." Even ignoring the question of good conscience in an equity tribunal, we can find nothing in the bill to warrant our holding that radio will fail in its public function of news distribution if it is not permitted to misappropriate the material gathered by an agency of the press. So far as concerns the case against piracy presented by the bill, the speed of the radio's distribution of news makes the injury done the press in the performance of its business and civic activities the more effective and cer- tain. Not only its speed, but its necessarily free publication, actually or po- tentially to every user of a radio set, make the more deadly its competition for the circulation of its advertising. KVOS' motion to dismiss admits the pirated appropriation of the news, its circulation, and its destructive effect on the press. Its excuse is that it gives the material so obtained as a benefaction to its audiences, and that both the taking and circulation are so completely eleemosynary that this court must find, against the allegations of the bill, that the purloined news is in no way the defendant's weapon in its competition with the press for the pa- tronage of advertising merchants. Despite the ability with which counsel presented this argument, we are not persuaded that it has merit. Common sense compels us to agree with the complainant that the purloining of complainant's fresh news and its circula- tion in KVOS'. "Newspaper of the Air" are both elements of a business of publication for profit. This profit is to be gained through widening its circu- lation of the Associated papers. Complainant's news is not only made stale to those of their readers who first have access to the "Newspaper of the Air," but also is made free, while still hot, to their readers who pay a usual subscription price for their papers. The obvious tendency of these factors is to cause com- plainant's papers to lose circulation and with it the advertising income which is based on circulation. We are unable to see any theory under which such a diversion of advertising income from the Associated papers to KVOS, with its incidental destruction of subscriber income, can be called anything but "un- fair competition." .. A study of the affidavits in the record of the International News Service case shows that the preliminary injunction there granted was ordered sus- tained by the Supreme Court on a showing much less comprehensive and detailed than in the record here. Less than 30 instances of piracy are there described as compared with over 5 times that number here. It appears, and it is not denied, that complainant's income from its distribu- tion of its news to the papers serving KVOS' radio area is $6,ooo per month, or $72,000 per annum. Since the 30o cases of piracy were sufficient to show a threatened damage warranting a preliminary injunction in the Interna- tional News Service case, the 153 are sufficient here. The Supreme Court there, without evidence of the loss of a subscriber, took notice that such a Copyright and Property in News 334 Pittsburgh Athletic Co. v. KQV Broadcasting Co. practice threatened harm to the circulation of the Association's member pa- pers, requiring injunctive relief. We take similar notice here that such pi- rating may well affect both their subscriber and advertising income. We see no merit in KVOS' contention that enjoining it from pirating complainant's news will deprive KVOS' auditors in more remote districts of anything to which they have a right. KVOS admits that from the matter gathered by its own news-gathering association and its own reporters, it supplies the public need for news in such districts with "the news events of the nation and world as they appear and happen by night and day as well as the interesting and popular local news items." Concerning the affirmative defense that complainant's hands are stained by similar misappropriations of KVOS news by the Bellingham Herald, one of its members, it is enough to say that KVOS' general charges are properly de- nied and, unlike KVOS, the one particular incident alleged is specifically and sufficiently explained as resulting from the similar working of the journal- istic mind on the same news. The decree is reversed, and the District Court ordered to grant a pre- liminary injunction restraining KVOS from appropriating and broadcasting any of the news gathered by the Associated Press for the period following its publication in complainant's newspapers during which the broadcasting of the pirated news to KVOS' most remote auditors may damage the complain- ant's papers' business of procuring or maintaining their subscriptions and ad- vertisine. In this connection, consideration should be given to the likelihood of KVOS' auditors awaiting the pirated news because it is free and does not require subscription for a newspaper. ASSOCIATED PRESS v. KVOS, INC., C.C.A. 9th; 80 Fed. zd 575 (1935) Whether a professional athletic contest is protected by the laws of unfair competition so that the play-by-play account may be sold to a radio broad- caster and its advertisers and other broadcasters may be denied the privilege of describing the game in progress, was answered affirmatively by the federal court in 1938. Judge Schoonmaker said: It is perfectly clear that the exclusive right to broadcast play-by-play de- scriptions of the games played by the "Pirates" at their home field rests in the plaintiffs, General Mills, Inc., and the Socony-Vacuum Oil Company, under the contract with the Pittsburgh Athletic Company. That is a property right of the plaintiffs with which defendant is interfering when it broadcasts the play-by-play description of the ball games obtained by the observers on the outside of the enclosure. The plaintiffs and the defendant are using baseball news as material for profit. The Athletic Company has, at great expense, acquired and maintains a baseball park, pays the players who participate in the game, and have, as we view it, a legitimate right to capitalize on the news value of their games by selling exclusive broadcasting rights to companies which value them as af- fording advertising mediums for their merchandise. This right the defendant 335 Copyright and Property in News interferes with when it uses its broadcasting facilities for giving out the identi- cal news obtained by its paid observers stationed at points outside Forbes Field for the purpose of securing information which it cannot otherwise ac- quire. This, in our judgment, amounts to unfair competition, and is a viola- tion of the property rights of the plaintiffs. For it is our opinion that the Pittsburgh Athletic Company, by reason of its creation of the game, its control of the park, and its restriction of the dissemination of news, has the right to control the use thereof for a reasonable time following the games. The communication of news of the ball games by the Pittsburgh Athletic Company, or by its licensed news agencies, is not a general publication and does not destroy that right. ... On the unfair competition feature of the case, we rest our opinion on the case of International News Service v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293. In that case the court enjoined the Inter- national News Service from copying news from bulletin boards and early edi- tions of Associated Press newspapers, and selling such news so long as it had commercial value to the Associated Press. .. Defendant contends it is not unfairly competing with any of the plaintiffs because it obtains no compensation from a sponsor or otherwise from its base- ball broadcasts. It concedes, however, that KQV seeks by its broadcast of news of baseball games to cultivate the good will of the public for its radio station. The fact that no revenue is obtained directly from the broadcast is not controlling, as these broadcasts are undoubtedly designed to aid in ob- taining advertising business. .. Defendant seeks to justify its action on the ground that the information it receives from its observers stationed on its own property without trespassing on plaintiffs' property, may be lawfully broadcast by it. We cannot follow defendant's counsel in this contention for the reasons above stated. The cases cited by them we have carefully studied and are unable to accept as author- ity. In the Australian case, Victoria Park Racing, etc., v. Taylor, 37 New South Wales 322, where the information broadcast was obtained from a tower adjoining a race track, the court refused an injunction, because there was neither a trespass on plaintiff's race track nor a nuisance created by defendant. The doctrine of unfair competition is not recognized under the English Common Law. Therefore this decision is not an authority. PITTSBURGH ATHLETIC CO. v. KQV BROADCASTING Co., 24 Fed. Supp. 490 (1938) 336 CHAPTER XI The Law and Other News Problems 1. The press must conform to certain practices to qualify for lower postal rates. Since the first postal laws enacted by the first Congress, the press has enjoyed special low rates as well as other privileges. The theory of the law has been that the public was benefited by what amounted to an indirect subsidy to the facile flow of information; by keeping at a minimum the costs of transmitting or transporting news matter, the government contributed to the potentially greater degree of information available to its citizens. To qualify the press for the privilege of the second class of postage, Congress has set up a series of requirements (for text, see Postal Laws Regulations, secs. 519- 6o) which may be summarized as follows: 1. To be eligible, a publication must be regularly issued at stated intervals, from a known office of publication, must be printed by letterpress or offset, and must have a legitimate list of subscribers. 2. A fee of $25 for periodicals of less than 2,000 circulation, of $5o for periodicals between 2,000 and 5,000 circulation, and of $1oo for periodicals of more than 5,000 circulation, is to be paid with the application for admis- sion to the second class rates. 3. Within the first five pages of the periodical must be printed these indicia: Title (always on first page); date of issue; frequency of issue; volume and issue number; publication address; subscription price; and formal notice of entry as second class matter. 4. A sworn statement must be made annually, giving the number of paid-up subscriptions, total circulation, and the names and addresses of the chief editors, business managers, and principal stockholders if the publication is owned by a corporation. 5. The paper must mark all paid matter in the publication with the word, "Advertisement." 6. The publisher must pay postage at the rate of 12 cents per pound of nonadvertising content of his paper, and at a rate graduated by zones of 337 The Law and Other News Problems distance from his place of publication on the advertising content of his paper. 7. Certain types of subscriptions may be delivered free of postage within the county of the newspaper's publication, if there is no letter-carrier service from the post office. The Post Office Appropriation Act of 1912 introduced for the first time into the postal laws the provisions listed under numbers 4 and 5 above. They were enacted in response to widespread public rumors that many special interests and pressure groups had insinuated themselves into positions of control or ownership of the nation's newspapers, and that printed matter which often appeared as news was actually paid for as advertising. Congress sought to meet these problems, if they existed, by the sworn statement of ownership and the requirement of publicity in indicating the paid insertions in the publication. Two newspaper publishers in New York protested against the new law, alleging that its purpose was to impose an indirect control of the press by threatening to exclude from the mails any publication which refused to con- form to the new regulations. Counsel for the newspapers insisted that the ownership and advertising publicity requirements were not properly a con- cern of the post office: "Its function is to carry the mails and in such carriage it cannot matter whether the public are advised as to the ownership, editorial direction and circulation of a newspaper or not, or whether the matter which it publishes is published for a consideration." Mr. Chief Justice White said for a unanimous Supreme Court: Was the provision intended simply to supplement the existing legislation relative to second class mail matter or was it enacted as an exertion of legisla- tive power to regulate the press, to curtail its freedom, and under the assump- tion that there was a right to compel obedience to the command of legislation having that object in view, to deprive one who refused to obey of all right to use the mail service? When the question is thus defined its solution is free from difficulty, since by its terms the provision only regulates second class mail, and the exclusion from the mails for which it provides is not an exclu- sion from the mails generally, but only from the right to participate in and enjoy the privileges accorded by the second class classification. The reasons which cause us to think this to be the case are these: (a) Be- cause the provision is part of a post-office appropriation act and naturally, therefore, gives rise to the inference that it concerns the general subject of the mails, there being an entire absence of anything justifying even a surmise, if such a point of view could be indulged in under any circumstances, that Con- gress was intentionally exerting power not delegated to it and consciously violating an express prohibition of the Constitution and for that reason clothed its exertion of power in the disguise of postal legislation; (b) because 338 Lewis Publishing Co. v. Morgan the text makes clear the fact that the legislation was exclusively addressed to the regulation of second class mail and was shaped in contemplation of the long established law and regulations governing that class. This result becomes apparent when it is observed that the provision makes it the duty of the pub- lisher to "enter" his publication, since by practice and regulation prevailing during a long period of time, it had come to pass that the word "enter" had exclusive relation to a duty to be performed in order to obtain the bene- fits of the second class classification. In the absence, therefore, of some express indication to the contrary, no other conclusion is possible, than that the word was used with reference to its received official and administrative sig- nificance. In fact, in view of the history which we have given of the develop- ment of the second class classification, and the reasons which led to the system of entry, unless the settled significance of the word be given to it, it would have no meaning whatever. Further, we think that because as finally enacted the provision which was in one paragraph as it passed the House of Representatives, in the Senate was divided into two paragraphs, affords no ground for contending that the re- quirement as to advertisements contained in the second printed paragraph is not embraced within and controlled by the conclusion we have stated. We say this because the second printed paragraph by reference clearly manifests that its provision applied to "such" newspapers, periodicals, etc., that is, the newspapers or periodicals covered by the first paragraph and which by its terms are submitted to the duty of entry in order to enjoy the privileges conferred. Nor do we think there is in reason ground to support the proposi- tion that because the provision sanctioned the duty to make entry by an ex- clusion from the mails it hence is a general regulation and not simply one conferring the right of availing of the second class privileges. The proposition assumes that the command is that for failure to comply with the conditions imposed there shall be a denial of the "privileges" of the mail, a qualification which in view of the great advantages given by the second class mail classifi- cation and of the fact that in the reports made to Congress concerning that classification attention was directed to the circumstance that a privileged class was thereby created, goes to show the conscious purpose to provide only for the exceptional privileges with which the provision was dealing. Equally wanting in force is the further contention that because the regula- tion in the second paragraph to the effect that paid matter shall be marked as advertisement is sanctioned by a penalty, therefore, at least as to such provi- sion, an independent regulation of the press was intended, divorced from the requirements as to entry contained in the first paragraph. We reach this conclusion because when the paragraph referred to is accurately considered it makes more cogent the view that we have taken and additionally demon- strates that the legislative mind, in enacting it, was sensitively alive to the fact that the provision alone concerned the privileges of second class mail, and the administrative rule which for so many years prevailed on the subject. In other words, that as, under existing administrative regulations, the enac- tions as to entry contemplated conditions existing at the time of the applica- tion for entry, and the condition as to advertisements concerned conduct of a publisher after entry, which could not therefore be a condition precedent to 339 The Law and Other News Problems entry, a penalty for the latter was devised in order to harmonize with the requirements as to admission to the second class mail. We come then to determine whether the provision as thus construed is valid. That Congress in exerting its power concerning the mails has the com- prehensive right to classify which it has exerted from the beginning and there- fore may exercise its discretion for the purpose of furthering the public wel- fare as it understands it, we think is too clear for anything but statement; the exertion of the power of course, at all times and under all conditions, being subject to the express or necessarily implied limitations of the Constitution. From this it results that it was and is in the power of Congress in "the inter- est of the dissemination of current intelligence" so to legislate as to the mails, by classification or otherwise, as to favor the widespread circulation of news- papers, periodicals, etc., even although the legislation on that subject, when considered intrinsically, apparently seriously discriminates against the public and in favor of newspapers, periodicals, etc., and their publishers. Although in the form in which the contentions here made by the publishers which we have at the outset reproduced, as literally stated, seem to challenge this proposition by suggesting that the power of Congress to classify is controlled and limited by conditions intrinsically inhering in the carriage of the mails, we assume that such apparent contention was merely the result of an un- guarded form of statement, since we cannot bring our minds to the conclu- sion that it was intended on behalf of the publishers to assail generally as an infringement of the constitutional prohibition against the invasion of the freedom of the press the legislation which for a long series of years has fa- vored the press by discriminating so as to secure to it great pecuniary and other concessions and a wider circulation and consequently a greater sphere of influence. If, however, we are mistaken in this view, then, we think, it suffices to say that the contention is obviously without merit. This being true the attack on the provision in question as a violation of the Constitution be- cause infringing the freedom of the press, and depriving of property without due process of law, rests only upon the illegality of the conditions which the provision exacts in return for the right to enjoy the privileges and advantages of the second class mail classification. The question therefore is only this, Are the conditions which were exacted incidental to the power exerted of conferring on the publishers of newspapers, periodicals, etc. the privileges of the second class classification or are they so beyond the scope of the exercise of that power as to cause the conditions to be repugnant to the Constitution? We say this is the question since necessarily if the power exists to legislate by discriminating in favor of publishers, the right to exercise that power carries with it the authority to do those things which are incidental to the power it- self or which are plainly necessary to make effective the principal authority when exerted. In other words, from this point of view, the illuminating rule announced in McCulloch v. Maryland and Gibbons v. Ogden governs here as it does in every other case where an exertion of power under the Constitu- tion comes under consideration. The ultimate and narrow question therefore is, Are the requirements of the provision in question incidental to the purpose intended to be secured by the second class classification? 340 Lewis Publishing Co. v. Morgan 341 Let us consider the matter from the historical and from the inherent stand- point. Under the statute, as we have seen, for a long series of years a pub- lication primarily devoted to advertisements was not entitled to the benefit of the second class classification, and by a long administrative construction, embodied in the regulations, the disclosure of the names of the proprietors as well as of the editors of a publication which has sought to be entered as second class matter was required. The new conditions imposed are first, that where there is matter the publication of which is paid for, the fact of such payment shall be disclosed by marking the matter as an advertisement, and second, the disclosure as to ownership, etc. previously exacted is enlarged by making it necessary in the case of a corporation to furnish the names of the stockholders and also requiring that the names of the principal creditors, etc. be given. As the right to consider the character of the publication as an ad- vertising medium was previously deemed to be incidental to the exercise of the power to classify for the purpose of the second class mail, it is impossi- ble in reason to perceive why the new condition as to marking matter which is paid for as an advertisement is not equally incidental to the right to clas- sify. And the additional exactions as to disclosure of stockholders, principal creditors, etc. are also as clearly incidental to the power to classify as are the requirements as to disclosure of ownership, editors, etc., which for so many years formed the basis of the right of admission to the classification. We say this because of the intimate relation which exists between ownership and debt, since debt in its ultimate conception is a dismemberment of ownership and the power which it confers over an owner is, by the common knowledge of mankind, often the equivalent of the control which would result from ownership itself. Considered intrinsically, no completer statement of the rela- tion which the newly enacted conditions bear to the great public purpose which induced Congress to continue in favor of the publishers of newspapers at vast public expense the low postal rate as well as other privileges accorded by the second class mail classification can be made than was expressed in the report of the Senate committee, stating the intent of the legislation which we have already excerpted, that is, to secure to the public in "the dissemination of knowledge of current events," by means of newspapers, the names not only of the apparent, but of what might prove to be the real and substantial own- ers of the publications, and to enable the public to know whether matter which was published was what it purported to be or was in substance a paid advertisement. We repeat that in considering this subject we are concerned not with any general regulation of what should be published in newspapers, not with any condition excluding from the right to resort to the mails, but we are concerned solely and exclusively with the right on behalf of the pub- lishers to continue to enjoy great privileges and advantages at the public ex- pense, a right given to them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the foundation of the privileges accorded. It may be deemed from what we have said in considering the asserted re- pugnancy of the conditions imposed by the provision under examination that we have assumed that if the attack made upon such conditions was well The Law and Other News Problems founded and they therefore would disappear, nevertheless the right to con- tinue to enjoy the second class mail privileges would remain, but we have not considered that subject and intimate no opinion upon it. Finally, because there had developed no necessity of passing on the ques- tion, we do not wish even by the remotest implication to be regarded as as- senting to the broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition embodied in the proposition of the Government which we have previously stated. Decrees affirmed. LEWIS PUBLISHING CO. V. MORGAN, 229 U.S. 288; 33 S. Ct. 867; 7 L. Ed. 1190 (1913) The Lewis Publishing Co. case affirmed the power of the government to set up qualifications to be met by papers seeking the privilege of second class postal rates. The courts have also affirmed the power of the government to disqualify certain periodicals in respect of this privilege. The tendency of the courts to interpret this power broadly or narrowly depends upon the temper of the times; in recent years, as seen in the Esquire case,* the court has been inclined to place strict limits upon the power to exclude printed matter either from the mails or from the privilege of second-class postal rates. In times of increasing apprehension over radical publication and utterance, however, the court has taken the position that the government has wide discretion in determining what shall be barred. During the first five months of World War I, the Milwaukee Leader pub- lished a succession of editorials severely condemning the war effort of the United States, characterizing the conflict itself as a "capitalistic war," de- nouncing the government as a "plutocratic republic," and lauding the activ- ities of Russian sympathizers in the United States. The then Postmaster Gen- eral concluded that these publications violated the Espionage Act and justified the exclusion of the newspaper from the mails. Mr. Justice Clark read the opinion for the seven-to-two majority of the Supreme Court upholding the action. The dissent of Mr. Justice Brandeis which follows, although a minor- ity view shared only by Mr. Justice Holmes in 1921, is a careful analysis of legal principles involved which has come to prevail as the majority rule of the present court. In discussing whether Congress conferred upon the Postmaster General the authority which he undertook to exercise in this case, I shall consider, first, whether he would have had the power to exclude the paper altogether from all future mail service on the ground alleged; and second, whether he had power to deny the publisher the second-class rate. * For text of the case, see Ch. 2, p. 43. 342 Milwaukee Publishing Co. v. Burleson First. Power to exclude from the mails has never been conferred in terms upon the Postmaster General. Beginning with the Act of March 3, 1865, c. 89 $16, 13 Stat. 507, relating to obscene matter, and the Act of July 27, 1868, c. 246, S13, 15 Stat. 196, concerning lotteries, Congress has from time to time forbidden the deposit in the mails of certain matter. In each instance, in addition to prescribing fine and imprisonment as a punishment for sending or attempting to send the prohibited matter through the mail, it declared that such matter should not be conveyed in the mail, nor delivered from any post office nor by any letter carrier. By S6 of the Act of June 8, 1872, c. 335, 17 Stat. 285, (Rev. Stats., S396), the Postmaster General was empow- ered to "superintend the business of the department, and execute all laws relative to the postal service." As a matter of administration the Postmaster General, through his subordinates, rejects matter offered for mailing, or re- moves matter already in the mail, which in his judgment is unmailable. The existence in the Postmaster General of the power to do this cannot be doubted. The only question which can arise is whether in the individual case the power has been illegally exercised. But while he may thus exclude from the mail specific matter which he deems of the kind declared by Congress to be unmailable, he may not, either as a preventive measure or as a punish- ment, order that in the future mail tendered by a particular person or the future issues of a particular paper shall be refused transmission. Until recently, at least, this appears never to have been questioned and the Post Office Department has been authoritatively advised that the power of excluding matter from the mail was limited to such specific matter as upon examination was found to be unmailable and that the Postmaster General could not make an exclusion order operative upon future issues of a news- paper. In 1890 Tolstoi's Kreutzer Sonata had been excluded from the mails as in- decent. Certain newspapers began to publish the book in instalments and their position was referred to the Attorney General. He replied: " .. I do not see that it necessarily follows that every instalment of the story thus published is obscene, because the story as a whole is declared to be so. It may be, indeed, that one or more chapters of this story are en- tirely unexceptionable in character. If so, the exclusion, as unmailable, of newspapers containing them might involve serious consequences to yourself" (19 Ops. Atty. Gen. 667, 668). Again, in 1908, President Roosevelt asked the Attorney General if the law permitted him to deny the mails to an anarchist newspaper published in the Italian language in which appeared articles advocating the murder of the po- lice force of Paterson and the burning of the city. The Attorney General ad- vised him that such an article constituted a seditious libel (it has since been made criminal by statute, Act of March 4, 1911, c. 241, S2, 36 Stat. 1339), and that "the Postmaster General [would] be justified in excluding from the mails any issue of any periodical, otherwise entitled to the privileges of second-class mail matter, which shall contain any article containing a sedi- tious libel and counseling such crimes as murder, arson, riot, and treason" (26 Ops. Atty. Gen. 555)" But the Attorney General was careful to point out that the law gave no 343 authority to exclude issues of the paper which should contain no objection- able matter: "It must be premised that the Postmaster General clearly has no power to close the mails to any class of persons, however reprehensible may be their practices or however detestable their reputation; if the question were whether the mails could be closed to all issues of a newspaper, otherwise entitled to admission, by reason of an article of this character in any particular issue, there could be no doubt that the question must be answered in the negative" (p. 565). If such power were possessed by the Postmaster General, he would, in view of the practical finality of his decisions, become the universal censor of pub- lications. For a denial of the use of the mail would be for most of them tantamount to a denial of the right of circulation. Congress has not granted to the Postmaster General power to deny the right of sending matter by mail even to one who has been convicted by a jury and sentenced by a court for unlawful use of the mail and who has been found by the Postmaster General to have been habitually using the mail for frauds or lotteries and is likely to do so in the future. It has, in order to protect the public, directed postmasters to return to the sender mail addressed to one found by the Postmaster Gen- eral to be engaged in a scheme to defraud or in a lottery enterprise. But beyond this Congress has never deemed it wise, if, indeed, it has considered it constitutional, to interfere with the civil right of using the mail for lawful purposes. The Postmaster General does not claim here the power to issue an order directly denying a newspaper all mail service for the future. Indeed, he as- serts that the mail is still open to the Milwaukee Leader upon payment of first, third or fourth-class rates. He contends, however, that in regard to second-class rates special provisions of law apply under which he may deny that particular rate at his discretion. This contention will now be considered. Second. The second-class mail rate is confined to newspapers and other pe- riodicals, which possess the qualifications and comply with the conditions pre- scribed by Congress. In the present case the Postmaster General insists that by reason of alleged past violations of Title XII of the Espionage Act, two of the conditions had ceased to be fulfilled. His reasons are these: The Mail Classification Act of March 3, 1879, c. 18o, 20 Stat. 358, provides by S14 that a newspaper to be mailable at the second-class rates "must regularly be issued at stated intervals, as frequently as four times a year," and that it must be "originated and published for the dissemination of information of a public character." If any issue of a paper has contained matter violative of the Es- pionage Act, the paper is no longer "regularly issued"; and likewise it has ceased to be a paper "published for the dissemination of information of a public character." The argument is obviously unsound. The requirement that the newspaper be "regularly issued" refers, not to the propriety of the reading matter, but to the fact that publication periodically at stated intervals must be intended and that the intention must be carried out. Similarly, the re- quirement that the paper be "published for the dissemination of information of a public character" refers not to the reliability of the information or the soundness of the opinions expressed therein, but to the general character of The Law and Other News Problems 344 Milwaukee Publishing Co. v. Burleson the publication. The Classification Act does not purport to deal with the ef- fect of, or the punishment for, crimes committed through a publication. It simply provides rates and classifies the material which may be sent at the re- spective rates. The act says what shall constitute a newspaper. Undoubtedly the Postmaster General has latitude of judgment in deciding whether a pub- lication meets the definition of a newspaper laid down by the law, but the courts have jurisdiction to decide whether the reasons which an administrative officer gives for his actions agree with the requirements of the statute under which he purports to act. The fact that material appearing in a newspaper is unmailable under wholly different provisions of law can have no effect on whether or not the publication is a newspaper. Although it violates the law, it remains a newspaper. If it is a bad newspaper the act which makes it il- legal and not the Classification Act provides the punishment. There is, also, presented in brief and argument, a much broader claim in support of the action of the Postmaster General. It is insisted that a citizen uses the mail at second-class rates not as of right, but by virtue of a privi- lege or permission, the granting of which rests in the discretion of the Post- master General. Because the payment made for this governmental service is less than it costs, it is assumed that a properly qualified person has not the right to the service so long as it is offered; and may not complain if it is de- nied to him. The service is called the second-class privilege. The certificate evidencing such freedom is spoken of as a permit. But, in fact, the right to the lawful postal rates is a right independent of the discretion of the Post- master General. The right and conditions of its existence are defined and rest wholly upon mandatory legislation of Congress. It is the duty of the Post- master General to determine whether the conditions prescribed for any rate exist. This determination in the case of the second-class rate may involve more subjects of enquiry, some of them, perhaps, of greater difficulty, than in cases of other rates. But the function of the Postmaster General is the same in all cases. In making the determination he must, like a court or a jury, form a judgment whether certain conditions prescribed by Congress exist, on con- troverted facts or by applying the law. The function is a strictly judicial one, although exercised in administering an executive office. And it is not a func- tion which either involves or permits the exercise of discretionary power. The so-called permit is mere formal notice of his judgment, but indispensable to the publisher because without it the local postmaster will not transmit the publication at second-class rates. The same sort of permit is necessary for the same bulk service at first, third or fourth-class rates. There is nothing, in short, about the second-class rate which furnishes the slightest basis in law for dif- ferentiating it from the other rates so far as the discretion of the Postmaster General to grant or withhold it is concerned. Third. Such is the legislation of Congress. It clearly appears that there was no express grant of power to the Postmaster General to deny second-class mail rates to future issues of a newspaper because in his opinion it had systemati- cally violated the Espionage Act in the past; and it seems equally clear that there is no basis for the contention that such power is to be implied. In respect to newspapers mailed by a publisher at second-class rates there is clearly no occasion to imply this drastic power. For a publisher must deposit 345 The Law and Other News Problems with the local postmaster, before the first mailing of every issue, a copy of the publication which is now examined for matter subject to a higher rate and in order to determine the portion devoted to advertising. Act of March 3, 1879, c. 18o, .12, 20 Stat. 359; Act of October 3, 1917, c. 63, S1101, 40 Stat. 327. If there is illegal material in the newspaper, here is ample opportunity to discover it and remove the paper from the mail. Indeed, of the four classes of mail, it is the second alone which affords to the postal official full opportunity of ascertaining, before deposit in the mail, whether that which it is proposed to transmit is mailable matter. ... (a) The power to police the mails is an incident of the postal power. Con- gress may, of course, exclude from the mails matter which is dangerous or which carries on its face immoral expressions, threats or libels. It may go fur- ther and through its power of exclusion exercise, within limits, general police power over the material which it carries, even though its regulations are quite unrelated to the business of transporting mails. In re Rapier, 143 U.S. 110. Lewis Publishing Co. v. Morgan, 229 U.S. 288. As stated in Ex parte Jack- son, 96 U.S. 727, 732: "The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the trans- portation of the mails." In other words, the postal power, like all its other powers, is subject to the limitations of the Bill of Rights. Burton v. United States, 202 U.S. 344, 371. Compare Adair v. United States, 208 U.S. 161. Congress may not through its postal police power put limitations upon the freedom of the press which if directly attempted would be unconstitutional. This court also stated in Ex parte Jackson, that "liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circu- lation, the publication would be of little value." It is argued that although a newspaper is barred from the second-class mail, liberty of circulation is not denied; because the first and third-class mail and also other means of trans- portation are left open to a publisher ... (b) The right which Congress has given to all properly circumstanced per- sons to distribute newspapers and periodicals through the mails is a substan- tial right. Hoover v. McChesney, 81 Fed. Rep. 472; Payne v. National Rail- way Publishing Co., 20 App. D.C. 581; 192 U.S. 602. It is of the same nature as, indeed, it is a part of, the right to carry on business which this court has been jealous to protect against what it has considered arbitrary deprivations. Adair v. United States, 208 U.S. 161; Coppage v. Kansas, 236 U.S. 1; Adams v. Tanner, 244 U.S. 59o; Allgeyer v. Louisiana, 165 U.S. 578. A law by which certain publishers were unreasonably or arbitrarily denied the low rates would deprive them of liberty or property without due process of law; and it would likewise deny them equal protection of the laws. The court might hold that a statute which conferred upon the Postmaster General the power to do this, because of supposed past infractions of law, was unreasonable and ar- bitrary; particularly in respect to second-class mail which affords ample oppor- tunity for preventing the transmission of unmailable matter; and hence ob- noxious to the Fifth Amendment. The contention that, because the rates are non-compensatory, use of the 346 Milwaukee Publishing Co. v. Burleson second-class mail is not a right but a privilege which may be granted or with- held at the pleasure of Congress, rests upon an entire misconception, when applied to individual members of a class. The fact that it is largely gratuitous makes clearer its position as a right; for it is paid for by taxation. (c) The order revoking the entry of the Milwaukee Leader to second-class mail was clearly a punitive, not a preventive measure; as all classes of mail except the second were, as the Postmaster General states, left open to it pro- vided it had sufficient financial resources. Of the three left available, the third class, being for "miscellaneous printed matter," was an appropriate one for distributing newspapers and was the cheapest. But the additional cost to the publisher involved in distributing daily 9,000 copies by the third-class mail would be a very serious one. The actual and intended effect of the order was merely to impose a very heavy fine, possibly $15o a day, for supposed transgression in the past. But the trial and punishment of crimes is a function which the Constitution, Article III, S2, cl. 3, entrusts to the judiciary. I am not aware that any other civil administrative officer has assumed, in any coun- try in which the common law prevails, the power to inflict upon a citizen severe punishment for an infamous crime. Possibly the court would hold that Congress could not, in view of Article III of the Constitution, confer upon the Postmaster General, as a mere incident in the administration of his de- partment, authority to issue an order which could operate only as a punish- ment. (d) The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed and that he shall be confrorited with the witnesses against him. It is only in the case of petty offences that the jury may be dispensed with. Schick v. United States, 195 U.S. 65, 68. What is in effect a very heavy fine has been imposed because he finds that the publisher has committed the crime of vio- lating the Espionage Act. And that finding is based in part upon "representa- tions and complaints from sundry good and loyal citizens" with whom the publisher was not confronted. It may be that the court would hold, in view of Article Six in our Bill of Rights, that Congress is without power to con- fer upon the Postmaster General, or even upon a court, except upon the ver- dict of a jury and upon confronting the accused with the witnesses against him, authority to inflict indirectly such a substantial punishment as this. (e) The punishment inflicted is not only unusual in character; it is, so far as known, unprecedented in American legal history. Every fine imposed by a court is definite in amount. Every fine prescribed by Congress is limited in amount. Statutes frequently declare that each day's continuation of an of- fence shall constitute a new crime. But here a fine imposed for a past offence is made to grow indefinitely each day-perhaps throughout the life of the publication. Already, having grown at the rate of say $15o a day, it may ag- gregate, if the circulation has been maintained, about $18o,ooo for the three years and four months since the order was entered; and its growth continues. It was assumed in Waters-Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 111, that an excessive fine, even if definite, would violate the Eighth Amendment. Possibly the court, applying the Eighth Amendment, might again, as in 347 The Law and Other News Problems Weems v. United States, 217 U.S. 349, 381, make clear the "difference be- tween unrestrained power and that which is exercised under the spirit of con- stitutional limitations formed to establish justice." The suggestion is made that if a new application for entry to second-class mail had been made the publishers might have been granted a certificate. It is no bar to proceedings to set aside an illegal sentence, that an application to the Executive for clemency might have resulted in a pardon. In conclusion I say again-because it cannot be stressed too strongly-that the power here claimed is not a war power. There is no question of its ne- cessity to protect the country from insidious domestic foes. To that end Con- gress conferred upon the Postmaster General the enormous power contained in the Espionage Act of entirely excluding from the mails any letter, picture or publication which contained matter violating the broad terms of that act. But it did not confer-and the Postmaster General concedes that it did not confer-the vague and absolute authority practically to deny circulation to any publication which in his opinion is likely to violate in the future any postal law. The grant of that power is construed into a postal rate statute passed forty years ago which has never before been suspected of containing such implications. I cannot believe that in establishing postal classifications in 1879 Congress intended to confer upon the Postmaster General authority to issue the order here complained of. If, under the Constitution, administrative officers may, as a mere incident of the peace-time administration of their de- partments, be vested with the power to issue such orders as this, there is little of substance in our Bill of Rights and in every extension of governmental functions lurks a new danger to civil liberty. MILWAUKEE PUBLISHING CO. v. BURLESON, 255 U.S. 407; 41 S. Ct. 352; 65 L. Ed. 704 (1921) 2. Obscenity statutes and the press. For many years the several states have enforced laws prohibiting obscene publications, without serious challenge to their authority. In 1949, however, the New York law was attacked on the ground that it violated the F'ourteenth Amendment to the Constitution. The Supreme Court upheld the plea, aver- ring that "a statute so vague and indefinite . . . as to permit within the scope of its language the punishment of incidents fairly within the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment." Mr. Justice Reed read the opinion of the six-to-three majority. In the dissent, Mr. Justice Frankfurter insisted that the statute was in fact clearly within the state's police power to control crime. The appellant contends that the subsection violates the right of free speech and press because it is vague and indefinite. It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of 348 the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment. Stromberg v. California, 283 U.S. 359, 369; Herndon v. Lowry, 301 U.S. 242, 258. A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute's inclusion of prohibitions against expressions, protected by the principles of the First Amendment, violates an accused's rights under procedural due process and freedom of speech or press. Where the alleged vagueness of a state statute had been cured by an opinion of the state court, confining a statute punish- ing the circulation of publications "having a tendency to encourage or incite the commission of any crime" to "encouraging an actual breach of law," this Court affirmed a conviction under the stated limitation of meaning. The ac- cused publication was read as advocating the commission of the crime of in- decent exposure. Fox v. Washington, 236 U.S. 273, 277. We recognize the importance of the exercise of a state's police power to minimize all incentives to crime, particularly in the field of sanguinary or sa- lacious publications with their stimulation of juvenile delinquency. Although we are dealing with an aspect of a free press in its relation to public mor- als, the principles of unrestricted distribution of publications admonish us of the particular importance of a maintenance of standards of certainty in the field of criminal prosecution for violation of statutory prohibitions against distribution. We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protec- tion of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these maga- zines, they are as much entitled to the protection of free speech as the best of literature. Cf. Hannegan v. Esquire, 327 U.S. 146, 153, 158. They are equally subject to control if they are lewd, indecent, obscene or profane. Ex parte Jackson, 96 U.S. 727, 736; Chaplinsky v. New Hampshire, 315 U.S. 568. The section of the Penal Law, S1141 (2), under which the information was filed is a part of the "indecency" article of that law. It comes under the caption, "Obscene prints and articles." Other sections make punishable vari- ous acts of indecency. For example, S1141 (1), a section not here in issue but under the same caption, punishes the distribution of obscene, lewd, las- civious, filthy, indecent or disgusting magazines. Section 1141 (2) originally was aimed at the protection of minors from the distribution of publications devoted principally to criminal news and stories of bloodshed, lust or crime. It was later broadened to include all the population and other phases of produc- tion and possession. Although many other states have similar statutes, they, like the early stat- utes restricting paupers from changing residence, have lain dormant for dec- ades. Edwards v. California, 314 U.S. 16o, 176. Only two other state courts, whose reports are printed, appear to have construed language in their laws similar to that here involved. In Strohm v. Illinois, 16o Ill. 582, 43 N.E. 622, a statute to suppress exhibiting to any minor child publications of this char- acter was considered. The conviction was upheld. The case, however, appar- Winters v. New York 349 The Law and Other News Problems ently did not involve any problem of free speech or press or denial of due process for uncertainty under the Fourteenth Amendment. In State v. McKee, 73 Conn. 18, 46 A. 409, the court considered a convic- tion under a statute which made criminal the sale of magazines "devoted to the publication, or principally made up of criminal news, police reports, or pictures and stories of deeds of bloodshed, lust, or crime." The gist of the offense was thought to be a "selection of immoralities so treated as to excite attention and interest sufficient to command circulation for a paper devoted mainly to the collection of such matters." Page 27. It was said, apropos of the state's constitutional provision as to free speech, that the act did not vio- late any constitutional provision relating to the freedom of the press. It was held, p. 31, that the principal evil at which the statute was directed was "the circulation of this massed immorality." As the charge stated that the offense might be committed "whenever the objectionable matter is a leading feature of the paper or when special attention is devoted to the publication of the prohibited items," the court felt that it failed to state the full meaning of the statute and reversed. As in the Strohm case, denial of due process for uncer- tainty was not raised. On its face, the subsection here involved violates the rule of the Stromberg and Herndon cases, supra, that statutes which include prohibitions of acts fairly within the protection of a free press are void. . The subsection of the New York Penal Law, as now interpreted by the Court of Appeals, prohibits distribution of a magazine principally made up of criminal news or stories of deeds of bloodshed or lust, so massed as to be- come vehicles for inciting violent and depraved crimes against the person. But even considering the gloss put upon the literal meaning by the Court of Appeals' restriction of the statute to collections of stories "so massed as to become vehicles for inciting violent and depraved crimes against the person . not necessarily . . . sexual passion," we find the specification of publi- cations, prohibited from distribution, too uncertain and indefinite to justify the conviction of this petitioner. Even though all detective tales and treatises on criminology are not forbidden, and though publications made up of crimi- nal deeds not characterized by bloodshed or lust are omitted from the inter- pretation of the Court of Appeals, we think fair use of collections of pictures and stories would be interdicted because of the utter impossibility of the actor or the trier to know where this new standard of guilt would draw the line between the allowable and the forbidden publications. No intent or pur- pose is required-no indecency or obscenity in any sense heretofore known to the law. "So massed as to incite to crime" can become meaningful only by concrete instances. This one example is not enough. The clause proposes to punish the printing and circulation of publications that courts or juries may think influence generally persons to commit crimes of violence against the person. No conspiracy to commit a crime is required. See Musser v. Utah, 333 U.S. 95. It is not an effective notice of new crime. The clause has no technical or common law meaning. Nor can light as to the meaning be gained from the section as a whole or the Article of the Penal Law under which it appears. As said in the Cohen Grocery Company case, [255 U. S. 81], p. 89: 350 "It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against." The statute as construed by the Court of Appeals does not limit punishment to the indecent and obscene, as formerly under- stood. When stories of deeds of bloodshed, such as many in the accused maga- zines, are massed so as to incite to violent crimes, the statute is violated. It does not seem to us that an honest distributor of publications could know when he might be held to have ignored such a prohibition. Collections of tales of war horrors, otherwise unexceptionable, might well be found to be "massed" so as to become "vehicles for inciting violent and depraved crimes." Where a statute is so vague as to make criminal an innocent act, a convic- tion under it cannot be sustained. Herndon v. Lowry, 301 U.S. 242, 259. To say that a state may not punish by such a vague statute carries no im- plication that it may not punish circulation of objectionable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications. Section 1141, subsection 1, quoted in note 2, is an example. Neither the states nor Con- gress are prevented by the requirement of specificity from carrying out their duty of eliminating evils to which, in their judgment, such publications give rise. Reversed. WINTERS V. NEW YORK, 333 U.S. o07; 68 S. Ct. 665; 92 L. Ed. 840 (1948) Since 1925 the state of Wisconsin has had a law providing for fine or imprisonment for any newspaper or other news medium publishing the name of a living person who had been the victim of rape or similar crime of sexual violence. When a particularly brutal crime of this type was committed in 1947, a Madison newspaper challenged the validity of the statute by printing the name of the victim among other details of the case. The pub- lication contended that, while the objective of the statute was laudable, its effect was to impose an unconstitutional restraint upon the freedom of the press. The state, in obtaining an indictment of the publisher for his story, insisted that the police power of the government to enforce laws against obscenity took precedence over the right of a newspaper to publish all the details of such a story. The issue was carried to the Wisconsin Supreme Court on a succession of highly technical issues which failed to settle the underlying question of jurisprudence but gave both sides a hollow kind of victory. In the first trial of the case, in which the publisher challenged the validity of the statute, the state supreme court found that the trial court erred in ruling the law uncon- stitutional and remanded the case for a new trial (State v. Evjue, 253 Wise. 146; 33 N.W. 2d 305 [1948]). In the second trial of the case, the state having won its point that the law was constitutional, the defense offered the plea of State v. Evjue 351 The Law and Other News Problems not guilty and waived a jury trial. The court found the publisher not guilty and on appeal the state supreme court declined "to review the merits of the acquittal"-the effect of its action being to uphold the acquittal (State v. Evjue, 254 Wise. 581; 37 N.W. 2d 50 [1949]). Thus the status of the Wisconsin statute has become anomalous; it is technically constitutional under the 1948 ruling; but the same court in 1949 declined to set aside a trial verdict which largely nullified the law's effect. 3. The state may prohibit editorial or promotional practices which constitute a lottery. The St. Louis Globe-Democrat in 1936 sponsored a "Famous Names" con- test, a promotional device originated by a New York newspaper and widely syndicated. The contest consisted of a series of cartoons, each suggesting the name of a person, city, state, nation, book, song, or motion picture. Prizes totaling $15,000 were offered. Contestants were required, on sending in each of the twelve series of answers, to include to cents in payment for a special reprint of the featured cartoon of the week. Prior to launching the promotional campaign, the sponsors had submitted the plan to the post office and had received its approval. However, upon formal complaints of the other St. Louis newspapers and the Better Business Bureau, the state attorney general brought an action against the newspaper charging the contest with being a lottery. Judge Ellison of the Missouri Su- preme Court read the unanimous opinion upholding the prosecution. The elements of a lottery are: (1) Consideration; (2) prize; (3) chance. It is conceded that the first two of these were present in the "Famous Names" contest here involved, the sole question being whether the third ele- ment-chance-was there. In England and Canada, where the "pure chance doctrine" prevails, a game or contest is not a lottery even though the en- trants pay a consideration for the chance to win a prize, unless the result depends entirely upon chance. In the United States the rule was the same until about 1904; but it is now generally held that chance need be only the dominant factor. 38 C.J. S5, p. 291; 17 R.C.L. S10, p. 1223; Waite v. Press Publishing Ass'n, 155 F. 58, 85 C.C.A. 576, 11 L.R.A. (N.S.) 609, 12 Ann. Cas. 319. Hence a contest may be a lottery even though skill, judgment, or research enter thereinto in some degree, if chance in a larger degree deter- mine the result. Whether the chance factor is dominant or subordinate is often a troublesome question. .. In Coles v. Odhams Press, Ltd., [1936] 1 K.B. 416, a newspaper conducted a "Great Cross-word Offer" and agreed to award a prize of 2,000 pounds for the correct or nearest correct solution of the puzzle. As to most of the spaces in the puzzle the correct word, suggested by the clues printed therewith, was fairly obvious and had no alternative; but as to some of them any of two or more words would fit into the space and to that extent were alternatives. 352 State ex Inf. McKittrick v. Globe-Democrat Pub. Co. 353 The competition editor had prepared his controlling solution in advance. The informant contended that, because equally appropriate words would fit into some of the spaces, the contest became a mere matter of guessing which of these the contest editor had chosen; and that it was therefore a lottery, not- withstanding skill would lead to the correct choice of words for most of the spaces. The defendants maintained that skill and ingenuity were required in discovering and selecting the proper alternative words; that the so-called alternatives were not really alternatives, because in every instance some one word was more appropriate than any other. The magistrate below had held the contest was not a lottery. Of his find- ings the decision says: "The magistrate found as a fact that in the greater number of cases the words chosen were the best and most appropriate, hav- ing regard to the clues, but that it was doubtful whether certain of the other words chosen were the most appropriate and had the best relation to the clues and that in the case of some of them the alternative word was better; but he was of opinion that the competition must be looked at as a whole, and that he was not justified in dividing the question into what counsel for the prosecution had described as two classes of words-namely, 'easy words' and 'difficult words,' and he found as a fact that a considerable element of skill was required to solve the puzzle (as a whole) and that the people who had successfully solved it had exercised a substantial degree of skill; and on these grounds he dismissed all the summonses" (parenthesis ours). The Kings Bench Division reversed the magistrate, the principal opinion by Lord Hewart, C. J., saying: "The magistrate has thought fit to find that this competition involved and contemplated a degree of skill. But skill about what? The element of skill, if any, is, in my opinion, to be directed, and directed only, to the lucky guessing of the details of a mysterious collection of unrelated words, selected beforehand by a person whose idiosyncrasies are as completely concealed as his methods, and whose ignorance may be coexten- sive with the wisdom of Solomon. I see the word 'lottery' written all over this scheme, and it passes my comprehension to understand how the magistrate could have come to the conclusion to which he came." . . . Now, as regards the cartoons to be labeled in the "Famous Names" contest. Without further discussion it is evident that an element of chance inhered in some of them-of guessing what titles had been selected by the creators. They had in mind a title for each cartoon before it was drawn, but they also in- troduced foreign elements in the later ones to make them more confusing or subtle. There were no fixed rules by which these cartoons could be solved by the rank and file of contestants. The respondent's witness, Mr. Gregory Hart- wick, who was an expert and had been drawing puzzles for fifteen years, worked two days before he solved cartoon No. 80. Thirty-three out of the thirty-six contestants who made only one error were eliminated by this one cartoon, and twenty-five of these gave the same wrong answer. Mr. Hartwick said it was pure opinion with him that the designated title for Cartoon No. 79, Adolph Hitler, was better than Chancellor Dollfuss. The fact that out of more than 45,000 contestants only 2 gave correct answers to the entire 84 cartoons proves their solution was not a matter of skill and judgment, and that chance did have a proximate effect on the final result. And the circumstance that the two winners, Mr. Kraus and Mrs. Hicks, were not experts does not establish the contrary; indeed, it indicates the contest in its final analysis was controlled by chance. We think it was a lottery. But even so, we are equally convinced that the facts call for no drastic action against the respondent. Through its officers it acted in good faith. When the contest was in contemplation a clearance from the Post Office De- partment was first obtained. When objections were made, the character of its advertising and the method of judging the contest were changed; and it en- deavored to eliminate ambiguity from the cartoons. The contest had run 64 of the 84 days before the Attorney General definitely ruled that it was a lot- tery. The respondent then proceeded only after it had been advised by three able law firms in St. Louis that it might legally do so. The purpose of the contest was legitimate-to promote reader interest in its newspaper. There was no fraudulent or ,criminal intent. The law in various jurisdictions is con- flicting and confusing:\Since May, 1935, thirty similar contests had been run in twenty-one other newspapers in the United States without federal or state interference. It would be unreasonable and unjust to issue a writ of ouster in this case. In circumstances no more extenuating this court in State ex inf. Miller v. St. Louis Union Trust Co., 335 Mo. 845, 872, 74 S.W. 2d 348, 361, assessed a fine of $1 and taxed the costs against the respondent. That will be the order here. It is ordered and adjudged that the respondent pay a fine of $1 and that the costs be taxed against it. STATE EX INF. McKITTRICK V. GLOBE-DEMOCRAT PUB. Co., 341 Mo. 862; 110 S.W. 2d 705; 113 A.L.R. 1104 (1937) The Law and Other News Problems 354 PART II The Newspaper: Business Side CHAPTER XII Administrative Law and a Free Press SUPPLEMENTARY READING J. S. Butler, "Newsgathering Monopolies and the Anti-Trust Act," George- town Law Journal, v. 35 (November, 1947), pp. 66-72 Gray, "Rule on Contracts Against Competition," Editor 6 Publisher, v. 84 (January 8, 1951), p. 51 Swindler, Bibliography, nos. 710, 716, 730 BACKGROUND NOTE The growth of the newspaper as an industry, by the end of the nine- teenth century, had introduced a succession of problems which could not have been anticipated when the First Amendment on freedom of expression was incorporated into the Constitution. The growth of American industry in general, as a matter of fact, brought with it legal problems which, interwoven as they were with what Mr. Justice Brandeis once tellingly referred to as the "economic predilections" of the courts themselves, were to become the subject of many an involved chapter in contemporary American jurisprudence. That the question of law as it applied to the business phase of journalism ever should have been considered apart from the general questions of administra- tive regulation of all industry was due to the restraint upon the federal govern- ment represented in the guarantee in the First Amendment; the newspaper interests insisted, and the courts had to rule upon the proposition, that this restraint amounted to an estoppel for the state in its effort to apply administra- tive regulations to the press. The courts have, indeed, ruled upon the proposition in several cases in recent years, particularly in the Morris Watson case challenging the applica- bility to the press of the original National Labor Relations Act; and in the Associated Press antitrust case, raising the free press issue in the matter of the government's prosecution of an alleged monopoly in news communications. The Morris Watson case is discussed in Chapter 2 above, and the AP antitrust case later in this chapter. The historical background to the AP case, however, 357 358 Administrative Law and a Free Press may first be considered as a perspective for the whole problem of the relations between administrative law and a free press.* From the earliest period of cooperative newsgathering in the United States, when newspapers in seaboard cities early in the nineteenth century organized harbor associations to collect the news packets from incoming ships, a keen rivalry for exclusive or "beat" news spurred on each group. In a rough and tumble frontier age, these competitive activities involved everything from physical violence among opposing boatmen to later monopolizing of the sole telegraph from Halifax to New York by tapping out successive verses and chap- ters of the Bible to keep the telegraph engaged by one correspondent until his news material arrived for transmission. This competitive tradition had a natural corollary, reflected in a number of early news associations which took formal shape in the mid-nineteenth century. This was the interest of associated newspapers in making their service exclusive for their own membership-a situation which inevitably led, in the trust-busting era that began in the later 189o's, to charges of monopoly. However, as other businessmen-railroad magnates, steel operators, financiers, and the like-en- gaged in a career of cutthroat rivalry and shrewd programs to corner strategic commodities, sanctioned by the prevailing philosophy of laissez faire, publishers naturally considered their own practices equally moral. Added to this condition was the fact that the cost of telegraphic news was constantly rising, due not in- frequently to rigging practices of commercial wire companies; and so joint agreements between one or another of these companies and one of the major news services, to the disadvantage or complete exclusion of rivals, further con- tributed to the trend toward closed corporations in the field. In consequence, as the number of newspapers and the appetite for ever faster news communications grew, a variety of more or less accidental or loosely drawn associations of publishers appeared in all parts of the country. In the 1840's, with the rapid introduction of telegraph service, newspaper combines grew up along the wire routes to distribute costs of news transmission. City, state, and regional groups which seem to have been trade or professional associations as much as they were news services made their appearance at various dates throughout the last half of the century. The first formal arrangement between major daily newspapers came in 1848, when six New York morning publica- tions-the Courier 6 Enquirer, Express, Herald, Journal of Commerce, Sun, and Tribune-mutually agreed to share expenses of wire news. More or less accidentally this combination came to be known as the Associated Press, or in later years the New York Associated Press. It was never incorporated, and no written statement of its purposes and requirements for membership seems to have been made before 1851. Nevertheless, the New York organization is gen- erally accepted as the first American news agency expressly developed by a group of newspapers. * For a more complete, documented study of this historical development, consult the author's article, "The AP Anti-Trust Suit in Historical Perspective," Journalism Quarterly, v. 23 (March, 1946), pp. 40-57. The following paragraphs are taken from that article, copy- right 1946 by the Journalism Quarterly and used by their permission. Background Note 359 In 1856 the New York City group, which had been expanded to include the Times, revised and strengthened its regulations to provide more specifically that (1) all telegraphic news, with certain stated exceptions, was to be available to all members; (2) no new members were to be admitted without unanimous consent; (3) news obtained by the members or their agents might be "sold to other parties for the general benefit of the Association"; (4) no member news- paper should obtain news from any nonmember newspaper, or other news as- sociation, or release news to it. It is obvious from provisions (2) and (4) that the new group had every intention, from the start, of setting up a tightly controlled combine. Several years later the group's president, William C. Prime, stated that "we do not propose to delegate any of our authority. . . . Newsgathering is our business enterprise and we do not propose to share it with others." The New York Associated Press was strategically situated to effectuate this policy. Geographically dominating the main terminal point for overland tele- graph communications and later for the transatlantic cable, it exploited provi- sion (3) to the fullest, so that by the end of the 1850's newspapers from Boston to Cincinnati were of necessity buying their telegraph news from the New York association and paying as much as one-half of the association's oper- ating expenses without having a voice in its operation. The resentment over their inequitable situation led to the organizing or strengthening of a number of other "associated press" groups in various parts of the country, and to a con- tinuing series of conspiracies of varying degrees of complexity aimed at break- ing the monopoly of the New York AP, at undermining it by stealing its agents or abetting its rivals, and the like. Most of these newer associations adopted in principle the exclusive features of the New York AP, forbidding their members to contract with outside publi- cations or agencies for news service, restricting them to free exchange of all wire news among themselves, and admitting new members only upon approval of large majorities. But where the original New York City organization ap- pears to have rested upon multilateral contract agreements, several of the newer associations secured charters of incorporation, frequently through special acts of the state legislatures. The Western Associated Press, largest of the hinterland agencies, in 1864 secured a special corporate grant from the legislature of Michigan. Besides tightening the bonds of membership, the incorporation gave the "associated press" groups certain competitive advantages in their struggle for control of news communications. For instance, the Michigan charter for the Western AP authorized it to undertake "procuring intelligence . . . from all parts of the world by telegraph or otherwise," to sell stock to the amount of $500,000 to finance the legitimate business of the corporation, etc. A definite, continuing legal entity with a tangible financial basis, the Western AP and similar associations which eventually joined forces with it presented an increasingly serious challenge to the New York City group and forced a certain number of concessions from the latter, the most satisfactory being the creation of an interassociation executive committee in the early eighties. The unabating struggle for supremacy among these associations, however, never permitted a thoroughgoing or long-lived program of cooperation. Moreover, the United Press, a rival service for those evening newspapers and smaller city journals Administrative Law and a Free Press which had been forgotten by the various Associated Press groups, offered keen competition and various blandishments for defection. Thus, during most of the 1870's and 188o's, newsgathering services were kept in a constant state of flux by alternate compacts for mutual assistance and exchange of news, and surrepti- tious efforts to seize advantages over each other. With costs mounting after each new shift in relations, and with workaday news service in a chaotic condition because of these errant rivalries, it was logical that leading publishers should at length perceive that some permanent remedy was essential, and that that was one nationwide incorporation. The Western AP, which had survived the internecine struggle with less finan- cial strain than other groups, dominated the movement for a national organiza- tion, so that it was natural that the culmination of the plan should take place in the middle west. Application for a charter of incorporation for the "Associated Press of Illinois" was made in November, 1892. This application contained a fateful statement that the new national group was to have power "to buy, gather and accumulate information and news; to vend, supply, distribute and publish the same; to purchase, erect, lease, operate, and sell telegraph and tele- phone lines and other means of transmitting news; to publish periodicals; to make and deal in periodicals and other goods, wares and merchandise." The charter was designed to give the new organization sufficient power to correct shortcomings apparent in its predecessors: the authority to deal in tele- graph and telephone lines in particular appears to have been intended as a bargaining factor in future relations with commercial communications agencies to force down their rates on press messages. The other provisions aimed at giving the new association full legal capacity to match the tactics of rival com- mercial news services. In one important respect, however, the new Associated Press carried on a fundamental policy of the earlier regional organizations-from the outset its by-laws provided for exclusive membership and nonintercourse with other newspapers or news agencies. No new members were to be accepted except in accordance with the by-laws of local members or boards of members in cities where AP newspapers were already published; and no member was to accept or furnish news to outsiders, or to publish it in advance of the release date. By- Law VII (2) also provided for the admission as charter members of news- papers of the old Western AP and the United Press, although the latter did not avail themselves of this privilege until the collapse of the old UP in 1897. It had been expected, when the national Associated Press was created, that the United Press could be persuaded to sign a permanent exchange agreement or even to merge with the new corporation. These plans fell through, however, and for the first five years of its existence the Illinois association faced severe competition from its wealthy rival, possessed of a virtual monopoly of foreign news through a contract with Reuters, the leading British agency. Fortunately for the new association, it quickly attracted large numbers of members from the other "associated press" groups-the Northwestern AP (made up of newspapers of the upper Mississippi valley), the Southern AP, the New York State AP (made up of nonmetropolitan newspapers), and many of the original members of the old New York Associated Press itself, when that organization collapsed in 1893. Despite its disadvantage in financial resources and exchange agree- 360 ments at the outset, therefore, the AP of Illinois prospered apace, and when its new general manager, Melville E. Stone, outmaneuvered the UP in its negotia- tions for a new contract with Reuters, it dealt its rival a deathblow. In 1897, with the demise of the United Press, the AP of Illinois emerged as the only major news agency of the country, a national organization at last, and a giant of the newspaper industry. With each new success in its plan of expansion, the AP grew more insistent upon its rules forbidding intercourse with outside agencies. It peremptorily cut off members, or threatened to do so, for the slightest defection from its con- tracts. It worked out improved rate agreements with commercial telegraph com- panies, or else made direct or indirect trials of strength with them until it won concessions. The absolutist policies of the AP, of course, bred resentment and reaction among certain newspapers. The New York Sun, still under the editorship of Charles A. Dana, was especially bellicose, and in 1898 brought two suits against the Associated Press for the latter's action in declaring the Sun "antagonistic" to the association and therefore not to be dealt with by other AP newspapers. While the Sun's equity suit for an injunction was denied and the civil suit for damages was apparently settled out of court, the action is interesting for the allegation in the complaint in equity that the AP was seeking by "contract, combination or conspiracy to monopolize, or to attempt to monopolize, the gathering and selling of news" in violation of both the Federal antimonopoly (Sherman) law of 1890 and an Illinois antiboycott statute of 1891. Dana's action was but one of several which arose on various parts of the by- laws. The Minneapolis Tribune tried unsuccessfully to enjoin the AP's extend- ing its service to a rival newspaper, the court upholding By-Law VII (2) en- titling certain members of the old United Press to full membership. The Ohio State Journal had no better luck in a similar suit. Failing to win concessions from the AP through court action, newspaper interests in a number of states investigated the possibilities of legislative remedies. Some years before, during the era of regional news agency rivalries, the state of Nebraska had enacted a statute requiring like charges by such agencies to all newspapers they served, and requiring commercial telegraph companies to provide equal facilities for all press messages and to accept and transmit all such messages. Kentucky's legislature now passed a bill, over its governor's veto, requiring agents of for- eign corporations to register with the proper state official and further stating: "All foreign corporations formed for the purpose or engaged in the business of buying, gathering or accumulating information or news, or of vending, supply- ing, distributing or publishing the same, shall, as a condition of carrying on any part of said business in this State, at all times, vend, supply, distribute and publish the news and information bought, gathered or accumulated by it, to any and all persons, firms and corporations organized under the laws of this State . . when such person, firm or corporation desires to buy or be supplied with such news and information so bought, gathered or accumulated by such foreign corporation. .. " The Tennessee legislature enacted a similar statute the following year. These laws were, of course, part of the general antitrust movement which was fomenting in state and national capitals during this period, but they were Background Note 361 Administrative Law and a Free Press specifically aimed at the Associated Press of Illinois as the only major "foreign corporation . . . engaged in . . . gathering or accumulating information or news." The challenge to the AP's exclusive membership by-laws contained in these statutes was never taken up in the courts, probably because the same year as the Tennessee enactment--1899-an epochal suit got under way in the home state of the "foreign corporation." The Chicago Inter-Ocean, a charter member of the Illinois corporation, was suspended by the AP for exchanging news with the New York Sun, which itself had previously been declared antagonistic to the association. The Inter-Ocean brought suits for injunction and damages, and carried the case from the original court, where the association was upheld, through the intermediate appellate court which also found for the AP, to the state supreme court. This final tri- bunal, pointing to the original petition for incorporation in which the associa- tion had sought power to build and deal in telegraph and telephone lines, ruled -although the AP had never exercised this particular power-that the charter made it a business affected with a public interest. The court thereupon made its historic decision: "The organization of such a method of gathering information and news from so wide an extent of territory as is done by the appellee corporation, and the dissemination of that news, requires the expenditure of vast sums of money. . Scarcely any newspaper could organize and conduct the means of gather- ing the information that is centered in an association of the character of the appellee because of the enormous expense, and no paper could be regarded as a newspaper of the day unless it had access to, and published the reports from, such an association as the appellee. For news gathered from all parts of the country the various newspapers are almost solely dependent on such an asso- ciation, and if they are prohibited from publishing it, or its use is refused to them, their character as newspapers is destroyed and they would soon become practically worthless publications. The Associated Press, from the time of its organization and establishment in business, sold its news reports to various newspapers who became members, and the publication of that news became of vast importance to the public, so that public interest is attached to the dissemi- nation of that news. The manner in which that corporation has used its fran- chise has charged its business with a public interest. It has devoted its property to a public use, and has, in effect, granted to the public such an interest in its use that it must submit to be controlled by the public for the common good, to the extent of the interest it has thus created in the public in its private property. The sole purpose for which the news was gathered was that the same should be sold, and all newspaper publishers desiring to purchase such news for publica- tion are entitled to purchase the same without discrimination against them." Further indicating its conviction that the AP's membership procedure con- tributed to the condition of a monopoly, the court added: "To enforce the provisions of the contract and this by-law would enable the appellee to desig- nate the character of the news that should be published, and whether true or false, there could be no check on it by publishing news from other sources. Appellee would be powerful in the creation of a monopoly in its favor, and could dictate the character of news it would furnish and could prejudice the interests of the public. Such a power was never contemplated in its creation and 362 is hostile to public interests (Inter-Ocean Publishing Co. v. Associated Press, 184 Ill. 438; 56 N.E. 822 [1900oo])." The decision, of course, was a stunning setback to the whole scheme of na- tionwide organization along the lines of exclusive membership which had been traditional with the earlier regional "associated press" groups. By this decision in its home. state, the AP's most valuable intangible assets were in jeopardy in every other state, particularly in those such as Kentucky, Nebraska, and Tennes- see, where auxiliary antitrust legislation was aimed directly at it. The only other case which was currently brought to challenge its exclusive membership rights was decided, almost at the same time as the Inter-Ocean case, in favor of the association (State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 41o; 60 S.W. 91). Notwithstanding, the leaders of the Associated Press, fully corrob- orated by competent legal counsel, were convinced that the advantages they had sought under the Illinois corporation laws were now worthless. Accordingly, a search began for a state whose corporation laws would offer adequate guarantees for the kind of organization the leading AP members de- sired. New York provided the answer: since as early as 1796, a variety of statutes relating to nonprofit associations and societies had been enacted by the state legislature there. The state's policy had always been to allow the greatest latitude to persons seeking incorporation into such social groups. Accordingly, AP attorneys were able to report back to their clients with this interesting statute: "Any corporation . .. organized under this article for the purpose of gathering, obtaining and procuring information and intelligence, telegraphic or otherwise, for the use and benefit of its members, and to furnish and supply the same to its members for publication in newspapers owned or represented by them, may admit as members thereof other associations, partnerships and in- dividuals engaged in the same business or in the publication of newspapers, periodicals or other publications, upon such terms and conditions not incon- sistent with law or with its certificate of incorporation, as may be prescribed in its by-laws" (italics supplied). The changeover to the new jurisdiction proceeded swiftly; the Illinois court decision was rendered February 19, 1900, and the certificate of incorporation in New York was obtained on May 22 of the same year. On September 30, 1900, the last wire service of the Illinois association was filed, and it formally signaled the end of its existence at a stockholders' meeting in December at which not even a quorum was present, the legal steps having been completed by the retiring directors. The claims of the Inter-Ocean were settled and the suits brought both by that newspaper and the New York Sun were dismissed; and the new Associated Press of New York purchased all outstanding contracts and the physical assets of the Illinois corporation. The New York charter had provided virtually unlimited freedom for the new association to regulate its membership as it saw fit: "The said corporation is an association of certain persons who, owning or representing certain newspapers, unite in a mutual and cooperative organization for the collection and inter- change, with greater economy and efficiency, of information and intelligence for publication in the newspapers owned or represented by them. Other owners or representatives of newspapers, from time to time, may be elected to member- ship in such manner and upon and subject to such conditions, regulations and Background Note 363 364 Administrative Law and a Free Press limitations as may be prescribed by the by-laws, and no person not so elected shall have any right or interest in the corporation or enjoy any of the privileges or benefits thereof" (italics supplied).* Under this carte blanche the former supposed benefits of the Illinois corpora- tion were asserted in stronger language. A resolution was offered at the first meeting of the new AP, forbidding the use by rival press associations of any facilities in the same "office or building" with AP operators. Another highly significant feature was the important "right of protest" which was written into By-Law III (6): "The members of this Corporation may, by an affirmative vote of seven-eighths of all the members, confer upon a member (with such limita- tions as may be at the time prescribed) a right of protest against the admission of new members by the Board of Directors. The right of protest, within the limits specified at the time it is conferred, shall empower the member holding it to demand a vote of the members of the Corporation on all applications for the admission of new members within the district for which it is conferred." Normally, a four-fifths vote of all AP members was to be sufficient to admit new members. However, the votes of AP members were to be allotted as fol- lows: Each member was entitled to one vote upon the fact of his election to membership, and one additional vote for each $25 worth of bonds of the corporation up to $1,ooo purchased by him. Within the first decade of the new corporation's existence it is reported that this provision made it possible for the large newspapers among the 495 charter members to control 5,200 of ap- proximately 6,ooo total votes. At any rate, these provisions show the deter- mination of old-line AP publishers to reap the fullest possible benefits from the type of newsgathering entity they had fought through so many legal difficulties to attain. The juridical background against which the AP leaders were maneuvering their corporate destinies underwent a significant change in the years following the new New York charter. For one thing, the antitrust movement reached a climax, and for another, the prosecution of such cases centered more generally in federal, rather than state, courts. Under the Theodore Roosevelt administra- tion and again during the "progressive movement" of Woodrow Wilson's first term of office, a number of large corporations bore the brunt of trust-busting programs initiated by the government itself or on behalf of numerous individ- nals and competing companies which feared they were being threatened with bankruptcy. There appears to have been some talk of action directed at the new Asso- ciated Press and its ironclad by-laws, but for some reason-possibly because of the appearance of a new United Press and the International News Service to meet the needs of non-AP publishers-no definite move was made until 1914. In that year the New York Sun, still vigorous in its opposition to the idea of an exclusive membership news service, filed the brief of a detailed complaint against the AP with the United States Attorney General as well as with the judiciary committees of both houses of Congress, which at this time was con- sidering means of strengthening the Sherman Act. * The news agency proviso and other special clauses in the New York Membership Corporations Law were eliminated in a general amendment in 1926 which provided, how- ever, that all rights already existing under these clauses should be preserved. Associated Press v. United States The Sun's complaint sketched in detail, with emphasis, of course, upon the monopolistic aspects, the growth of news agencies and the gradual elimination of competition preceding the AP incorporation of 1900. Further, the complaint alleged that the AP had entered into an international news cartel with Reuters, Wolff, and Havas to monopolize the news of the whole world. The complaint concluded with a catalog of specific instances in which the Associated Press, both as an Illinois and a New York corporation, had allegedly boycotted the Sun over a period of two decades. The attorney general found no flaw in the general corporate structure and program of the AP, but did cast some doubt on its policy of forbidding its members to buy news from competing agencies. Accordingly, at its 1915 con- vention, the AP members amended this part of the by-laws. With this con- cession thus ending the nonintercourse tradition dating from 1848, and with the rapid waning of the trust-busting movement in the period of World War I and the 1920's, the prospect of federal prosecution of the AP under the anti- trust laws considerably lessened. Internal adjustments were made in later years upon complaints of publishers within the association. In 1928 the right of protest was accorded all members, and the number of votes was increased by allowing all members to purchase $25 bonds in proportion to their weekly AP assessments. In the 193o's, after prolonged agitation by many members, the association increased its board of directors from fifteen to eighteen to permit representation of newspapers in smaller cities. These were the main events in the historical development of the Associated Press, up to the time of the antitrust suit brought against it by the Chicago Sun and certain other parties. GENERAL PRINCIPLES 1. News agency practices which tend to create a monopoly in the flow of news may constitute a violation of the antitrust laws. In 1942 the United States formally filed a complaint against the Associated Press, seeking a permanent injunction against three practices in restraint of interstate commerce in news. These practices were: (1) the "capacity and opportunity to influence votes" against an applicant for membership, in furtherance of "the principle that exclusion of competitors from AP service is one of the privileges attaching to AP membership"; (2) the requirement that an accepted applicant who is a competitor of an established member pay the latter a sum equal to 1o per cent of the latter's AP assessments since the incorporation of 19oo; and (3) the requirement that the applicant relin- quish any exclusive news services he had previously enjoyed, unless he can persuade these services to supply all other AP members on equal terms. The government's suit was based specifically on the AP's rejection of mem- 365 Administrative Law and a Free Press bership applications by the Chicago Sun and the Washington Times-Herald, and upon the AP's action in cutting off the picture service to Federated Press, a labor news agency, by Wide World Photos upon the AP's acquisition of Wide World. A special court comprised of Judges Augustus N. Hand, Learned Hand, and Thomas W. Swan was appointed to try the case, and in its modified and amended pleadings the government ultimately based its case upon four points: the rejection of the Sun and Times-Herald applications under a general right of protest enjoyed by incumbent members; the cutting off of Wide World picture service to competitors of AP; the exclusive exchange agreement between AP and Canadian Press; and the by-law prohibiting the communication of news to other agencies or publications. The AP modified its by-laws in certain respects before the special court handed down its verdict-the right of protest was removed from the immedi- ate competitors of the applicant, and the requirement that news not be com- municated to nonmembers was amended. Both the AP and the Chicago Tribune, which filed separate answers to the government suit, pointed out that the "io per cent requirement" cited in the original complaint was, in fact, analogous to provisions in the contracts of the other major news services, the United Press and the International News Service. The special court in its opinion read by Judge Learned Hand found that the AP was "not a monopoly in the sense that membership is necessary to build up, or support, even a great newspaper." However, it added, "monopoly is a relative word." In the production of news every step involves the conscious intervention of some news gatherer, and two accounts of the same event will never be the same. . . . For these reasons, it is impossible to treat two news services as inter- changeable, and to deprive a newspaper of the benefit of any news service of the first rating is to deprive the reading public of means of information which it should have. .. The court continued, in rejecting the argument that with the change in by- laws the immediate competitor no longer had a right of protest: Although. . . only a few members will have any direct personal interest in keeping out an applicant, the rest will not feel free to judge him regardless of the effect of his admission on his competitors. Each will know that the time may come when he will himself be faced with the application of a competitor, and that will be true even as to those in whose "field" no opponent has as yet ap- peared. Unless he supports those who now object to the admission of their competitor, he will not in future be likely to get their support against his own. A by-law which leaves it open to members to vote solely as their self-interest may dictate, disregards whatever public interest may exist. (United States v. Associated Press, 52 Fed. Supp. 362) 366 Associated Press v. United States The ruling of the special court was appealed at once to the Supreme Court, where the majority of five justices issued three separate opinions and the minority of four issued two separate dissents. Mr. Justice Black delivered the opinion of the Court. Member publishers of AP are engaged in business for profit exactly as are other businessmen who sell food, steel, aluminum, or anything else people need or want. See International News Service v. Associated Press, 248 U.S. 215, 229, 230. All are alike covered by the Sherman Act. The fact that the publisher handles news while others handle food does not, as we shall later point out, afford the publisher a peculiar constitutional sanctuary in which he can with impunity violate laws regulating his business practices. Nor is a publisher who engages in business practices made unlawful by the Sherman Act entitled to a partial immunity by reason of the "clear and pres- ent danger" doctrine which courts have used to protect freedom to speak, to print, and to worship. That doctrine, as related to this case, provides protec- tion for utterances themselves, so that the printed or spoken word may not be the subject of previous restraint or punishment, unless their expression creates a clear and present danger of bringing about a substantial evil which the government has power to prohibit. Bridges v. California, 314 U.S. 252, 261. Formulated as it was to protect liberty of thought and of expression, it would degrade the clear and present danger doctrine to fashion from it a shield for business publishers who engage in business practices condemned by the Sherman Act. Consequently, we hold that publishers, like all others charged with violating the Sherman Act, are subject to the provisions of the summary judgment statute. And that means that such judgments shall not be rendered against publishers or others where there are genuine disputes of fact on material issues. Accordingly, we treat the cause as did the court below, and will consider the validity of the By-Laws and the contract exclusively on the basis of their terms and the background of facts which the appellants admitted. To put the issue into proper focus, it becomes necessary at this juncture to examine the By-Laws. All members must consent to be bound by them. They impose upon mem- bers certain duties and restrictions in the conduct of their separate businesses. For a violation of the By-Laws severe disciplinary action may be taken by the Association. The Board of Directors may impose a fine of $1,ooo.oo or sus- pend a member and such "action . . . shall be final and conclusive. No mem- ber shall have any right to question the same." The offending member may also be expelled by the members of the corporation for any reason "which in its absolute discretion it shall deem of such a character as to be prejudicial to the interests and welfare of the corporation and its members, or to justify such expulsion. The action of the regular members of the corporation in such regard shall be final and there shall be no right of appeal against or review of such action." These By-Laws, for a violation of which members may be thus fined, suspended, or expelled, require that each newspaper member publish the AP news regularly in whole or in part, and that each shall "promptly furnish to 367 368 Administrative Law and a Free Press the corporation, through its agents or employees, all the news of such mem- ber's district, the area of which shall be determined by the Board of Directors." All members are prohibited from selling or furnishing their spontaneous news to any agency or publisher except to AP. Other By-Laws require each newspa- per member to conduct his or its business in such manner that the news fur- nished by the corporation shall not be made available to any non-member in advance of publication. The joint effect of these By-Laws is to block all newspaper non-members from any opportunity to buy news from AP or any of its publisher members. Admission to membership in AP thereby becomes a prerequisite to obtaining AP news or buying news from any one of its more than twelve hundred publishers. The erection of obstacles to the acquisition of membership consequently can make it difficult, if not impossible, for non-members to get any of the news furnished by AP or any of the individual members of this combination of American newspaper publishers. . Combinations are no less unlawful because they have not as yet resulted in restraint. An agreement or combination to follow a course of conduct which will necessarily restrain or monopolize a part of trade or commerce may violate the Sherman Act, whether it be "wholly nascent or abortive on the one hand, or successful on the other." For these reasons the argument, repeated here in various forms, that AP had not yet achieved a complete monopoly is wholly irrelevant. Undisputed evidence did show, however, that its By-Laws had tied the hands of all of its numerous publishers, to the extent that they could not and did not sell any part of their news so that it could reach any of their non-member competitors. In this respect the court did find, and that finding cannot possibly be challenged, that AP's By-Laws had hindered and restrained the sale of interstate news to non-members who competed with members. Inability to buy news from the largest news agency, or any one of its multitude of members, can have most serious effects on the publication of competitive newspapers, both those presently published and those which, but for these restrictions, might be published in the future. This is illustrated by the District Court's finding that, in 26 cities of the United States, existing newspapers already have contracts for AP news and the same newspapers have contracts with United Press and International News Service under which new newspapers would be required to pay the contract holders large sums to enter the field. The net effect is seriously to limit the opportunity of any new paper to enter these cities. Trade restraints of this character, aimed at the destruc- tion of competition, tend to block the initiative which brings newcomers into a field of business and to frustrate the free enterprise system which it was the purpose of the Sherman Act to protect. We need not again pass upon the contention that trade in news carried on among the states is not interstate commerce, Associated Press v. Labor Board, 301 U.S. 103, or that because AP's activities are cooperative, they fall outside the sphere of business, American Medical Assn. v. United States, 317 U.S. 519, 528. It is significant that when Congress has desired to permit cooperatives to interfere with the competitive system of business, it has done so expressly by legislation. Associated Press v. United States Nor can we treat this case as though it merely involved a reporter's contract to deliver his news reports exclusively to a single newspaper, or an exclusive agreement as to news between two newspapers in different cities. For such trade restraints might well be "reasonable," and therefore not in violation of the Sherman Act. Standard Oil Co. v. United States, 221 U.S. 1. But how- ever innocent such agreements might be, standing alone, they would assume quite a different aspect if utilized as essential features of a program to hamper or destroy competition. It is in this light that we must view this case. It has been argued that the restrictive By-Laws should be treated as be- yond the prohibitions of the Sherman Act, since the owner of the property can choose his associates and can, as to that which he has produced by his own enterprise and sagacity, efforts or ingenuity, decide for himself whether and to whom to sell or not to sell. While it is true in a very general sense that one can dispose of his property as he pleases, he cannot "go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade." United States v. Bausch Lomb Co., 321 U.S. 707, 722. The Sherman Act was specifically intended to prohibit independ- ent businesses from becoming "associates" in a common plan which is bound to reduce their competitors' opportunity to buy or sell the things in which the groups compete. Victory of a member of such a combination over its business rivals achieved by such collective means cannot consistently with the Sherman Act or with practical, everyday knowledge be attributed to individual "enter- prise and sagacity"; such hampering of business rivals can only be attributed to that which really makes it possible-the collective power of an unlawful combination. That the object of sale is the creation or product of a man's ingenuity does not alter this principle. Fashion Originators' Guild v. Federal Trade Commission, 312 U.S. 457. It is obviously fallacious to view the By- Laws here in issue as instituting a program to encourage and permit full freedom of sale and disposal of property by its owners. Rather, these publishers have, by concerted arrangements, pooled their power to acquire, to purchase, and dispose of news reports through the channels of commerce. They have also pooled their economic and news control power and, in exerting that power, have entered into agreements which the District Court found to be "plainly designed in the interest of preventing competition." It is further contended that since there are other news agencies which sell news, it is not a violation of the Act for an overwhelming majority of American publishers to combine to decline to sell their news to the minority. But the fact that an agreement to restrain trade does not inhibit competition in all of the objects of that trade cannot save it from the condemnation of the Sherman Act. It is apparent that the exclusive right to publish news in a given field, furnished by AP and all of its members, gives many newspapers a competitive advantage over their rivals. Conversely, a newspaper without AP service is more than likely to be at a competitive disadvantage. The District Court stated that it was to secure this advantage over rivals that the By-Laws existed. It is true that the record shows that some competing papers have gotten along without AP news, but morning newspapers, which control 369 Administrative Law and a Free Press 96% of the total circulation in the United States, have AP news service. And the District Court's unchallenged finding was that "AP is a vast, intricately reticulated organization, the largest of its kind, gathering news from all over the world, the chief single source of news for the American press, universally agreed to be of great consequence." Nevertheless, we are asked to reverse these judgments on the ground that the evidence failed to show that AP reports, which might be attributable to their own "enterprise and sagacity," are clothed "in the robes of indispensa- bility." The absence of "indispensability" is said to have been established under the following chain of reasoning: AP has made its news generally available to the people by supplying it to a limited and select group of pub- lishers in the various cities; therefore, it is said, AP and its member publishers have not deprived the reading public of AP news; all local readers have an "adequate access" to AP news, since all they need do in any city to get it is to buy, on whatever terms they can in a protected market, the particular newspa- per selected for the public by AP and its members. We reject these conten- tions. The proposed "indispensability" test would fly in the face of the lan- guage of the Sherman Act and all of our previous interpretations of it. Moreover, it would make that law a dead letter in all fields of business, a law which Congress has consistently maintained to be an essential safeguard to the kind of private competitive business economy this country has sought to maintain. ... Finally, the argument is made that to apply the Sherman Act to this association of publishers constitutes an abridgment of the freedom of the press guaranteed by the First Amendment. Perhaps it would be a sufficient answer to this contention to refer to the decisions of this Court in Associated Press v. Labor Board, supra, and Indiana Farmer's Guide Co. v. Prairie Farmer Co., 293 U.S. 268. It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Free- dom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from -governmental interference under the First Amendment does not sanction repression of that freedom by private interests. The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity. . .. The judgment in all three cases is Affirmed. 370 Associated Press v. United States 371 Mr. Justice Frankfurter, concurring.* The District Court properly applied the Sherman Law in enjoining the defendants from continuing to enforce the existing by-laws restricting mem- bership in the Associated Press, and further enjoining the enforcement of another restrictive by-law forbidding Associated Press members to communi- cate "spontaneous" news to nonmembers. I would sustain the judgment sub- stantially for the reasons given below by Judge Learned Hand. 52 F. Supp. 362. The Associated Press is in essence the common agent of about 1,300 newspapers in the various cities throughout the country for the interchange of news which each paper collects in its own territory, and for the gathering, editing, and distributing of news which these member papers cannot collect single-handed, and which requires their pooled resources. The historic devel- opment of this agency, its world-wide scope, the pervasive influence it exerts in obtaining and disseminating information, the country's dependence upon it for news of the world-all these are matters of common knowledge and have been abundantly spread upon the records of this Court. International News Service v. Associated Press, 248 U.S. 215; Associated Press v. Labor Board, 301 U.S. 103. See Desmond, The Press and World Affairs (1937), Chapters I, II, III. The by-laws in controversy operate in substance as a network of agreements among the members of the Associated Press whereby they mobilize the interest of all against the danger of competition to each by a present or future rival-to the extent that inability to obtain an Associated Press "fran- chise" is a serious factor in the competition between papers in the same city. While a member newspaper no longer has an absolute veto power in the denial of facilities of the Associated Press service to a rival paper applying for membership, for practical purposes there remain effective barriers to admis- sion to the Associated Press based solely on grounds of business competition. As Judge Learned Hand has pointed out, the abatement in the by-law from a former absolute veto to a conditional veto against an applicant competing with an existing member "by no means opened membership to all those who would be entitled to it, if the public has an interest in its being free from exclusion for competitive reasons, and if that interest is paramount. Although, as we have said, only a few members will have any direct personal interest in keeping out an applicant, the rest will not feel free to judge him regardless of the effect of his admission on his competitors. Each will know that the time may come when he will himself be faced with the application of a competitor. . . A by-law which leaves it open to members to vote solely as their self- interest may dictate, disregards whatever public interest may exist." 52 F. Supp. 362, 370-371. Indubitably, then, we have here arrangements whereby members of the Associated Press bind one another from selling local news to nonmembers * In another concurring opinion Justice Douglas argued that the AP By-Laws violated the antitrust statute because they aimed at restraining trade and effectuating a monopoly in news. Administrative Law and a Free Press and exercise power, which reciprocal self-interest invokes, to help one another in keeping out competitors from membership in the Associated Press, with all the advantages that it brings to a newspaper. Since the Associated Press is an enterprise engaged in interstate commerce, Associated Press v. Labor Board, supra, these plainly are agreements in restraint of that commerce . To be sure, the Associated Press is a cooperative organization of members who are "engaged in a commercial business for profit." Associated Press v. Labor Board, supra, at 128. But in addition to being a commercial enterprise, it has a relation to the public interest unlike that of any other enterprise pursued for profit. A free press is indispensable to the workings of our demo- cratic society. The business of the press, and therefore the business of the Associated Press, is the promotion of truth regarding public matters by furnishing the basis for an understanding of them. Truth and understanding are not wares like peanuts or potatoes. And so, the incidence of restraints upon the promotion of truth through denial of access to the basis for under- standing calls into play considerations very different from comparable re- straints in a cooperative enterprise having merely a commercial aspect. I find myself entirely in agreement with Judge Learned Hand that "neither exclusively, nor even primarily, are the interests of the newspaper industry conclusive; for that industry serves one of the most vital of all general inter- ests: the dissemination of news from as many different sources, and with as many different facets and colors as is possible. That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amend- ment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selec- tion. To many this is, and always will be, folly; but we have staked upon it our all." 52 F. Supp. 362, 372. From this point of view it is wholly irrelevant that the Associated Press itself has rival news agencies. As to ordinary commodities, agreements to curtail the supply and to fix prices are in violation of the area of free enterprise which the Sherman Law was designed to protect. The press in its commercial aspects is also subject to the regulation of the Sherman Law. Indiana Farm- er's Guide Co. v. Prairie Farmer Co., 293 U.S. 268. But the freedom of enterprise protected by the Sherman Law necessarily has different aspects in relation to the press [from] the case of ordinary commercial pursuits. The interest of the public is to have the flow of news not trammeled by the combined self-interest of those who enjoy a unique constitutional position precisely because of the public dependence on a free press. A public interest so essential to the vitality of our democratic government may be defeated by private restraints no less than by public censorship. Equally irrelevant is the objection that it turns the Associated Press into a "public utility" to deny to a combination of newspapers the right to treat access to their pooled resources as though they were regulating membership in a social club. The relation of such restraints upon access to news and the relation of such access to the function of a free press in our democratic society must not be obscured by the specialized notions that have gathered around the legal concept of "public utility." The short of the matter is that the by-laws which the District Court has 372 Associated Press v. United States struck down clearly restrict the commerce which is conducted by the Asso- ciated Press, and the restrictions are unreasonable because they offend the basic functions which a constitutionally guaranteed free press serves in our nation. Mr. Justice Roberts, dissenting. I think the judgment should be reversed. In respect of most of the questions involved I might rest on the discussion by Judge Swan in his dissenting opin- ion in the District Court. The novelty and importance of the questions, and the summary disposition of them in the court's opinion, have, however, moved me to state my views in detail. This case deals with "news." News is information about matters of general interest. The term has been defined as "a report of a recent event." The report may be made to one moved by curiosity or to one who wishes to make some practical use of it. Newspapers obtain such reports and publish them as a part of a business conducted for profit. The proprietor of a newspaper, when he employs a person to inquire and report, engages personal service. I suppose no one would deny that he is entitled to the exclusive use of the report rendered as a result of the service for which he contracts and pays. I suppose that one rendering such service is free to contract with his employer that the product of his inquiries-the news he furnishes his employer-shall be used solely by the employer and not imparted to another. As I have said, news is the result of effort in the investigation of recent events. Every newspaper is interested in procuring news of happenings in its vicinity, and maintains a staff for that purpose. Such news may have some value to newspapers published in cities outside the locality of the occurrence. I assume that if two publishers agreed that each should supply a transcript of all reports he received to the other, and conditioned their agreement that neither would abuse the privilege accorded, by giving away or selling what was furnished under the joint arrangement, there could be no objection under the Sherman Act. I had assumed, although the opinion appears to hold other- wise, that such an arrangement would not be obnoxious to the Sherman Act because many, rather than few, joined in it. I think that the situation would be no different if a machinery were created to facilitate the exchange of the news procured by each of the participants such as a partnership, an unincor- porated association, or a nonprofit corporation. I assume it cannot be questioned that two or more persons desirous of obtaining news may agree to employ a single reporter, or a staff of reporters, to furnish them news, and agree amongst themselves that, as they share the expense involved, they themselves will use the fruit of the service and will not give it away or sell it. Although the procedure has obvious advantages, and is in itself innocent, I do not know, from the opinion of the court, whether it would be held that the inevitable or necessary operation, or necessary conse- quence, of such an arrangement is to restrain competition in trade or com- merce and that it is, consequently, illegal. Many expressions in the opinion seem to recognize that all AP does is to keep for its members that which, at joint expense, its members and employees have produced,-its reports of world 373 events. Thus it is said that nonmembers are denied access to AP news, not, be it observed, to news. Again it is said that the by-laws "block all newspaper nonmembers from any opportunity to buy news from AP or any of its pub- lisher members"; again that "the erection of obstacles to the acquisition of membership . . . can make it difficult, if not impossible, for nonmembers to get any of the news furnished by AP. . . ." If these expressions stood alone as the factual basis of decision we should know that the court is condemning a joint enterprise for the production of something-here, news copy-which those who produce it intend to use for their exclusive benefit. But it is impos- sible to deduce from the opinion that this is the ratio of decision. I do not understand that the court's decision is pitched on the fact the AP is a membership corporation. The same result could be attained by resort to a multi-party contract, to a partnership, or to an unincorporated association. The choice of the form of the cooperative enterprise does not affect the nature of the problem presented. AP was created to accomplish on a mutual, nonprofit, basis the two objects mentioned. Its purpose is stated by its charter as "the collection and inter- change, with greater economy and efficiency, of information and intelligence for publication in the newspapers" of its members. The organization started on a comparatively modest basis to facilitate exchange of news reports amongst its members. It has grown into a cooperatively maintained news reporting agency having, in addition, its own reporters and agencies for the collection, arrangement, editing, and transmission to its members, of news, gathered by its employees, and those of others with whom it contracts. The question is whether the Sherman Act precludes such a cooperative arrangement and renders those who participate liable to furnish news copy, on equal terms, to all newspapers which desire it, as the court below has held. If so, it must be because the joint arrangement constitutes a contract, combina- tion or conspiracy in restraint of trade, or a monopolization, or an attempt or combination or conspiracy to monopolize part or all of some branch of inter- state or international trade or commerce, or is a public utility subject to regulation. If AP's activities fall within the denunciation of the statute it must be because the members (1) have combined with the purpose to restrain trade by destroying competition; or (2), even though their intent was inno- cent, have set up a combination which either (a) tends unreasonably to restrain, or (b) has in fact resulted in undue and unreasonable restraint of free competition in trade or commerce; or (3) intended and attempted to monopolize a part or all of a branch of trade; or (4) have created an organiza- tion of such proportions that in fact it has such a monopoly; or (5) have created an agency which the Sherman Act renders a public utility subject to regulation notwithstanding the guarantees of the First Amendment of the Constitution. I am unable to determine on which of such possible grounds the judgment of illegality is rested. The court's opinion blends and mingles statements of fact, inferences and conclusions, and quotations from prior opinions wrested from their setting and context, in such fashion that I find it impossible to deduce more than that orderly analysis and discussion of facts relevant to any one of the possible methods of violation of the Sherman Act is avoided, in Administrative Law and a Free Press 374 Associated Press v. United States the view that separate consideration would disclose a lack of support for any finding of specific wrongdoing. But the general principle that nothing added to nothing will not add up to something holds true in this case. It is a tedious task to separate the generalities thus mingled in the opinion, but I can only essay it by discussing one aspect of the case at a time. In limine, it should be remembered that newspaper proprietors who are members of AP are not, as publishers, in the trade of buying or selling news. Their business is the publishing of newspapers. In this business they print inter alia news, editorial comment, special articles, photographs, and advertise- ments. It has been held that a joint effort to obtain advertising to be published in all the papers parties to the arrangement, at special rates, is not a violation of the Sherman Act. It has been repeatedly held by this court that the collec- tion of information on behalf of the membership of an unincorporated asso- ciation, and the furnishing of that information for pay to such persons as the association decides shall share it, is not a violation of the Sherman Act. I think this is not because the exclusive right to use information or news copy ob- tained differs somewhat from property rights in tiles or lumber or pipe or women's fashions or motion-picture film. I think it is because information gathered as the result of effort, or of compensation paid the gatherer, is protected, as is property, until published; and that unauthorized publica- tion by another is a wrong redressible in the same way as unauthorized interference with one's rights in tangible property. In the very case of AP, this court has so held, as has the Attorney General of the United States. As the Attorney General has pointed out, this proposition is subject to the qualifica- tion that there must be no purpose to destroy competition or to monopolize, but with these matters I shall deal hereafter. First. Are the members of AP acting together with the purpose of destroy- ing competition? I have not discovered any allegation in the complaint to that effect. The court below has not made any such finding. They deny any such purpose or intent and yet, as I read passages in the court's opinion, it is now found, on this summary judgment record, without a trial, that they are, and have been, actuated by such an intent. The opinion states: "An agreement or combination to follow a course of conduct which will necessarily restrain or monopolize a part of trade or commerce may violate the Sherman Act, whether it be 'wholly nascent or abortive on the one hand, or successful on the other.' " I take this statement as suggesting the pleadings and proof disclose, without contradiction, that AP and its members agreed or combined to re- strain trade. There is no such allegation in the complaint, and there is not, and cannot be, any finding on this record to support the conclusion. The cases cited in the opinion of agreements to boycott or drive competitors out of business, or to compel merchants to deal only with members of a group, are, as will appear, inapposite to the ease at bar. The defendants say that they merely keep for their own members' use that which their own mem- bers' activity and expenditure has produced. We must not confuse the in- tent of the members with the size of their organization. These two matters seem to be inextricably blended in the court's treatment of the case, but they differ in their nature and as a basis for decision. But, it may be urged, intent is to be gathered from conduct, and those 375 376 Administrative Law and a Free Press whose actions have in fact unduly restrained trade will not be heard to deny the purpose to accomplish the result of their conduct. This is sound doctrine, and it leads to an inquiry as to the actual imposition of prohibited restraints. Second. Has the plan, and have the operations of AP, the inevitable conse- quence of restraining competition between news agencies or newspapers, or have they, and do they now, necessarily tend to, or in fact, unreasonably restrain such competition? On this question the court below made no findings save one of dubious import. It is worth while to quote the finding to which the opinion of this court refers: "The growth of news agencies has been fostered to some extent as a result of the restrictions of the Associated Press' services to its own members, but other restrictions imposed by the Associated Press have hampered and im- peded the growth of competing news agencies and of newspapers competitive with members of the Associated Press." The finding is vague for it fails to specify what is meant by "other restric- tions." The phrase cannot mean the membership restrictions of by-laws, for those are mentioned in the preceding clause. Nor does this court's opinion furnish any additional light. Not only is the finding attacked, as the court's opinion admits, but, in addition, the record negatives the sweeping assumptions the court indulges respecting the effect of AP's activities. The opinion states that the members "have, by concerted arrangements, pooled their power to acquire, to purchase, and to dispose of news reports through the channels of commerce," and, in addition, have "pooled their economic and news control power and, in exerting that power, have entered into agreements which the District Court found to be 'plainly designed in the interest of preventing competition.' " This sentence is characteristic of the opinion. In the first place, as will later appear, the record presents no question of "purchasing power." One cannot purchase the events of history; he can employ someone to report them to him. Does the sentence mean that AP has "purchased" all or most of the available reporters in the nation or the world? Secondly, the sentence seems to attribute to AP some sort of monop- olization of the newspaper publishing business. And, finally, it seems to attrib- ute to the court below a finding that AP has unduly or unreasonably re- strained trade. As will appear, the court below made no such finding and, because it could not do so, sought another ground on which to base its decision. Moreover, the facts assumed are specifically denied by the answer, and contradicted by the proofs. ... The uncontradicted evidence and the findings of the District Court dis- close, amongst others, the following significant facts: In 1942 the total ex- penditures of AP and its subsidiaries were $12,986,000, those of UP and its affiliates $8,628,000 and those of INS and its affiliates $9,434,000. Thus two competitors, found by the court below to be in every way comparable with AP, together expended over $5,000,000 more in that year than AP. In the same year AP had 1,247 domestic and 5 foreign members, UP 981 domestic and 391 foreign subscribers to its services, and INS, in 1941, 338 domestic newspaper subscribers and 3 such foreign subscribers. Here again the total Associated Press v. United States 377 subscribers of its two most substantial competitors outnumbered AP's mem- bership in both the domestic and the foreign field. In the matter of supplying features, news pictures, and news to radio stations, UP and INS would each appear to have at least as many users as AP, although the proofs and the findings do not afford an accurate measure of comparison. Many of the other agencies, as well as UP and INS, make contracts with their subscribers for the exclusive use of their material in the subscriber's area and field. Both UP and INS make what are known as "asset value" contracts with their subscribers, under the terms of which any newspaper in the same area and field must pay to the existing subscriber the asset value of that subscriber's contract in order to obtain the service. Thus all these agencies recognize that the exclusive right to publish the news furnished their members or subscribers is valuable. Neither as respects AP, nor any of the other agen- cies, is there a finding or evidence that such provisions work any hindrance or restraint of competition as between agencies or newspapers. As respects competition between newspapers which are members of AP and others, it is found that newspapers of large circulation in large municipal- ities, as well as those of medium and small circulation, have thriven and grown without AP service. The court below said: "Upon this motion we must take it as in dispute whether the general opinion in the calling is that the service of UP is better than that of AP, or vice versa." Newspapers have given up AP service for that of its competitors. Many, in varying localities and fields, not only belong to AP but patronize one or more of the other services, including UP and INS. Some of the largest and most powerful newspapers in the nation have grown to be such without AP service; not an instance is cited where a proposed newspaper was unable to start, or has been compelled to suspend, publication for lack of it. . I conclude, therefore, that there is no justification for a holding that the operations of AP must inevitably result, or that its activities have in fact resulted, in any undue and unreasonable restraint of free competition in any branch of trade or commerce. Third. Have AP and its members intended, or attempted, to monopolize a branch of trade? As I have already pointed out, the events happening in the world are as open to all men as the air or the sunlight. The only agency required to report them is a human being who will inquire. Surely the supply of reporters is not less difficult to monopolize than the events to be reported. The court below reached conclusions as to monopoly which were required by the record: "AP does not monopolize or dominate the furnishing of news reports, news pictures, or features to newspapers in the United States. "AP does not monopolize or dominate access to the original sources of news. "AP does not monopolize or dominate transmission facilities for the gather- ing or distribution of news reports, news pictures, or features." If the opinion of this court means to suggest that while the news can be gathered by anyone, because no one has, or can have, a monopoly of the events of history, AP monopolizes the services of those who report news which its energies and efforts have employed and trained (which is not shown), then, I submit, we have a new concept of monopolization, namely, that where 378 Administrative Law and a Free Press some person, out of materials open to all, creates his own product, by hiring persons to produce it, that person may not determine to whom he will sell and from whom he will withhold the product. Such a concept can only be justified on the public utility theory upon which the court below proceeded, of which I shall say something later. In spite of the quoted conclusions of the District Court (and no facts are cited in this court's opinion which negative their accuracy), I must take it that the court intends to hold that the pleadings and proofs disclose, without question, an intent or attempt to monopolize. I have quoted the finding made below that AP does not prevent or hinder nonmember newspapers from obtaining access to domestic or foreign news. The facts and figures I have cited above indicate no intent or attempt to absorb the entire field of newsgathering and reporting, to exclude all others from the field, or to take over the entire field, to the end that no newspaper or combination of newspapers can obtain reports of the news. Paragraph 3 of the complaint charges an attempt to monopolize a part of trade and com- merce and a combination and conspiracy to monopolize the same. The answer specifically denies the allegation. The amazing growth of competing agen- cies, and their size, would seem to indicate that any such supposed intent or attempt had been ill served by the operations of AP. At all events, there is no room in a summary judgment proceeding, based on the facts of record, for any such finding. Fourth. Have the defendants created an organization of such proportions as in fact to monopolize any part of trade or commerce? In answering the inquiry I need do little more than refer to the facts already summarized. The opinion seeks support for a holding of monopolization, by referring to a finding of the District Court, in these words: "AP is a vast, intricately reticulated organization, the largest of its kind, gathering news from all over the world, the chief single source of news for the American press, universally agreed to be of great consequence." It may be conceded that the descriptive adjectives are not ill-chosen, but the record would support a like finding with reference to UP and INS, save for the phrases "largest of its kind" and "chief." And, upon a full trial, it may well be that evidence produced would induce significant findings with respect to size and organization of other existing news agencies. Until now it has been unquestioned that size alone does not bring a business organization within the condemnation of the Sherman Act. And any consideration as to size would equally hold true whether the defendant is a single corporation dealing with many persons in trade or commerce or an instrumentality set up by a number of business enterprises to serve them all on a cooperative basis. The argument of the Government seems to assume that UP and INS, inde- pendent corporations, in spite of their size, are not monopolies or attempts to monopolize because they deal at arm's length with their patrons whereas there is something sinister about AP because it deals on the same terms with its own members. I cannot perceive how, if AP falls within the denunciation of the statute, UP and INS do not equally, and by the same test. No significant feature of the practices of the one is absent in those of the others. Fifth. The court's opinion, under the guise of enforcing the Sherman Act, Associated Press v. United States in fact renders AP a public utility subject to the duty to serve all on equal terms. This must be so, despite the disavowal of any such ground of decision. The District Court made this public utility theory the sole basis of decision, because it was unable to find support for a conclusion that AP either in- tended or attempted to, or in fact did, unreasonably restrain trade or monopo- lize or attempt to monopolize all or any part of any branch of trade within the decisions of this court interpreting and applying the Sherman Act . From now on, AP is to operate under the tutelage of the court. It is ordered to submit for approval a revision of its by-laws, and, unless the court approves the changes, it is to be restrained from contracting with its members that they shall not disclose the news it furnishes, and from continuing its existing contract relations with a Canadian news agency, both of which are held, in and of themselves and apart from the alleged illegalities of the by- laws, innocent and legal. However the by-laws may be amended, and what- ever judicial blessing may be given the new text, it is certain that every refusal to deal with any newspaper will evoke a fresh exercise of the judicial guard- ianship. Lawful practices may be threatened with injunction, as they are in the present decree, as a lever to compel obedience in some respect thought important by the court. The decree may well result not in freer competition but in a monopoly in AP or UP, or in some resulting agency, and thus force full and complete regimentation of all news service to the people of the nation. The decree here approved may well be, and I think threatens to be, but a first step in the shackling of the press, which will subvert the constitutional freedom to print or to withhold, to print as and how one's reason or one's interest dictates. When that time comes, the state will be supreme and freedom of the state will have superseded freedom of the individual to print, being responsible before the law for abuse of the high privilege. It is not protecting a freedom, but confining it, to prescribe where and how and under what conditions one must impart the literary product of his thought and research. This is fettering the press, not striking off its chains. The existing situation with respect to radio points the moral of what I have said. In that field Congress has imposed regulation because, in contrast to the press, the physical channels of communication are limited, and chaos would result from unrestrained and unregulated use of such channels. But in impos- ing regulation, Congress has refrained from any restraint on ownership of news or information or the right to use it. And any regulation of this major source of information, in the light of the constitutional guarantee of free speech, should be closely and jealously examined by the courts. The court goes far afield in citing Associated Press v. Labor Board, 301 U.S. 103, and Indiana Farmer's Guide Co. v. Prairie Farmer Co., 293 U.S. 268, as justifying the decree. Apart from the fact that the policy and the implement- ing regulation involved in the Associated Press case was that declared by Congress, not court-made, it is plain from the opinion that the freedom to publish or to refrain from publishing, the control of its news by AP and the entire conduct of its business, save only its duty to deal with employees as a class, was untouched. In the Farmer's Guide case all that was decided was that the newspapers there in question were engaging in interstate commerce 379 Administrative Law and a Free Press and that newspapers, like other business enterprises, can violate the Sherman Act by unreasonably restraining or monopolizing commerce in more than one state. I should be the last to deny the correctness of these propositions. But, as I have already said, when that case came to be retried, it was found that the concert of action in joint solicitation of advertising and granting a reduced rate for it if placed in all the journals in the combination violated none of the provisions of the Act. The Chief Justice joins in this opinion. Mr. Justice Murphy, dissenting. I If it were made clear by the undisputed facts that, by adopting their by-laws, the members of the Associated Press were engaged in a program to hamper or destroy competition, I could accept the decision reached by the Court. But the evidence introduced, in my opinion, falls far short of proving such a program and hence the decision has grave implications relative to govern- mental restraints on a free press. As I view the situation, the members of the Associated Press were entirely within their legal rights in forming a cooperative organization with facilities for the collection and exchange of news and in limiting the membership therein. Members of an incorporated society, as a general rule, may extend the privilege of membership or withhold it on such terms as they see fit. And if exclusive access to these facilities and reports gave the members of the Associated Press a competitive advantage over business rivals who were not members, that alone would not make the advantage unlawful. In restricting the admission of business rivals they were merely trying to preserve for them- selves an advantage that had accrued to them from the exercise of business sagacity and foresight. Such an advantage, as I see it, is not a violation of the Sherman Act. Nor does this advantage require the Associated Press to share its products with competitors. Such a doctrine would discourage com- petitive enterprise and would carry the antitrust laws to absurd lengths. In the words of the court below, "a combination may be within its rights, although it operates to the prejudice of outsiders whom it excludes." 52 F. Supp. 362, 369. Thus for the first time the Court today uses the Sherman Act to outlaw a reasonable competitive advantage gained without the benefit of any of the evils that Congress had in mind when it enacted this statute. On the main issue before us, the record shows a complete absence of any monopoly, domi- nation, price fixing, coercion or other predatory practices by which competi- tion is eliminated to the injury of the public interest. And the District Court was unable to find otherwise. Nothing appears save a large, successful organ- ization which has attempted to protect the fruits of its own enterprise from use by competitors. To conclude on such evidence that the Associated Press has violated the Sherman Act is to ignore the repeated holdings of this Court that the purpose of the statute is to maintain free competition in interstate commerce and to eliminate only those restraints that unreasonably inhibit such competition. 380 Associated Press v. United States II Today is also the first time that the Sherman Act has been used as a vehicle for affirmative intervention by the Government in the realm of dissemination of information. As the Government states, this is an attempt to remove "barriers erected by private combination against access to reports of world news." That newspapers and news agencies are engaged in business for profit is beyond dispute. And it is undeniable that the Associated Press and other press associations can claim no immunity from the application of the general laws or of the Sherman Act in particular. Associated Press v. Labor Board, 301 U.S. 103, 132-133. But at the same time it is clear that they are engaged in collecting and distributing news and information rather than in manufactur- ing automobiles, aluminum or gasoline. We cannot avoid that fact. Nor can we escape the fact that governmental action directly aimed at the methods or conditions of such collection or distribution is an interference with the press, however differing in degree it may be from governmental restraints on written or spoken utterances themselves. The tragic history of recent years demonstrates far too well how despotic governments may interfere with the press and other means of communica- tion in their efforts to corrupt public opinion and to destroy individual free- dom. Experience teaches us to hesitate before creating a precedent in which might lurk even the slightest justification for such interference by the Govern- ment in these matters. Proof of the justification and need for the use of the Sherman Act to liberate and remove unreasonable impediments from the channels of news distribution should therefore be clear and unmistakable. Only then can the precedent avoid being a dangerous one authorizing the use of the Sherman Act for unjustified governmental interference with the distribution of information . . . III The nub of the complaint against the Associated Press is that its by-laws (1) allow discrimination in the condition of admission based upon the factor of an applicant's competition with a present member, and (2) enforce such discriminatory exclusion through a non-trading agreement among members, an agreement which the court below found to be reasonable when considered separately. In other words, these by-law provisions are said to constitute a combination for the purpose of excluding competitors from that part of the market within the scope of the agreement and hence be an unreasonable re- straint of trade within the well-settled meaning of the Sherman Act. It may be conceded that these by-law provisions on their face are restrictive in nature and that their natural effect is to exclude outside newspapers from the benefits of Associated Press membership. But that concession does not prove that these provisions are necessarily so unreasonable in nature as to be a restraint of the type clearly condemned by the Act. They may be regarded on this record as nothing more than the exercise of a trader's right arbitrarily to choose his own associates and to protect the fruits of his own enterprise from use by competitors. Any frustration of competition that might result from 381 Administrative Law and a Free Press such an exercise is a normal incident of trade in a competitive economy, a lawful objective of business enterprise. Certainly the Sherman Act was not designed to discourage men from combining their talents and resources in order to outdo their rivals by producing better goods and services. It was meant to foster rather than to thwart or punish successful competition. Com- petitive practices emerge as unreasonable restraints of trade only if they are infused with an additional element of unfairness, such as monopoly, domina- tion, coercion, price fixing or an unreasonable stifling of competition. If there is such a factor in this instance, however, it lies deep in the unfathomed sea of conflicting or unproved facts. If it were true that the Associated Press monopolizes or dominates the newspaper field, these by-law provisions might be found to be unreasonable restraints of trade. Then the unfairness of excluding outside newspapers be- cause of their competition would be manifest. But the Government makes no such claim. In fact, the District Court specifically found no evidence of mo- noply or domination by the Associated Press in the collection or distribution of news, the means of transmitting the news, or the access to the original sources of the news. A brisk rivalry with the United Press and the Inter- national News Service is recognized in these matters. Associated Press thus has no power, through the use of its by-laws or because of its size, to exclude non- members from receiving or obtaining news reports. In this respect there is no basis for concluding that the by-laws will "necessarily"restrain trade. . If it were shown that the Associated Press, through its by-laws, has stifled or is inevitably bound to stifle competition by nonmember newspapers in an unreasonable manner, so as to injure the public interest, a violation of the Sherman Act would be beyond dispute. This appears to be the primary basis for the result reached by the Court today, for it states that inability to buy news from the Associated Press "can have" most serious effects on competing newspapers and that they are "more than likely" to be at a competi- tive disadvantage. But even if competitive disadvantage, under some circum- stances, is sufficient to prove an unreasonable stifling of competition, the Government has as yet produced no evidence to support the existence or the likelihood of such a disadvantage. On the contrary, the evidence submitted by the Associated Press and accepted as true by the District Court demonstrates that many newspapers have flourished without Associated Press service and have successfully com- peted with Associated Press members. These proofs also indicate that numer- ous papers actually prefer the services of other news agencies to that of Associated Press; several of them having actually dropped their Associated Press membership and become members of one of the other news associations. Moreover, there is a complete lack of any relevant proof justifying the con- clusion that the Associated Press membership policy has prevented or hin- dered the birth of a competing newspaper, prevented or hindered the success- ful operation of one, or caused one to be discontinued. Nor does it appear from the record that any appreciable segment of the public has been unduly deprived of access to world news through inability to read Associated Press dispatches in nonmember newspapers. Indeed, the very presence of Associated Press newspapers in cities where there are com- 382 Associated Press v. United States peting nonmembers would seem to assure the public of Associated Press news at a small cost. The widespread service of the Associated Press, covering both towns with and without competing services, is to that extent a guarantee of adequate access to its dispatches. It is conceivable, of course, that these by-laws "can have" adverse effects upon competition and upon the public. But something more than a bare possibility should be required before we are justified in sanctioning interfer- ence by the Government with the private dissemination of information. There should be clear proof here not only of a competitive advantage but also of some unfair use of any competitive advantage that the Associated Press may possess or proof that it is acting so as to stifle competition unreasonably. Evidence of this nature, moreover, unless it is undisputed, should be thor- oughly tested in the crucible of cross-examination and counter-evidence. An issue of this nature deserves more than a summary disposition. Thus if it were shown that the Associated Press was using its by-laws to fix prices for news reports or to coerce nonmember newspapers in some way, a clear violation of the Sherman Act would be proved. Under certain circum- stances these by-laws conceivably might be employed for the purpose of coercing the nonmembers to join the Associated Press, to refrain from obtain- ing news from other sources or to cease operations. But no attempt has been made by the Government to allege or prove such facts and their existence cannot be assumed any more than we can presuppose unfair destruction of competition in order to justify the decree of the court below. . There is thus no direct or authoritative precedent guiding our decision in this case. None of the foregoing cases or any other that could be cited justifies us in sanctioning the application of the Sherman Act on an unproved as- sumption that a particular combination will "necessarily" and illegally re- strain competition in the face of overwhelming evidence to the contrary. Nor are any of these cases authority for deciding a Sherman Act case on a motion for summary judgment where serious doubts exist as to the alleged unreason- ableness of the restraint of trade. No case, moreover, bids us to sanction an application of the Sherman Act to the business of gathering and distribut- ing news with our eyes closed to the inevitable implications and hazards. We stand at the threshold of a previously unopened door. We should pause long before opening it, lest the path be made clear for dangerious govern- mental interference in the future. A decree of the type present in this case is not of necessity an undue interference by the Government. If it were sup- ported by facts, it would be a reasonable and justifiable method of liberating nonmember newspapers from the alleged coercive yoke of the Associated Press and of assuring the public of full access to the news of the world. But the danger lies in approving such a decree without insisting upon more proof than yet produced by the Government. If unsupported assumptions and con- jectures as to the public interest and competition among newspapers are to warrant a relatively mild decree such as this one, they will also sustain unjust and more drastic measures. The blueprint will then have been drawn for the use of the despot of tomorrow. Since I am of the opinion that the judgment should be reversed and the cause remanded to the District Court for further consideration in light of the 383 384 Administrative Law and a Free Press principles I have mentioned, I do not deem it necessary to comment in detail on the other parts of the decree discussed by the Court. At the same time, however, it seems only fair to state that on the facts presented it is difficult to see any justification for the agreement whereby Associated Press is given the exclusive right to Canadian Press news reports in the United States. As- sociated Press is thereby given an outright monopoly of the only available com- prehensive news coverage of a great nation, no comparable substitute being available. The only other matter remaining in doubt is the by-law restriction which prevents the Associated Press members from making their spontaneous local news available to nonmembers and to rival news agencies. The lower court appears to have thought this provision reasonable when considered apart from the membership restriction. On the present state of the record I am not prepared to disagree although I am inclined to believe that this pro- vision may well be shown to be unreasonable. ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1; 65 S. Ct. 1416; 89 L. Ed. 2013 (1945) CHAPTER XIII Administrative Law and Business Practices 2. Advertising and circulation practices may also constitute a violation of the antitrust laws. The Federal Trade Commission is charged with the responsibility of studying competitive practices of businesses with a view to discovering at- tempts to effectuate a monopoly in violation of the antitrust laws. In a rare instance in which the commission has concerned itself with newspaper busi- ness practices, it reviewed in detail the type of actions taken by one publica- tion against another which it considered to be in violation of the law. Two Oklahoma newspapers were involved; the commission considered charges that one paper had sought to destroy the other, its competitor, by selling its own advertising at rates far below cost, forcing the competitor to sustain heavy losses in advertising revenue and in such advertising accounts as it was able to retain. The charges further alleged that the one paper had made false and disparaging statements about the financial condition of its rival, and in addition had offered subscriptions to readers of the competing publication for substantial periods either at no cost or at greatly reduced rates. In ruling on these practices, the commission also disposed of the question of its jurisdiction, as a federal agency, over a paper published within the borders of a single state. The commission found: The respondent, Blackwell Journal Publishing Company, is, and has been since sometime prior to June i, 1933, a corporation organized and existing under and by virtue of the laws of the State of Oklahoma, with its principal place of business at Blackwell, in said State. Respondent is, and has been since June 1, 1933, engaged in the publication of a daily newspaper known as the Blackwell Daily Journal, its first issue ap- pearing June 11, 1933. Approximately ten percent of the number of copies of said newspaper sold are and have been regularly sold to persons residing outside of the State of Oklahoma, and pursuant to such sales, and as a part thereof, shipment of said papers is and has been made from respondent's place of business at Blackwell to said purchasers. The greater proportion of the copies of said newspaper are and have been sold, both within and without 385 Administrative Law and Business Practices the State, under and pursuant to contracts, known as "subscriptions," for definite periods of time, varying from one week to one or more years. Located also at Blackwell during all the time above mentioned and for more than ten years prior thereto, was and is the Blackwell Tribune Publish- ing Company, a corporation, engaged in the publication of a daily newspaper known as the Blackwell Morning Tribune. Approximately six percent of the number of the copies of said newspaper sold have been and are regularly sold to persons residing outside the State of Oklahoma, and pursuant to such sales, and as a part thereof, shipment of said paper is and has been made from its place of business at Blackwell to said purchasers. The greater proportion of the said papers are sold, both within and outside the State, under and pursuant to contracts, known as "subscriptions," for definite periods of time, varying from one week to one or more years. For convenience said newspaper and corporation will be hereinafter referred to as the Tribune. No other newspaper, except respondent's, is now, or during the time since the establishment of respondent's paper has been, published in Blackwell, and no daily paper nearer than twenty miles. In soliciting and securing subscriptions to their respective newspapers, respondent and the Tribune have been and are in active, substantial competition. In connection with the publication of their respective newspapers, respond- ent and the Tribune solicit and secure, and have solicited and secured, mer- chants, manufacturers, and others desiring to offer their goods to the public, to insert and carry advertisements in said newspapers, for which service the respondent and the Tribune quoted and charged rates based upon the num- ber of column-inches of space used. Among such advertising and advertisers were and are what is known in the newspaper business as "national" advertis- ing and advertisers, that is, advertising done by manufacturers, merchants, and others located in States other than Oklahoma and who advertise their goods in various parts of the United States, as distinguished from "local" advertising and advertisers, advertising by those located in Blackwell and vicinity. In seeking and securing such advertising business the respondent and the Tribune have been and are in active, substantial competition. In connection with and pursuant to the advertising contracts made by respondent and by the Tribune with national advertisers, there are and have been shipped to them by said advertisers, from outside the State of Oklahoma, cuts, electrotypes, stereotypes, mats, and textual copy for use in making up and publishing said advertisements. So that in soliciting and securing subscrip- tions to their respective newspapers from, and in shipping said newspapers to, subscribers located in States other than the State of Oklahoma, and in enter- ing into contracts with national advertisers located outside the State of Okla- homa, resulting in the shipping of said cuts, electrotypes, stereotypes, mats, and textual copy, there exists and has existed a course of trade and commerce among and through various States of the Union, from and to respondent and from and to its said competitor. The sources of income of newspapers, of the class and size of the respond- ent's and its said competitor's newspapers, are two-from "circulation," that is, sale of newspapers, and from the publication of advertisements. In the case of newspapers of the class and size of respondent's and its said competitor's 386 Blackwell Journal Publishing Co. newspapers, the proportion of income from each source to the total income is substantially uniform and constant, and being from 20% to 30% from cir- culation and 8o% to 70% from publication of advertisements. The income from circulation is expected to do, and does, no more, or little more, than to cover the expense of the circulation department. In the two years following the establishment of respondent's paper, its income from circulation was 281/% of its total income and from advertisements 712%. Its circulation department expense has been more than twice its circulation income. A substantial part of respondent's and its competitor's income is and has been from national advertisers and advertising, but the greater proportion is from local advertisers and advertising. The amount of local advertising secured and carried by a newspaper directly affects its appeal as a medium for national advertising, in that national advertisers are wont to select the newspaper which has "local acceptance," that is, that is preferred by local advertisers. The primary purpose or object in the conduct of the various departments of a newspaper of the class and size of respondent's and its said competitor's newspapers is to increase the value of the newspaper as an advertising medium. Such departments consist of current news, editorials, market reports, and other special features. The number of subscribers is also a material element of its value as an advertising medium. The cost of setting up and publishing advertisements in newspapers of the size and class of respondent's and its competitor's newspapers consists of the entire expense of conducting the newspaper, except the circulation expense, which is met by income from circulation. ... Respondent's intent and purpose in quoting rates for advertising below the cost to it of setting up and publishing the same and below the cost at which its said competitor is able to set up and publish advertising in its paper, and the capacity and tendency of same, has been and is to destroy its said com- petitor with the result of giving respondent a monopoly, in the territory served by respondent and its competitor, of the publication of a newspaper and of the publishing of advertisements in said territory. The only sources of income open to respondent in the publishing of its newspaper were and are circulation and advertising. It could not gain an in- come from circulation substantially greater than that necessary to meet the expenses of its circulation department. All other expenses of conducting its newspaper, and all income to create a profit in its operations must come from advertising. .. For a number of years prior to the establishment of respondent's newspaper, the editor of the Tribune, who owned 90% of its stock, and one of these two men had been on opposite sides of the question whether the city of Black- well should sell its municipally owned gas plant. During this time there was a bitter controversy between them, recurring at each city election. Editorials in the Tribune had bitterly attacked the other and he, through circulars, had replied in the same vein. In the last four or five years the ill feeling between them had been augmented by the Tribune championing the city's rights in the matter of the pollution of its water supply by a number of oil operators, among them this creditor of respondent, and the Tribune had printed a number of editorials directed against him and his partner. 387 Administrative Law and Business Practices Personal relations between the editor of the Tribune and the other of the two men were even more antagonistic. They were on opposite sides of a num- ber of State political questions, the editor had been active in an attempt to oust him from a State office, had testified against him in a State investigation of his conduct of this office, and during this time he had made the threat that he could get even with the Tribune's editor. This controversy brought forth a number of editorials in the Tribune attacking him. During the conduct of its said newspaper in competition with its said com- petitor, respondent has made false and disparaging statements to subscribers and prospective subscribers to the Tribune, of and concerning the financial condition and financial strength of its said competitor and concerning its ability to continue to publish its said newspaper, in substance that the Tribune was in a failing financial condition; that the Tribune was heavily indebted and that one of the persons referred to in paragraph 12 hereof had acquired the evidences of such indebtedness and would soon "close out" the Tribune; and that the Tribune would be out of existence before another subscription period would expire. Representatives of respondent, in the course of solicit- ing subscriptions to respondent's paper, also spread the report among sub- scribers and prospective subscribers to the Tribune that respondent's paper was being conducted at a recurring monthly loss for the purpose of "breaking" the publisher of the Tribune, and that the Tribune could not "hold out on that kind of competition." The purpose, capacity and tendency of the making of such statements has been and is to cause subscribers to fail and refuse to continue to subscribe to the Tribune and to prevent others from subscrib- ing. In the course and conduct of the publication of its said newspaper, re- spondent has offered subscriptions, for substantial periods, to its newspaper to subscribers to the newspaper of its competitor, in some cases without cost, and in other cases at an unreasonably low price, for the purpose of causing, and with the tendency to cause, said persons to cease subscribing to its com- petitor's newspaper. The result of the methods of competition which have been used by re- spondent, as hereinabove found and set forth, has been and is to tend to destroy its said competitor; to give respondent a monopoly in the publication of a newspaper and of advertisements in the territory served by respondent and its said competitor; to interfere with and burden interstate commerce in the shipment of newspapers and of electrotypes, stereotypes, mats, and textual copy in interstate commerce; and to deprive the public of the benefits of competition in the publication of advertisements in said territory. CONCLUSION The acts and practices of the respondent, under the circumstances herein- above found and set forth, have been and are to the injury of respondent's competitor, and prejudicial to the public interest, and constitute unfair meth- ods of competition in commerce within the intent and meaning of Section 5 of an Act of Congress approved September 26, 1914, entitled, "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes." 388 Lorain Journal v. United States ORDER TO CEASE AND DESIST This proceeding being before the Federal Trade Commission upon the complaint of the Commission, the answer of respondent, the evidence taken and received, and the briefs of counsel for the Commission and for the re- spondent; And the Commission having made its report in writing stating its findings as to the facts and its conclusion therefrom that respondent has been and is violating the provisions of Section 5 of an Act of Congress approved Septem- ber 26, 1914, entitled, "An Act to create a Federal Trade Commission, to de- fine its powers and duties, and for other purposes," It is hereby ordered, That respondent, the Blackwell Journal Publishing Company, a corporation, its agents, employees and representatives forthwith cease and desist from: 1. Making and circulating false disparaging statements of and concerning the financial condition and responsibility of its competitor or competitors; 2. Offering to newspaper subscribers of its competitor or competitors sub- scription to respondent's newspaper without cost; 3. The practice of quoting or charging rates, for setting up and publishing advertisements, which are below the cost thereof to respondent; for the purpose of injuring a competitor, or those competitors, of respondent whose newspapers circulate in interstate commerce or who solicit and secure contracts for setting up and publishing advertisements, from persons located outside the State of Oklahoma, which contracts contemplate and cause the shipment of cuts, electrotypes, or other property into said State. It is further ordered that within 30 days from the date of the service of this order upon respondent, it shall file with the Commission a report in writ- ing, setting forth in detail the manner and form in which it shall have com- plied with this order. IN THE MATTER OF BLACKWELL JOURNAL PUBLISHING CO., 23 F.T.C. 413 (July lo-November 30, 1936) The last quarter of a century has seen the rapid increase in the number of cities of all sizes in the United States now served by a single newspaper. In many cases the single newspaper also owns or controls the only radio broad- casting station in the community. Where the competing media have disap- peared by reason of economic and financial pressures which were not the result of a conspiracy on the part of the surviving media, the antitrust laws have no application. Wherever there is evidence that a newspaper is deliber- ately engaged in stifling competition, however, the United States may bring a suit under the Sherman Anti-Trust Act. Such an action was brought against the Lorain (Ohio) Journal, and upheld by the Supreme Court of the United States in 1951. In 1932 the Journal bought out the last competing daily newspaper in the city of Lorain. Since that time it had built up its coverage of the city and 389 Administrative Law and Business Practices immediately surrounding territory until at the time of the suit it was reaching 99 per cent of all families in the city. In 1948 the first new competition appeared in the form of an independent radio station, WEOL, operated by the Elyria-Lorain Broadcasting Company from the community of Elyria, eight miles south of Lorain. The Journal's tactics in dealing with this competing medium, which were held by the district court to violate the Sherman Act, were reviewed by the Supreme Court when the case came before it on appeal. The high tribunal by a majority of seven to none, with two justices not taking part in the consideration of the case, sustained the district court's injunction against the newspaper. Mr. Justice Burton read the opinion. The court below found that appellants knew that a substantial number of Journal advertisers wished to use the facilities of the radio station as well. For some of them it found that advertising in the Journal was essential for the promotion of their sales in Lorain County. It found that at all times since WEOL commenced broadcasting, appellants had executed a plan conceived to eliminate the threat of competition from the station. Under this plan the publisher refused to accept local advertisements in the Journal from any Lo- rain County advertiser who advertised or who appellants believed to be about to advertise over WEOL. The court found expressly that the purpose and in- tent of this procedure was to destroy the broadcasting company. The court characterized all this as "bold, relentless, and predatory com- mercial behavior." 92 F. Supp. at 796. To carry out appellant's plan, the pub- lisher monitored WEOL programs to determine the identity of the station's local Lorain advertisers. Those using the station's facilities had their contracts with the publisher terminated and were able to renew them only after ceas- ing to advertise through WEOL. The program was effective. Numerous Lo- rain County merchants testified that, as a result of the publisher's policy, they either ceased or abandoned their plans to advertise over WEOL. ... 1. The conduct complained of was an attempt to monopolize interstate commerce. It consisted of the publisher's practice of refusing to accept local Lorain advertising from parties using WEOL for local advertising. Because of the Journal's complete daily newspaper monopoly of local advertising in Lorain and its practically indispensable coverage of 99% of the Lorain fami- lies, this practice forced numerous advertisers to refrain from using WEOL for local advertising. That result not only reduced the number of customers available to WEOL in the field of local Lorain advertising and strengthened the Journal's monopoly in that field, but more significantly tended to destroy and eliminate WEOL altogether. Attainment of the sought-for elimination would automatically restore to the publisher of the Journal its substantial monopoly in Lorain of the mass dissemination of all news and advertising, interstate and national, as well as local. It would deprive not merely Lorain but Elyria and all surrounding communities of their only nearby radio station. There is a suggestion that the out-of-state distribution of some copies of the Journal, coupled with the considerable interstate commerce engaged in by its publisher in the purchase of its operating supplies, provided, in any event, a 390 Lorain Journal v. United States sufficient basis for classifying the publisher's entire operation as one in inter- state commerce. It is pointed out also that the Journal's daily publication of local news and advertising was so inseparably integrated with its publication of interstate news and national advertising that any coercion used by it in se- curing local advertising inevitably operated to strengthen its entire operation, including its monopoly of interstate news and national advertising. It is not necessary, however, to rely on the above suggestion. The findings go further. They expressly and unequivocally state that the publisher's conduct was aimed at a larger target-the complete destruction and elimination of WEOL. The court found that the publisher, before 1948, enjoyed a substan- tial monopoly in Lorain of the mass dissemination not only of local news and advertising, but of news of out-of--state events transmitted to Lorain for immediate dissemination, and of advertising of out-of-state products for sale in Lorain. WEOL offered competition by radio in all these fields so that the publisher's attempt to destroy WEOL was in fact an attempt to end the in- vasion by radio of the Lorain newspaper's monopoly of interstate as well as local commerce. There can be little doubt today that the immediate dissemination of news gathered from throughout the nation or the world by agencies specially or- ganized for that purpose is a part of interstate commerce. Associated Press v. United States, 326 U.S. 1, 14; Associated Press v. Labor Board, 301 U.S. 103. The same is true of national advertising originating throughout the na- tion and offering products for sale on a national scale. The local dissemination of such news and advertising requires continuous interstate transmission of materials and payments, to say nothing of the interstate commerce involved in the sale and delivery of products sold. The decision in Blumenstock Bros. v. Curtis Pub. Co., 252 U.S. 436, related to the making of contracts for adver- tising rather than to the preparation and dissemination of advertising. More- over, the view there stated, that the making of contracts by parties outside of a state for the insertion of advertising material in periodicals of nationwide circulation did not amount to interstate commerce, rested expressly on a line of cases holding "that policies of insurance are not articles of commerce, and that the making of such contracts is a mere incident of commercial inter- course." Id., at 443. See Paul v. Virginia, 8 Wall. 168, and New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495. That line of cases no longer stands in the way. Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268. The distribution within Lorain of the news and advertisements transmitted to Lorain in interstate commerce for the sole purpose of immediate and profit- able reproduction and distribution to the reading public is an inseparable part of the flow of the interstate commerce involved. Unless protected by law, the consuming public is at the mercy of restraints and monopolizations of inter- state commerce at whatever points they occur. Without the protection of competition at the outlets of the flow of interstate commerce, the protection of its earlier stages is of little worth. 2. The publisher's attempt to regain its monopoly of interstate commerce by forcing advertisers to boycott a competing radio station violated sec. 2. The findings and opinion of the trial court describe the conduct of the 391 Administrative Law and Business Practices publisher upon which the Government relies. The surrounding circumstances are important. The most illuminating of these is the substantial monopoly which was enjoyed in Lorain by the publisher from 1933 to 1948, together with a 99% coverage of Lorain families. Those factors made the Journal an indispensable medium of advertising for many Lorain concerns. Accordingly, its publisher's refusals to print Lorain advertising for those using WEOL for like advertising often amounted to an effective prohibition of the use of WEOL for that purpose. Numerous Lorain advertisers wished to supplement their local newspaper advertising with local radio advertising but could not afford to discontinue their newspaper advertising in order to use the radio. WEOL's greatest potential source of income was local Lorain advertising. Loss of that was a major threat to its existence. The court below found un- equivocally that appellants' conduct amounted to an attempt by the publisher to destroy WEOL and, at the same time, to regain the publisher's pre-1948 substantial monopoly over the mass dissemination of all news and advertising. To establish this violation of sec. 2 as charged, it was not necessary to show that success rewarded appellants' attempt to monopolize. The injunctive re- lief under sec. 4 sought to forestall that success. While appellants' attempt to monopolize did succeed insofar as it deprived WEOL of income, WEOL has not yet been eliminated. The injunction may save it. "(W)hen that in- tent [to monopolize] and the consequent dangerous probability exist, this statute [the Sherman Act], like many others and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result." Swift 6 Co. v. United States, 196 U.S. 375, 396. [The] second section [of the Sherman Act] seeks, if possible, to make the prohibitions of the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the first section, that is, restraints of trade, by any attempt to monopolize, or monopolization thereof, even although the acts by which such results are attempted to be brought about be not em- braced within the general enumeration of the first section. Standard Oil Co. v. United States, 221 U.S. 1, 61. Assuming the interstate character of the commerce involved, it seems clear that if all the newspapers in a city, in order to monopolize the dissemination of news and advertising by eliminating a competing radio station, conspired to accept no advertisements from anyone who advertised over that station, they would violate sees. 1 and 2 of the Sherman Act. It is consistent with that result to hold here that a single newspaper, already enjoying a substantial monopoly in its area, violates the "attempt to monopolize" clause of sec. 2 when it uses its monopoly to destroy threatened competition. The publisher claims a right as a private business concern to select its customers and to refuse to accept advertisements from whomever it pleases. We do not dispute that general right. "But the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified." American Bank 6 Trust Co. v. Federal Bank, 256 U.S. 3o50, 358. The right claimed by the publisher is neither absolute nor exempt from regulation. Its 392 Lorain Journal v. United States exercise as a purposeful means of monopolizing interstate commerce is pro- hibited by the Sherman Act. The operator of the radio station, equally with the publisher of the newspaper, is entitled to the protection of that Act. "In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discre- tion as to parties with whom he will deal." United States v. Colgate 6 Co., 250 U.S. 300, 307. 3. The injunction does not violate any guaranteed freedom of the press. The publisher suggests that the injunction amounts to a prior restraint upon what it may publish. We find in it no restriction upon any guaranteed freedom of the press. The injunction applies to a publisher what the law applies to others. The publisher may not accept or deny advertisements in an "attempt to monopolize . . . any part of the trade or commerce among the several States. . . ." Associated Press v. United States, supra, at 6-7, 20; Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268. See also, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 192; Mabee v. White Plains Pub. Co., .327 U.S. 178, 184; Associated Press v. Labor Board, 301 U.S. 103. Injunctive relief under sec. 4 of the Sherman Act is as appro- priate a means of enforcing the Act against newspapers as it is against others. 4. The decree is reasonably consistent with the requirements of the case and remains within the control of the court below. We have considered the objections made to the form and substance of the decree and do not find obvious error. It is suggested, for example, that the decree covers a broader scope of activities than is required by the evidence and requires unnecessary supervision of future conduct of the publisher, that notice of its terms must be published at least once a week for 25 weeks and that the publisher for five years must maintain records relating to the subject of the judgment and keep them accessible for governmental inspection. While the decree should anticipate probabilities of the future, it is equally important that it do not impose unnecessary restrictions and that the pro- cedure prescribed for supervision, giving notice, keeping records and making inspections be not unduly burdensome. In the instant case the printed record contains neither the entire testimony nor all the exhibits which were before the court below. It omits also ma- terial mentioned during the trial as having been considered by the court when 'denying the Government's motion for a temporary injunction. Under the cir- cumstances we are content to rely upon the trial court's retention of juris- diction over the cause for whatever modification the decree may require in the light of the entire proceedings and of subsequent events. See Associated Press v. United States, supra, at 22-23; United States v. Bausch 6 Lomb Co., suPra, at 727-729. The judgment accordingly is Affirmed. LORAIN JOURNAL V. UNITED STATES, 342 U.S. 143; 72 S. Ct. 181; 96 L. Ed. 162 (1951) 393 Where a newspaper is not the only advertising medium, or cannot be shown to be the "dominant" advertising medium in a community, the Su- preme Court has not been prepared to hold that practices which offer adver- tising on terms which cannot be matched by the competitor are necessarily in violation of the antitrust laws. The court was asked to rule on the govern- ment's contention, upheld by the lower federal court, that the "unit" plan of selling advertising-that is, requiring a buyer of advertising to take space in both the morning and evening papers owned by the same publisher-unduly handicapped a competing newspaper in the same community. The case in- volved the three New Orleans papers-the Times-Picayune and the States, jointly owned, and the competing Item. By a five-to-four majority the high court reversed the district court. Mr. Justice Clark read the majority opinion. At issue is the legality under the Sherman Act of the Times-Picayune Pub- lishing Company's contracts for the sale of newspaper classified and general display advertising space. The Company in New Orleans owns and publishes the morning Times-Picayune and the evening States. Buyers of space for gen- eral display and classified advertising in its publications may purchase only combined insertions appearing in both the morning and evening paper, and not in either separately. The United States filed a civil suit under the Sher- man Act, challenging these "unit" or "forced combination" contracts as un- reasonable restraints of interstate trade, banned by sec. 1, and as tools in an attempt to monopolize a segment of interstate commerce, in violation of sec. 2. After intensive trial of the facts, the District Court found violations of both sections of the law and entered a decree enjoining the Publishing Company's use of these unit contracts and related arrangements for the marketing of advertising space. In No. 374, the Publishing Company appeals the merits of the District Court's holding under the Sherman Act; the Govern- ment, in No. 375, seeks relief broader than the District Court's decree. Both appeals come directly here under the Expediting Act. Testimony in a voluminous record retraces a history of over twenty-five years. Prior to 1933, four daily newspapers served New Orleans. The Item Company, Ltd., published the Morning Tribune and the evening Item. The morning Times-Picayune was published by its present owners, and the Daily States Publishing Company, Ltd., an independent organization, distributed the evening States. In 1933, the Times-Picayune Publishing Company pur- chased the name, good will, circulation, and advertising contracts of the States, and continued to publish it evenings. The Morning Tribune of the Item Co., Ltd., suspended publication in 1941. Today the Times-Picayune, Item and States remain the sole significant newspaper media for the dissenm- ination of news and advertising to the residents of New Orleans. The Times-Picayune Publishing Company distributes the leading news- paper in the area, the Times-Picayune. The 1933 acquisition of the States did not include its plant and other physical assets; since the States' absorption the Publishing Company has utilized facilities at a single plant for printing and distributing the Times-Picayune and the States. Unified financial, pur- Administrative Law and Business Practices 394 Times-Picayune v. United States chasing, and sales administration, in addition to a substantial segment of personnel servicing both publications, results in further joint operation. Al- though both publications adhere to a single general editorial policy, distinct features and format differentiate the morning Times-Picayune from the eve- ning States. 1950 data reveal a daily average circulation of 188,402 for the Times-Picayune, 114,660 for the Item, and 105,235 for the States. The Times- Picayune thus sold nearly as many copies as the circulation of the Item and States together. Each of these New Orleans publications sells advertising in various forms. Three principal classes of advertising space are sold: classified, general, and local display. Classified advertising known as "want ads" includes individual insertions under various headings; general, also called national, advertising typ- ically comprises displays by national manufacturers or wholesale distributors of brand-name goods; local, or retail, display generally publicizes bargains by local merchants selling directly to the public. From 1924 until the Morning Tribune's demise in 1941, the Item Company sold classified advertising space solely on the unit plan by which advertisers paid a single rate for iden- tical insertions appearing both in the morning and evening paper and could not purchase space in either alone. After the Times-Picayune Publishing Com- pany acquired the States in 1933, it offered general advertisers an optional plan by which space combined in both publications could be bought for less- than the sum of the separate rates for each. Two years later it adopted the unit plan of its competitor, the Item Co., Ltd., in selling space for classified ads. General advertisers in the Publishing Company's newspapers were also availed volume discounts since 1940, but had to combine insertions in both publications in order to qualify for the substantial discounts on purchases of more than 1o,ooo lines per year. Local display ads as early as 1935 were marketed under a still effective volume discount system which for determin- ing the discount bracket in the States permitted cumulation of lineage placed in the Times-Picayune as well. In 1950, however, the Publishing Company eliminated all optional plans for general advertisers, and instituted the unit plan theretofore applied solely to classified ads. As a result, since 1950 general and classified advertisers cannot buy space in either the Times-Picayune or the States alone, but must insert identical copy in both or none. Against that practice the Government levels its attack grounded on sees. 1 and 2 of the Sherman Act. After the District Court at the outset denied the Government's motion for partial summary judgment holding the unit contracts per se violations of sec. 1, the case went to trial and eventuated in comprehensive and detailed find- ings of fact. The Times-Picayune and the States, though published by a single publisher, were two distinct newspapers with individual format, news and feature content, reaching separate reader groups in New Orleans. The Times- Picayune, the sole local morning daily which for twenty years outdistanced the States and Item in circulation, published pages, and advertising lineage, was the "dominant" newspaper in New Orleans; insertions in that paper were deemed essential by advertisers desiring to cover the local market. Al- though the local publishing field permits entry by additional competitors, the Item today is the sole effective daily competition which the Times- 395 Administrative Law and Business Practices Picayune Publishing Company's two newspapers must meet. On the other hand, their quest for advertising lineage encounters the competition of other media, such as radio, television, and magazines. Nevertheless, the District Court determined, the adoption of unit selling caused a substantial rise in classified and general advertising lineage placed in the States, enabling it to enhance its comparative position toward the Item. The District Court found, moreover, that the defendants had instituted the unit system, economically enforceable against buyers solely because of the Times-Picayune's "domi- nant" or "monopoly position," in order to "restrain general and classified advertisers from making an untrammeled choice between the States and the Item in purchasing advertising space, and also to substantially diminish the competitive vigor of the Item." On the basis of these findings, the District Judge held the unit contracts in violation of the Sherman Act. The contracts were viewed as tying ar- rangements which the Publishing Company because of the Times-Picayune's "monopoly position" could force upon advertisers. Postulating that contracts foreclosing competitors from a substantial part of the market restrain trade within the meaning of sec. 1 of the Act, and that effect on competition tests the reasonableness of a restraint, the court deemed a substantial percent- age of advertising accounts in the New Orleans papers unlawfully "restrained." Further, a violation of sec. 2 was found: defendants by use of the unit plan "attempted to monopolize that segment of the afternoon newspaper general and classified advertising field which was represented by those advertisers who also required morning newspaper space and who could not because of budgetary limitations or financial inability purchase space in both afternoon newspapers." Injunctive relief was accordingly decreed. The District Court enjoined the Times-Picayune Publishing Company from (A) selling advertising space in any newspaper published by it "upon the condition, expressed or implied, that the purchaser of such space will contract for or purchase advertising space in any other newspaper published by it"; (B) refusing to sell advertising space separately in each newspaper which it publishes; (C) using its "dom- inant position" in the morning field "to sell any newspaper advertising at rates lower than those approximating either (1) the cost of producing and selling such advertising or (2) comparable newspaper advertising rates in New Orleans." Hence these appeals. The daily newspaper, though essential to the effective functioning of our political system, has in recent years suffered drastic economic decline. A vigor- ous and dauntless press is a chief source feeding the flow of democratic ex- pression and controversy which maintains the institutions of a free society. Associated Press v. United States, 326 U.S. 1, 20, 89 L. Ed. 2013, 2030, 65 S. Ct. 1416 (1945). By interpreting to the citizen the policies of his govern- ment and vigilantly scrutinizing the official conduct of those who administer the state, an independent press stimulates free discussion and focuses public opinion on issues and officials as a potent check on arbitrary action or abuse. Cf. Grosjean v. American Press Co., 297 U.S. 233, 250, 80 L. Ed. 660, 668, 56 S. Ct. 444 (1936); Near v. Minnesota, 283 U.S. 697, 716-718, 75 L. Ed. 1357, 1367-1369, 51 S. Ct. 625 (1931). The press, in fact, "serves 396 Times-Picayune v. United States one of the most vital of all general interests: the dissemination of news from as many different sources, and with as many different facets and colors as is possible. That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right con- clusions are more likely to be gathered out of a multitude of tongues, than -through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." Yet today, despite the vital task that in our society the press performs, the number of daily newspapers in the United States is at its lowest point since the century's turn: in 1951, 1,773 daily newspapers served 1,443 American cities, compared with 2,600 dailies published in 1,207 cities in the year 1909. Moreover, while 598 new dai- lies braved the field between 1930 and 1950, 373 of these suspended publica- tion during that period-less than half of the new entrants survived. Concur- rently, daily newspaper competition within individual cities has grown nearly extinct: in 1951, 81% of all daily newspaper cities had only one daily paper; 11% more had two or more publications, but a single publisher controlled both or all. In that year, therefore, only 8% of daily newspaper cities enjoyed the clash of opinion which competition among publishers of their daily press could provide. Advertising is the economic mainstay of the newspaper business. Generally, more than two-thirds of a newspaper's total revenues flow from the sale of advertising space. Local display advertising brings in about 44% of revenues; general-14%; classified--13%; circulation, almost the rest. Obviously, news- papers must sell advertising to survive. And while newspapers in 1929 gar- nered 79% of total national advertising expenditures, by 1951 other mass media had cut newspapers' share down to 34.7%. When the Times-Picayune Publishing Company in 1949 announced its forthcoming institution of unit selling to general advertisers, about 180 other publishers of morning- evening newspapers had previously adopted the unit plan. Of the 598 daily newspapers which broke into publication between 1929 and 1950, 38% still published when that period closed. Forty-six of these entering dailies, however, encountered the competition of established dailies which utilized unit rates; significantly, by 1950, of these 46, 41 had collapsed. Thus a new- comer in the daily newspaper business could calculate his chances of sur- vival as 11% in cities where unit plans had taken hold. Viewed against the background of rapidly declining competition in the daily newspaper business, such a trade practice becomes suspect under the Sherman Act. Tying arrangements, we may readily agree, flout the Sherman Act's policy that competition rule the marts of trade. Basic to the faith that a free economy best promotes the public weal is that goods must stand the cold test of com- petition; that the public, acting through the market's impersonal judgment shall allocate the Nation's resources and thus direct the course its economic development will take. Yet "[t]ying agreements serve hardly any purpose beyond the suppression of competition." Standard Oil Co. v. United States, 337 U.S. 293, 305, 93 L. Ed. 1371, 1381, 69 S. Ct. 1051 (1949). By condition- ing his sale of one commodity on the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the "tied" product's mer- its and insulates it from the competitive stresses of the open market. But any 397 Administrative Law and Business Practices intrinsic superiority of the "tied" product would convince freely choosing buyers to select it over others, anyway. Thus "[i]n the usual case only the prospect of reducing competition would persuade a seller to adopt such a con- tract and only his control of the supply of the tying device, whether conferred by patent monopoly or otherwise obtained, could induce a buyer to enter one." Id., 337 U.S. at 306. Conversely, the effect on competing sellers attempt- ing to rival the "tied" product is drastic: to the extent the enforcer of the tying arrangement enjoys market control, other existing or potential sellers are foreclosed from offering up their goods to a free competitive judgment; they are effectively excluded from the marketplace. . Once granted that the volume of commerce affected was not "insignificant or insubstantial," the Times-Picayune's market position becomes critical to the case. The District Court found that the Times-Picayune occupied a "dominant position" in New Orleans; the sole morning daily in the area, it led its competitors in circulation, number of pages and advertising lineage. But every newspaper is a dual trader in separate though interdependent mar- kets; it sells the paper's news and advertising content to its readers; in effect that readership is in turn sold to the buyers of advertising space. This case concerns solely one of these markets. The Publishing Company stands ac- cused not of tying sales to its readers but only to buyers of general and classi- fied space in its papers. For this reason, dominance in the advertising market, not in readership, must be decisive in gauging the legality of the Company's unit plan. Cf. Lorain Journal Co. v. United States, 342 U.S. 143, 149, 150, 152, 153, 96 L. Ed. 162, 169-171, 72 S. Ct. 181 (1951); United States v. Paramount Pictures, supra (334 U.S. at 166, 167); Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 278, 279, 79 L. Ed. 356, 361, 362, 55 S. Ct. 182 (1934). The "market," as most concepts in law or economics, cannot be measured by metes and bounds. Nor does the substance of Sherman Act violations typ- ically depend on so flexible a guide. Section 2 outlaws monopolization of any "appreciable part" of interstate commerce, and by sec. 1 unreasonable restraints are banned irrespective of the amount of commerce involved. But the essence of illegality in tying agreements is the wielding of monopolistic leverage; a seller exploits his dominant position in one market to expand his empire into the next. Solely for testing the strength of that lever, the whole and not part of a relevant market must be assigned controlling weight. We do not think that the Times-Picayune occupied a "dominant" position in the newspaper advertising market in New Orleans. Unlike other "tying" cases where patents or copyrights supplied the requisite market control, any equivalent market "dominance" in this case must rest on comparative market- ing data. Excluding advertising placed through other communications media and including general and classified lineage inserted in all New Orleans dailies, as we must since the record contains no evidence which could circumscribe a broader or narrower "market" defined by buyers' habits or mobility of de- mand, the Times-Picayune's sales of both general and classified lineage over the years hovered around 40%. Obviously no magic inheres in numbers; "the relative effect of percentage command of a market varies with the setting in which that factor is placed." If each of the New Orleans publications 398 Times-Picayune v. United States shared equally in the total volume of lineage, the Times-Picayune would have sold 333%o; in the absence of patent or copyright control, the small existing increment in the circumstances here disclosed cannot confer that market "dominance" which, in conjunction with a "not insubstantial" volume of trade in the "tied" product, would result in a Sherman Act offense. . The District Court determined that the Times-Picayune and the States were separate and distinct newspapers, though published under single owner- ship and control. But that readers consciously distinguished between these two publications does not necessarily imply that advertisers bought separate and distinct products when insertions were placed in the Times-Picayune and the States. So to conclude here would involve speculation that advertisers bought space motivated by considerations other than customer coverage; that their media selections, in effect, rested on generic qualities differentiating morning from evening readers in New Orleans. Although advertising space in the Times-Picayune, as the sole morning daily, was doubtless essential to blanket coverage of the local newspaper readership, nothing in the record suggests that advertisers viewed the city's newspaper readers, morning or evening, as other than fungible customer potential. We must assume, therefore, that the reader- ship "bought" by advertisers in the Times-Picayune was the self-same "prod- uct" sold by the States and, for that matter, the Item. The factual departure from the "tying" cases then becomes manifest. The common core of the adjudicated unlawful tying arrangements is the forced purchase of a second distinct commodity with the desired purchase of a dominant "tying" product, resulting in economic harm to competition in the "tied" market. Here, however, two newspapers under single ownership at the same place, time, and terms sell indistinguishable products to ad- vertisers; no dominant "tying" product exists (in fact, since space in neither the Times-Picayune nor the States can be bought alone, one may be viewed as "tying" as the other); no leverage in one market excludes sellers in the second, because for present purposes the products are identical and the market the same. Cf. Standard Oil Co. v. United States, 283 U.S. 163, 176-178, 75 L. Ed. 926, 949-951, 51 S. Ct. 421 (1931); United States v. Aluminum Co. of America, 148 F. 2d 416, 424 (1945, CA 2d N.Y.); compare Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 278-280, 79 L. Ed. 356, 361, 362, 55 S. Ct. 182 (1934). In short, neither the rationale nor the doctrines evolved by the "tying" cases can dispose of the Publishing Company's arrangements challenged here. The Publishing Company's advertising contracts must thus be tested under the Sherman Act's general prohibition on unreasonable restraints of trade. For purposes of sec. 1, "[a] restraint may be unreasonable either because a re- straint otherwise reasonable is accompanied with a specific intent to accom- plish a forbidden restraint or because it falls within the class of restraints that are illegal per se." United States v. Columbia Steel Co., 334 U.S. 495, 522, 92 L. Ed. 1533, 1551, 68 S. Ct. 1107 (1948) . ... The record is replete with relevant statistical data. The volume discounts available to local display buyers were not held unlawful by the District Court, and the Government does not assail the practice here. That segment of ad- vertising lineage, by far the largest revenue producer of the three lineage 399 Administrative Law and Business Practices classes sold by all New Orleans newspapers, is thus eliminated from con- sideration. Consequently, only classified and display lineage data can be scru- tinized for possible forbidden effects. Classified.-The Item Company, then publishing the Morning Tribune and the evening Item, utilized unit rates for classified advertising in its papers in the year the Times-Picayune Company absorbed the evening States. In 1933, the Item Company's classified lineage totaled 2.72 million, compared with the Times-Picayune Company's total of 2.12 million. Equalizing the competitive relationship, the Times-Picayune Company in 1935 countered by adopting the unit-rate system of its rival. In that year the Times-Picayune sold 2.84 million, to the Item Company's 2.35 million, lines. While thus evenly matched, the Times-Picayune over the years steadily increased its lead. That Company sold 3.52 million lines in 1938, and 3.76 in 1939; the Item Com- pany totaled 2.23 and 2.18, respectively. In fact the Times-Picayune Publish- ing Company in every year but 1938 advanced its lineage total; since 1936 the Item Company's totals declined yearly, solely excepting 1940. At the end of that year [1940] the Item Company's Morning Tribune suspended publication, a new local competitive structure took form. In that first year the Item, as sole competitor of the Times-Picayune Company's two dailies, sold 1.23 million lines of classified lineage, compared with 2.09 mil- lion for the Times-Picayune and 2.08 for the States; the Item's share thus accounted for roughly 23% of the total. Ten years later the Item's share had declined to approximately 20o%; in 1950 it sold 2.17 million lines, com- pared with the Times-Picayune Publishing Company's total lineage of 8.91 million, comprising 4.36 million for the Times-Picayune and 4.55 for the States. Measured against the evening States alone, the Item's percentage attrition is comparable. In 1941 it sold 37% of the two evening papers' total lineage; by 1950 that share had declined to 32%. Thus, over a period of ten years competition while facing its morning-evening rival's compulsory unit rate the New Orleans Item's share of the New Orleans classified lineage mar- ket declined 3%; viewed solely in relation to its evening competitor, its per- centage loss amounted to 5%. General Display.-Because the unit rate applicable to general display line- age was instituted to become effective 1950, only one year's comparative data are in the record. In 1949, general display lineage in all New Orleans dailies totaled 6.84 million, comprising 3.04 million lines in the Times-Picayune, 1.93 million in the States, and 1.87 million in the Item; the Publishing Company ran 73% of the total. One year's experience with the unit rate for general display advertising showed a New Orleans total volume of 7.37 million lines, roughly apportioned as 2.96 million in the Times-Picayune, 2.55 million in the States, and 1.85 million in the Item; the Publishing Company's share had risen to 75%. Compared with the States alone, the Item in 1949 accounted for 49% of the two evening papers' total; in 1950, that had declined to 42%. In that year, a reallocation of advertising accounts also took place. In 1949, 23-7% of general display advertisers utilized the Times-Picayune Publishing Company's publications exclusively; one year later that percentage had risen 400 Times-Picayune v. United States to 41%. Concurrently, however, accounts advertising solely in the Times- Picayune declined from 22.7% to 5.8%, and sole advertisers in the States dropped from 2% to 0.4%. On the other hand, in 1950, 10.6%, compared with 9.6% the year before, of general display accounts inserted solely in the Item; and the segment of advertising accounts inserting in all three publica- tions rose from 30.4% in 1949 to 39% in the following year. In fact, while in 1949 only 51.6% of general display accounts utilized the Item either ex- clusively or in conjunction with other New Orleans dailies, one year later 52.8% of the accounts so patronized the Item. The record's factual data, in sum, do not demonstrate that the Publishing Company's advertising contracts unduly handicapped its extant competitor, the Item. In the early years when four-cornered newspaper competition for classified lineage prevailed in New Orleans, the ascendancy of the Pub- lishing Company's papers over their morning-evening competitor soon became manifest. With unit plan pitted on even terms against unit plan, over the years the local market pattern steadily evolved from the Times-Picayune Company's rise and the Item Company's decline. With the Morning Tribune's demise in 1940, the market shrank but the pattern remained. The Item continued its gradually declining share of the market, though in fact the Times-Picayune's unit rate for "classified" between 1940 and 1950 coincided with a reversal of the trend marking the Item's absolute volume decline. Even less competitive hurt is discernible from the Publishing Com- pany's unit rate for general display lineage. True, in the single recorded year of its existence the combination plan did diminish by 7% the Item's share of lineage if measured solely against the States. Versus the lineage sold by the Publishing Company in its two newspapers, however, the Item's share of the total market declined but 2%. That apparent incongruity is simply explained: Compared with 1949 monthly volume data, the unit rate in each of the 1 months of its operation in 1950 drew lineage away from the Times- Picayune and toward the States. In effect, the Publishing Company's unit plan merely reallocated the lineage sold by its two constituent papers. And not only did the unit plan take from the Times-Picayune and give to the States. Apparently it also led more advertisers to insert in the Item, which sold general display space to a proportionately greater number of accounts in 1950 than in 1949. Meanwhile the Item flourishes. The ten years preceding this trial marked its more than 75% growth in classified lineage. Between 1946 and 1950 its general display volume increased almost 25%. The Item's local display lineage is twice the equivalent lineage in the States. And 1950, the Item's peak year for total lineage comprising all three classes of advertising, marked its greatest circulation in history as well. In fact, since in newspapers of the Item's circula- tion bracket general display and classified lineage typically provide no more than 32% of total revenues, the demonstrated diminution of its New Orleans market shares in these advertising classes might well not have resulted in revenue losses exceeding 1%. Moreover, between 1943 and 1949 the Item earned over $1.4 million net before taxes, enabling its then publisher in the latter year to transfer his equity at a net profit of $6oo,ooo. The Item, the 401 Administrative Law and Business Practices alleged victim of the Times-Picayune Company's challenged trade practices, appeared, in short, to be doing well. The record in this case thus does not disclose evidence from which demon- strably deleterious effects on competition may be inferred. To be sure, eco- nomic statistics are easily susceptible to legerdemain, and only the organized context of all relevant factors can validly translate raw data into logical cause and effect. But we must take the record as we find it, and hack through the jungle as best we can. It may well be that any enhancement of the Times- Picayune's market position during the period of the assailed arrangements resulted from better service or lower prices, or was due to superior planning initiative or managerial skills; conversely, it is equally possible that but for the adoption of the unit contracts its market position might have turned for the worse. Nor can we be certain that the challenged practice, though not destructive of existing competition, did not abort yet unborn competitors equally within the concern of the Sherman Act. But this suit was not brought to adjudicate a trade practice as banned by specific statutory prohibitions which by a clearly defined public policy dispense with difficult standards of economic proof. And the case has not met the per se criteria of Sherman Act sec. 1 from which proscribed effect automatically must be inferred. Cf. Inter- national Salt Co. v. United States, 332 U.S. 392, 92 L. Ed. 20, 68 S. Ct. 12 (1947). Under the broad general policy directed by sec. 1 against unreasonable trade restraints, guilt cannot rest on speculation; the Government here has proved neither actual unlawful effects nor facts which radiate a potential for future harm. While even otherwise reasonable trade arrangements must fall if conceived to achieve forbidden ends, legitimate business aims predominantly motivated the Publishing Company's adoption of the unit plan. Because the antitrust laws strike equally at nascent and accomplished restraints of trade, monopolis- tic designs as well as results are reached by the prohibitions of the Sherman Act. The unit rate for classified advertising, however, was adopted in 1935 obviously to counteract the competition of the Item and Morning Tribune which confronted the Times-Picayune Publishing Company with an estab- lished unit rate. To be sure, an unlawful trade practice may not be justified as an emulation of another's illegal plan. But that factor is certainly relevant to illuminate ambiguous intent, particularly when planned injury to that other competitor is the crux of the charge. In any event, uncontradicted testimony suggests that unit insertions of classified ads substantially reduce the publisher's overhead costs. Approximately thirty separate operations are neces- sary to translate an advertiser's order into a published line of print. A reasona- ble price for a classified ad is necessarily low. And the Publishing Company processed about 2,300 classified ads for publication each day. Certainly a publisher's steps to rationalize that operation does not bespeak a purposive quest for monopoly or restraint of trade. Similarly, competitive business considerations apparently actuated the adop- tion of the unit rate for general display lineage in 1950. At that time about 18o other publishers, the vast majority of morning-evening owners, had pre- viously instituted similar unit plans. Doubtless, long-tolerated trade arrange- .402 Times-Picayune v. United States ments acquire no vested immunity under the Sherman Act; no prescriptive rights accrue by the prosecutor's delay. That consideration, however, is not wholly irrelevant when monopolistic purpose rather than effect remains to be gauged. By adopting the unit plan for general display lineage at the time it did, the Publishing Company devised not a novel restrictive scheme but aligned itself with the industry's guide, legal or illegal in particular cases [as] that is found to be. Moreover, the unit rate was viewed as a competitive weapon in the rivalry for national advertising accounts. Lower milline rates visualized as a consequence of unit insertions might attract national lineage from advertisers utilizing newspapers in other cities, as well as counteract a national advertisers' trend away from newspapers toward other mass com- munications media. In summary, neither unlawful effects nor aims are shown by the record. Consequently, no Sherman Act violation has occurred unless the Publishing Company's refusal to sell advertising space except en bloc, viewed alone, constitutes a violation of the Act. Refusals to sell, without more, do not violate the law. Though group boycotts, or concerted refusals to deal, clearly run afoul of sec. 1, different criteria have long applied to qualify the rights of an individual seller. Beginning with United States v. Colgate 6 Co., 250 U.S. 300, 63 L. Ed. 992, 39 S. Ct. 465, 7 A.L.R. 443 (1919), this Court's decisions have recognized individual refusals to sell as a general right, though "neither absolute nor exempt from regulation." Lorain Journal Co. v. United States, 342 U.S. 143, 155, 96 L. Ed. 162, 172, 72 S. Ct. 181 (1951). If accompanied by unlawful conduct or agreement, or conceived in monopolistic purpose or market control, even individual sellers' refusals to deal have trans- gressed the Act. Still, although much hedged about by later cases, Colgate's principle protects the Times-Picayune Publishing Company's simple refusal to sell advertising space in the Times-Picayune or States separately unless other factors destroy the limited dispensation which that case confers. In our view, however, no additional circumstances bring this case within sec. 1. Though operating two constituent newspapers, the Times-Picayune is a single corporation, and the Government in the District Court abandoned a charge of unlawful concert among the corporate officers. With the advertising contracts in this proceeding viewed as in themselves lawful and no further elements of combination apparent in the case, sec. 2 criteria must become dispositive here. An unsufficient showing of specific intent vitiates this part of the Govern- ment's case. While the completed offense of monopolization under sec. 2 demands only a general intent to do the act, "for no monopolist monopolizes unconscious of what he is doing," a specific intent to destroy competition or build monopoly is essential to guilt for the mere attempt now charged. This case does not demonstrate an attempt by a monopolist established in one area to nose into a second market, so that past monopolistic success both enhances the probability of future harm and supplies a motivation for further forays. And unlike Lorain Journal Co. v. United States, 342 U.S. 143, 96 L. Ed. 162. 72 S. Ct. 181 (1951), where a single newspaper's refusal to sell space to advertisers unless they forewent advertising over a competing local 403 Administrative Law and Business Practices radio station manifested "bold, relentless, and predatory commercial behav- ior," id., 342 U.S. at 149, no remotely comparable charge is borne out here. This branch of the Government's case comprised allegations that the Publish- ing Company's acquisition of the States in 1933 was one element in a cool and calculated quest for monopoly control; that the Company deliberately operated the evening States at a financial loss to the detriment of the com- peting Item; and that it interfered with the Item's distribution on the streets of New Orleans. The District Court, and much evidence supports its conclu- sions, determined that the 1933 purchase of the States then seemed a legiti- mate means of business expansion; assumed that the Company's cost and revenue allocations between its two publications were mere bookkeeping trans- actions without economic significance; and concluded that the Company rather than obstruct street sales of the Item merely sought to assure equal treatment by news vendors of the Item and States. Because these pillars of the Government's sec. 2 case thus collapsed in the District Court, only the adop- tion of the unit rates remains to support the alleged violation of sec. 2 of the Sherman Act. Since we have viewed that step as predominantly motivated by legitimate business aims, this record cannot bear out the specific intent essen- tial to sustain an attempt to monopolize under sec. 2. We conclude, therefore, that this record does not establish the charged vio- lations of sec. 1 and sec. 2 of the Sherman Act. We do not determine that unit advertising arrangements are lawful in other circumstances or in other proceedings. Our decision adjudicates solely that this record cannot substanti- ate the Government's view of this case. Accordingly, the District Court's judgment must be Reversed. Mr. Justice Burton, with whom Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Minton join, dissenting. The majority opinion seeks to avoid the effect of United States v. Griffith, 334 U.S. 100, 92 L. Ed. 1236, 68 S. Ct. 941, and of International Salt Co. v. United States, 332 U.S. 392, 92 L. Ed. 20, 68 S. Ct. 12, by taking the position that the Times-Picayune does not enjoy a "dominant position" in the gen- eral newspaper advertising market of New Orleans, including all three papers, as a single market. The complaint, however, is not and need not be depend- ent upon the relation of the Times-Picayune to that entire market. The complaint is that the Times-Picayune enjoys a distinct, conceded and complete monopoly of access to the morning newspaper readers in the New Orleans area and that it uses that monopoly to restrain unreasonably the com- petition between its evening newspaper, the New Orleans States, and the independent New Orleans Item, in the competitive field of evening newspa- per advertising. Insistence by the Times-Picayune upon acceptance of its compulsory combination advertising contracts makes payment for, and publication of, classified and general advertising in its own evening paper an inescapable part of the price of access to the all-important columns of the single morning paper. I agree with the District Court that such conduct violates the Sherman Act under the circumstances here presented. See also, 404 Times-Picayune v. United States 405 Fed. Rules Civ. Proc., 52 (a), "Findings of fact shall not be set aside unless clearly erroneous . . ." and Lorain Journal Co. v. United States, 342 U.S. 143, 96 L. Ed. 162, 72 S. Ct. 181. In view of the disposition made of this case by the majority, it is not necessary to discuss the terms of the decree. TIMES-PICAYUNE V. UNITED STATES, 345 U.S. 594; 73 S. Ct. 872; 97 L. Ed. 819 (1953) CHAPTER XIV Labor Relations of Newspapers SUPPLEMENTARY READING Commission on Freedom of the Press, A Free and Responsible Press (Chicago, 1946), c. 3, 5 Marshall Field, Freedom is More Than a Word (Chicago, 1945), c. 3, 5 Gerald, The Press and the Constitution, c. 3, 4 Gray, "Permanent Employment Agreement Rule Stated," Editor 6 Publisher, v. 84 (May 12, 1951), p. 34 Swindler, Bibliography, nos. 690, 693, 715, 716 The background note for Chapter XII applies to this chapter as well as Chapter XIII; the present chapter continues the discussion of the relation of administrative law to the press, with particular reference to the labor relations of newspapers. 3. The National Labor Relations Act established the right of union organi- zation and collective bargaining in the newspaper industry. The case of Morris Watson, reported in Chapter II, established the general right of newspaper employees to organize and bargain collectively without interference, coercion, or intimidation by employers. Although a considerable number of cases on this question were presented to the courts, there was no relaxing of the judicial rule that the original Wagner Act protected the right. Typical of this large group of cases was the succinct ruling of the Circuit Court of Appeals on the plea of the Baltimore Sun that it was not subject to the federal law because it was a purely local publication; although he modi- fied the board's original order in part, Judge Soper rejected this particular argument by the newspaper. We are of opinion upon these facts that the business of the respondent falls within the purview of the Act. It is true that the circulation which goes outside the State of Maryland is a relatively small part of the whole, but it nevertheless constitutes in itself a substantial volume of business. With this 406 National Labor Relations Board v. Hearst Publications exception the news-distributing activities are of small extent. But the news- gathering activities are far flung, advertising is generally solicited throughout the nation by "National Advertising Representatives" (non-employees), and occasionally by employees, large portions of the Sunday edition are printed outside the State and shipped to Baltimore, and the raw materials used in all of the publications are derived for the most part from sources outside the State. It is clear that the instrumentalities of interstate commerce are used to a very large extent and are affected by the extensive and important busi- ness which the publisher conducts. The collection and dissemination by the Associated Press of information for publication in newspapers in the United States and foreign countries, which was considered in Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S. Ct. 650, 81 L. Ed. 953, differs in the fact that the distribu- tion of news in interstate commerce is as important a feature as its collection; but that case is not without its pertinence here, and see also Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 55 S. Ct. 182, 79 L. Ed. 356. There are a number of other decisions sustaining the jurisdiction of the Board over business activities of no greater effect upon interstate commerce than those now under consideration. In view of this course of decision it is not reasonable to conclude that the respondent's business is not covered by the Act on the ground that the greater part of its interstate operations involves the receipt rather than the distribution of information and materials in inter- state commerce. The distinction, insofar as the effect upon interstate com- merce is concerned, appears to be irrelevant. NATIONAL LABOR RELATIONS BOARD v. A. S. ABELL CO., C.C.A. 4th; 97 Fed. 2d 951 (1938) One of the chief issues, following the courts' confirmation of the fact that the law applied to newspapers, revolved around the status of persons outside the newspaper plant who nevertheless were part of the continuous process of production of the paper. These were usually the newsboys, who for many years the newspaper industry had insisted were "independent contractors" and not employees. This question has extended into the province of various other state and federal labor laws-workmen's compensation, unemployment insurance and old age security, and the Fair Labor Standards (Wage-Hour) Act-and has been variously answered by the courts in consideration of the particular circumstances of each case. So far as the Wagner Act was concerned, the Supreme Court sought to define the law in a case presented by the newsboys' union of Los Angeles, against the several daily newspapers of that community. The National Labor Relations Board had upheld the union's contention that its members were employees within the meaning of the Act and that the newspapers were obliged to negotiate with it. In an opinion read by Mr. Justice Rutledge, the high court by an eight-to-one ruling upheld the board. 407 Labor Relations of Newspapers The newsboys work under varying terms and conditions. They may be "bootjackers," selling to the general public at places other than established corners, or they may sell at fixed "spots." They may sell only casually or part-time, or full-time; and they may be employed regularly and continuously or only temporarily. The units which the Board determined to be appropriate are composed of those who sell full-time at established spots. Those vendors, misnamed boys, are generally mature men, dependent upon the proceeds of their sales for their sustenance, and frequently supporters of families. Working thus as news vendors on a regular basis, often for a number of years, they form a stable group with relatively little turnover, in contrast to schoolboys and others who sell as bootjackers, temporary and casual distributors. Over-all circulation and distribution of the papers are under the general supervision of circulation managers. But for purposes of street distribution each paper has divided metropolitan Los Angeles into geographic districts. Each district is under the direct and close supervision of a district manager. His function in the mechanics of distribution is to supply the newsboys in his district with papers which he obtains from the publisher and to turn over to the publisher the receipts which he collects from their sales, either directly or with the assistance of "checkmen" or "main spot" boys. The latter, stationed at the important corners or "spots" in the district, are newsboys who, among other things, receive delivery of the papers, redistribute them to other news- boys stationed at less important corners, and collect receipts from their sales. For that service, which occupies a minor portion of their working day, the checkmen receive a small salary from the publisher. The bulk of their day, however, they spend in hawking papers at their "spots" like other full-time newsboys. A large part of the appropriate units selected by the Board for the News and the Herald are checkmen who, in that capacity, clearly are employ- ees of those papers. The newsboys' compensation consists in the difference between the prices at which they sell the papers and the prices they pay for them. The former are fixed by the publishers and the latter are fixed either by the publishers or, in the case of the News, by the district manager. In practice the newsboys receive their papers on credit. They pay for those sold either sometime during or after the close of their selling day, returning for credit all unsold papers. Lost or otherwise unreturned papers, however, must be paid for as though sold. Not only is the "profit" per paper thus effectively fixed by the publisher, but substantial control of the newsboys' total "take home" can be effected through the ability to designate their sales areas and the power to determine the number of papers allocated to each. While as a practical matter this power is not exercised fully, the newsboys' "right" to decide how many papers they will take is also not absolute. In practice, the Board found, they cannot determine the size of their established order without the cooperation of the district manager. And often the number of papers they must take is deter- mined unilaterally by the district managers. In addition to fixing effectively the compensation, respondents in a variety of ways prescribe, if not the minutiae of daily activities, at least the broad terms and conditions of work. This is accomplished largely through the super- visory efforts of the district managers, who serve as the nexus between the 408 National Labor Relations Board v. Hearst Publications publishers and the newsboys. The district managers assign "spots" or corners to which the newsboys are expected to confine their selling activities. Transfers from one "spot" to another may be ordered by the district manager for reasons of discipline or efficiency or other cause. Transportation to the spots from the newspaper building is offered by each of respondents. Hours of work on the spots are determined not simply by the impersonal pressures of the market, but to a real extent by explicit instructions from the district managers. Ad- herence to the prescribed hours is observed closely by the district managers or other supervisory agents of the publishers. Sanctions, varying in severity from reprimand to dismissal, are visited on the tardy and the delinquent. By similar supervisory controls minimum standards of diligence and good conduct while at work are sought to be enforced. However wide may be the latitude for individual initiative beyond those standards, district managers' instructions in what the publishers apparently regard as helpful sales technique are ex- pected to be followed. Such varied items as the manner of displaying the paper, of emphasizing current features and headlines, and of placing advertis- ing placards, or the advantages of soliciting customers at specific stores or in the traffic lanes are among the subjects of this instruction. Moreover, news- boys are furnished with sales equipment, such as racks, boxes and change aprons, and advertising placards by the publishers. In this pattern of employ- ment the Board found that the newsboys are an integral part of the publishers' distribution system and circulation organization. And the record discloses that the newsboys and checkmen feel they are employees of the papers; and re- spondents' supervisory employees, if not respondents themselves, regard them as such. In addition to questioning the sufficiency of the evidence to sustain these findings, respondents point to a number of other attributes characterizing their relationship with the newsboys and urge that on the entire record the latter cannot be considered their employees. They base this conclusion on the argument that by common-law standards the extent of their control and direction of the newsboys' working activities creates no more than an "inde- pendent contractor" relationship and that common-law standards determine the "employee" relationship under the Act. They further urge that the Board's selection of a collective bargaining unit is neither appropriate nor supported by substantial evidence. I The principal question is whether the newsboys are "employees." Because Congress did not explicitly define the term, respondents say its meaning must be determined by reference to common-law standards. In their view "common- law standards" are those the courts have applied in distinguishing between "employees" and "independent contractors" when working out various prob- lems unrelated to the Wagner Act's purposes and provisions. .. Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no such patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wag- ner Act is federal legislation, administered by a national agency, intended to 409 Labor Relations of Newspapers solve a national problem on a national scale. Cf. e.g., Sen. Rep. No. 573, 74th Cong., Ist Sess. 2-4. It is an Act, therefore, in reference to which it is not only proper but necessary for us to assume, "in the absence of a plain indication to the contrary, that Congress . . . is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U.S. 101, 104. Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by such varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with what- ever different standards the respective states may see fit to adopt for the dispo- sition of unrelated, local problems. Consequently, so far as the meaning of "employee" in this statute is concerned, "the federal law must prevail no matter what name is given to the interest or right by state law." Morgan v. Commissioner, 309 U.S. 78, 81; cf. Labor Board v. Blount, 131 F. 2d 585 (C.C.A.). II Whether, given the intended national uniformity, the term "employee" includes such workers as these newsboys must be answered primarily from the history, terms and purposes of the legislation. The word "is not treated by Congress as a word of art having a definite meaning. . . ." Rather "it takes color from its surroundings . .. [in] the statute where it appears," United States v. American Trucking Assns., 310 U.S. 534, 545, and derives meaning from the context of that statute, which "must be read in the light of the mis- chief to be corrected and the end to be attained." South Chicago Coal 6 Dock Co. v. Bassett, 309 U.S. 251, 259- Congress, on the one hand, was not thinking solely of the immediate technical relation of employer and employee. It had in mind at least some other persons than those standing in the proximate legal relation of employee to the particular employer involved in the labor dispute. It cannot be taken, however, that the purpose was to include all other persons who may perform service for another or was to ignore entirely legal classifications made for. other purposes. Congress had in mind a wider field than the narrow technical legal relation of "master and servant," as the common law had worked this out in all its variations, and at the same time a narrower one than the entire area of rendering service to others. The question comes down therefore to how much was included of the intermediate region between what is clearly and unequivocally "employment," by any appropriate test, and what is as clearly entrepreneurial enterprise and not employment. ... In this case the Board found that the designated newsboys work continu- ously and regularly, rely upon their earnings for the support of themselves and their families, and have their total wages influenced in large measure by the publishers, who dictate their buying and selling prices, fix their markets and control their supply of papers. Their hours of work and their efforts on the job are supervised and to some extent prescribed by the publishers or their agents. Much of their sales equipment and advertising materials is furnished by the publishers with the intention that it be used for the publishers' benefit. Stating that "the primary consideration in the determination of the applica- bility of the statutory definition is whether effectuation of the declared policy 410 Evening Times v. American Newspaper Guild and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act," the Board concluded that the newsboys are employees. The record sustains the Board's findings and there is ample basis in the law for its conclusion. III The Board's selection of the collective bargaining units also must be upheld. The units chosen for the News and the Herald consist of all full-time newsboys and checkmen engaged to sell the papers in Los Angeles. Boot- jackers, temporary, casual and part-time newsboys are excluded. The units designated for the Times and the Examiner consist of newsboys selling at established spots in Los Angeles four or more hours per day, five or more days per week, except temporary newsboys. NATIONAL LABOR RELATIONS BOARD V. HEARST PUBLICATIONS, 322 U.S. 111; 64 S. Ct. 851; 88 L. Ed. 1170 (1944) The courts have declared that the union as well as the employer is liable for violation of either federal or state laws affecting collective bargaining. Members of the American Newspaper Guild were sued by the Bayonne (N.J.) Times, against which the Guild was striking, for mass picketing of the newspa- per plant, use of a sound truck to declaim against the newspaper, and at- tempts at developing a "secondary boycott" against local merchants who con- tinued to advertise in the Times during the labor dispute. The New Jersey Court of Errors and Appeals ruled that the union was liable for these provoca- tive measures: using abusive language about the newspaper, and engaging in a secondary boycott. Although the opinion was unanimous, three of the ten justices questioned the court's injunction respecting abusive expressions as an infringement upon free speech. Setting off the defendants' proofs against those submitted by the com- plainant, it is still reasonably certain that on the morning of November 12, 1937, there were conditions at the newspaper plant which amounted to mass picketing by the defendants, that disorder ensued which resulted in the calling of the police, that there were physical collisions and that the provocative name of. "scab" was flung at those who remained or attempted to remain at their work. It clearly appears that later there was a systematic offensive against merchants of the City of Bayonne who had no connection with either com- plainant or defendants and no part in the issues other than that they were advertisers in the newspaper and that if an advertiser did not, upon request, withdraw his advertisement, his place of business was subjected to patrol by individuals who carried a placard containing this or a similar wording:-"This store advertises in the Bayonne Times which is unfair to its reporters"; also that defendants operated a sound truck which, equipped with a loud-speaker and an amplifying device which caused the statements therefrom to be au- dible for several blocks, proceeded at a slow speed of approximately five miles 4112 Labor Relations of Newspapers per hour through the principal avenues, made other announcements and proclaimed, specifying the Bayonne Times by name, "Don't read a scab news- paper," "Don't buy a scab newspaper." Immediate resort was had by com- plainant to the Court of Chancery. From and including November 13, 1937, defendants have been under constant restraint, first by ad interim stay con- tained in the order to show cause and following the determination of the order to show cause by the preliminary injunctions now under review . Acts destroying a complainant's business, custom and profits do an irrepara- ble injury and authorize the issue of a preliminary injunction. Scherman v. Stern, 93 N.J. Eq. 626, 117 A. 631. If the methods undertaken by the defendants had been permitted while the lawfulness of them and of the strike was being tried out, the probability is that publication would have been in- definitely interrupted and the complainant irreparably damaged. The urgency of the need for uninterrupted publication of a daily newspaper is apparent. As we view the conditions, the complainant was confronted with three possi- ble courses of action: submit to irreparable injury, surrender without contest, or seek injunctive relief. It chose the last. The state of proofs was not such, in our opinion, as to prevent the granting of restraint pending final hear- ing . There are several aspects to the problem; as, that of the striking workers who are entitled to present their case and make their appeal, that of the employer who not only has his side of the controversy to present but has property rights to protect, that of the worker who has the right and the desire to work and wishes that neither he nor his family shall be subjected to insult or annoyance, and that of a more distantly related class typified in this discus- sion by advertisers in the complainant's newspaper. The problem is to save to each such a degree of freedom as is commensurate with the protection of the rights of others. We are of the opinion that the lawful place for defendants' picketing operations is at the site of the employment from which the strikers have struck, from which they wish other workers to strike or remain absent, where the working conditions to which the strikers object or which they seek to improve do or will maintain and where the order of December ist, by its terms, does not apply. The attempt to picket in the prohibited places is an indirect approach to the objective and, under the circumstances of the case, involves and unlawfully prejudices the rights and privileges of those who are not the employer and are not those who seek to force the employer to a new or different course of action. The provisions of the December 1st order are sustained. EVENING TIMES PRINTING & PUBLISHING CO. V. AMERICAN NEWSPAPER GUILD, 124 N.J. Eq. 71; 199 Atl. 598 (1938) 4. The Fair Labor Standards Act, as interpreted by the courts, has further defined the newspaper's liability and exemptions. The Fair Labor Standards (Wage-Hour) Act sought to supplement the original National Labor Relations Act by placing a floor under wages and a 412 Oklahoma Press Pub. Co. v. Walling 413 ceiling over hours of work. In drawing up the new law, however, Congress had provided for various circumstances under which certain enterprises, in- cluding smaller newspapers, might claim exemption. This precipitated a series of cases in which the newspaper industry sought for court interpretations of the law to make more definite the sphere of newspaper activity which was either within or without the jurisdiction of the Wage and Hour Division of the Department of Labor. The first issue involved the right of the wage-hour administrator to demand access to the books and other records of a newspaper in the course of his inspections to determine whether the business was conforming to the re- quirements of the law. Newspapers in several parts of the country challenged the administrator's right of access to their business files, and several cases involving extensive litigation eventually reached the Supreme Court. One of the more recent of the court's opinions on the question was given in the case brought by an Oklahoma newspaper; by a majority of seven to one, with one justice abstaining, the tribunal upheld the wage-hour administrator. Mr. Jus- tice Rutledge read the opinion. Coloring almost all of petitioners' position, as we understand them, is a primary misconception that the First Amendment knocks out any possible application of the Fair Labor Standards Act to the business of publishing and distributing newspapers. The argument has two prongs. The broadside assertion that petitioners "could not be covered by the Act," for the reason that "application of this Act to its newspaper publishing busi- ness would violate its rights as guaranteed by the First Amendment," is with- out merit. Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S. Ct. 650, 81 L. Ed. 953, and Associated Press v. United States, 326 U.S. 1, 65 S. Ct. 1416; Mabee v. White Plains Pub. Co., 327 U.S. 178, 66 S. Ct. 511. If Congress can remove obstructions to commerce by requiring pub- lishers to bargain collectively with employees and refrain from interfering with their rights of self-organization, matters closely related to eliminating low wages and long hours, Congress likewise may strike directly at those evils when they adversely affect commerce. United States v. Darby, 312 U.S. 100, 116, 117, 657, 61 S. Ct. 451, 458, 85 L. Ed. 609, 132 A.L.R. 1430. The Amend- ment does not forbid this or other regulation which ends in no restraint upon expression or in any other evil outlawed by its terms and purposes. Petitioners' narrower argument, of allegedly invalid classification, arises from the statutory exemptions and may be shortly dismissed. The intimation that the Act falls by reason of the exclusion of seamen, farm workers and others by S13(a) is hardly more than a suggestion and is dismissed accord- ingly. Cf. Buck v. Bell, 274 U.S. 200, 208, 47 S. Ct. 584, 585, 71 L. Ed. 1000. The contention drawn from the exemption of employees of small newspapers by S 13(a) (8) deserves only slightly more attention. It seems to be twofold, that the Amendment forbids Congress to "regulate the press by classifying it" at all and in any event that it cannot use volume of circulation or size as a factor in the classification. Reliance upon Grosfean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 8o L. Ed. 66o, to support these claims is misplaced. There the state statute singled out newspapers for special taxation and was held in effect to graduate the tax in accordance with volume of circulation. Here there was no singling out of the press for treatment different from that accorded other business in general. Rather the Act's purpose was to place publishers of news- papers upon the same plane with other businesses and the exemption for small newspapers had the same object. 83 Cong. Rec. 7445. Nothing in the Grosjean case forbids Congress to exempt some publishers because of size from either a tax or a regulation which would be valid if applied to all. OKLAHOMA PRESS PUB. Co. v. WALLING, 327 U.S. 86; 66 S. Ct. 499; 90 L. Ed. 614 (1946) The daily newspapers also challenged the provision in the law exempting weekly and semiweekly publications of less than 3,000 (later changed to 4,000) circulation, alleging that the act was discriminatory and thus violated the "equal protection" clause of the Constitution. The Supreme Court rejected this plea offered by a New York newspaper, by a majority of seven to one with one justice not taking part in the case. Mr. Justice Douglas read the court's opinion. By S15(a)(1) 29 U.S.C.A. S215(a)(1) it has made unlawful the shipment in commerce of "any goods in the production of which any employee was employed in violation of" the overtime and minimum wage requirements of the Act. Though we assume that sporadic or occasional shipments of insubstantial amounts of goods were not intended to be included in that prohibition, there is no warrant for assuming that regular shipments in commerce are to be included or excluded dependent on their size. That has been the consistent position of the Administrator. Interpretative Bull. No. 5, par. 9 (1939), 1944-45 Wage Hour Man. 21. His rulings and interpreta- tions "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift 6 Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164. We stated in United States v. Darby, 312 U.S. 100, 123, 61 S. Ct. 451, 461, 85 L. Ed. 609, 132 A.L.R. 1430, "Congress, to attain its objective in the suppression of nationwide competition in interstate commerce by goods pro- duced under substandard labor conditions, has made no distinction as to the volume or amount of shipments in the commerce or of production for com- merce by any particular shipper or producer. It recognized that in present-day industry, competition by a small part may affect the whole and that the total effect of the competition of many small producers may be great." That view is borne out by the legislative history of the Act. Earlier drafts had embodied the "substantial" standard. These were omitted from the coverage provisions Labor Relations of Newspapers 414 Mabee v. White Plains Publishing Co. of the one which became the law. Moreover, one of the exemptions written into the Act extends to "any employee employed in connection with the publication of any weekly or semi-weekly newspaper with a circulation of less than three thousand the major part of which circulation is within the county where printed and published." $13(a)(8), 29 U.S.C.A. S213(a)(8). Representative Creal of Kentucky proposed this exemption. He stated that "under this bill, because 1 or 2 per cent of a paper's circulation goes out- side to people who want to get the home-town paper to see whether or not Lucy got married, or whether Sally's baby has been born yet, because that infinitesimal bit of their business is with people outside the county, these pub- lishers fall under the provisions of this bill, when on each side of this little printshop are the butcher and the baker, who are exempt and who are finan- cially better fixed than he is." 83 Cong. Rec. p. 7445. No such exemption for daily newspapers was granted. No exemption on the basis of volume of out- of-state circulation was written into the Act. Rather the exemption of the small weeklies or semi-weeklies seems to have been adopted on the assump- tion that without it a newspaper with a regular out-of-state circulation, no matter how small, would be under the Act. The choice Congress made was not the exemption of newspapers with small out-of-state circulations but the exemption of certain types of small newspapers. We would change the nature of the exemption which Congress saw fit to grant, if we applied the maxim de minimis to this type of case. We should also disregard the plain language of i15(a)(1) prohibiting the shipment in commerce of "any goods" in the production of which "any employee" was employed in violation of the overtime and minimum wage requirements of the Act. Respondent argues that to bring it under the Act, while the small weeklies or semi-weeklies are exempt by reason of 13(a)(8), is to sanction a discrimi- nation against the daily papers in violation of the principles announced in Grosjean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 8o L. Ed. 66o. Volume of circulation, frequency of issue, and area of distribution are said to be an improper basis of classification. Moreover, it is said that the Act lays a direct burden on the press in violation of the First Amendment. The Grosjean case is not in point here. There the press was singled out for special taxation and the tax was graduated in accordance with volume of circulation. No such vice inheres in this legislation. As the press has business aspects it has no special immunity from laws applicable to business in general. Associated Press v. National Labor Relations Board, 301 U.S. 103, 132, 133, 57 S. Ct. 650, 655, 656, 81 L. Ed. 953. And the exemption of small weeklies and semi-weeklies is not a "deliberate and calculated device" to penalize a certain group of newspapers. Grosfean v. American Press Co., supra, 297 U.S. page 250, 56 S. Ct. page 449, 80 L. Ed. 660. As we have seen, it was inserted to put those papers more on a parity with other small town enterprises. 83 Cong. Rec. 7445. The Fifth Amendment does not require full and uniform exercise of the commerce power. Congress may weigh relative needs and restrict the application of a legislative policy to less than the entire field. We hold that respondent is engaged in the production of goods for com- merce. That, of course, does not mean that these petitioners, its employees, are covered by the Act. The applicability of the Act to them is dependent on the 415 Labor Relations of Newspapers character of their work. Walling v. Jacksonville Paper Co., supra, 317 U.S. pages 571, 572, 63 S. Ct. pages 336, 337, 87 L. Ed. 460. We express no opinion on that phase of the case, as the New York appellate courts did not pass on it. Since the judgment below must be reversed, the question whether the Act is applicable to these employees will be open on the remand of the cause. Reversed. MABEE V. WHITE PLAINS PUB. CO., 327 U.S. 178; 66 S. Ct. 511; 90 L. Ed. 607; 166 A.L.R. 531 (1946) Nor are weekly newspapers exempt if their circulation aggregates more than 4,000; four California newspapers, published from a single plant, were held to come under the jurisdiction of the law in a case heard by the federal district court in 1950. Judge Yankwich said: The basis for the defendants' resistance is the contention that they are not subject to the Act. We are of the view that they are. I. The Employees Are "In Commerce" The defendants operate a publishing establishment at Hermosa Beach, Los Angeles County, California, from which they publish four beach town weekly newspapers-the Hermosa Beach Review, the Redondo Beach Review, the Manhattan Beach Review, and the Palos Verdes Citizen. The material in these newspapers, published for contiguous cities, is, with the possible excep- tion of an occasional legal advertisement, identical. The masthead is changed for each city, and the particular newspaper circulates among different groups of subscribers. In the preparation of the reading and advertising material, mats for articles and comic mats and national advertisements originating in interstate commerce are used. Colored cartoon supplements are used, supplied by a California concern which uses for production mats originating in inter- state commerce, and which is, itself, under the Act. Some copies have, in the past, been sent to subscribers outside the State of California. The plaintiff insists that this fact brings the case within the clause, "production of goods for commerce." 29 U.S.C.A. 207(a). I cannot agree. It is true that a small number of subscribers, such as forty-five out of a circulation of nine or ten thousand, has been held sufficient to determine the character of a daily newspaper. Mabee v. White Plains Publishing Co., 1946, 327 U.S. 178, 66 S. Ct. 511, 90 L. Ed. 607; and compare, Grant v. Bergdorf 6 Goodman Co., 2 Cir., 1949, 172 F. 2d 109, 111. However, I do not believe that this criterion can be applied to a purely local, weekly publication which would have no appeal except to former residents or prospective or actual advertisers. At any rate, there is evidence in the record that the entire subscrip- tion list has been discontinued. And the fact that an occasional copy may have slipped through the post office, through the carelessness of a mailing clerk, should be disregarded in determining the issue. The out-of-state origin of a portion of the material not only in the form of prepared articles, cartoons, 416 mats-"boiler plate," so called-estimated by the defendants at five per cent, but, in reality, greater, and the use of the cartoons and other features prepared out of the state warrant the conclusion that the employees of the defendants are "engaged in commerce." 29 U.S.C.A. 2o7(a) The test applied in determining this fact was stated by the Supreme Court in McLeod v. Threlkeld, 1943, 319 U.S. 491, 497, 63 S. Ct. 1248, 1251, 87 L. Ed. 1538, to be "not whether the employee's activities affect or indirectly re- late to interstate commerce but whether they are actually in or so closely re- lated to the movement of the commerce as to be a part of it. . . . It is not important whether the employer, in this case the contractor, is engaged in interstate commerce. It is the work of the employee which is decisive" (em- phasis added). So that, conceding that, because of the purely local circulation, the em- ployees may not be engaged in "the production of goods for commerce," their activities in the production of the newspapers and incorporating into such production news and materials gathered and originating outside the state, place them in the category of employees "engaged in commerce." II. The Exemption of Local, Weekly Newspapers The conclusion just stated is not determinative of the case, if, as the de- fendants contend, they are exempt by the provisions of Section 13(a) (8) of the Act. That exemption as it stood at the time when this action was in- stituted, exempted from the provisions of the Act an employee employed on the publication of a weekly or semi-weekly newspaper of less than 3,000 in circulation, "the major part of which circulation is within the county where printed and published." 29 U.S.C.A. S213(a) (8). The section has now been amended to increase the maximum circulation to 4,000. While the Supreme Court has sustained the exemption as a proper classification, Okla- homa Press Publishing Co. v. Walling, 1946, 327 U.S. 186, 193-194, 66 S. Ct. 494, 90 L. Ed. 614, 166 A.L.R. 531, such exemptions are construed nar- rowly. The printing establishment of the defendants is conducted on a unitary basis. At their plant at Hermosa Beach, California, their newspapers are printed and published. The employees are employed, not by each news- paper, but by the publishing house. They are paid by the defendants regard- less of the newspaper on which they work. In truth, all employees work on all the newspapers. The newspapers are published on different days and when the work on one is completed, the work on another is begun. No books of account are kept segregating the work or earnings of the persons employed in the production of these newspapers or apportioning their time or wages to a particular newspaper. So that each employee is employed on the production of all four newspapers. Assume, therefore, that if we were dealing with the different employees of each of these newspapers, we would be compelled to reach the conclusion that they are within the exempt class. Nonetheless, the fact remains that we are dealing with the employees of the defendants and not with the employees of the four individual newspapers which the defendants produce. In sum, we have before us their employees and not McComb v. Dessau 417 Labor Relations of Newspapers the employees of the individual newspapers. The individual newspapers have no separate or distinct corporate or business entity. Each is merely one of the ramifications of the publishing business which the defendants con- duct. The defendants having chosen to conduct their business in this man- ner, and to publish several newspapers as a unitary project-with one man- agement, under one business and editorial direction, and in one plant- they cannot now segmentize it in order to claim the benefit of the exemp- tion, which applies to small, individual newspapers having distinct being. As said in Bennett v. V. P. Loftis Co., 4 Cir., 1948, 167 F. 2d 286, 288: "If the declared purpose of the Act is to be accomplished, a project should be considered as a whole, in a realistic way; not broken down into its various phases so as to defeat the purpose of the Act." As all the employees participate in the production of all the newspapers, they should not be deprived of the benefits of the Act by an artificial separation and apportionment of their work to the four separate newspapers, which does not correspond to the actual conditions under which they are employed. Such a segregation would be the more unjust in a case of this character, because the newspapers are not only the product of a single enterprise, but they are, in truth, the same newspaper. They contain, except for an occasional change, the same reading and advertising material, and only the change of masthead and the different areas of circulation make for distinctiveness. Such complete, unified operation calls for a like unity test in determining employee status. And the application of such test commands denial of the exemption claimed by the defendants. MCCOMB v. DESSAU, 89 Fed. Supp. 295 (1950) The courts have also been concerned, particularly in the weekly newspaper business, with the inseparable nature of the newspaper and commercial print- ing activities which are combined in most weekly enterprises. Where the job printing activities and the small size of the newspaper itself are taken into consideration together, the courts are inclined to recognize exemption. Such a problem was presented to the federal district court by employees of the Boone County Headlight, an Arkansas weekly. Judge Miller dismissed the complaint against the newspaper. No doubt prevails in this case but that the plaintiffs were employees em- ployed in connection with the publication of a weekly newspaper with a circulation of less than three thousand, the major part of which was within the county where printed and published. The issue here presented is whether the fact that the plaintiffs also worked on job printing removes them from the exempted category. No authority, direct or analogous, has been discovered in the reported cases. Common sense is all that is needed to define the legislative intent in this instance. Small county newspapers are today, and historically have been, the unrestrained voice of the people. They are the last outlet of the raucous voice of grass-root individualism disturbing the polished purr of purchased or pressured opinion. They have avoided absorption because they are un- 418 Robinson v. North Arkansas Printing Co. 419 profitable. They have been manned principally by individuals whose blood was tinted by the printer's ink, not by the miser's gold. The part they play in rural community life is well documented in the literature of our country. Congress was well acquainted with the fact that the vast majority of news- papers in this category are able to continue publishing only because of the revenue from job printing undertaken between press-times for the news- paper. Statistics show that 74.9% of the dailies having circulation of less than 3,000 do job printing work. The proportion for weekly and semi-weekly news- papers is undoubtedly higher. It is also a matter of common knowledge that the functions of newspaper publishing and job printing are so thoroughly intermingled in these small establishments as to be for practical purposes indistinguishable. As in the present case which is fairly typical, the same employees publish the paper and fill job orders. The work is to a large extent done on and with the same machines. It is not reasonable to assume that Congress wrote into the Act a specific exemption for employees of small county newspapers, yet intended to exempt less than :2 % of the persons so employed. The scope of the exemption must be defined in the light of the facts. (If employees who divide their time between job and newspaper printing are not within the scope of the exemp- tion, then it is virtually meaningless.) The obvious purpose of the clause is to exempt all employees who are actually and in good faith employed for the purpose of publishing a small newspaper, even though they may also do job printing as an incident to financing the newspaper. This construction of the exemption is borne out by the language employed by Congress. To be exempted it is only required that the employee be em- ployed "in connection with" the publication of any weekly or semi-weekly newspaper. In the light of the well-known facts of the trade, how easy it would have been to have said "employed exclusively in the publication," etc., if that meaning had been intended. The fact in this case that more revenue was derived from job printing than from newspaper publishing does not affect the construction of the ex- emption. There may be instances in which the job printing phase of the business would take on an independent character and lose the protective coloration of newspaper publishing. Certainly the courts will not permit the clause to be used as a subterfuge to evade the law. But when, as in this case, the typical picture of a small county newspaper sustaining itself on its in- cidental job printing is presented, the court has no alternative but to give effect to the express direction of the lawmaking branch. It follows, therefore, that the plaintiffs were employees exempted by clause (8) of section 213(a) of Title 29, U.S.C.A., hence are not entitled to the benefits of the Act. RoBINsON V. NORTH ARKANSAS PRINTING Co., 71 Fed. Supp. 921 (1947) Another exemption in the Wage-Hour Act was extended to those persons who were "professionals." In another effort to determine the possible exemp- Labor Relations of Newspapers tion of newspapers, a Tennessee publication raised the question of whether editorial employees might not be considered as "professionals" and hence exempt from the law. The Circuit Court of Appeals upheld the wage-hour administrator, Judge Simons saying: The contention that the Act is not applicable to the appellant's business because its employees are not engaged in commerce or the production of goods for commerce, must be rejected on the authority, among others, of Associated Press v. N.L.R.B., supra. Likewise it is unimportant that only a small percentage of appellant's newspapers are sent out of the state. The Act, by its terms, is applicable to newspapers generally because by its express terms it exempts weeklies and semi-weeklies and those with circulations less than 3,000. ... ... The Act exempts those engaged in professional employment and the Administrator requires that to qualify as professional an employee's work must be of a nature usually prepared for by a long course of specialized train- ing and must carry a salary of at least $200 per month. The court rejected opinion evidence that reporters and editors are professional workers, and it is contended that this regulation also was arbitrary or capricious. It was, however, shown, and it is, perhaps, common knowledge, that few newspaper employees are graduates of specialized schools of journalism, and there are editors of long experience and trained judgment who, agreeing that "the proper study of mankind is man," likewise believe that the only practical school of journalism is the newspaper office . We are not advised that the appellant distributes in commerce goods other than its newspapers, such as commercial printing, for example. It will there- fore sufficiently serve present purposes if the decree below be amended by adding to par. 3 thereof the following: "Provided that nothing herein shall prevent or prohibit the defendant from shipping, delivering, transporting, or offering for transportation or sale its newspapers in interstate commerce or otherwise," and, as so amended, the decree is affirmed. SUN PUB. Co. v. WALLING, C.C.A. 6th; 140 Fed. 2d 445 (1944); certiorari denied, 322 U.S. 728; 64 S. Ct. 946; 88 L. Ed. 1564 (1944) 5. The Labor Management Relations (Taft-Hartley) Act defines rights and responsibilities inherent in specific union practices. Both the Wagner and Wage-Hour Acts were passed in the period of eco- nomic struggle during the depression of the thirties in which wage-earning groups in various industries were seeking to have certain minimum rights recognized. The upholding of these rights in the great majority of court tests brought under these laws in the late thirties, and the tremendous growth of union organizations during the wartime industrial boom of the early forties, gave American labor an unprecedented degree of prestige and power. Follow- 420 International Typographical Union ing World War II, Congress undertook to balance this new economic and legal force with a law specifying the responsibilities which should be accepted by organized labor in the public interest and in the proper enjoyment of its rights. The Taft-Hartley law laid down certain requirements of management as well, but the major protest against the new statute came from labor groups which lodged complaints ranging from specific objections to details in the law to a general charge that it was intended to reduce the union movement to the relatively weak position of the period before the Wagner Act. In the newspaper industry, the Taft-Hartley Act provoked labor issues in an area which had long been so quiescent that the relations between union and management had often been cited as an outstanding example of industrial administration at its best. This was in the area of mechanical production, predominantly the area of the International Typographical Union's jurisdic- tion. Although other powerful unions operated in related divisions of the mechanical department, it is fair to say that the ITU exercised an influence and leadership similar to that exercised by "Big Steel" in the great manufac- turing industries. The International Typographical Union originated in 185o and assumed its present name in 1869. In 1889 the pressmen members withdrew to create their own union. The ITU continued to grow until by the end of the nine- teenth century it counted among its members most of the typographical workers in the major printing establishments of large American cities. In 1902 the ITU and the American Newspaper Publishers Association de- vised an arbitration agreement which became the basis for almost routine negotiations and renewals, except for a brief period of contention with the Hearst newspapers at the time of World War I, until the enactment of the Taft-Hartley Act. The passage of the Taft-Hartley law in 1947 coincided with a change in the leadership policies of the International Typographical Union itself which led quickly to a succession of complaints filed by newspaper publishers with the National Labor Relations Board. The most notable of these revolved around the dispute between the ITU and the daily newspapers in Chicago, which began in the fall of 1947, continued with the union on strike and the newspapers resorting to photoengraved pages to produce their issues without typesetting, and lasted until a settlement was reached in the fall of 1949. Interestingly enough, the unfair labor practices charged against the union, and confirmed in the National Labor Relations Board hearings, although they precipitated the famous strike, never were brought to a definitive court test. Despite the ineffectiveness of the NLRB's findings in this case, the detailed review of labor practices in the newspaper industry which the board made in 421 Labor Relations of Newspapers the process importantly illustrates the problems, both of economics and law, involved in this phase of the newspaper business. THE UNFAIR LABOR PRACTICES A. BACKGROUND i. Prefatory statement The allegations of unfair labor practices-except for those relating to re- production-flow from the nationwide "collective bargaining policy" adopted by the ITU shortly after the enactment of the Labor Management Relations Act of 1947. This case is novel in at least one respect. Only the ITU and its executive officers are named as Respondents. The subordinate locals are not joined, although it was largely through them, in their direct dealings with employers upon a local level, that the ITU policy was given objective expres- sion. . 2. The organization of the ITU and the extent of its control over subordinate local unions and their bargaining policies The ITU, organized in 1852, under the name of National Typographical Union as an amalgamation of previously existing local typographical societies, some of which had existed since about 1815, now numbers among its mem- bership some 87,000 journeymen contained in about 850 locals. The ITU now asserts jurisdiction over composing room employees, who are organized into subordinate typographical unions, and mailing room employees, who are combined in separate mailers' locals. The governing laws of the ITU consist of its constitution, bylaws, and General Laws. The former two relate mainly to the internal organization of the ITU, the third, as will more fully be disclosed, to the contractual relation- ship between subordinate locals and employers. Substantial organizational control, under the ITU constitution and by- laws, is centered in the International body. The constitution empowers the International to "exercise complete and unrestricted authority to define its jurisdiction, enact, enforce and amend as provided in its constitution and bylaws all laws for the government of the International Union, its subordinate unions and its officers and members throughout its entire jurisdiction." To subordinate unions is reserved the right to make only such "necessary laws for local self-government which do not conflict with the laws of the International Union." The constitution provides that ITU "mandates must be obeyed at all times and under all circumstances." Subordinate unions are required, under their charters, not only to comply with ITU laws, but "to be guided and controlled by all acts and decisions of the International as they may from time to time be enacted." Neglect or refusal by a subordinate local to obey any law or legal mandate of the ITU or its Executive Committee may result in the imposition of a fine or the suspension of the local's charter by the Executive Council. . .. 422 International Typographical Union The requirements of the General Laws are considered by the ITU to represent the floor upon which the structure of collective bargaining is erected. Locals bargain for wages and economic conditions not covered by the laws, or only partially covered; and where minimum conditions are pre- scribed, they may bargain for more than the minimum. But they may not, without contravening the "laws," bargain away what the "laws" provide. Gen- eral Laws are adopted, and may be amended, at ITU conventions, taking effect at the beginning of the succeeding year. In practice such laws are adopted only after the subject matter covered has won general acceptance in the industry, largely as a result of collective bargaining by the larger locals. Their adoption into the General Laws is designed to bring stragglers into line, to stabilize working conditions in the industry and to achieve industry-wide standardization considered desirable in view of the mobility of printers as a craft. It has long been traditional in the industry to consider the ITU General Laws as a part of every contract; indeed, the obli- gation to observe pre-existing ITU laws was expressed in nationwide arbitra- tion agreements between the ITU and the ANPA in force from 1901 to 1922. The ITU has steadfastly maintained the position that its laws were an internal union matter, not subject to arbitration, and it was over this issue largely that relations between the ITU and the ANPA were broken in 1944. Since that time the ITU has declined to approve any local contract which did not expressly or in substance provide that ... the General Laws of the International Typographical Union in effect [January i the preceding year], not in conflict with this contract, shall govern the relations between the parties on conditions not specifically enumerated herein. To assure adherence to ITU laws, provision is made for International supervision of all local contracts. The General Laws require subordinate un- ions "to submit to the International President for review and approval, as complying with the requirements of International Union laws, all proposals for a new contract-before presentation to the employer." After a contract has been negotiated by the local scale committee, the negotiated contract again must be similarly submitted for review before it can be finally accepted and signed. The "laws," as most recently amended, state that "no local union shall sign a contract guaranteeing its members to work for any proprietor, firm or corporation, unless such contract is in accordance with International law and policy and approved as such by the International President .. ." 3. Traditional hiring practices in ITU-organized offices prior to August 22, 1947-closed shop conditions; the role of the foremen; priority and ap- prenticeship systems Scattered through the General Laws are a number of clauses restricting to ITU members work in various occupational categories. All, however, are epitomized by Article V, Section o10 of the "laws," which requires that 423 Labor Relations of Newspapers all persons performing the work of foremen or journeymen at any branch of the printing trade, in offices under the jurisdiction of the International Typographi- cal Union, must be members of the local union of their craft and entitled to all privileges of membership. Ever since the ITU's early beginnings, the closed shop has constituted the cornerstone of its organizational and operating structure. The requirement that the foreman be a union member has been an integral part of its closed shop policy. In practice, and as provided in the General Laws, the foreman is in complete charge of composing room operations in union shops; he is "the only recognized authority" who may give orders directly to rank-and- file employees; he passes on the competency of employees; he alone may employ or discharge. Moreover, under the General Laws, he is the person to whom all grievances based upon claimed contract violations must in the first instance be submitted for adjustment. Like rank-and-file employees, fore- men are amenable to ITU authority, and, like them, are subject to the oath and obligation, to which all members are required to subscribe upon admis- sion to the Union, "to support the [ITU] laws, regulations and decisions" and "to use all honorable means within my power to procure employment for members of the International Typographical Union in preference to others." The priority and apprenticeship training systems, historically recognized in ITU-organized shops, have been integrated with the closed shop employ- ment practices. Under traditional ITU practices, priority (seniority) rights are recognized in hiring as well as in lay-offs. Although the ITU foreman has general authority to hire, his choice to a considerable extent is circum- scribed by certain priority rules for which provision is made in the General Laws and in local or chapel rules. In actual practice, the hiring system operates generally as follows: Each office has a group of regular situation holders who work steadily and another group who appear for extra or substitute work. At each chapel (the local union's office unit) there is maintained a slipboard (priority board) which is the property of the union and subject to its ex- clusive control. A union member seeking work at that particular chapel, in- stead of making application to management, has his card registered at the foot of the slipboard, after clearing with the union's chapel chairman. When a situation vacancy occurs, or an extra position is to be filled, the fore- man selects the person with highest priority who is competent to fill the job. A regular situation holder is charged with individual responsibility for the performance of his own work assignment, and, in the event of temporary absence, he selects himself, without clearing with the foreman, a competent substitute from the slipboard to fill his place. Under the ITU "laws," 6 years' apprenticeship training is a prerequisite to qualification for journeyman status. In its organized offices, apprenticeship training has been traditionally supervised by the local union, although joint management-labor apprenticeship committees are set up in some localities, a practice which the ITU encourages. The General Laws provide that a person entering the trade must first be approved by the local union and pass a technical and physical examination. At the end of 1 year, the probationary period, if found qualified for further training by the apprenticeship committee 424 International Typographical Union and the foreman, he is required by the General Laws to become an apprentice member of the local union and thereafter to pay the prescribed dues. During the succeeding 5 years he receives training in all branches of his craft and, in addition, must enroll in and complete the ITU course of Lessons in Printing, which includes a course in trade unionism. Apprenticeship training in an ITU-organized office is not, however, the only road to ITU journeyman sta- tus. One who has learned the trade in an "unfair" office and possesses the necessary journeyman qualifications, may also be admitted to journeyman membership . B. THE ITU "COLLECTIVE BARGAINING POLICY" OF 1947 z. The policy begins to take shape; Form A With the enactment of the Taft-Hartley Act in June, 1947, the ITU came to the conclusion, according to Woodruff Randolph's testimony, that the impact of the new law upon established ITU policies and practices might prove disastrous to the Union and the economic interests of its members unless protective measures were devised. Randolph testified, "Three basic and fun- damental policies and practices of the ITU [were] at stake: the right to work only with union men; the right to work only on a union product; and the right to work only on matters within the jurisdiction of the Union." About July 1, 1947, the ITU Executive Council began to issue for posting at Union chapels a series of post-card bulletins, called "T-H-L Points," as well as other instructional material indicating what course of conduct locals were to pursue "to avoid the pitfalls" of the law. It was not contemplated that these would be kept confidential, and it was known that they would come to the notice of employer representatives almost simultaneously with their receipt by the locals, as in fact they did. Agreements expiring before August 22, 1947, the effective date of the new law, the locals were advised, could appropriately be extended for a year, provided an extension agreement in the precise form prescribed by the ITU Council, styled Form A, was signed verbatim by both parties before that date. Form A was designed to be attached to the prior contract, retaining all of its provisions. Although designed as a 1-year extension agreement, it did not bind the parties irrevocably for that term. It contained a 6o-day cancellation clause exercisable at the option of either party, a general invalida- tion clause effective if any particular provision of the contract was determined unlawful, a provision permitting the employer to terminate the contract in the event of an unresolved dispute over work jurisdiction, and a clause nullifying the contract in the event of an action brought "by any person or agency whatsoever attacking the validity of the agreement or seeking to prevent its terms being carried out." The unit was defined as constituting "all composing room employees," a description that was to be subject to definition and lim- itation by the Union alone, but with the right reserved to the employer to terminate the contract in the event of any unresolved dispute, as above noted. The employer agreed not to appeal any jurisdictional issue to any agency, and to limit all legal recourse to a Joint Standing Committee whose max- 425 Labor Relations of Newspapers imum award was limited to $25. A final clause provided that no union mem- ber could be required to cross a picket line established by any ITU subordi- nate union. .... 2. The policy is adopted On August 21, 1947, the ITU at its annual convention, by unanimous vote of the delegates democratically elected by the subordinate locals, adopted the "collective bargaining policy." This policy took the form of a resolution which passed as a revision of Section 1, Article III of the General Laws. The policy statement, in addition to declaring a desire to continue harmonious relations with employers, [expressed] the belief that the Labor Management Relations Act of 1947 was "ill considered," and in certain re- spects "unconstitutional and invalid-impractical and unworkable-inequi- table and unjust." . . . 3. Construction and interpretation of policy. . . . Conditions of Employ- ment In accordance with the policy adopted, the ITU issued to each of its locals a printed Conditions of Employment form. This consisted of a unilateral statement setting forth the wages, hours, and conditions upon which Union members were prepared to work. The preamble to the "Conditions" recited that it was not a contract nor an offer susceptible of acceptance; that the con- ditions were established by the local subject to all (ITU) laws, regulations, and decisions; the Union promulgating these Conditions of Employment accepts no obligation as collective bargaining agent as defined by the Labor- Management Relations Act of 1947"; and that any act of union members in quitting their employment was "a matter of their individual rights and prerogatives. ." 4. ITU changes strategy; Form P-6A The change of strategy was reflected in the issuance to locals of Form P-6A. This was a form of agreement for an indefinite term, cancellable at the will of either party upon 6o days' notice. The essence of P-6A is to be found in clauses (a) through (i) of the form. Because frequent refer- ences will be made to the clauses in subsequent sections of this report, they are set out in full for the convenience of the reader as Appendix B of this report. The "Change of Strategy" statement, to which Randolph referred, was in the form of a circular, signed by the individual respondents, issued on October 7, 1947. Its announced purpose was to explain the "change in strategy be- cause of attacks by NLRB General Counsel against our collective bargaining policy." The circular quotes those paragraphs of the "Policy" that disclaim any intent to violate the law and that confer authority upon the Executive Coun- cil to "interpret, construe and enforce the above policy"; expresses resentment against the attacks of the General Counsel and employer groups, and then goes on to enunciate the changed strategy as follows: 426. International Typographical Union We therefore can easily comply with even Denham's idea of "good faith" by presenting a form of contract we will offer to sign if the employer will sign it. In the new form of contract (P-6A) we protect ourselves as well as we can by the paragraphs at the beginning, set in io pt. boldface type. The first para- graph, and the paragraphs that follow, lettered (a) to (i) both inclusive are the ONLY protection you can write into a contract on matters of utmost im- portance to us. Contract Proposal Only for 6o-Day Duration The right to terminate on 6o-day notice is absolutely essential because: It puts the employer in a position where he is likely not to have union employees working for him if he hires nonunion men; if he brings in nonunion matter for you to work on; or if he tries to take away your jurisdiction. The reason we adopted a "no contract" policy was to protect ourselves against the above acts which the employer could perform at our destruction. Now-with the 6o-day notice requirement of the T-H-L, a local union can terminate form P-6A on 6o days' notice and begin "bargaining in good faith," again, even "Denham style," and be free at the end of the 60 days . C. THE "LINE" OF THE ANPA BULLETINS The ITU bulletins were paralleled by a series of bulletins, contemporane- ously circulated by the ANPA Special Standing Committee to its members, informing them of the ITU bargaining program and recommending how that program should be countered. In its bulletins, the ANPA condemned and recommended the rejection, successively, of Form A, Conditions of Employment, and Form P-6A. The publishers were specifically warned against including in any contract certain ITU proposed clauses, among them the 6o-day cancellation, struck work, "all or nothing invalidation," jurisdiction and damage limitation clauses. They were advised particularly, and on a num- ber of occasions, not to discuss wages until all other contract terms were settled, as illustrated by the following quotation from one of the bulletins: If the local union proposes a wage increase and "no contract" pending de- velopments elsewhere, the employers' answer should be an emphatic "No." Nor should employers propose wage increases in the absence of a positive affirma- tion from the local union that it is willing to negotiate and sign a contract which complies in every particular with the LMRA. Even then the basic rule that wages and fringe costs are not open to discussion until agreement is reached on every other section of the contract should be forcefully invoked. Randolph characterized the ANPA bulletins as laying down the "ANPA party line." But there is this important difference between the ANPA bul- letins and those of the ITU: The ITU bulletins carried with them the force of direction inherent in the Executive Council's power to approve or dis- approve local contracts and to invoke sanctions enforcing compliance with ITU laws and policies. Those of the ANPA carried no similar force; for the ANPA, unlike the ITU, is powerless to control its members' bargaining activ- ities, and may do no more than advise and recommend. Yet, the ANPA bulletins are not without value in appraising the local bargaining negotiations to be discussed below. 427 Labor Relations of Newspapers With this general review of what occurred on a national scale, we turn now to consider how the ITU "collective bargaining policy" was actually applied, and with what variations, on local bargaining levels. D. APPLICATION OF ITU "COLLECTIVE BARGAINING POLICY" AT LOCAL BARGAINING LEVELS 1. Introduction To illustrate the manner in which the ITU "collective bargaining policy" was applied on local levels, evidence was introduced at the hearing concern- ing negotiations between ITU locals and newspaper publishers at Chicago, Illinois; Hammond, Indiana; South Bend, Indiana; Sioux City, Iowa; De- troit, Michigan; Buffalo, N.Y.; Albany, N.Y.; and New York City. In addition, there was stipulated, as part of this record, all evidence in the Federal Court injunction proceeding concerning similar negotiations at New Bedford, Mass.; Columbus, Georgia; Jamestown, N.Y.; and Rockville Center, N.Y.;- in the last two mentioned cities this was done at the request of Respond- ents. Further, certain limited aspects of negotiations at other cities, such as at San Francisco, as well as a general recapitulation of the outcome of bargain- ing negotiations in the industry nationally, were covered by other evidence, to be referred to in the miscellaneous section below. The negotiations at Chicago will be covered at some length, for several reasons. These were the first im- portant negotiations conducted under the ITU "Policy"; their span covers the Form A, Conditions of Employment, and Form P-6A phases of the ITU policy; they involve the direct participation at the later stages of ITU Pres- ident Randolph; and they supply the most appropriate frame of reference for negotiations in other localities. Moreover, the Chicago negotiations form the subject of a separate complaint in the companion Case No. i3-CB-6, and the findings of fact made herein will be incorporated by reference in the separate Intermediate Report to be issued in that case. The negotiations in the other localities, except for New York City-where they extended into the post-injunction period-will be given more abbreviated treatment. 2. Chicago, Illinois On July 21, 1947, exactly 3 months before its then current contract with the Chicago Newspaper Publishers Association was to expire, Chicago Typo- graphical Union No. 16 served notice, as required by the contract, requesting that negotiations be opened for the succeeding term. Thereafter, and up to the time of the strike which began on November 24, 1947, about 20 meetings were held. John Pilch, president, and Joe Rhoden, chairman of the Scale Committee, headed the union delegation. During most of the conferences, John O'Keefe, the Association's secretary, acted as principal spokesman for the publishers' group. .. Randolph in the course of his preliminary comments, as well as on various occasions thereafter, emphasized that it was the intent of the ITU to retain its historical practices. ITU men, he said, would not work with nonunion 428 International Typographical Union men, or on nonunion goods, or where their jurisdiction was interfered with. He was not, he added, asking that the publishers agree not to hire nonunion men or otherwise to violate the law. He was, instead, leaving it to the pub- lishers to use their own ingenuity, and he would gamble that they would find a way out where their money was involved. The ITU president stressed that the ITU policy had these objectives: (1) to preserve the right of union members not to work with nonunion men; (2) to preserve their right not to work on nonunion goods; and (3) to preserve the ITU work jurisdiction. These rights, he stated, the Union now had, always had, and had no inten- tion of giving up. There was also a fourth objective-no contract-but that also had already been achieved with the expiration of the Chicago newspaper contract. There was left, he added, a fifth and final objective, not yet achieved -more money-and that was an issue on which the Union could still strike. Randolph told the publishers that the employees would work under Con- ditions of Employment. This he considered most desirable from any point of view. If, however, the employers wanted a contract, they could have one. But it must be one which would protect the Union's interest, such as P-6A. The Union, he said, would not agree to any contract not containing a 6o-day termination privilege. Such a provision, he stressed, was essential to the Union in order that it might have the opportunity to pull out without in- curring financial liability if there was any infringement of its fundamental rights. He was willing, he said at one point, to take a chance against the invasion of such rights for 60 days, but no more-"if we strike then, we can make our price higher." O'Keefe assured Randolph that the publishers had no desire to destroy the Union, that they did not intend to look for nonunion men, and that they did intend to continue their former practice of hiring only union fore- men. The vice in Randolph's formula, said O'Keefe, was that it ruined sta- bility and placed responsibility for violating the law entirely on the shoulders of the publishers. Replying that the Union was merely suggesting that the employees continue as they had before, Randolph added that the ITU would assume responsibility for seeing to it that stability was maintained un- der Conditions of Employment; and that it would not authorize any strike unless, after full exploration of the matter, it concluded that such action was essential for the protection of the Union. The publishers advised Randolph that they could accept neither the Conditions nor P-6A. On November 11, the publishers submitted the so-called Garrison proposal, drafted by Lloyd Garrison who was representing the Times and Sun. In essence this provided for (1) a renewal of the existing agreement for 1 year; (2) the inclusion of a provision that only members of the Union could be employed as foremen and that preference in other situations would be given to former composing room employees of Association members; (3) the adjustment of wage rates, applicable retroactively, to be agreed upon later; and (4) the insertion of a new clause that no provision of the contract "shall be so interpreted or applied as to violate any local or Federal law," or in lieu thereof, the deletion from the contract of all provisions relating to the closed shop and struck work and the substitution therefor of another par- agraph to read that "the General Laws of the [ITU] in effect January 1, 1947, 429 Labor Relations of Newspapers not in conflict with law or this contract, shall govern relations between the parties on conditions not specifically enumerated herein." The Garrison proposal was not accepted. Randolph pointed out that the foremen provision should not be expressly incorporated in any contract, since a rejected nonunion applicant might rely on this to support a claim of dis- crimination. He objected particularly to the provision for a fixed duration term of 1 year, stating that it deprived the Union of the protection it desired. He complained that the Union was being asked to give up four objectives to secure one. In addition, he contended, it was not a full proposal since it did not include wages. Thereafter, Randolph rejected a further proposal of the publishers that the issue as to whether there should be a stabilized contract for a 1-year term be submitted to the Chicago Federation of Labor for arbitration. Randolph stated that after having given the matter much thought he believed that Con- ditions of Employment or P-6A provided the only answer to the Union's needs-that perhaps the publishers could come up with something else, but he doubted it. On November 13, the publishers did come up with another, and, as events proved, a final proposal-called the Woodward proposal. Its submission was prefaced by a discussion of the mailers' situation. Garrison and Woodward stated that they had found a solution which would give the employees stabil- ity and the Union protection, but that the publishers were apprehensive about the mailers who were represented by another subordinate ITU local. The publishers were hopeful, they said, that no closed shop problem would arise affecting the printers, but they were concerned about the mailers who were less skilled, in short supply, and, moreover, affected by a jurisdictional dispute at one of the offices. Garrison asked for Randolph's assurance, which Ran- dolph declined to give, that if a formula was agreed upon affecting the Typographical Union it would not be binding on the mailers' situation. The Woodward proposal which was then presented with the understanding that it was conditional upon a solution of the mailers' problem read as follows: The contract effective October 21, 1947, is hereby extended . . . to Octo- ber 2, 1948, except as it is in conflict with law, and except as modified below. If a situation should arise whose legal consequences under the Taft-Hartley Act might in the view of either party call into question the desirability of con- tinuing the contract, the parties shall immediately meet and discuss the situa- tion, and if after to days they have failed to agree upon a solution, either party may on 6o days' written notice to the other cancel the agreement. Randolph never rejected the Woodward proposal; neither did he agree to it. He took the position that it was not a complete proposal in a form that could be submitted to the local membership with a recommendation, be- cause it made no reference to wages and other economic conditions. He in- sisted that the negotiators turn to a discussion of those topics. The publishers pressed for a commitment from Randolph as to whether or not the form was acceptable, but all Randolph would say was, "In the past your proposals were a rag, a bone and hank of hair, and I could say, 'No.' This one has a little meat on it." The publishers flatly refused to discuss money until Randolph 430 International Typographical Union had first committed himself to a contract framework. They expressed the fear that if that were done, the Union would post the wages in Conditions of Em- ployment and forget about the framework. Randolph's rejoinder was that the men could live without framework, but not without money; that the Union had as much right to discuss money as the publishers had to discuss framework. Randolph remained adamant on that point, and the publishers were equally tenacious in maintaining their position. The net result was that by mutual agreement the negotiations were declared deadlocked. . E. CONCLUSIONS 1. Violation of Section 8(b)(2) Section 8(b) (2), to the extent here pertinent, provides: It shall be an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of sub- section (a) (3) � Together with Sections 7, 8(a) (3) and 9(e), it forms part of a compre- hensive scheme which outlaws the closed shop entirely, and permits other and more limited forms of union security arrangements only where certain prescribed statutory requirements, not complied with by the ITU or its subor- dinate locals, have first been met. The statutory scheme is designed to assure that job opportunities will not be closed to employees on the basis of their membership or nonmembership in a labor organization, and that employees' security in their jobs, once obtained, will not thereafter be conditioned upon such considerations, except under the particular circumstance allowed by law. Before the amendments to the Act, an employer alone was held accountable for illegal discrimination, and the fact that he may have been forced into such action by pressure brought to bear upon him by a labor organization did not exculpate him from responsibility. Section 8(b)(2) was devised in part to correct this situation and to provide relief to an employer caught between the Scylla of union pressure and the Charybdis of the Board. Respondents' course of conduct must be viewed against the backdrop of these statutory objectives. There can be no doubt, on the record of this case, that a primary purpose of the 1947 ITU "collective bargaining policy" was to continue closed-shop con- ditions. This is evident from a reading of various ITU bulletins, the "collec- tive bargaining policy" itself, the speeches and statements of Randolph ex- plaining the "policy" and divers releases of the ITU Executive Council interpreting it-pertinent extracts from which have been quoted above. This is apparent as well from testimony of Randolph and from various statements made by ITU and local union negotiators in the course of bargaining upon a local level. The ITU and its locals made no effort to conceal their purpose, although at times they sought to disguise it by phrasing it in terms of the protection of the historic "right and prerogative" of individual members not to work with nonunion men. But the exercise of individual rights does not re- quire the protection of combined union power. By collectively adopting a policy to "maintain our historic rights and prerogatives," by collectively de- 431 Labor Relations of Newspapers claring at the same time an intent "to avoid the sacrifice of [such] rights and prerogatives," by collectively providing in that policy that individual members could accept employment only under conditions approved by the ITU, and by incorporating that policy in its General Laws and making it binding upon individual members-by all these and other means, the ITU made it unmis- takably clear that what it was trying to maintain was the "right and preroga- tive" of its members, acting as a labor organization, not as individuals, to re- frain from working with nonunion men. When individual action not only is reserved but is commanded by group decision, it ceases to be individual and becomes collective action. The ITU "collective bargaining policy" must be appraised not only against its declared objectives, but also in the light of the warnings, expressed in publicized ITU releases and implicit in the "Policy" itself, of the probable consequences which would flow from a publisher's efforts to disturb the exist- ing closed shop conditions. Thus, the Council, in its official communication accompanying Form A, stated, "We will maintain our right to work only with the Union men under any circumstances." Randolph, explaining the "Policy" at the convention, said, "Any employer in the printing industry that under- takes to put a nonunion man in the composing room has by that very act demonstrated that it is his desire to break the Union." And further, "There is no law that specifies you must tell an employer why you are striking or why you are quitting your job-without any obligation to the employer by what is now a legal contract, you can strike for no reason at all." Explaining the "change in strategy," the Council stated that the 6o-day notice was necessary because "it puts the employer in a position where he is likely not to have union employees working for him if he hires nonunion men." As late as January, 1948, Randolph wrote in the Typographical Journal, "There is one alternative the employer may take which will bring him a nonunion operation instead. That alternative is the hiring of nonunion men. . . . Since mem- bers of the ITU have never worked with nonunion men, they would naturally and unanimously refuse individually to do so." Nor were these expressions confined to official ITU releases. Thus, at Chi- cago, Randolph made clear to the publishers that the Union had no intention to give up its "right" not to work with nonunion men, that if that right were invaded it would strike, not openly to compel compliance, but ostensibly for higher wages. Much the same thing was expressed by Randolph in the Detroit negotiations. Warnings that union men would not work with nonunion men were also made at other local negotiations, such as at New Bedford. That these were not idle threats, and that an invasion of the traditional closed shop conditions would lead to an ITU-authorized walk-out is illustrated by the Columbus, Georgia, strike which directly resulted from the posting by the publisher of new rules removing from the foremen exclusive hiring power, and cutting down the Union's control of hiring procedures fundamental to tradi- tional ITU closed-shop operations. An incident of ITU closed-shop operations has been the requirement that foremen of ITU-organized offices be union members, who, as such, are obli- gated by oath and ITU laws to carry out and comply with ITU laws, including the hiring of union men. The ITU, as Randolph's testimony reflects, draws 432 International Typographical Union 433 no distinction between "union men" and "union foremen." Hence it is evi- dent that the ITU program to maintain the "right to work only with union men" included foremen with the definition of "union men." This was made abundantly clear by the "Conditions of Employment" form, which, in addi- tion to providing that members were to work under ITU laws, expressly pro- vided that members would work only under the direction and supervision of a union foreman who was to have complete control over hiring and discharge. The technique to maintain closed-shop conditions, devised by respondents and applied with substantial uniformity on a local level, was, as to the em- ployers, essentially a coercive one. By refraining from entering into contracts, a local placed itself in a position where its members could leave their jobs, ostensibly as individuals but actually in a body, whenever conditions in an office became unsatisfactory. And since it was an openly avowed objective of the ITU program to maintain the right not to work with nonunion men, the employer would be on notice that in the eyes of his employees, the hiring of nonunion men would result in the establishment of unsatisfactory conditions. Moreover, if the Union determined to declare a "lockout," the absence of a contract would leave the Union free to formulate the strike issue as one involving wages or some other legitimate strike objective. The alternatives to an employer were thus clearly presented. Either he must avoid hiring nonun- ion men, or he must face the difficult and distributing prospect of finding a full complement of nonunion men to replace the union men who would "naturally and unanimously refuse individually" to work. Under the ITU program, an employer was not asked to agree not to hire nonunion men. It was expected, however, that the publisher, without appearing to violate the law, would manage to evade hiring nonunion men. As Randolph said at Chi- cago, he would leave the method to the publishers' own ingenuity, and he would gamble they would find a way out where their money was involved. The "Conditions of Employment" form was designed as a substitute for a bilateral and binding contract, in order to give the Union freedom of move- ment to enforce the conditions it was seeking to maintain. It is inaccurate to say that the "Conditions" were "imposed" upon employers, if by that is meant that employers were forced to submit to a posting of the "Conditions" form and the acceptance of terms unilaterally promulgated by the Union. The record shows that the locals were prepared to, and did, negotiate with respect to wages, economic conditions, and certain other provisions in the form; that the use of a posted form was not always insisted upon, and that the "Condi- tions" form as a rule was not posted until after agreement was reached on all issues, and often not even then. But it was not necessary to the accomplish- ment of the Union's program that formal "Conditions" be posted. A bare wage agreement without definite term, or a satisfactory understanding on wage rates and other economic conditions, served the ITU program as well. What was in effect "imposed" was the requirement that the employer main- tain conditions consistent with ITU policy, or else risk the alternative of an unstaffed composing or mail room. The "change of strategy" and Form P-6A, which were fashioned by the ITU after its program had given rise to a refusal to bargain charge at Baltimore, did not, as Randolph conceded, represent an abandonment of the ITU conven- tion policy. It is contended that certain specific clauses of P-6A, considered separately and in certain combinations, constitute [in] that form a legally bind- ing agreement to maintain a closed shop. I do not agree. It is clear from the record as a whole that P-6A was not designed as a legally enforceable closed shop contract, was not represented as such and was not so understood. But that alone is not determinative of the issue. The character of P-6A is to be tested by looking at it, not in the abstract, but in relation to the over-all ITU policies and objectives of which it admittedly formed part. So viewed, it appears clear that P-6A did not basically alter the technique devised by the ITU to secure the maintenance of closed-shop conditions. The key to P-6A is to be found in its 6o-day cancellation clause. Although on several occasions the ITU authorized other modifications of P-6A, this was the one clause to which local unions were rigorously enjoined to adhere, and the ITU authorized no deviation from it in the newspaper field until March, 1948. The coercive purpose of the 6o-day clause was immediately revealed in the ITU communication explaining the "change of strategy," where it was stated that the clause was "absolutely essential" because, inter alia, "it puts the employer in position where he is likely not to have union employees work- ing for him if he hires nonunion men; . . ." The same communication also set at rest any notion that the ITU was departing from the original objectives of its "Policy," by stressing that P-6A represented merely a change in tactics to meet the charge that the Union was refusing to bargain. It remained the intention of the ITU, the release stated, "to preserve the right of our members individually or, as far as we can collectively, to refuse to work with compet- ing nonunion men." With regard to the execution of the ITU "Policy," the only difference between P-6A and no contract at all was that under P-6A reprisal action against an employer for hiring nonunion men might have to be postponed for 60 days. As Randolph told the Chicago publishers, the Union was willing to take a chance against the invasion of its "rights" for that period, but no more; "if we strike then we can make our price higher." In short, P-6A, like the "Conditions" form, was designed to operate as a con- tinuing threat to employers that union men would walk out if nonunion men were hired. As William Mapel of the New York City Publishers Associa- tion, explaining his objection to the 6o-day cancellation clause, testified: Our chief objection to it was the suspicion and conviction that we had that no matter what we might write into a contract, if we had a sixty day cancellation clause in there and if we did not close our eyes to the law, if we did not, in a sense, connive to avoid the law or break it; if we did not in every respect, in effect, live up to the Randolph pattern with respect to closed shop conditions, struck work, and union jurisdiction, that we would be served with the sixty-day cancella- tion clause. In other words we knew it was a sword that would be hung over our head, and we were confident that it would be used against us if we did not con- nive with those who sought to connive with us in order that the law would be by- passed or broken. On the entire record, I am satisfied that respondents' course of conduct constituted an attempt within the meaning of Section 8(b)(2) to cause employers to discriminate against employees in violation of Section 8(a)(3). Labor Relations of Newspapers 434 International Typographical Union 435 Section (8)(a)(3) makes it an unfair labor practice for an employer to discrimi- nate "in regard to hire or tenure of employment . . . to discourage or en- courage membership in any labor organization." The term "employee" as used in the Act is a broad one covering not only employees of a particular em- ployer, but prospective employees as well. Realistically viewed, it appears obvious that the application of closed shop hiring practices, especially where generally known to exist, as they must be where ITU hiring procedures are followed, operates in a discriminatory manner against all prospective non- union applicants for employment. Where an employment office-to point up the illustration-bears at its entrance a placard reading, "Only union appli- cants need apply," nonunion job seekers are discriminated against as a class. But it is unnecessary here to rest decision on the proposition that the mere existence of closed shop hiring procedures constitutes, without more, a viola- tion of Section 8(a)(3), a question which the Board has never squarely decided. A violation of 8(b)(2) does not depend upon a showing that 8(a)(3) has been actually breached. Nor does it turn upon the presence of proof that any specific individual was the object of discrimination. Section 8(b)(2) is not so narrowly to be construed as to require a direct link in the chain of attempted causation between the union pressure and a particular employee to be affected thereby. The "attempt" to compel discriminatory hiring re- quirements looks forward to a situation where it may be applied. What the statute proscribes is union action, as such, directed toward discrimination. Where, as here, the illegal attempt itself is established, the statute is violated without regard to whether it fails or succeeds, or whether it operates on a class of employees or on specified individuals. Respondents urge in justification of their conduct that their motive and intent was to preserve the Union and promote its economic interests. I have no doubt that this is true. But the mere fact that respondents' object was to benefit the Union in a way which may have been unobjectionable in the absence of a governing law, does not provide legal justification for conduct specifically proscribed by statute. "The law is its own measure of right or wrong, of what it permits or forbids, and the judgment of the courts cannot be set up against it in a supposed accommodation of its policy with the good intention of the parties, and, it may be, of some good results." Standard Sanitary Manufacturing Company v. United States, 266 U.S. 20, 49. Good motives do not nullify unfair labor practices. There is no more substance in the contention that respondents' program involved basically the recognition of the right of each individual member to refuse to work under conditions which did not suit him. The right of an individual to work or not to work as he pleases cannot, of course, be ques- tioned. But, as has already been observed, what is involved here is not an assertion of individual rights by individuals, but rather the enforcement by respondent union, as a labor organization, and by the individual respond- ents, as Union officers, of a collective policy having a coercive base and aimed at discrimination. Nor is it a defense, as respondents now also urge, that their program was designed as a self-help measure to protect the Union against efforts by an employer to destroy it. In point of fact, this contention is not supported by Labor Relations of Newspapers the record. As revealed by Randolph's own statements, quoted above, the ITU regarded the very act of putting a nonunion man in the composing room as in itself a demonstration of an employer's desire to break the Union. And while in certain local negotiations, it was stated that the Union would cooper- ate with the employer if he were compelled by circumstances beyond his control to hire a nonunion man, it was clearly implied, nevertheless, that the employer would be expected to evade hiring nonunion workers wherever possible. In point of law, respondents' contention is equally unsupported. The mere fact that the Union, with good motives, may have desired to guard itself against employer discrimination in a contingent eventuality, does not justify its own immediate illegal conduct in attempting to cause all employers to discriminate against nonunion employees as a class. Violation of the Act has never been held justified, where the unfair labor practices have been committed under force of economic pressure. This is far less basis for justifi- cation where the pressure is not immediate but remote and contingent. Upon the entire record I find that Respondents by their above-described course of conduct, from August 22, 1947, to March 27, 1948, attempted to cause employers to discriminate against employees in violation of Section 8(a)(3) of the Act. IN THE MATTER OF INTERNATIONAL TYPOGRAPHICAL UNION . . . AND AMERI- CAN NEWSPAPER PUBLISHERS ASSOCIATION, 86 N.L.R.B. 951 (September 20-NOVEMBER 19, 1949) The chief issue, involved in the Chicago strike and in other complaints against the ITU under the Taft-Hartley Act, on which the newspaper trade association chose to make a court fight was the renowned "bogus rule" of the union. This rule, or "law" of the ITU, was conceived by the union as its first line of defense against the loss of local work opportunities by typographic composition done from a central point for national distribution. In the news- paper industry this threat took the form of national advertisements which were sent to individual publications from an advertiser or agency in the form of "mats" (stereotype casts suitable for reproduction in the newspaper plant) or electrotypes (plates ready for printing upon receipt). The "bogus rule" required that local ITU members were to reset the type represented in either mats or electrotypes in the local plant, receiving regular wages for the time required to duplicate the material. The American Newspaper Publishers Association contended that the "bo- gus rule" violated the provision in the Taft-Hartley law making it an unfair labor practice "to cause or attempt to cause an employer to pay or deliver . . any money or other thing of value . . . for services which are not performed or to be performed." The National Labor Relations Board dismissed the complaint, and the ANPA then took an appeal to the Circuit Court of Ap- peals, which affirmed the board's action. A review of the Circuit Court's 436 Newspaper Publishers Assn. v. N.L.R.B. 437 action was made by the Supreme Court in 1953. By a majority of six to three, the court upheld the board and the circuit court. Mr. Justice Burton read the majority opinion. Printers in newspaper composing rooms have long sought to retain the opportunity to set up in type as much as possible of whatever is printed by their respective publishers. In 1872, when printers were paid on a piecework basis, each diversion of composition was at once reflected by a loss in their income. Accordingly, ITU, which had been formed in 1852 from local typo- graphical societies, began its long battle to retain as much typesetting work for printers as possible. With the introduction of the linotype machine in 1890, the problem took on a new aspect. When a newspaper advertisement was set up in type, it was impressed on a cardboard matrix, or "mat." These mats were used by their makers and also were reproduced and distributed, at little or no cost, to other publishers who used them as molds for metal castings from which to print the same advertisement. This procedure by-passed all compositors except those who made up the original form. Facing this loss of work, ITU secured the agreement of newspaper publishers to permit their respective compositors, at convenient times, to set up duplicate forms for all local advertisements in precisely the same manner as though the mat had not been used. For this reproduction work the printers received their regular pay. The doing of this "made work" came to be known in the trade as "setting bogus." It was a wasteful procedure. Nevertheless, it has become a recognized idiosyncrasy of the trade and a customary feature of the wage structure and work schedule of newspaper printers. By fitting the "bogus" work into slack periods, the practice interferes little with "live" work. The publishers who set up the original compositions find it advantageous because it burdens their competitors with costs of mat making comparable to their own. Approximate time limits for setting "bogus" usually have been fixed by agreement at from four days to three weeks. On rare occasions the reproduced compositions are used to print the advertise- ments when rerun, but, ordinarily, they are promptly consigned to the "hell box" and melted down. Live matter has priority over reproduction work but the latter usually takes from 2 to 5% of the printers' time. By 1947, detailed regulations for reproduction work were included in the "General Laws" of ITU. They thus became a standard part of all employment contracts signed by its local unions. The locals were allowed to negotiate as to foreign language publications, time limits for setting "bogus" and exemptions of mats received from commercial compositors or for national advertisements. Before the enactment of S8(b)(6), the legality and enforceability of payment for setting "bogus," agreed to by the publisher, was recognized. Even now the issue before us is not what policy should be adopted by the Nation toward the continuance of this and other forms of featherbedding. The issue here is solely one of statutory interpretation: Has Congress made setting "bogus" an unfair labor practice? While the language of 8(b)(6) is claimed by both sides to be clear, yet the conflict between the views of the Seventh and Sixth Circuits amply Labor Relations of Newspapers justifies our examination of both the language and the legislative history of the section. The section reads: SEC. 8. ... (b) It shall be an unfair labor practice for a labor organization or its agents . . . (6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed . . . [61 Stat. 140-142, 29 U.S.C. (Supp. V) S158(b) (6)]. From the above language and its history, the court below concluded that the insistence by ITU upon securing payment of wages to printers for setting "bogus" was not an unfair labor practice. It found that the practice called for payment only for work which actually was done by employees of the publishers in the course of their employment as distinguished from payment "for serv- ices which are not performed or not to be performed." Setting "bogus" was held to be service performed and it remained for the parties to determine its worth to the employer. The Board here contends also that the insistence of ITU and its agents has not been "in the nature of an exaction" and did not "cause or attempt to cause an employer" to pay anything "in the nature of an exaction." Agreement with the position taken by the court below makes it unnecessary to consider the additional contentions of the Board. However desirable the elimination of all industrial featherbedding prac- tices may have appeared to Congress, the legislative history of the Taft-Hartley Act demonstrates that when the legislation was put in final form Congress decided to limit the practice but little by law. A restraining influence throughout this congressional consideration of feath- erbedding was the fact that the constitutionality of the Lea Act penalizing featherbedding in the broadcasting industry was in litigation. That Act, known also as the Petrillo Act, had been adopted April 16, 1946, as an amendment to the Communications Act of 1934. Its material provisions are stated in the margin. December 2, 1946, the United States District Court for the Northern District of Illinois held that it violated the First, Fifth, and 'Thirteenth Amendments to the Constitution of the United States. United States v. Petrillo, 68 F. Supp. 845. The case was pending here on appeal throughout the debate on the Taft-Hartley bill. Not until June 23, 1947, on the day of the passage of the Taft-Hartley bill over the President's veto, was the constitutionality of the Lea Act upheld. United States v. Petrillo, 332 U.S. 1. The purpose of the sponsors of the Taft-Hartley bill to avoid the contro- versial features of the Lea Act is made clear in the written statement which Senator Taft, cosponsor of the bill and Chairman of the Senate Committee on Labor and Public Welfare, caused to be incorporated in the proceedings of the Senate, June 5, 1947. Referring to the substitution of 58(b)(6) in place of the detailed featherbedding provisions of the House bill, that state- ment said: The provisions in the Lea Act from which the House language was taken are now awaiting determination by the Supreme Court, partly because of the prob- 438 Newspaper Publishers Assn. v. N.L.R.B. lem arising from the' term "in excess of the number of employees reasonably required." Therefore, the conferees were of the opinion that general legislation on the subject of featherbedding was not warranted at least until the joint study committee proposed by this bill could give full consideration to the matter [93 Cong. Rec. 6443.1 On the same day this was amplified in the Senator's oral statement on the floor of the Senate: There is one further provision which may possibly be of interest, which was not in the Senate bill. The House had rather elaborate provisions prohibiting so-called featherbedding practices and making them unlawful labor practices. The Senate conferees, while not approving of featherbedding practices, felt that it was impracticable to give to a board or a court the power to say that so many men are all right, and so many men are too many. It would require a prac- tical application of the law by the courts in hundreds of different industries, and a determination of facts which it seemed to me would be almost impossible. So we declined to adopt the provisions which are now in the Petrillo Act. After all, that statute applies to only one industry. Those provisions are now the subject of court procedure. Their constitutionality has been questioned. We thought that probably we had better wait and see what happened, in any event, even though we are in favor of prohibiting all featherbedding practices. However, we did ac- cept one provision which makes it an unlawful labor practice for a union to ac- cept money for people who do not work. That seemed to be a fairly clear case, easy to determine, and we accepted that additional unfair labor practice on the part of unions, which was not in the Senate bill. [93 Cong. Rec. 6441. See also his supplementary analysis inserted in the Record, June 12, 1947. 93 Cong. Rec. 6859.] As indicated above, the Taft-Hartley bill, H.R. 3020, when it passed the House, April 17, 1947, contained in $2(17) and 12(a) (3) (B) an explicit condemnation of featherbedding. Its definition of featherbedding was based upon that in the Lea Act. For example, it condemned practices which re- quired an employer to employ "persons in excess of the number of em- ployees reasonably required by such employer to perform actual services," as well as practices which required an employer to pay "for services . . . which are not to be performed." The substitution of the present S8(b)(6) for that definition compels the conclusion that $8(b)(6) means what the court be- low has said it means. The Act now limits its condemnation to instances where a labor organization or its agents exact pay from an employer in re- turn for services not performed or not to be performed. Thus, where work is done by an employee, with the employer's consent, a labor organization's demand that the employee be compensated for time spent in doing the dis- puted work does not become an unfair labor practice. The transaction simply does not fall within the kind of featherbedding defined in the statute. In the absence of proof to the contrary, the employee's compensation reflects his entire relationship with his employer. We do not have here a situation comparable to that mentioned by Senator Taft as an illustration of the type of featherbedding which he could consider 439 Labor Relations of Newspapers an unfair labor practice within the meaning of S8(b)(6). June 5, 1947, in a colloquy on the floor of the Senate he said in reference to S8(b)(6): [I]t seems to me that it is perfectly clear what is intended. It is intended to make it an unfair labor practice for a man to say, "You must have i0 musicians, and if you insist that there is room for only 6, you must pay for the other 4 any- way." That is in the nature of an exaction from the employer for services which he does not want, does not need, and is not even willing to accept [93 Cong. Rec. 6446]. In that illustration the service for which pay was to be exacted was not performed and was not to be performed by anyone. The last sentence of the above quotation must be read in that context. There was no room for more than six musicians and there was no suggestion that the excluded four did anything or were to do anything for their pay. Section 8(b)(6) leaves to col- lective bargaining the determination of what, if any, work, including bona fide "made work," shall be included as compensable services and what rate of compensation shall be paid for it. Accordingly, the judgment of the Court of Appeals sustaining dismissal of the complaint, insofar as it was based upon S8(b)(6), is Affirmed. Mr. Justice Douglas, dissenting. I fail to see how the reproduction of advertising matter which is never used by a newspaper but which indeed is set up only to be thrown away is a service performed for the newspaper. The practice of "setting bogus" is old and deeply engrained in trade union practice. But so are other types of "feather- bedding." Congress, to be sure, did not outlaw all "featherbedding" by the Taft-Hartley Act. That Act leaves unaffected the situation where two men are employed to do one man's work. It also, in my view, leaves unaffected the situation presented in Labor Board v. Gamble Enterprises, Inc., post, p. 117. Mr. Justice Jackson labels the services tendered in that case as "useless and unwanted work." Certainly it was "unwanted" by the employer-as much unwanted as putting on two men to do one man's work. But there is no basis for saying that those services were "useless." They were to be performed in the theatres, providing music to the audiences. The Gamble Enterprises case is not one where the employer was forced to hire musicians who were not used. They were to be used in the theatrical program offered the public. Perhaps the entertainment would be better without them. But to conclude with Mr. Justice Jackson that it would be better would be to rush in where Congress did not want to tread. For Senator Taft reported from Conference that "the Senate conferees, while not approving of featherbedding practices, felt that it was impractible to give to a board or a court the power to say that so many men are all right, and so many men are too many." 93 Cong. Rec.. 6441: But the situation in this case is to me quite different. Here the typesetters, while setting the "bogus," are making no contribution whatsoever to the enterprise. Their "work" is not only unwanted, it is indeed wholly useless. It 440 Newspaper Publishers Assn. v. N.L.R.B. does not add directly or indirectly to the publication of the newspaper nor to its contents. It does not even add an "unwanted" page or paragraph. In no sense that I can conceive is it a "service" to the employer. To be sure, the employer has agreed to pay for it. But the agreement was under compulsion. The statute does not draw the distinction Mr. Justice Jackson tenders. No matter how time-honored the practice, it should be struck down if it is not a service performed for an employer. The outlawry of this practice under S8(b)(6) of the Taft-Hartley Act might be so disruptive of established practices as to be against the public interest. But the place to obtain relief against the new oppression is in the Congress, not here. Mr. Justice Clark, with whom the Chief Justice joins, dissenting. Today's decision twists the law by the tail. If the employees had received pay for staying home, conserving their energies and the publisher's materiel, the Court concedes, as it must, that S8(b) (6) of the National Labor Rela- tions Act would squarely apply. Yet in the Court's view these printers' peculiar "services" snatch the transaction from the reach of the law. Those "services," no more and no less, consist of setting "bogus" type, then proofread and reset for corrections, only to be immediately discarded and never used. Instead, this type is consigned as waste to a "hell box" which feeds the "melting pot"; that, in turn, oozes fresh lead then molded into "pigs" which retravel the same Sisyphean journey. The Court thus holds that an "anti-featherbedding" statute designed to hit wasteful labor practices in fact sanctions additional waste in futile use of labor, lead, machines, proofreading, "hell-boxing," etc. Anomalously, the more wasteful the practice the less effectual the statute is. Section 8(b)(6) declares it an unfair labor practice for a labor organiza- tion or its agents "to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed." But "to cause or attempt to cause" can refer equally to the ordinary give-and-take of the collective bargaining process or the unleashing of the ultimate weapons in a union's armory. Likewise, "in the nature of an exaction" may imply that a union's pay demands must be tantamount to extortion to bring S8(b)(6) into play; on the other hand, the phrase may merely describe payments "for services which are not performed or not to be performed." Again, "services" may designate employees' conduct ranging from shadowboxing on or off the plant to productive effort deemed beneficial to the employer in his judgment alone. The Court solves these complex interpretive problems by simply scrapping the statute. A broadside finding that "bogus" is "work," making analysis of all other statutory criteria superfluous, automatically takes the case out of S8(b)(6). And the printers' doing solely that which then must be undone passes for "work." An imaginative labor organization need not strain far to invent such "work." With that lethal definition to stifle S8(b)(6), this Court's first decision on "featherbedding" may well be the last. Concededly, $8(b)(6) was not designed to ban every make-work device 441 Labor Relations of Newspapers ingenuity could spawn. Senator Taft, the prime exponent of the section as ultimately enacted, advised that general "featherbedding" legislation be held in abeyance pending this Court's decision in United States v. Petrillo. Mean- while, however, S8(b)(6) aimed to catch practices by which unions "accept money for people who do not work." He considered it a "perfectly clear" violation of the section "for a man to say, 'You must have 10 employees, and if you insist that there is room for only 6, you must pay for the other 4 any- way.' " But surely this cannot imply that six must pack the plant to overflow so that "the other 4" must stay home before 8(b)(6) may apply. That quaint notion befogs the draftsmen's clear intent that S8(b)(6) strike at union pay demands "for services which [the employer] does not want, does not need, and is not even willing to accept." Accordingly, we would read the statute's test of "services" as more than a hollow phrase. Recognizing the administrative difficulties in deciding how many employees are too many for a particular job, Congress perhaps spared the National Labor Relations Board from that. But the Board should certainly not need efficiency engineers to determine that printers setting "bogus" in- dulge in frivolous make-work exercise. An interpretation of "services" in S8(b)(6) to exclude contrived and patently useless job operations not to the employer's benefit could effectuate the legislative purpose. And the Labor Board should not so modestly disclaim its oft-recognized expertise which assures full qualifications for administering this task. It may well be that union featherbedding practices reflect no more than labor's fears of unstable employment and sensitivity to displacement by technological change. But in a full-employment economy Congress may have deemed this form of union security an unjustifiable drain on the national manpower pool. In any event, that judgment was for the legislature. Under our system of separation of powers the Court ought not so blithely mangle the congressional effort. AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION V. NATIONAL LABOR RELA- TIONS BOARD, 345 U.S. 100; 73 S. Ct. 552; 97 L. Ed. 455; 31 A.L.R. 2d 497 (1953) 442 CHAPTER XV Law and Other Business Problems SUPPLEMENTARY READING W. R. Beart, "Advertising Regulation and Offenses," Chicago-Kent Law Re- view, v. 25 (June, 1947), pp. 255-60 R. E. Cary, "Law of Classified Advertising," Intramural Law Review, v. 4 (May, 1949), PP. 252-61 Gray, "Law's Outlook on Errors Run in Advertisements," Editor 6 Publisher, v. 84 (August 25, 1951), p. 26 , "Political Rate Limit Raises 'Utility' Question," Editor 6 Publisher, v. 84 (July 14, 1951), p. 55 R. L. Jones, Copyrights and Trade Marks (Columbia, Mo., 1949), c. 6, 7, 11, 12 Swindler, Bibliography, nos. 664, 665, 667, 668, 678, 679, 684, 686, 687 GENERAL PRINCIPLES 1. A newspaper may not be compelled to accept advertising copy. A newspaper is neither a public utility nor a common carrier, and whether it is a business "affected with a public interest" has never been specifically settled for purposes of determining its obligation to subscribers or advertisers. The courts have generally agreed, however, that a newspaper may not be compelled to accept advertising copy-much less news copy--unless there is some contractual obligation involved. A lone Ohio case in 1919 is the only ruling to the contrary. Relying on this Ohio case, an Iowa cleaning establishment sought to compel a daily newspaper to accept advertising copy for which the business was able and willing to pay. The paper refused to sell the space and the Iowa Supreme Court sustained the publication, saying in the unanimous opinion read by Justice Mitchell: Our common law is generally dated at about the time of the Declaration of Independence or perhaps at the time of the Revolution. Newspapers had then existed in England for one hundred and fifty years. During that period they operated side by side with carriers and inns. The rules forbidding the 443 latter to discriminate between customers were established, yet nobody goes so far as to even claim that there is any holding at common law under which a newspaper was bound by the same rules. What is claimed is that the rule now exists against newspapers under principles established at common law . The appellant's case here is bottomed on the case of Uhlman v. Sherman which decision is reported in 22 Ohio N.P. (N.S.) 225. The Uhlman case has been before two respectable courts since it was given forth, the United States District Court in Michigan and the Supreme Court of Louisiana. Both have refused to follow it. In Friedenberg v. Times Pub. Co., 170 La. 3, 127 So. 345, the court said: "The weight of authority is that the publishing of a newspaper is a strictly private enterprise, and the publishers thereof are free to contract and deal or refuse to contract and deal with whom they please [citing cases]. And at any rate, it is for the Legislature, and not for the courts, to declare that a busi- ness has become impressed with a public use . "There is, however, one case holding the contrary doctrine, to wit, Uhiman v. Sherman, 22 Ohio N.P. (N.S.) 225. But we prefer to follow the weight of authority." In re Wohl (D.C.) 50 F. (2d) 254, 256, the court said: "Coming to the specific application of the doctrine invoked, the only case specifically holding a newspaper to be clothed with a public interest is the decision of the nisi prius court of Ohio in the case of Uhlman v. Sherman [22 Ohio N.P. (N.S.) 225], supra. It is interesting to note that there the nisi prius judge frankly admitted that learned and diligent counsel on both sides were unable to find a parallel case, and that he himself had been unable to find one. . . . I find . . that there is no such trend of decision as the trustee urges. A newspa- per is not at the common law a business clothed with a public interest." In the case of Mack v. Costello, 32 S.D. 511, 143 N.W. 950, at page 951, Ann. Cas. 1916A, 384, the court said: "The publication of a newspaper is strictly a private business. It may be begun, or discontinued, at the will of the publisher. The publisher, in publishing a newspaper, assumes no 'office, trust, or station,' in a public sense, or enters into any public or contractual relation with the community at large. It may be that the publishing of a newspaper is a quasi-public business; but, if so, it is only because, from long existence, it is regarded as a public necessity. But as much might be said of the hard- ware or grocery business, and yet no one would contend that a grocer or hardware dealer could be compelled by mandamus to sell his wares if he preferred to keep them on his shelf." Since the Uhlman case was decided, the Pennsylvania and Massachusetts courts have spoken on the same subject, without citing that case, and have arrived at a different conclusion. Philadelphia Record Co. v. Curtis-Martin Newspapers, 305 Pa. 372, 157 A. 796, 797; Com. v. Boston Transcript Co., 249 Mass. 477, 144 N.E. 400, 35 A.L.R. 1. But it is not necessary for us to look outside of Iowa to find the rule cov- ering the case at bar, for it seems to us that the very question is covered by the decision handed down by this court in the case of Wooster v. Mahaska County, 122 Iowa, 300, 98 N.W. 103, 104. This court spoke directly on the subject, saying: "It is true, the law provided that certain papers should be Law and Other Business Problems 444 State v. Beacon Publishing Co. designated as the official papers of the county, and this without any discretion on the part of the board; but neither the Legislature nor the board could compel any paper to publish the proceedings, no matter what compensation might be fixed therefor, and, if the plaintiff was not satisfied with the rate fixed by the board, he was under no obligation to do the work." The newspaper business is an ordinary business. It is a business essentially private in its nature-as private as that of the baker, grocer, or milkman, all of whom perform a service on which, to a greater or less extent, the com- munities depend, but which bears no such relation to the public as to warrant its inclusion in the category of businesses charged with the public use. If a newspaper were required to accept an advertisement, it could be compelled to publish a news item. If some good lady gave a tea, and submitted to the newspaper a proper account of the tea, and the editor of the newspaper, believing that it had no news value, refused to publish it, she, it seems to us, would have as much right to compel the newspaper to publish the account as would a person engaged in business to compel a newspaper to publish an advertisement of the business that that person is conducting. Thus, as a newspaper is a strictly private enterprise, the publishers thereof have a right to publish whatever advertisements they desire and to refuse to publish whatever advertisements they do not desire to publish. SHUCK V. CARROLL DAILY HKRALD, 215 Ia. 1276; 247 N.W. 813; 87 A.L.R. 975 (1933) 2. A newspaper is liable for deceptive or false advertising only if it publishes the copy knowing it to be bad. Although the volume of law relating to advertising in general is consider- able, litigation involving newspapers in advertising problems is compara- tively rare, for three practical reasons: First, the Federal Trade Commission on the national scene, and the state agencies charged with enforcing the several fair trade laws of the states, focus their policing efforts on the advertiser himself, or upon the agency, but seldom are concerned with the newspaper which has little practical opportunity to check on advertising copy received from outside its own plant, except as the copy may or may not conform to specific rules drawn up by the newspaper itself. Second, an extensive frame- work of statutes governing almost all phases of advertising practice has been built up over the years, largely dating from the so-called "model advertising statute" devised by the trade magazine, Printers' Ink, in 1911.* Finally, the specific details of newspaper relations with advertising agencies have been admirably covered in clauses of the Standard Advertising Contract devised by the American Association of Advertising Agencies, drawn up a number of years ago and periodically brought up to date. Thanks to the administrative * Burt W. Roper's compilation, State Advertising Legislation (New York, 1945), is a valuable supplementary reference on the subject of advertising law. 445 Law and Other Business Problems processes screening the flow of advertising before it reaches the newspaper, the various state laws to control the practices of regional and local advertisers, and the Standard Advertising Contract to cover agencies handling national accounts, the legal problems directly affecting newspaper advertising have been effectively reduced. The Wichita Beacon published an advertisement by a local food processor stating that its products were approved by the city's director of public welfare, the official health officer. The trial court held the newspaper guilty of violat- ing the Kansas statute patterned after the "model" statute described below. In reversing the judgment, the Kansas Supreme Court reviewed the general responsibilities of the advertising medium-the newspaper-in respect to ad- vertising copy. Justice Burch of the state court read the opinion. The law relating to false representation and deceit permits a certain amount of "puffing" by the seller in the sale of salable things. The line between sales talk and misrepresentation is frequently difficult to draw. Expressions of opin- ion by the seller touching the merits of his wares are not regarded as state- ments of fact. While the line is difficult to draw, the distinction between opinion and fact tends to become more and more narrow, in order better to prevent fraud. Falsehood, fraudulent representation, and statement which is deceiving or misleading are condemned, and the common law provides rem- edies, more or less effective, to the injured person. Losses resulting from untrue advertising reach gigantic sums every year. The common-law remedies do not furnish adequate redress to victims, and demand arose for legislation with penal sanction to cope with the evil. A movement to that end was fostered by many businessmen's organizations, advertising clubs and associations, and others interested in truthful advertis- ing. A history of the movement may be found in 36 Yale Law Journal at page 1155. The well-known magazine, Printers' Ink, sponsored a model crim- inal statute to be adopted by state Legislatures, and Mr. Henry D. Nims prepared for the magazine what became known as the Printers' Ink Model Statute. The statute was designed to be comprehensive with respect to sub- jects and methods of advertising. The essence of the statute, so far as mate- rial here, was that any one who, with intent to sell merchandise, shall pub- lish in a newspaper an advertisement containing a statement of fact which is untrue, deceptive, or misleading, shall be guilty of a misdemeanor. A notable feature was that words such as "knowingly," "wilfully," "with intent to de- fraud," "with intent to deceive," and the like, were not used. The theory was, the advertiser knows or should know the truth, and he was made absolutely responsible for the integrity of his advertisement. Another notable feature was that the newspaper or other organ of dissemination in which the advertise- ment appeared was not subject to punishment. The model statute was adopted in a number of states; in others it was adopted in modified form; in others, adoption was defeated; and some states which adopted the statute in some form subsequently amended it. In 1915 a decided variant from the model statute was introduced in the Legislature of 446 State v. Beacon Publishing Co. 447 this state as Senate Bill No. 229, by Senator Kinkel, by request. The bill was passed, became effective as a law on March 17, 1915 (Laws 1915, c. 2), and section 1, which appears as R. S. 21-1112, reads: Section 1. That any person, firm, corporation or association, who, with intent to sell or in any wise dispose of any merchandise, securities, service or anything offered by such person, firm, corporation or association, directly or indirectly, to the public for sale or distribution, or with intent to increase the sale or con- sumption thereof, or to induce the public or any person in any manner to enter into any obligation relating thereto, or to acquire title to or an interest therein; who makes, publishes, disseminates, circulates or places before the public, or causes the same to be done, either directly or indirectly, in this state, whether by newspaper publication or otherwise, as herein provided, any label, notice, hand- bill, poster, bill, circular, pamphlet, or letter, or in any other way, any advertise- ment of any kind or character regarding merchandise, securities, service, or any other thing or commodity offered to the public, which advertisement contains any assertion, representation or statement which is in fact untrue, deceptive or mis- leading, shall be deemed guilty of a misdemeanor and, upon conviction in any court of competent jurisdiction, shall be punished by a fine in any sum not ex- ceeding five hundred dollars, or by imprisonment in the county jail not exceed- ing one year, or by both such fine and imprisonment for every such offense, and each day such publication or communication shall be published or disseminated shall constitute a violation of the provisions of this act and shall be deemed a separate and distinct offense: Provided, also, That the provisions of this act shall not apply to the publisher of any newspaper or other publication, who publishes or causes to be published, disseminated or circulated any written or printed statement prohibited by the provisions of this act, without knowledge that it is false. Like the model statute, this statute embraces many classes of promotions which may be aided by advertising, and many means of advertising. Like the model statute, the only "intent" involved is that of the advertiser to sell, etc., to increase sale or consumption, etc. No intent to deceive, defraud, or mis- lead is required. Culpability lies in the character of the published advertise- ment. If it be untrue, deceptive, or misleading, the advertiser is subject to punishment. If a newspaper publisher should use his own paper to advertise whatever he offers, he would be simply an advertiser. Responsibility of a newspaper publisher for publishing another's advertise- ment, which was absent from the model statute, was brought into the statute by the concluding proviso. The proviso says the provisions of the act (doubt- less the penal provision) shall not apply to the newspaper publisher who publishes a prohibited statement (untrue, deceptive, or misleading) without knowledge that the statement is false. False means not true, and subtle state- ments garbed in apparent candor, which deceive and mislead, are not in- cluded. STATE V. BEACON PUB. Co., 141 Kans. 734; 42 Pac. 2d 960 (1935) Law and Other Business Problems 3. A newspaper may be held liable to an advertiser for negligence or for misrepresentation. Typographical errors, which plague the newspaper periodically, and mixups in copy when set in type, present a major problem of liability to the publica- tion. A department store in Meridian, Miss., submitted copy for a display advertisement in which certain garments were to be offered at prices "25% off." When the advertisement was printed the offer read "V2 off." After dis- cussing the error with the newspaper the store decided to honor the printed offer as a matter of business reputation; but it sued the newspaper for dam- ages allegedly suffered from the mistake. Justice Alexander of the Mississippi Supreme Court upheld the suit. The appellee adduced testimony that it had been engaged in the business of selling ladies' apparel in the City of Meridian for fifteen years. The ad- vertising manager was advised of the error on Monday, December 16th, and confirmed Mr. Kay's discovery. He offered, on behalf of the paper, to correct the mistake in any feasible manner. His suggestions to this end included a front page story explaining the situation, streamers, window signs and other measures availing of the publicity resources of the paper. The substance of this offer is not disputed. After failing in an attempt to see the editor and publisher, Mr. Skewes, during Monday morning, Mr. Kay had a personal interview with the pub- lisher that afternoon. It is without dispute that the offer to correct the error by adequate publicity was repeated at this interview. It is uncontradicted that on both occasions, Mr. Kay refused to follow this course, explaining that he feared that it would constitute an affront to his integrity and that customer reaction would be unfavorable. Although Kay carried out his purpose to stand up to the offer as advertised in spite of anticipated losses, the fact that he did so elect to proceed and the asserted justification therefor are the crux of our review. According to Kay's version, Mr. Skewes assented to the conclusion of the former that he could not afford to change his prices in the face of the offer as published. He told Skewes that "the reputation of Kay's is at stake and we have to go through with it. I will keep a record of all the transactions be- tween the quarter-price and the half-price. I will have to discuss it with you after the 24th of the month." He further stated that "he [Skewes] told me to keep my records, after I told him that I would keep the record of the difference between the quarter and the half; he emphasized to me to be sure to keep my records." Skewes admits the fact of the interview, and the fact of, and reasons for, Kay's decision. He denies that Kay told him it would ruin his business if he tried to change the sale prices, and also that he knew Kay was going ahead with his decision to adjust his prices to the advertisement. .. Regardless of the unique situation here presented and the difficulties of fix- ing with reasonable certainty the amount of damages, it must be kept in mind that this is a negligence case, and as such the damages must be reasonably 448 ascertainable not only, but also must be the proximate and reasonable re- sult of the negligent act. In considering the issue of proximate cause, the ex- istence of a duty upon the plaintiff to mitigate his damages by reasonably available means becomes a relevant factor. These general principles, however simple in statement, must be adjusted to the facts here present. Was the situation here such as to justify Kay in electing to suffer a maximum loss, and was his decision final and controlling? We are brought back to the background of Kay's decision to proceed with his sales. The declaration on this point alleges that the "general manager [Skewes] then agreed that the said advertisement could not be recalled as to attempt to recall the same would greatly damage plaintiff's business and the said general manager . . . advised and told plaintiff to proceed with the sale as advertised and that defendant would take care of plaintiff's damage. . As per request of defendants plaintiffs kept a strict account of sales made pursuant to advertisement." The contention that the statements made by Skewes in the interview of December 16th were but reactions to Kay's predetermined decision to go ahead with its sale is more than merely plausible. The appellant's reply to the letter of December 18th presents greater difficulty. Appellant took note of the fact that Kay's was keeping account of all sales, with a view to holding the paper to this basis of damages. It is in point, however, that when this letter was written, the sale had been in progress for two days. We repeat an- other significant part of the reply: "As we understand the situation: Our lia- bility-if any-is limited to the difference between '1/4 off' and '1/2 off' merchandise sold as a result of the 40-inch ad in question." It will be re- called that in closing the interview of December 6th, Skewes is quoted as saying, "Keep your records." Now is this enforceable as a contract? Is it more than recognition of a course determined upon by Kay independently of ap- pellant's views? Does it rise above mere consultation with a view to explaining a predetermined decision? Above all, what is its effect in a suit, not in con- tract, but in tort? We pose these questions, not for our determination but to emphasize that their answers bear upon the reasonableness of Kay's chosen course and the existence, vel non, of a duty reasonably to mitigate his damages. The conflict- ing considerations which must be given play are factual and are commended to the judgment of the triers of fact. ... In this connection, we refer to the following instruction, whose refusal to the defendant is assigned as error: "The court instructs the jury for the de- fendant, the Meridian Star, that the advertisement in this case was only an invitation to the public to make offers to purchase the goods at the prices stated, and said advertisement did not constitute or effect a binding obliga- tion on the part of the plaintiffs, trading as Kay's, to sell such goods at the sales price as stated in the advertisement; and, accordingly, if Kay's elected to go ahead and hold the sale at the prices stated in such advertisement, then the defendant, the Meridian Star, is not liable for damages, if any, suffered by Kay's as a result thereof." Other instructions of like import were refused. We are of the opinion that the instruction reasonably submitted this issue and ought to have been given. Plaintiff's instructions for the most part as- .Meridian Star v. Kay 449 Law and Other Business Problems sume that the total sales between December 16th and December 26th would furnish a liquidated basis for computing damages. In another instruction for the plaintiff, the fact of the appellant's offer of correction was denied any relevancy on the issue of liability or damages. Issues of fact were raised involving an inquiry whether blouses, fur coats, and other apparel were comprised within the offer to sell "Coats, Suits, Dresses." These are proper subjects for factual examination. Some recognition was given to a doubt in this respect, by an instruction for the plaintiff with- drawing certain of such items from any computation of damages. That there were other similar items shown in appellee's account, which appear not to have been so included, is not explained, but we make no findings with respect thereto. In view of our disposal of the appeal, other questions raised are pre- termitted. We summarize our views as follows: Whether the course followed by appel- lee was so reasonable as to constitute a foreseeable result of appellant's negli- gent act; whether the course followed by appellee was made reasonable by conduct and assurances of appellant; whether the election of appellee was the result of his own independent judgment; whether such judgment was ex- ercised reasonably and without a reasonably available mitigating alternative, are factual issues whose determination by the jury ought not to have been foreclosed. We find no error in the method pursued to establish the amount of the loss by the appellee. It is the denial to the appellant of the right to submit the issue of reasonable foreseeability and proximate cause, into which the existence of a duty to mitigate loss should be canvassed, that challenges our attention. Nor do we decide the sufficiency of the conversations and correspondence to es- tablish a binding contract with all its essentials, as distinguished from an ex- pression of legal opinion or a supine resignation. Were we to build these inter- views into a binding contract, and authorize its enforcement as such, we would put into eclipse appellee's elected cause in tort. The judgment as to liability is affirmed and the cause remanded for further proceedings consonant with the views expressed. Affirmed on liability, remanded on issue of damages alone. MERIDIAN STAR v. KAY, 207 Miss. 78; 41 South. 2d 30; 10 A.L.R. 2d 677 (1949); error overruled, 41 South. 2d 746 (1949); aff. 212 Miss. 18; 52 South. 2d 35 (1951) A newspaper may also be held liable to an advertiser for misrepresenting its circulation. In an unreported case in 1944, the federal district court fined the publisher of a New York daily $500 for using the mails to defraud. The publishing company had been indicted for sending out letters soliciting ad- vertising and making false statements as to its net paid circulation. Upon the company's plea of nolo contendere (literally, "I do not wish to contend"), the court imposed the fine. 450 Philadelphia Record Co. v. Curtis-Martin 451 In 1911, in the midst of a nationwide movement by government and industry to clean up bad practices in both advertising and newspaper manage- ment, Colorado enacted a statute which provided: Any person, firm, association or corporation, engaged in the publication of any newspaper, magazine, periodical or other advertising medium published in the state of Colorado, or any employee of any such newspaper, magazine, periodical or other advertising medium . . . upon which such statement concerning the circulation of any such newspaper, magazine, periodical or other advertising medium such publisher fixes its charges for advertising space . . . which shall be untrue or misleading, as to its actual bona fide circulation, shall be guilty of a misdemeanor, and shall, upon conviction, be punished by a fine of not less than one hundred ($ioo) dollars and not more than one thousand ($1,ooo) dollars or by imprisonment in the county jail for not longer than six (6) months or by both such fine and imprisonment, and in addition shall be liable to an action by advertisers in any such publication for any damages sustained by any such advertisers in such sum as the actual circulation bears to the untrue or mis- leading statement of such publisher concerning the circulation. . . . (2 Colo. Stat. Ann. c. 48 sec. 33o) No cases have been reported under the Colorado statute. This, and similar state laws, together with the original Federal Pure Food & Drug Act of 1906, the Postal Act of 1912, the Federal Trade Commission Act of 1914 (exten- sively amended by the Wheeler-Lea Act of 1938), provided an effective legis- lative curb to many false statements both by advertisers and those seeking advertising. The incorporation of the Audit Bureau of Circulations in 1913, and the inauguration of its audits of newspaper circulations the following year, further strengthened the safeguards against fraudulent practices, at least for those publications which "went A.B.C." The amendment of the postal laws in 1946 to require sworn circulation statements of weekly newspapers -similar to the statements which had been required of dailies since 1912- also helped to plug some of the remaining loopholes in the regulation of advertising. 4. Circulation management is a private enterprise, not subject to public regulation. For some years three Philadelphia dailies had sold certain of their editions to the same group of newsboys. In 1931 two of the newspapers, finding this arrangement unsatisfactory, organized a staff of news vendors of their own and refused thereafter to sell their "bulldog" edition to the newsboys who handled the third paper. Upon complaint of the third paper, the trial court Law and Other Business Problems issued an order to the other publications to resume selling the edition to the newsboys who had formerly handled it. The Supreme Court of Pennsylvania set aside the order, ruling that the selling of newspapers is a private enterprise and in the absence of a contractual obligation to the former news vendors the publications could not be compelled to sell to them. Justice Walling said: This order is one which it was beyond the power of the court to make. The chancellor based his decree on a finding that the acts of the two defendants in refusing to sell their papers to the original group of newsboys was an unlaw- ful combination, and constituted a monopoly. The defendants were within their rights in creating their own sales organizations so long as they did not interfere with the sale of the Record. The original group of newsboys contin- ued to sell that paper. So far as creating a monopoly is concerned, it is a little difficult to see how a monopoly could be created in the sale of a single edition of a newspaper, indeed, in their sale generally. Since the defendants organ- ized their new sales force, there are more Records sold daily than before by several thousand copies. Moreover, one-half of the "bulldog" editions of each of the three papers were sold at newsstands and not by the boys. The original organization of newsboys had no contractual relation with the defendants; individually or as a group they could discontinue selling their papers at any time, and they have no rights against the defendants which equity could safe- guard. In the absence of a contract to sell them to particular individuals, de- fendants can sell their papers to whomsoever they please. The newsboys were not employees of defendants; they were independent venders. The two cases cited by the court as warrant for its decree do not at all sup- port its sweeping order. One of them, Finnegan v. Butler, 112 Misc. Rep. 280, 182 N.Y.S. 671, is the decision of a trial court in the state of New York on a motion for an injunction pendente lite, and the proceeding was brought under the General Business Law of the State of New York (Consol. Laws, c. 20), which has no counterpart in our commonwealth. The other, Peekskill Theatre, Inc., v. Advance Theatrical Co., 206 App. Div. 138, 200 N.Y.S. 726, dealt with the breaking of contracts to supply the plaintiff with moving picture films through the procurement and inducement of the defendants, who were interested in rival theaters, to the ruin of the plaintiff's business. On its facts it has no relation to the case in hand. Miller v. Post Publishing Co., 266 Pa. 533, 11o A. 265, in some aspects bears on the case before us. There, the plaintiff had for many years handled all of the newspapers published in the city of Pittsburgh. For some reason some of the newspapers refused to furnish their papers to the plaintiff and engaged another person in his place as distributing agent. The plaintiff thereupon brought an action of trespass, alleging conspiracy to ruin and destroy his business. It was there said at page 534 of 266 Pa., 110 A. 265: "Stripped of the allegations of conspiracy and intention to wrong the plaintiff, the plaintiff's contention is that he was em- ployed by each of four companies publishing newspapers to distribute their papers in a certain territory, and that they chose to discontinue his employ- ment as such. We are unable to see why they did not have a right to do so. 452 That they might have done so acting separately, we understand is admitted by the plaintiff. If the act was unlawful at all, it was because of the combination of a number. 'Where the act is lawful for the individual it can be the subject of conspiracy when done in concert only where there is a direct intention that injury shall result from it, or where the object is to benefit the conspirators to the prejudice of the public or the oppression of individuals and where such prejudice or oppression is the natural and necessary consequence.' . . . It no doubt was the object of the defendants in discharging the plaintiff to benefit themselves, but it was not to the prejudice of the public and we are unable to see how it was to the oppression of the plaintiff." In Cote v. Murphy et al., 159 Pa. 420, 28 A. 190, 23 L.R.A. 135, 39 Am. St. Rep. 686, a combination of dealers in lumber not to sell to any builder who yielded to the demands of workmen then on a strike was held lawful. In effect, what the court did by its decree was to write a contract between the newsboys and each of the defendants, terminable at the option of the newsboys, but not at the option of the defendants, requiring the latter to con- tinue to sell to the newsboys as they had done prior to organizing their own sales force. The court had no power to do this. PHILADELPHIA RECORD CO. V. CURTIS-MARTIN NEWSPAPERS, 305 Pa. 372; 157 Atl. 796 (1931) On the status of newsboys themselves in relation to employment rights, see National Labor Relations Board v. Hearst Publications, p. 407 in Chapter XIV. Virtually obsolete now are various "Sunday labor" laws which at one time were thought to present a technical barrier, at least, to the publication of Sunday newspapers. One of the last cases to raise the issue came before the Kansas courts in 1931, concerning the Sunday edition of the Kansas City Star. The trial court had sustained the newspaper's motion to quash, and in affirm- ing this action Judge Smith of the Kansas Supreme Court said: At this stage of the world's progress, with the means of gathering news that are available, we have grown to expect far more expeditious service on the part of the newspapers of the state than was received during the days when the statute in question was passed. When we know that Colonel Lindbergh and his wife are flying towards Japan one evening, we, on the other side of the globe, who are compelled to stay at home, have grown to expect to read about their successful landing the next morning in the paper. We are be- coming aware more than ever of the effect political and economic upheavals in countries on the other side of the globe have upon our business affairs. When we know that the King of Spain is about to abdicate, we expect to be able to read the details of it the next morning when the paper is thrown on our porch. When there is a situation in France or England which we know is State v. Needham 453 about to demand the introduction of a new ministry, we expect to ascertain the details and probable effect from our perusal of the next paper. The school boy knows who the stars for Harvard and Yale are and wants to know how they performed in the big game on Saturday. In order to bring us this in- formation, the news-gathering agencies are far-flung to the uttermost ends of the earth. This court will take judicial notice of the fact that these demands are met by the Sunday papers of our larger cities. From the small boy whose first thought on arising Sunday morning is the comic section, to the son grown older who turns eagerly to the sport page, the young daughter who peruses the society columns, and father and mother who turn their attention to the more serious pages, the Sunday paper is looked upon and has grown to be a necessity, and this court so holds. Appellant makes a further point that the question of whether or not any article is "an article of immediate necessity," or whether work is a "work of necessity," is a question of fact for the jury and not a question of law; that a paper, for instance, which would be a necessity in one community would not be a necessity in another. We have seen fit to put this decision upon the broader ground that the metropolitan Sunday newspaper is a necessity and the work of distributing it necessary work. To hold this to be a question of fact would be to construe the statute so that one community might have its Sunday paper, while another might not and would make all enforcement of the statute a local issue. We have concluded this was not intended by the Legislature. The decision of the lower court is affirmed. STATE V. NEEDHAM, 134 Kans. 155; 4 Pac. 2d 464 (1931) 5. The interstate nature of a newspaper's circulation does not exempt it from local taxation. The South Bend Tribune brought suit to recover one-eighth of the gross income tax it paid to the state treasury on the ground that one-eighth of its circulation was outside the state of Indiana and hence one-eighth of its in- come was derived from interstate commerce. It was alleged that a tax upon this part of its income by a state agency violated the commerce clause of the federal Constitution. In dismissing the suit the Indiana Supreme Court said in an opinion read by Judge Roll: If the income received by appellee from contracts between itself and ad- vertisers for the insertion of advertising matter in appellee's newspaper was not income from interstate business, it would follow that appellee, under its com- plaint, should not recover in this action. In case of Blumenstock Bros. v. Curtis Pub. Co., 252 U.S. 436, 40 S. Ct. 385, 387, 64 L. Ed. 649, the court discussed this question. In that case Blumen- stock Bros. sought to recover treble damages from the Curtis Publishing Law and Other Business Problems 454 Department of Treasury v. South Bend Tribune 455 Co. under the provisions of section 7 of the Sherman Anti-Trust Act, 15 U.S.C.A. S15 note. It appeared that Blumenstock Bros. operated an adver- tising agency and sought to contract for advertising space for their clients in the Saturday Evening Post, printed and published by the Curtis Publishing Company. It was asserted that the defendant refused to accept advertising from the plaintiff except on the condition that the publishing company would be given the right to designate the amount of advertising space plain- tiff's clients could purchase in other publications, and for that reason plaintiff complained that the Curtis Publishing Company was attempting to acquire a monopoly of the publication and distribution of advertising matter in this re- stricted field throughout the United States. The decision of the Supreme Court in dismissing the appeal was predicated upon the question as to whether the making of contracts for the insertion of advertising matter in a periodical or other publications, which circulate in- terstate between citizens of different states, constitutes interstate commerce. If it did not, no federal question was presented, and the cause was rightfully dismissed by the district court. The court said: "In the present case, treating the allegations of the com- plaint as true, the subject-matter dealt with was the making of contracts for the insertion of advertising matter in certain periodicals belonging to the defendant. It may be conceded that the circulation and distribution of such publications throughout the country would amount to interstate com- merce, but the circulation of these periodicals did not depend upon or have any direct relation to the advertising contracts which the plaintiff offered and the defendant refused to receive except upon the terms stated in the declara- tion. The advertising contracts did not involve any movement of goods or merchandise in interstate commerce, or any transmission of intelligence in such commerce." The court there reviews certain cases and concludes as follows: "Applying the principles of these cases, it is abundantly established that there is no ground for claiming that the transactions which are the basis of the present suit, concerning advertising in journals to be subsequently distributed in inter- state commerce, are contracts which directly affect such commerce. Their incidental relation thereto cannot lay the groundwork for such contentions as are undertaken to be here maintained under section 7 of the Sherman Anti-Trust Act [i5 U.S.C.A. S15 note]. The court was right in dismissing the suit." If the making of contracts for the printing and publishing of advertisements in a newspaper or magazine that circulates interstate does not involve inter- state commerce, within the meaning of the commerce clause of the Federal Constitution, it would seem logical to hold that income derived from such contracts would likewise be free from the provisions of said constitutional pro- visions. But assuming that the question here involves the question of interstate commerce, we are of the opinion that appellees should not recover under the law as laid down in the late case of Western Live Stock v. Bureau of Revenue, 1938, 303 U.S. 250, 58 S. Ct. 546, 547, 82 L. Ed. 823, 15 A.L.R. 944. Law and Other Business Problems In this case the facts are identical with the case at Bar. The facts and the contention of the parties are very clearly stated in the opinion as follows: "Appellants publish a monthly livestock trade journal which they wholly prepare, edit, and publish within the state of New Mexico, where their only office and place of business is located. The journal has a circulation in New Mexico and other states, being distributed to paid subscribers through the mails or by other means of transportation. It carries advertisements, some of which are obtained from advertisers in other states through appellants' solici- tation there. Where such contracts are entered into, payment is made by re- mittances to appellants sent interstate; and the contracts contemplate and provide for the interstate shipment by the advertisers to appellants of adver- tising cuts, mats, information, and copy. Payment is due after the printing of such advertisements in the journal and its ultimate circulation and distribu- tion, which is alleged to be in New Mexico and other states. "Appellants insist here, as they did in the state courts, that the sums earned under the advertising contracts are immune from the tax because the contracts are entered into by transactions across state lines and result in the like trans- mission of advertising materials by advertisers to appellants, and also because performance involves the mailing or other distribution of appellants' maga- zine to points without the state." DEPARTMENT OF TREASURY V. SOUTH BEND TRIBUNE, 216 Ind. 285; 24 N.E. 2d 275 (1939) The following year the Indiana court was asked to consider a related question, raised by a farm journal published in the state. The magazine stated that approximately one-fifth of its circulation was outside the state and that approximately 90 per cent of its advertising revenue was derived from sources outside the state. The tax on gross income, assessed by the state and based upon revenues derived from advertising in the case of publications, was alleged to place a burden on interstate commerce in contravention of the federal commerce clause. Judge Swaim of the state supreme court read the opinion in favor of the state treasury department. In the instant case there is even more reason to hold that the performance of the advertising contracts, by preparing, printing and publishing the mag- azine advertising, was separate and distinct from the interstate commerce which the appellant was conducting in the circulation and distribution of its magazine. In this case there was no finding that the advertising contracts required that the advertisements should be sent to subscribers out of the state nor that the compensation of the appellant would not be earned if the out-of-state subscriptions were cancelled. The fact that some of the magazines containing the advertisements were distributed interstate does not change the essential nature of this particular part of appellant's business and thereby constitute it interstate commerce. Appellant apparently concedes this to be true by not objecting to the payment of the gross income tax on that 456 Indiana Farmers Guide v. Department of Treasury 457 part of its income derived from advertisers located within the state. The ad- vertisements from local advertisers were also included in the magazines dis- tributed interstate and if the mere interstate distribution of some of the copies of the magazine made all income derived from out-of-state advertisers income from interstate commerce, we fail to perceive why the same rule should not apply to income derived from advertising contracts performed for advertisers residing within the state. Appellant emphasizes the point that out-of-state advertisers caused mats, cuts, electrotypes, etc., to be shipped interstate to the appellant and that after the advertisements were printed such advertising material was returned to the advertiser. This was merely incidental to the performance of the advertising contracts by the appellant and does not change the essential nature of the ad- vertising contracts in question. The advertising contracts considered in the Western Live Stock case, supra, expressly provided for the interstate transpor- tation of such advertising material. It is difficult to conceive of any local business or activity which would not incidentally involve or have any con- nection with some interstate activity. The appellant stresses the fact that in the Western Live Stock case, supra, the court said that the tax there in question was a privilege tax for doing busi- ness within the State of New Mexico. If, however, as the court also said in that case, "the business of preparing, printing and publishing magazine ad- vertising is peculiarly local and distinct from its circulation whether or not that circulation be interstate commerce," the type of the tax involved is not material. In J. D. Adams Mfg. Co. v. Storen [304 U.S. 307], the Supreme Court held that the receipts from the sales of the manufacturer's products sold in inter- state and foreign commerce were immune from the gross income tax. There, however, the very products in question were being sold and shipped outside of the state. The receipts there in question would correspond to the receipts by the appellant of the subscription price of its magazines distributed interstate, which amounts, the appellee admits, are exempt from the gross income tax. Appellant also stresses the statement of the court in the Prairie Farmer case, supra [293 U.S. 268, 55 S. Ct. 184, 79 L. Ed. 356], that "advertising at compensatory rates is an essential element" of the business of publishing and distributing such a farm magazine. Even where some one or more elements of a business do constitute interstate commerce it does not necessarily follow that all essential elements of such business are exempt from taxation by reason of the federal commerce clause. As said in the Western Live Stock case, supra, at page 253 of 303 U.S., at page 547 of 58 S. Ct., 82 L. Ed. 823, 115 A.L.R. 944, "Nor is taxation of a local business or occupation which is separate and distinct from the transportation and intercourse which is inter- state commerce forbidden merely because in the ordinary course such trans- portation or intercourse is induced or occasioned by the business." To hold otherwise would make it possible for a business, by incorporating into its business some activity amounting to interstate commerce, to avoid its just burden of local taxation. As has been repeatedly said by the courts, the federal commerce clause pro- 458 Law and Other Business Problems tects interstate commerce only from such taxes levied by one state as could be repeated by the other states touched by such commerce. Department of Treasury v. South Bend Tribune, 1939, Ind. Sup., 24 N.E. 2d 275, 279; West- ern Live Stock v. Bureau, supra; J. D. Adams Mfg. Co. v. Storen, supra. Where, as here, the activity or branch of the business being taxed is primarily and essentially local, the tax could not be repeated by any other state. INDIANA FARMERS GUIDE PUB. Co. v. DEPARTMENT OF TREASURY, 217 Ind. 627; 29 N.E. 2d 781 (1940) CHAPTER XVI Public Notice Advertising SUPPLEMENTARY READING P. M. Westfeldt, "Analysis of Basic Statutes on Legal Publications," Rocky Mountain Law Review, v. 19 (June, 1947), pp. 380-90 Swindler, Bibliography, nos. 609, 612, 624, 657, 658 BACKGROUND NOTE Public notice advertising, sometimes called "legal advertising," is sub- stantially of native American development in the form and volume in which it now appears in thousands of newspapers. In the sense of making known the actions of a government to its citizens, the origins of public notice may be traced with logic if not historic exactitude to the earliest proclamations in the Greek agora and Roman forum. In this sense, too, one of the two basic functions of public notice is defined-the function of furnishing the public with an accounting of the stewardship of a public office. It is commonplace in the United States, in discharge of this function, for such officials as county clerks, treasurers, commissioners, members of school boards and similar groups or individuals to publish periodic and detailed reports of their work and expenditures. The second basic function of public notice is rooted in the conviction of Anglo-American law that no action at law is valid unless there is reasonable opportunity for those affected by the action to be informed in advance. This applies equally to actions between private parties and between a public agency and a private party. Notice of legal steps contemplated, initiated, or pending against another is an integral part of "due process of law"-the assurance, as the Supreme Court once put it, of "increased security against the arbitrary deprivation of life or liberty, and the arbitrary spoliation of property." The notice may be served in one of three ways-by personal service upon the individual, by posting in a public place, or by publication in a newspaper or other periodical of general circulation. The first manner of service is re- 459 quired, the Supreme Court has said in a leading case (Pennoyer v. Neff, 95 U.S. 714 [1877]), "where the entire objective of the action is to determine the personal rights and obligations of the defendants." Substituted service in the form of posting or publication, the court added, is sufficient to inform the parties affected "when property is once brought under the control of the court by seizure or . . . where the object of the action is to reach and dispose of property in the States, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose." Of the two methods of "substituted service," publication is, of course, urged by the newspapers as being much more effective than posting. Since the pub- lication of all notices is paid for as advertising, there is obviously a selfish interest on the part of the newspaper involved; but it is equally obvious that there is far greater circulation of a notice by publication than by the usual method of posting which consists of tacking up carbon copies of file records, one on top of the other, on the bulletin board in the county court house. Publication of notice is quite general in this country, and an extensive body of state law has developed to systematize the process. One of the first statutory requirements for public notice in the federal sys- tem was enacted by Congress in 1792-a law stating that "it shall be the duty of the Post Master General to give public notices in one or more newspapers published at the seat of government of the United States, and in one or more newspapers published in the State or States where the contract is to be per- formed," in calls for bids and letting of contracts on government projects. By the end of the Revolution, Massachusetts had adopted the regular prac- tice of providing in its general laws for newspaper notice of various public and private actions. Virginia required advertisements in cases of marine sal- vage to be published in the Virginia Gazette, beginning in 1782. Some courts were reluctant to accept newspaper advertisements as official notices, even when placed in the newspaper in accordance with legal require- ment. However, as statutes became more specific on the subject, the judiciary reversed itself and insisted upon strict adherence to the requirement. By 1859 the New York court declared, if somewhat extravagantly, that there are a great number of provisions contained in general and permanent laws, requiring the publication of notices or advertisements in the State paper, as a condition to the commencement or the continuation of some legal proceed- ing between private parties, or to the perfecting of some act of the government or its officers, concerning the political, financial or judicial administration .. It is not too much to say that with these statutes in existence, the government of the State could not be carried on, and ordinary justice could not be administered between man and man, if for any considerable period it should be impossible to 460 Public Notice Advertising make the publications, on account of the failure of the arrangements for con- tinuing a State paper. (Weed v. Tucker, 9 N.Y. [5 Smith] 422) Another court averred, in a divorce proceeding in 1856, that "the purpose of such notice [is] to abandon the idea of secrecy and fraud in the proceedings by inviting publicity to it, as well as to give persons out of the jurisdiction of the court, every chance possible, under the circumstances, of appearing to the proceeding, and defending, if they will, their rights and interests involved in it" (Ditson v. Ditson, 4 R.I. 87). Today the volume of public notice advertising laws in the forty-eight states has reached vast proportions-James E. Pollard of Ohio State University, who compiled an index of these laws in 1942, enumerated more than 20,000 of them, and it is safe to say that this total has grown rather than diminished since then. In part this large number is made necessary by the variety of agen- cies and parties that may be required to give notice-state courts, with notice of pending actions and orders; county offices, particularly those of the com- missioners, treasurer, recorder of deeds, and the like; municipal offices, par- ticularly with reference to the publication of new ordinances; school boards and other administrative districts such as those having to do with highways, sewer construction, weed control, and so on; corporations which may be re- quired by law to make publication, such as banks, insurance companies, and building and loan associations; and various state offices (e.g., that of the state insurance commissioner) which may periodically report to the public. In part, also, this variety of statutory provisions is accounted for by the effort of successive bodies of lawmakers to define more precisely the qualifications of the newspaper for public notice advertising, to fix the rates of payment for such notices, and the like. Newspapers through their state trade associations, quite understandably, have resisted the attempts to extend the publication of notice to other media which may compete with printed or offset newspapers; they have also contended with taxpayers' leagues which have sought occasion- ally to reduce or eliminate provisions for public notice advertising from new laws, or from existing laws. The validity of public notice advertising rests, of course, not upon the fact that this advertising provides a significant proportion of the income for many smaller weeklies, but upon the proposition that it af- fords the widest practical distribution of the notice to the public in general and to those whom it may concern in particular. With such detail as exists in the public notice laws of most states, relating usually to particular local requirements, and with the considerable amount of litigation which has arisen in most states over these details, any degree of uni- formity on the subject around the United States is largely coincidental. Broadly speaking, almost all state systems of legal advertising cover these prin- Background Note 461 Public Notice Advertising ciples: (1) The definition of a newspaper qualified to publish public notices; (2) the procedure for selecting the "official" publication from among several qualified newspapers; (3) the degree of official responsibility for publish- ing notices whether it is mandatory or discretionary; (4) the required length of time for notices or the number of notices stipulated by law; (5) the proof of publication of the notice; (6) the payment for notices after publica- tion. GENERAL PRINCIPLES 1. What is a "legal newspaper"? Dr. Pollard's study of the definitions of newspapers for purposes of legal advertising* enumerated eleven different elements in these definitions, al- though only one state-Ohio-included all of them. They covered (1) eligi- bility for second-class mail entry, (2) news of general reader interest as con- tent of the publication, (3) "general circulation," (4) "bona fide circulation," (5) paid circulation, (6) minimum circulation, (7) English-language publi- cation, (8) local publication, (9) minimum length of publication, (1o) regu- larity of publication, and (11) minimum page size. In some instances, these amount to different ways of saying the same thing. One of the most elaborate attempts at definition of a "legal newspaper" appears in the Newspaper Advertising Act of 1939 in Pennsylvania: "NEWSPAPER" means a printed paper or publication bearing a title or name and conveying reading or pictorial intelligence of passing events, local or gen- eral happenings, printing regularly or irregularly, editorial comment, announce- ments, miscellaneous, reading matter, commercial advertising, classified advertis- ing, legal advertising, and other notices; and which has been issued in numbers of four or more pages at short intervals, either daily, twice or oftener each week, or weekly, continuously during a period of at least six months, . . . and which has been circulated and distributed from an established place of business to sub- scribers or readers without regard to number, for a definite price or considera- tion; either entered, or entitled to be entered, under the Postal Rules and Regu- lations, as second class matter in the United States mails, and subscribed for by readers at a fixed price for each copy, or at a price fixed per annum. Provided a newspaper may be either a daily newspaper, weekly newspaper, newspaper of general circulation, official newsaper, or a legal newspaper, as defined by this Act. (Penn. Stat. 1939, Tit. 45 Sec. 3) Of the several provisions in the qualifications for a "legal newspaper," that of continuous publication in the community where the public notices are * Pollard's The Newspaper as Defined by Law (Columbus, O., 1939) and his Index to the Public Notice Laws of the 48 States (Columbus, 1942) are essential tools for any de- tailed study of this subject. 462 placed is one of the most common. The New Jersey court undertook to ex- plain this principle in ruling, at the request of the state press association, upon whether a newspaper which had not itself been publishing for the minimum period could acquire the status of a "legal newspaper" by buying and merging with a qualified publication. The Daily Standard had been published for sev- eral years in Red Bank, N.J., when it was bought by a company which moved it to Asbury Park, a community in the same county, and renamed it the As- bury Park Sun. The paper asked for a declaratory judgment to the effect that the qualifications of the Standard as a "legal newspaper" were continued in the Sun, which had just begun publication in Asbury Park. Judge Kinkead of the state circuit court refused to do this, saying: When a newspaper has become qualified by being published continuously for two years in the same municipality, can it then move about the state and change its publication office at will without affecting its status? I think not. I believe that a qualified newspaper retains its status only during such period as it continues to be published in the same municipality where it had acquired its statutory qualification. A newspaper is an important factor in the life and well-being of the com- munity where it is published, and the area where it circulates. It becomes identified with its domicile in a special manner because of its influence on public opinion and its power for good. The two statutes under consideration were clearly enacted for the protection of the newspaper business as a whole, and part of the protection provided was to require a newspaper to prove its stability by publishing continuously in a municipality for at least two years before it could become eligible to derive revenue from state, county or municipal legal advertising. The Red Bank Daily Standard had been established for a number of years in Red Bank. It was legally qualified in Red Bank. It could have retained its qualification by continuing to publish there as the Red Bank Daily Standard. It could have changed its name to the Asbury Park Sun and have retained its qualification if it had continued to be published in Red Bank. But the quali- fication acquired in Red Bank could not be transferred to the new publica- tion office in Asbury Park. The phrasing of the final paragraph of each statute is significant: "In case a newspaper cannot meet these qualifications itself but has acquired another newspaper which meets these qualifications, the acquiring newspaper shall be deemed to meet these qualifications if it is published in the same municipality and entered in the same post office as was the acquired newspaper." Thus a qualified newspaper cannot transfer its status to any purchasing or acquiring nonqualified paper, if its purchaser moves its publication office to another municipality. The publication office must remain in the same community, otherwise such a sale does not carry with it to the acquiring news- paper the qualified legal advertising status of the acquired paper. To adopt the reasoning of the petitioner would be to conclude that the legislative intent was to permit a qualified newspaper to move its publication In re Bond Printing Co. 463 Public Notice Advertising office about the state at will, without loss of its qualified status, while at the same time precluding a qualified paper from transferring its qualified status by the type of sale above outlined. I cannot concur in that reasoning, and must hold to the contrary. There can be no question but that the ruling of the Court imposes a hardship on the Asbury Park Sun. The qualified status which the Red Bank Daily Standard had acquired during its publication in Red Bank has been lost, and the Asbury Park Sun will be required to be published continuously in Asbury Park for a period of at least two years before it can regain that qualified status. I can also conceive of other hardships which this legislation could impose on qualified newspapers throughout the state. For instance, a fire or other calamity could so thoroughly wipe out a newspaper plant that it would be necessary to establish a complete new setup. It is conceivable that in some other municipality a new plant might be readily available. But the transfer of the publication office from one municipality to another would involve the loss of the newspaper's status. Such matters, however, are the concern of the New Jersey Press Association. If they are deemed sufficiently important, I daresay that remedial legislation will be introduced by the legislature. In fairness to the Asbury Park Sun, I should state that it is quite clear that this legislation was not designed for protection against such a publication as that newspaper has proven itself to be. The Asbury Park Sun, from its incep- tion, has been a vigorous, virile, and interesting newspaper. Its stability has already been established. It has made its impress on the area where it serves, and its success in the newspaper field seems to be assured. I feel that I should state further that the New Jersey Press Association, in contesting this application, does not impugn the motives of the Asbury Park Sun. At the time of the hearing of this matter before the Court, counsel for the defendant read into the record the following letter of the New Jersey Press Association which authorized him to appear on behalf of the Associa- tion in this proceeding: In opposing the petition, the Association has no ill will for the Asbury Park Sun, but is here because any judgment by this Court would affect all newspapers and all municipalities in the state. The Association, which has supported all legislation to raise the standards of newspapers in the state, feels obligated to make every reasonable effort to sustain the laws which it has supported over the years. What properly constitutes a newspaper for publication of public notices in- volves matters of far-reaching importance. It is vital to both individual and pub- lic interests to be put on notice regarding any action, public or private, which may affect the rights of the individual, the community, or some group in the community. Because of the quasi-public nature of newspapers, it is vitally im- portant that we have an adequate and proper definition of what constitutes a newspaper eligible for legal notices. Sometimes it is desired by those placing legal notices, both public and private, to select the least effective newspaper rather than the most effective medium for 464 In re Gillette Daily Journal publication. Statutory definition of a newspaper helps prevent attempts to nul- lify the public purpose of legal notices. While it is amply clear that the statutes in question were primarily enacted to protect established newspapers from the so-called "fly-by-night" type, it is equally clear that the legislation affects with equal force, until January, 1948, even such a robust, stable publication as the Asbury Park Sun has demon- strated itself to be. I conclude that any time a newspaper seeks a declaratory judgment, adjudg- ing it to be a qualified newspaper under R.S. 35:1-2.1, N.J.S.A., and R.S. 35:1-2.2, N.J.S.A., that the Court must test its qualification with respect to the fourth requisite by determining whether or not said newspaper has been published continuously in the same municipality where its publication office is presently situate for a period of not less than two years. When, as in the instant case, a newspaper fails to meet that test, the Court must adjudge it a non-qualified paper, until the minimum period of two years has elapsed. The petitioner's application for a declaratory judgment is accordingly denied. IN RE BOND PRINTING Co., 24 N.J. Misc. 215; 48 Atl. 2d 291 (1946); aft. 135 N.J.L. 478; 52 Atl. 2d 762 (1947) The minimum length of time in which a newspaper must publish before it may qualify for public notice advertising varies with each state, from six months to two or more years. Although some press associations speak of the "seventy-eight week rule," there is no general statutory agreement on a year and a half as the average requirement. What is more important, as the New Jersey court pointed out, is the reasoning behind the requirement, whatever it may amount to in weeks or months. A minimum length of publication gives some assurance of stability and community acceptance of the paper, so that those placing public notices in it may have some reasonable belief that it will provide the general circulation of the notice which is the primary concern of the law. The Wyoming Supreme Court in 1932 reviewed a number of rulings in various states to demonstrate the soundness of this principle; Justice Blume of the state high court read the opinion. It is argued, however, that the provision that a newspaper having the right to publish notices with legal effect must have been established for a period of 52 weeks or more is in violation of the Fourteenth Amendment of the Constitution of the United States, in depriving the plaintiffs of property with- out due process of law, and is furthermore in violation of section 35 of Article 1 of our own Constitution, providing that no law impairing the obligations of any contract shall ever be made. We do not deem these objections to be well taken. Chapter 85 in question does not attempt to impair any contract or deprive any one of any property. It simply prescribes under what circum- stances a published notice shall have the effect of a legal notice. The conten- 465 Public Notice Advertising tion made herein is evidently based upon the assumption that the plaintiffs have a property right in making such publications. But the assumption is wrong. The Legislature has undoubtedly the right, in exercising the sovereign or police power of the state, to make reasonable regulations in regard to legal notices. The publication thereof is not a right, but at most a privilege, which the Legislature bestows, and which it can modify or take away without vio- lating the constitutional provisions just mentioned. Legal notices may consist of the publication of the acts of public officers, for example, of the pro- ceedings of a board of county commissioners. The Legislature doubtless could dispense with such publications entirely or devolve the duty of causing them to be made upon whatever officials it desires, making a change in the officials at any time as the public good may require. Or such notices may relate to private rights-notices, for instance, of probate or attachment proceedings, or other matters of a judicial or semijudicial nature. There can be no doubt, we think, that the Legislature may make such changes from time to time in providing for such notices as it may deem advisable without infringing upon any contractual or property rights of any one. Indeed, the very fact that con- structive notice must be such, in the proper case, as to constitute due process of law, shows that the Legislature must necessarily have the right to change the method from time to time as may be shown to be necessary or proper for the public good. In Dollar v. Wind, a newspaper publisher claimed the right to publish notices in accordance with his contract which he had thereto- fore entered into with a sheriff. The Legislature, after the contract had been made, changed the law, took away from the sheriff the exclusive right to let the publications in question, and vested such right in the sheriff jointly with some other officers. The Supreme Court of Georgia, in denying the conten- tion of the newspaper publisher, said as follows: It was urged that the act of 1910 [which changed the law] was unconstitu- tional, on the ground that it violated article 1, 3 , par. 2, of the Constitution (Civ. Code 1910, S6389), which declares that no retroactive law or law impair- ing the obligation of contracts shall be passed. The part of the act thus attacked was that which declared that no newspaper which had not been published for two years should be selected as the official organ of any county. We fail to ap- preciate the force of this argument. Sheriffs are public officers. Their duties can be changed or modified by the Legislature. That body can prescribe reasonable qualifications for a newspaper before it shall be selected as a medium in which shall be published advertisements of sheriff's sales, citations, and other similar advertisements. The rights of the public may be injuriously affected by the se- lection of an improper medium for giving such notices. Because the sheriff intended, or even agreed, to place official advertisements in future in some news- paper, this could not prevent the Legislature from regulating legal advertise- ments for the public good. Under Civ. Code 1895, S5462 (Civ. Code 1910, S6067), and the amendatory act of 1899, if the officer was unable to procure the advertisements at rates prescribed by law in a newspaper published at the county site, he was authorized to have them published at such rates in another newspaper. But we know of no law that authorized the sheriff to contract with the proprietor of a particular newspaper that he would publish in it the legal 466 In re Gillette Daily Journal advertisements of the county, beginning at some time in the future, and claim that the Legislature could make no regulation which would affect such a con- tract. The publication of advertisements of this character is a part of the official duty of the officer, not his private business. [135 Ga. 760; 70 S.E. 335 (1911).] In State of Ohio v. Defiance Co., 32 Wkly. Law Bul. 88, 1 Ohio Dec. 584, it appears that the statute provided that certain legal notices should be pub- lished in two newspapers of opposite politics at the county seat, and it was claimed that this was in derogation of the right of the plaintiff in the case. The court, deciding against the contention of the plaintiff, said as follows: It is also elaborately argued that sec. 4367 is in violation of the 14th Amend- ment of the Constitution of the United States, in that it deprives the publishers of all papers published outside of the county seat from competing for public printing, hence reduces to that extent their income, and by that means they are deprived of their property without "due process of law." The trouble with this argument is, it proceeds from a basis wholly false. No person can be deprived of a right he never had. In the first place, the law does not provide for competitive bids. Those duties are public duties to be performed by the publishers, and the law provides the fees to be paid therefor. The publication of such notice is not a private business enterprise, and in the assumption that it is, lies the fallacy of the defendant's argument. This is a public duty, and particular publishers are called upon to perform it, just as a sheriff is called upon to perform the public duty of serving summonses and other writs; and the fees are fixed for this public service thus rendered; if it were not a public service, the legislature could not fix the price to be charged therefor. Sitting as jurors is a public service, and by the jury law of Ohio, a person over seventy years old is incompetent to sit as a juror. As well might a person thus exempted claim the law to be unconstitutional, in that it deprived him of a right to perform that public service, and to that extent takes from him his means of livelihood. The very necessities of the government require that particular persons shall be selected to perform particular public services, and because such selections are made, nobody can complain, for no inalienable right is taken away. Suppose, if you please, the legislature would change the manner of service of notice upon the taxpayers, and in place of requiring the publication to be made in newspapers, they would require that public notice be posted upon the door of every school house in the county, could the publisher of any newspaper complain that the law was unconstitu- tional, or took away from him to that extent his means of livelihood? It has been held in numerous cases that the publisher of a newspaper acts in an official capacity when publishing a tax notice. We shall now proceed to consider as to whether or not the statutory provi- sion in question is in violation of section 34, Article 1 of the Constitution, providing that all laws of a general nature shall have a uniform operation, or in violation of section 27 of Article 3 of the Constitution, which provides that the Legislature shall not pass any special laws granting to any corpora- tion, association, or individual any special or exclusive privilege, immunity, or franchise whatever, or in violation of the Fourteenth Amendment to the Con- stitution of the United States providing that no state shall deny to any per- 467 sons within its jurisdiction the equal protection of the laws. These provi- sions have the same aim in view, and it was held in Jones v. Railway Co., 231 Ill. 302, 83 N.E. 215, 216, 121 Am. St. Rep. 313, that, by the constitutional provision that no special law shall be passed to give any one any special privilege or immunity, "a guaranty is given that all valid enactments of the Legislature shall be uniform in their operation upon persons and property, and by it all citizens are assured the equal protection of the laws of the state." No direct decision can be found upon the point now under consideration, except the case of Van Harlingen v. Doyle, 134 Cal. 53, 66 P. 44, 54 L.R.A. 771. In that case the court held that a statutory provision similar to that now under consideration was invalid, on the ground that it was not uniform in its operation, and that there was no reasonable basis for making this classifica- tion. The case, while apparently never reversed, seems to have been completely ignored by the statute, as well as by the courts of California. Thus, In re Miller, 15 Cal. App. 43, 113 P. 690, in construing the same or a similar pro- vision of the California law, the court held that a newspaper which was pub- lished for only seven months was not entitled to be considered a newspaper having the right to publish legal notices within the contemplation of the stat- ute. The holding In re Lefavor, 35 Cal. App. 145, 169 P. 412, 413, is as fol- lows: "The object to be accomplished was to define newspapers in which public notices might be made and which would fairly express such notices to the particular community intended to be reached. . . . Neither could such a journal establish its character in that respect without proving continuous printing of the same without interruption for the period of at least a year within the prescribed limits." The statute was again before the Supreme Court of California in 1926 in the case of In re Monrovia Evening Post, 199 Cal. 263, 248 P. 1017, 1019, and, while the point decided in the Van Harlingen case was not considered, it is interesting to note what the Supreme Court said in reference to the power of the Legislature to regulate newspapers having the right to publish legal notices. It said in part: The respondent in the instant case contends that to require the mechanical printing to be done in the same city where the newspaper is published and cir- culated is an unreasonable and unconstitutional violation of the police powers of the state. Many cases are cited in which it has been held that various unreason- able restrictions of certain occupations were unconstitutional and void. None of these cases involve the exact question here presented, and are, therefore, scarcely worthy of review. On the contrary, there are numerous cases in which it has been held that a great variety of lawful occupations and professions have been subject to reasonable legislative supervision. Nothing will be gained in review- ing these cases, since it appears that the reasonableness of such regulations must be determined largely from the surrounding facts and circumstances of each particular case. . . . It is true that the Legislature, in the guise of exercising its police powers, may not impose onerous or unreasonable burdens upon lawful and useful occupations. But it is equally true that the state has the inalienable right reasonably to regulate private business enterprises in the interest of public health, peace, morals, or the general welfare. The question of the reasonableness 468 Public Notice Advertising In re Sterling Cleaners 6 Dyers of police regulations is addressed primarily to the Legislature, and courts will exercise the utmost liberality in upholding the legislative intent. 23 Cal. Jur. 757, 132; Brown v. City of Los Angeles, 183 Cal. 783, 192 P. 716. To be sure the police power may not be resorted to merely to promote private gain, but the public interest, as distinguished from that of private individuals, is the basis of its power and alone warrants its exercise. Does not the prescribing of the quali- fications constituting a newspaper of general circulation, authorizing it to print the official advertising and public notices required by law, come directly within this rule? We think it does. The very purpose of requiring the publication of official notices is to inform the people concerning proceedings of a public nature for their general welfare. It appears reasonable to require such notices to be published in newspapers having a fixed and permanent domicile and a sub- stantial circulation at the city or place where the inhabitants live who are most vitally interested in the transactions respecting which notices are required. At least, it is not unreasonable to expect the citizens of a particular community to rely upon their local newspaper primarily to inform them of the proceedings of their own local officers and the affairs of local public importance. No doubt it is on this theory that the Legislature has seen fit to require such official advertising to be done only in newspapers of general circulation, both printed and pub- lished in the place where such notices are given or made. In 46 C.J. 27, it is said: "It is the policy of the law that notices or advertise- ments required to be published by law should be published in newspapers which have been in existence long enough to be of a permanent and sub- stantial character." This statement, we think, clearly shows the reasonableness of the legislative requirement in question. It is, it seems, commonly made in other states, and rightly so. Constructive notice is, in most instances, poor notice at best, and the Legislature must, in the nature of things, have the power to provide that legal notices shall be published in papers established sufficiently long so as to give reasonable assurance of reaching the people for whom they are intended. The law in this respect is a general law, and we think of uniform operation within the meaning of the Constitution. The classification is not, we think, unreasonable. The Legislature must necessarily have the right to draw the line somewhere, and the period of time prescribed cannot, we think, be said to be unreasonable. We accordingly answer that the provision of the law here considered is not in violation of any of the constitutional provisions above mentioned. IN RE GILLETTE DAILY JOURNAL, 44 Wyo. 226; 11 Pac. 2d 265 (1932) A particular type of newspaper which figures frequently in court cases seek- ing to define "legal" publications is the specialized periodical known as a court or commercial newspaper. This publication has developed in metropolitan areas where the regular dailies find it financially unprofitable to publish public notice advertising at the rates fixed by law, which are usually well below the dailies' commercial advertising rates. Specialized dailies have been founded 469 to handle this business; but the law usually has stipulated that the notices be published in a daily "of general circulation." Do these publications, circulating among attorneys, banks, abstract and insurance companies, and the like, qual- ify under this heading? In a 1936 case Judge Briggle of the United States Circuit Court of Appeals, reviewing recent decisions on the subject, defined the conditions under which such publications could qualify. Various definitions have been given by the courts of the term "newspa- per" in connection with the construction of statutes requiring publication of various kinds of legal notices, but when the term has been used without qualifying language it is pretty generally agreed that it means a medium for the dissemination of news of passing events printed and distributed at short but regular intervals. The Supreme Court of Minnesota, in the case of Hull v. King, 38 Minn. 349, 37 N.W. 792, 793, said: If a publication contains the general and current news of the day, it is none the less a newspaper because it is chiefly devoted to the dissemination of intel- ligence of a particular kind, or to the advocacy of particular principles or views. Most newspapers are devoted largely to special interests, political, religious, financial, moral, social, and the like, and each is naturally patronized mainly by those who are in accord with the views which it advocates, or who are most in- terested in the kind of intelligence to which it gives special prominence. But, if it gives the general current news of the day, it still comes within the definition of a newspaper. In the case of Hall v. City of Milwaukee, 11 Wis. 479, 483, 91 N.W. 998, 999, the Supreme Court of Wisconsin, in discussing the Daily Reporter, a pub- lication very similar to the one under consideration, said: The Reporter addresses itself to special fields of circulation and of news, and is, of course, widely different, both in contents and circulation, from the great daily newspapers, as they are known to the general public. It is, in brief, what its name indicates, a law and business reporter, reaching but a few hundred out of the hundreds of thousands of population of Milwaukee, and yet it cannot be said to fail of compliance with most of the recognized legal definitions of a "news- paper." The Supreme Court of Indiana, in dealing with a publication in all re- spects very similar to the Chicago Daily Law Bulletin, in the case of Lynn v. Allen, 145 Ind. 584, 44 N.E. 646, 647, 33 L.R.A. 779, 57 Am. St. Rep. 223, said: As a matter of fact, every newspaper is in greater or less degree devoted to some special interest. No one, however, would claim that because a newspaper should, for example, be the organ of a certain political party, and especially de- voted to the interests of such party, it would not, therefore, be a newspaper of general circulation. Yet such a newspaper is, to a large extent, read only by the members of the political party whose doctrines are advocated and expounded in its columns. There is no doubt that where a publication is devoted purely to a Public Notice Advertising 470 In re Sterling Cleaners 6 Dyers special purpose it would be an unfit medium to reach the general public. A medical, literary, religious, scientific, or legal journal is professedly but for on class, and that class but a comparatively small part of the whole population; and it would be manifestly unjust, as well as against the letter and spirit of the statute, to use such a journal for the publication of a notice affecting the prop- erty or personal rights of citizens in general. The newspaper before us, however, is no such professional or class journal. While it is a law publication in a certain sense, and of particular interest to the legal profession, yet its character, as shown by the evidence, makes it of general interest to the community at large, espe- cially to that part of the community likely to be concerned with matters in courts and other public business. Indeed, it would seem that this newspaper is quite as likely as any party or other paper of general circulation to reach the particular persons interested in the proceeding before the court; and, consequently, that the spirit of the statute is quite as well served as could be if the notice were pub- lished elsewhere. Its special purpose is to give the news of the courts, and to circulate this news generally among all those who, whether of the legal profes- sion or not, may be interested in such proceedings. We are therefore unable to see how the end proposed in the statute, namely, to reach by publication a party interested in a suit in court, could be better attained than by publication in this newspaper. The Supreme Court of Illinois has held in the case of Railton v. Lauder, 126 Ill. 219, 18 N.E. 555, that the Chicago Daily Law Bulletin, the identical publication now under consideration, was "a secular newspaper of general circulation." The applicable statute then under consideration contained quali- fying terms that the federal statute now under consideration does not con- tain, but the conclusion there reached is all the more applicable to the less exacting statute now before the court. The Supreme Court of Illinois has also held that the Chicago Legal News, the Chicago Law Journal, and the Chicago Recorder are newspapers of gen- eral circulation. Kerr v. Hitt, 75 Ill. 51; Pentzel v. Squire, 161 Ill. 346, 43 N.E. 1064, 52 Am. St. Rep. 373; Eisenberg v. Wabash, 355 Ill. 495, 189 N.E. 301. Many of the cases cited by appellant to support the contention that a publi- cation of the character of the Chicago Daily Law Bulletin is not a "newspa- per" within the meaning of the statute are distinguishable from the instant case because of material differences in the statute or in the publication there in question. In this group we would mention Beecher v. Stephens, 25 Minn. 146, holding the Northwestern Reporter is not a newspaper; In re Charter Application, 11 Phila. 200, where the statute required the publication to be in "two newspapers of general circulation"; Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W. (2d) 371, In re Herman, 183 Cal. 153, 191 P. 934, In re David, 98 Cal. App. 69, 276 P. 419, and Reagan v. Duddy (Ky.), 78 S.W. 430, where the papers in question published fewer items of general interest; People v. Somers, 153 App. Div. 623, 130 N.Y.S. 761, 138 N.Y.S. 1136, where the statute was entirely dissimilar to that in the instant case; Crowell v. Parker, 22 RI. 51, 46 A. 35, 84 Am. St. Rep. 815, where the de- cision was based on custom and usage. There are other opinions by state courts involving similar statutes cited by 471 Public Notice Advertising appellant which sustain his contention that the Chicago Daily Law Bulletin is not a "newspaper" within the meaning of this statute. Among these are State v. Rose, 93 Fla. o1018, 114 So. 373, 374; McDonald v. Shreveport, etc., Ass'n., 178 La. 645, 152 So. 318. It thus appears that there is a conflict in the decisions of the state courts that is in some instances irreconcilable. We believe, however, that the great weight of authority of the various state courts argues for a construction of the term "newspaper" that sustains the contention of appellees herein. IN RE STERLING CLEANERS & DYERS, C.C.A. 7th; 81 Fed. 2d 596 (1936) 2. How does a "legal newspaper" become an "oficial newspaper"? Although in many of the more sparsely settled areas of the country there is only one newspaper to choose for public notice advertising, a number of other counties or cities may be faced with a choice between several qualified publications. The statutes usually provide that the advertising shall be placed in the newspaper "most likely to give notice," or, if the newspapers are invited to bid on the advertising and county printing which usually accompanies it, to the "lowest responsible bidder." The newspaper "most likely to give notice" is usually said to be the one with the largest circulation. A number of qualifications of this proposition, however, have been presented to the courts. In one case, turning upon a unique combination of local circumstances, the Supreme Court of Idaho took occasion to outline the general objectives the courts seek to keep in mind in applying the law. Two rival newspapers were published in Moscow, Idaho, in 1935-one, the Daily Star-Mirror, which also published a weekly paper of the same name; the other, the News-Review. The Weekly Star-Mirror was awarded the contract for county legal advertising, and the award was challenged by the News- Review on the ground that its rival was able to show a larger circulation only because it combined the circulations of the daily and the weekly. This was alleged to be wrong because the daily and the weekly were separate papers. The situation, in somewhat different form, was typical of a number of county publishing situations, where two or more newspapers might be owned by the same company. If the Star-Mirror award were upheld, it might con- ceivably become a precedent for awarding public notice advertising to small local groups of newspapers whose pooled circulation would surpass that of single, independently owned publications. The Idaho Supreme Court was asked to reverse the lower court's ruling in favor of the Star-Mirror. Two ques- tions were presented to the high court: (1) Were a daily and a weekly news- paper owned by the same company actually separate publications? (2) Can 472 the circulation of two papers owned by the same company be combined for purposes of persuading the county that one of the papers is thereby "most likely to give notice"? Justice Holden of the Idaho Supreme Court read the opinion of the ma- jority of three to one (the fifth justice took no part in the case) which an- swered the first question affirmatively and the second question negatively. To illustrate: Under the statute, a daily publication must be printed six consecutive days a week, except holidays, for twelve consecutive months, and announce at the head of the editorial column, in each issue, the day of the week on which legal notices will be published, before it becomes qualified to publish commissioners' proceedings, etc., and, under the statute, there can be no doubt but that a publication which has been printed weekly for 78 con- secutive weeks is also qualified to publish commissioners' proceedings, nor can it be doubted that such weekly publication thereby becomes a newspaper within the meaning of the statute. Suppose, then, that the publisher of such a weekly commences the publication of a daily, and continues to publish it six consecutive days a week, except holidays, for twelve consecutive months, and then makes the statutory announcement in each issue, at the head of the editorial column. Until the statute is so satisfied, the publication, al- though printed daily, would not be a newspaper within the terms of the statute, but the moment that the statute is satisfied, the daily (which, be- fore, was a mere daily publication, without any legal standing under the stat- ute) becomes a full-fledged newspaper, as fully entitled to publish commis- sioners' proceedings, etc., as any weekly newspaper which also has satisfied the requirements of the statute. To illustrate further: Suppose that A commences to print a daily and a weekly at the same time; that he prints the daily six consecutive days a week, except holidays, for twelve consecutive months, and then accepts the pro- visions of the statute, by announcing at the head of the editorial column, in each issue, the day of the week on which legal notices will be published. A then has one newspaper within the meaning of, and as defined and declared by, the statute. Nevertheless, he continues the weekly publication until it has been printed for the full period required by statute. If arithmetic is still a sci- ence of numbers and the art of reaching correct results by their use, one and one make two, and A must then have two newspapers, within the meaning of, and as defined and declared by, the statute, either (or both) of which would be qualified to publish commissioners' proceedings, etc. Neither the daily nor the weekly would be a newspaper, within the terms of the statute, until the statute is satisfied. If compliance with the statute makes either one a newspaper, then compliance with the requirements of the statute, applicable to each, must make both, newspapers. .. A determination of the second question depends upon the construction of section 30-725, I.C.A., which reads as follows: "Publication of Proceedings.-To cause to be published monthly such brief statement as will clearly give notice to the public of all its acts and proceed- ings, and, semiannually, a statement of the financial conditions of the Robinson v. Latah County 473 county. Such statement as well as all other public notices of proceedings of, or to be had before, the board, not otherwise specially provided for, must be published in one issue of such newspaper printed and published in the county as will be most likely to give notice thereof; and when no newspaper is published in the county, copies of such statement must be kept posted for at least twenty days in three public places in the county, one being in a con- spicuous place at the courthouse door." That section expressly provides that commissioners' proceedings "must be published in one issue of such newspaper printed and published in the county as will be most likely to give notice thereof." It seems clear that the Legislature intended where, for example, there are two newspapers pub- lished in a county, that commissioners' proceedings be published in the one "most likely to give notice thereof." And it is evident that the Legis- lature made effective notice the controlling consideration. See Lamphere v. Latah County, 51, Idaho 65, 2 P.(2d) 317. The actual circulation of a newspaper, therefore, becomes an important element of the "notice" the stat- ute requires. On the question of circulation, the district court found that the News-Review had a circulation of approximately 1,459 copies; that the Daily Star-Mirror had a circulation of approximately 1,585 copies; that the Weekly Star-Mirror had a circulation of approximately 865 copies; and that the two last-named papers had a total or combined circulation of 2,450 copies. While, as just stated, the actual circulation of a newspaper is an important element of "notice," it is not decisive. There are other elements which may be taken into consideration. For example: Suppose that one paper, A, has an actual circulation of 2,000 copies generally distributed throughout the various pre- cincts of the county, and that its competitor, B, has an actual circulation of 2,500 copies confined largely to a single town; or that B is a sectarian paper, its subscribers for the most part being members of a particular sect, residing in a single locality; or that most of B's subscribers belong to a particular nation- ality. Under these circumstances, a board may, in the exercise of sound dis- cretion, vested in it by the statute, award county printing to A, even though its circulation, numerically, is not as large as B's. Otherwise, the very purpose of the statute might be defeated. However, where there is a controversy be- tween two newspapers as to which one would most likely give effective notice the circulation of the particular newspaper to which the board makes its award, or with which it contracts, and the circulation of the newspaper con- testing the award, are the only circulations which can be considered. The circulation of two separate newspapers cannot be combined under section 30-72 5, supra (as was done in the case at bar), in that: First, it is required that proceedings "must be published in . . . such newspaper . . . as will be most likely to give notice thereof." The Legislature used the common noun, newspaper, in the singular number and not in the plural; consequently, the statute requires that publication of the proceedings be awarded to but one newspaper and not to two (or more) newspapers. Secondly, as the record of the board clearly shows, the Daily Star-Mirror is not an actual party to the award of the board, or contract with the board, for the publication of the proceedings, and the so-called "agreement" of that daily newspaper to publish the proceedings, in consideration that the board award publication of pro- Public Notice Advertising 474 Dearborn Independent v. Dearborn ceedings to the other newspaper, to wit, the Weekly Star-Mirror, could not have the effect of making it an actual party to the award, because that would be contrary to the express provision of the statute, which provides that the award shall be made to one newspaper. ROBINSON V. LATAH COUNTY, IDAHO, 56 Ida. 759; 59 Pac. 2d 19 (1936) During the depression of the 1930's, and again during the manpower shortage of the 1940's,. a number of small weeklies, either jointly owned or independent, consolidated their printing personnel and facilities and pro- duced their respective publications from a single plant. Attracted by the economies which could be realized in this manner, certain newspapers have continued to publish under this arrangement. However, a serious legal ques- tion as to their qualifications for public notice advertising has been raised in most states, where such a newspaper, printed in an out-of-town plant, com- petes with a locally printed publication. Does the statutory requirement that notices be placed in a newspaper "published" locally mean that the paper must actually be "printed" locally? The question has been raised on several different occasions. In the days be- fore readyprint was discontinued, small weeklies with half or more of their pages made up of "patent insides" printed in a distant city were challenged as to their claims to be printed locally. Most of the courts agreed with the reason- ing of the Montana Supreme Court that, since the local content of the weekly was in fact produced locally, the paper satisfied the legal requirement of being locally published (State ex rel. Bowler v. Board of County Commissioners, 10o6 Mont. 251; 76 Pac. 2d 648 [1938]). However, it was a logical step from this reasoning to the case of a newspaper which was entirely printed elsewhere. When a California court ruled that a newspaper produced under these circum- stances could still qualify as being "locally published," the state legislature proceeded to amend the publication law to nullify the decision. The division of legal thinking on the subject is well illustrated in conflict- ing opinions of the Michigan Supreme Court in a dispute between the Dear- born Independent, a local weekly, and the Dearborn Guide, a weekly cir- culated locally but printed in another town. The issue involved a provision in the Dearborn city charter providing that public notices be placed in a news- paper "printed and published in the city." Five justices concurred with Justice North of the state high court, who ruled that the Guide was qualified to pub- lish such notices. It is of first importance in passing upon the issue under consideration to determine what is the purpose sought to be accomplished by this charter pro- vision for publication of legal notices. It seems too clear for argument that certainly in the main the purpose of publication is to get notice of the pend- 475 ing or contemplated proceedings to those persons who may be presumed to be interested therein. That purpose is in no way accomplished by the doing of the mechanical acts which are only incidental to publication. Instead, if the publication and circulation of the particular newspaper selected are within the city, the purpose of the charter provision is accomplished regardless of where the mechanical work incident to printing is done. A rather thorough search seems to reveal that the weight of authority so holds. A contrary holding in a case wherein the municipality in which there was only one news- paper "printed" and otherwise qualified, would give such newspaper a monopoly and subject a municipality to the necessity of contracting for publication of its legal notices with such newspaper regardless of how disad- vantageous to the city might be the terms of a contract acceptable to the newspaper. Certainly such a condition would be to the disadvantage of the taxpayers. While the decisions hereinafter noted arose incident to the construction of statutory requisites, the same tests and holdings would be applicable to a requisite provided by charter, as in the instant case. As indicated above, we conclude from our research that the more persuasive reasoning and the weight of authority are in favor of a liberal construction of a provision as to the noti- fication being "printed" within a specified area, rather than a construction in a narrow or technical sense. The conclusion of the trial judge was in accord with the foregoing. In his decree he stated: "That Section 5.14 of the City Charter which provides for the publication of legal notices in a newspaper which is 'printed and published in the City' means that the purpose of pub- lication is to disseminate to the public of the City the proceedings of its offi- cial bodies, and that this purpose is effectuated regardless of the place where the mechanical process of printing the paper is carried on. The Dearborn Guide therefore qualifies under the language above quoted from Section 5.14 of the City Charter . ." In deciding a case in this field of the law the Supreme Court of South Da- kota said: "The interpretation and construction of a statute of this sort can- not and should not be disassociated from the purpose and object thereof. If in any given case the whole picture shows that the design of the statute is be- ing effectuated, certain conduct may very well be deemed in that case a suffi- cient technical compliance with the statutory requirements when otherwise it would not be. . . . From the point of view of notice to the public, it is difficult to see where the situation would be in any manner improved if the type were set by hand and the actual printing done on the presses in Roscoe [the place concerned with the publication] as was formerly the case." Bebermeyer v. Board of Commissioners, 63 S.D. 593, 262 N.W. 175, 176. Prior to a subsequent change in the statutory provisions, the Supreme Court of California in passing upon the qualification of a newspaper under a stat- ute which provided for publication of notices to be in a newspaper of "gen- eral circulation," and defined that requisite as being a newspaper "estab- lished, printed and published at regular intervals, in the . . . town, where such . . . notice by publication . . .is given or made . . . ," Pol. Code, sec. 4460, stated the following in its opinion: "In the production of the publi- cation, everything is done at Ontario, save the setting up of the type and 476 Public Notice Advertising Dearborn Independent v. Dearborn making the impressions on the paper. It would be giving too narrow a mean- ing to the word 'printed' to hold that these acts alone were contemplated by its use in the statute. The only reasonable construction that can be given to 'printed and published' is that the paper must be produced in the com- munity where it is aimed to have it recognized as a legal advertising medium." In re McDonald, 187 Cal. 158, 201 P. 11o. Another case in this field of the law arose where the common council of the city of Hoboken, New Jersey, passed a resolution requiring, in accord with a statutory provision, that publication be "in a newspaper or newspapers printed and published in said city." The actual mechanics of making impressions on the paper, i.e., the printing, were performed in New York. The New Jersey court said: "The paper selected by the resolution sought to be set aside, is, within the reason and spirit of the law, 'printed and published' in this (New Jersey) state." Bayer v. Mayor, etc., of City of Hoboken, 44 N.J.L. 131. In this New Jersey case it is also said: "The action of the common council is on the side of economy in expenditure; a clear case should be presented to lead the court to reverse it." Another case somewhat in the same field of the law was before the Supreme Court of Minnesota. The statutory provision, M.S.A. sec. 331.02, as to the requisites of a lawful medium of publishing a legal notice, was that it shall: "Be printed from the place from which it purports to be issued." The partic- ular paper was in fact printed in one building, but its business establishment was located elsewhere. The court held that notwithstanding the statutory provision above noted, the proper construction thereof led to the conclu- sion that "the statute authorizes the presswork to be done elsewhere. . " North Central Pub. Co. v. City of St. Paul, 198 Minn. 335, 269 N.W. 835. Notwithstanding there is some authority to the contrary, we are of the opin- ion that as a matter of giving fair consideration to the purpose sought to be served by the printing of legal notices and in view of the authorities herein- before cited, the provision under section 5.14 of the Dearborn charter as to its legal notices being "printed" in the city should be given a liberal construc- tion rather than, in a technical sense, holding it mandatory. Hence we con- clude that even under the provision as embodied in the city charter, the Dearborn Guide, as held by the trial judge, was qualified as a medium in which to publish legal notices of the city, notwithstanding the mechanical work incident to the printing was not done within the city of Dearborn. In reaching the foregoing conclusion we are mindful of our decisions in Drabinski v. Auditor General, 296 Mich. 463, 296 N.W. 538, 539, and Dexter v. Cranston, 41 Mich. 448, 2 N.W. 674. However it was not essential to de- cision in either of these cited cases that the opinion therein should have been broad enough to cover the specific issue now under consideration; and a rea- sonably careful reading of each of the above cases will disclose that the precise question was not specifically passed upon in either of them. Instead, only by implication was it assumed that the newspaper should be printed in the specified territory. We are not in accord with such an assumption. In the Drabinski case we said: "We . . . think that we have heretofore recognized that the physical act of the printing of a newspaper may under certain cir- cumstances be performed at some point other than the place of publication 477 Public Notice Advertising without violating the provision of the statute that a notice shall be printed, published and circulated in the county in which the act of which notice must be given is to be performed." Chief Justice Reid and one colleague dissented from this view, saying: It is admitted that the actual printing of the Dearborn Guide does not oc- cur in the city of Dearborn. The fact that the "dummy" is prepared and then forwarded to the city of Hamtramck for printing and then the printed matter again brought back to Dearborn for publication is not a total process that complies with the requirement of sec. 5.14 of the charter which requires that the newspaper shall be such as "is printed and published in the city." It can be considered that the printing of the newspaper in the city of Dearborn was a matter of material consequence to the city of Dearborn. It was compe- tent for the city to adopt sec. 5.14 and we note no valid objection to said section. Sufficient provision seems to have been made in the charter for the case if by reason of sec. 5.14 there shall transpire a total want of publications which can qualify with satisfactory service. With the requirement of admission as second class mail matter eliminated, the Dearborn Guide could qualify under the statute; but not under the sec. 5.14 of the charter of the city of Dearborn. I have read the opinion of my brother, Mr. Justice North, in which he holds that the provision as to the printing being done within the city should be held to be merely directory, not mandatory, and considers the Dearborn Guide to be qualified notwithstanding the provisions of the charter. In support of his conclusion, Mr. Justice North cites the case of Bebermeyer v. Board of Commissioners, 63 S.D. 593, 262 N.W. 175, 176, in which the South Da- kota court construes a statute applicable to the various political subdivisions of the state. Such a statute should be construed in such a manner that its ap- plication to the various political subdivisions shall work no unnecessary hard- ship to any of the political subdivisions. The court in the Bebermeyer case says: "From the point of view of notice to the public, it is difficult to see where the situation would be in any manner improved if the type were set by hand and the actual printing done on the presses in Roscoe [the place concerned with the publication] as was formerly the case." As we shall hereinafter see, in passing upon the requirement now under consideration that the printing be done in Dearborn, it is to be conceded that the main purpose of publication is to give notice of the pending or contem- plated proceedings to those persons who may be presumed to be interested therein, and Mr. Justice North gives scant consideration to any other purpose of publication than the giving of such notice. But we shall hereinafter see, that while notice to presumably interested persons is the main purpose, un- doubtedly in the instant case voters of the city of Dearborn under its home rule charter have also the purpose of encouraging printing establishments to be maintained in Dearborn as the place of printing, and have a right so to do. Mr. Justice North proceeds to quote the case of In re McDonald, 187 Cal. 158, 201 P. 11o, in which case a statewide statute was being considered, as 478 Dearborn Independent v. Dearborn distinguished from a city ordinance in the instant case applicable only to the one political subdivision and limited to the purposes and needs of that par- ticular community. As to the McDonald case, see In re Monrovia Evening Post, hereinafter cited. Mr. Justice North also cites the case of Bayer v. Mayor, etc., of City of Hoboken, 44 N.J.L. 131, in which the New Jersey court con- sidered the action of the common council of the city of Hoboken, New Jersey, in awarding a contract to a newspaper the presswork of which was done in New York City, and adduced as an argument in favor of the decision of the court upholding the action of the common council that it "is on the side of economy in expenditure; a clear case should be presented to lead the court to reverse it." The court may properly consider an argument to sustain the action of the common council in construing a statute and look with favor upon an action which can be thought to be economical of public funds and give weight to such argument in favor of the action of the common council, but this consti- tutes no reason why a mere argument of supposed economy can be said to be sufficient reason for the court overturning the city charter provision in question. The arguments pro and con on the subject of economy constitute a legislative question for the voters of Dearborn to determine rather than a judicial question for this court to determine, especially when the practical deletion of a provision in the city charter is accomplished by the opinion resting at least in part upon such argument as to economy, in contrast to which attitude in the opinion of Mr. Justice North, there is the reasoning in the case of State ex rel. Vickers v. Board of County Commissioners, 77 Mont. 316, 250 P. 6o6, cited by Mr. Justice North but the reasoning for which is not set forth in his opinion, in which the Montana court construed a statute of the state which requires the county commissioners of the several counties, 250 P. at page 607 "to contract with some newspaper, published at least once a week, and of general circulation, published within the county, and having been published continuously in such county at least one year, immediately preceding the awarding of such contract, to do and perform all of the print- ing for which said counties may be chargeable, etc." In passing upon the situation of a newspaper which the Montana court found did not comply with such provision, the court commented on the New Jersey case of Bayer v. Mayor, etc., of City of Hoboken, supra, and said, 250 P. at page 608: "There the purpose of the act was to insure notice to the peo- ple of the city as to the action of the council, and that purpose was served, the paper considered, regardless of where the mechanical work was done. But even though the case was on all fours with this case as to purpose, the facts here do not measure up to the findings in that case, as the most the evidence here shows is that the editorial matter and copy for the Searchlight were written in its office at Hardin and the papers were issued from there to its subscribers." The Montana court further said, 250 P. at page 609: "We have hereto- fore held that 'the word "published," as used in the statute, evidently means printed and published. It refers to a newspaper having its home in the county' (Stange v. Esval, 67 Mont. 301, 215 P. 807), and, whether such decla- ration was or was not necessary to a decision in that case it correctly interprets 479 Public Notice Advertising the statutes and expresses the legislative intent in its passage. To hold other- wise would defeat the purpose of the act by permitting a large concern situ- ated in a city within the state, or even without the state, to control the county printing in any number of counties by establishing offices therein and furnish- ing such offices with papers for distribution within the counties." We are not concerned in this case with the status of newspapers which have certain printed matter called patent insides, as that is not in issue in the in- stant case, although commented on in the Montana case. We further note the following cases from Vol. 33 Words 6 Phrases, page 636: "The word 'printed,' as used in a statute requiring notice of foreclosure to be published in a newspaper printed in the county, does not include a news- paper published in the county, as a newspaper may be published in a county and yet not be printed there. Bragdon v. Hatch, 77 Me. 433, 1 A. 140, citing Blake v. Dennett, 49 Me. 102." "Newspaper held not qualified to print legal notices, which are required to be published in a 'newspaper of general circulation' in particular city, under Pol. Code sec. 4458, where mechanical work and printing are done elsewhere, since, under section 4460, a newspaper of general circulation must be printed and published where it seeks patronage of such notices, and under section 4463, 'printed' means mechanical work of production, and 'published' means issuance from place where printed. In re Monrovia Evening Post, 199 Cal. 263, 248 P. 1017, o1018." We note the following from 5th Decennial Digest, vol. 34, page 2207: In proceeding for order directing board of trustees of village to designate only newspaper in village as newspaper in which should be published treasurer's report, rather than newspaper of neighboring village, no consideration could be given to circulations of newspapers or cost of printing in the newspapers. Village Law (McKinney's Consol. Laws, c. 64), sec. 89. Roy v. Murphy (Sup.), 33 N.Y.S. 2d 991." The instant case is distinguishable from the cases cited by Mr. Justice North, on the ground that the cases cited by him appertain to general stat- utes applicable to several political subdivisions of a state, whereas in the in- stant case we are concerned only with a city charter adopted by the city of Dearborn, a home rule city, affecting only that one political subdivision. The mandatory nature of a provision for local printing was assumed and enforced in Dexter v. Cranston, 41 Mich. 448, 2 N.W. 674. The opinion in the case of Drabinski v. Auditor General, 296 Mich. 463, at page 469, 296 N.W. 538, at page 540, does not treat as merely directory the requirement of local printing but says the requirement was substantially complied with because "the actual printing of this newspaper in that County was only temporarily suspended." With the decisions in definite conflict on the mandatory nature of statutory requirements prescribing printing as well as publication of public notices in political subdivisions of the state with differing local situations and needs, there is no decision called to our attention that gives a mere directory effect to a city charter provision requiring printing and publishing in that city of the public notices of city proceedings and matters of municipal nature, other 480 than the case of Roy v. Murphy, supra, in which case the requirement as to printing is in effect deemed mandatory. The practical effect of Mr. Justice North's opinion is to wipe out from the ordinance of the city of Dearborn the word "printed," by construing it to be directory only. Inherent in the reasoning in the cases cited by Mr. Justice North is the thought that if the legislature of the state had in any one of the cases cited by him considered the plight of a particular political subdivision, they could be considered as having intended that the language of the statute should be liberally construed to favor the apparent needs of the particular municipality involved . The language of the charter is clear and unambiguous; both words are used in the charter, "published and printed in the city" (italics supplied). There is no compelling reason why the word "printed" in the Dearborn city charter in question should be in practical effect eliminated from the char- ter by judicial construction. A majority of the voters of Dearborn have a right to determine that such notices shall be printed in Dearborn as well as pub- lished there. DEARBORN INDEPENDENT PUB. Co. v. DEARBORN, 331 Mich. 447; 49 N.W. 2d 370 (1951) 3. Who is responsible for publication of notices? In most instances, the statute defining a specific requirement of notice will also stipulate who is responsible for the publication of the notice, or this will be evident from the general context of the law. The question of responsibility, therefore, is capable of a variety of answers, depending upon the particular statutes involved. This makes for vagueness and confusion; local officials fre- quently will plead their inability to interpret the law, which itself is vague, or they will contend that the law does not make it mandatory that they comply. Each case has to be carried to the courts for a ruling, in a pro- longed and often involved process. If the court is convinced that the law does make it mandatory that the individual concerned publish his notice, a request for a writ of mandamus will be granted. This is true, one court has said, even when publication does not suit "the convenience or financial condition" of the agency oi individual required to make the publication (Shelby County v. Cosine, 174 Ky. 504; 192 S.W. 626 [1917]). However, the practical difficulty in the law arises from the fact that in most cases the notice, if it is not specified to be discretion- ary, is at least not specified to be mandatory; as a result, the courts will fre- quently decline to interpret the law as mandatory. In a case presented to it in 1926, the Colorado Supreme Court ruled that where the statute provided that the county commissioners should select a newspaper for the publication of legal notices, the commissioners had no Commissioners v. Wood 481 Public Notice Advertising alternative in the matter. Dismissing the plea that the commissioners were not liable for the cost of publishing a delinquent tax list forwarded to the news- paper by the county treasurer because the commissioners had not made a contract with the paper, the court said: [When] the newspaper was selected, the contract was awarded, and was made when the list was published at the direction of the treasurer. . This controversy arose out of an attempt on the part of the commissioners to omit the tax sale and the publication of the delinquent list for the year 1922. It ought to be unnecessary to say that they have no power to do such a thing. The support of the state's government does not rest on the choice of the commissioners of her counties. BOARD OF COMMISSIONERS OF COSTILLA COUNTY V. WooD, 8o Colo. 279; 250 Pac. 86o (1926) 4. How often are notices to be published? A certain amount of confusion has arisen from another vague feature of most publication laws, which state that a particular notice shall be published "three times," or "within ten days" or at some other intervals which may or may not conform to the publication period of the official newspaper. For in- stance, does publication for two or three or more times mean publication in successive issues of a daily newspaper--that is, publication all within one week? How shall a weekly or semiweekly newspaper conform to the law? The only solution here is by legislative enactment, and all too few states have yet disposed of this problem. Idaho's statute provides: Whenever any law of this state requires publication of any notice or proceed- ing, said requirement shall be satisfied by publishing the same in any regular issue of a newspaper issued on one or more days of each week, once each week during the number of weeks mentioned in the requirements; or when a speci- fied number of days is required, a ten days' notice shall be satisfied by two such weekly publications, a twenty days' notice by three such publications, and a thirty days' notice by five such publications. (Idaho Code 58-108) 5. Proof of the publication may be stipulated by law. Although it does not settle all the issues which may arise, most states provide by a specific statute for the formal proof that a publication has been made. This is necessary for the public notice to have full legal effect-the parties or the agencies concerned must be able to submit acceptable legal evidence that they have complied with the law by publication. Typical of the statutory provisions on this subject is the Illinois law: 48z Sharon Herald Co. v. Mercer County When any notice shall be required by law, or the order of court, or by any con- tract, to be published in any newspaper, and no other mode of proving the same is provided, the certificate of the publisher, by himself or his authorized agent, with a written or printed copy of such notice annexed, stating the number of times with which the same shall have been published, and the dates of the first and last papers containing the same, shall be sufficient evidence of the publica- tion therein set forth. (Smith-Hurd Illinois Annot. Stat. 100.1) 6. The advertiser is liable for the costs of duly authorized notices. Occasionally, and for varying reasons, public boards may object to paying for public notices even when they have been authorized. Frequently the ob- jection is that the newspaper's rate is too high-in cases where the law may permit the newspaper to charge its regular rates. In such a case the Superior Court of Pennsylvania was asked to rule upon a bill presented by the Sharon Herald, in which it charged for the legal advertising at the rate of 15 cents a line. The county commissioners had offered to pay at the rate of to cents a line, and the trial court had upheld the commissioners. Judge Cunningham of the superior court read an opinion reversing part and sustaining part of the lower court's judgment; the effect was to uphold the newspaper's suit for pay- ment on its terms. Newspapers are not public utilities subject to governmental control and supervision as to the reasonableness of their advertising rates. We agree with the learned trial judge that the primary purpose of the "Newspaper Advertis- ing Act" was to prescribe uniform methods for computing advertising charges, the taxation of advertising expenses as a part of the costs in certain forms of litigation, and the prevention of discriminations against or preferences in favor of advertisers in the same general class. Clearly, it creates no statutory pre- sumption that the rates established and published by a newspaper are reason- able. Yet, that is exactly what the trial judge was requested to charge by ap- pellant's second point. When the reasonableness of a published advertising rate of a newspaper is questioned, the burden is still on the newspaper to show its reasonableness. The point was properly refused .... The real issue at the trial of this case was whether a rate of fifteen cents per line for publishing the report in January, 1936, was a reasonable rate, hav- ing regard to the increased circulation of appellant's newspaper, the cost to it of machinery, paper, etc., the prevailing wage scales and the legislative dec- laration in the "Newspaper Advertising Act," supra, that "a newspaper is en- titled to compensation for its readiness at all times to render an advertising service." That the parties recognized this as the issue is apparent from the ex- amination (125a-134a) of F. W. Mosier, publisher of the Greenville Prog- ress, the only newspaper of the "minority political party" in the country. The circulation of his paper was only 1,450 copies, and the rate charged for print- ing the report in it was ten cents per line. This witness was properly permitted to express his opinion with respect to the comparative costs as between appel- lant and himself of rendering the advertising service out of which the con- 483 Public Notice Advertising troversy arose. But it by no means follows that the rate charged by appellant was unreasonable because that of the Greenville Progress was lower. His testimony showed that, aside from the fact that the circulation of his paper was only one tenth of appellant's, the conditions under which the service was rendered differed in many particulars. When the controlling issue-the reasonableness of appellant's rate under all the conditions materially affecting its business in January, 1936-is kept in mind, we are unable to see how proof of the fact that eight years prior to that time all the newspapers then published in the county considered ten cents per line a reasonable price for printing the reports of county auditors, throws any light upon that issue. The problem, whether evidence of the price paid or rate charged in the community for similar services is admissible as showing the reasonable value of the services upon which a suit is based, is one of those perplexing questions of degree, the dispostion of which must in the last analysis depend upon all the facts of the particular case. So far as disclosed by the record, none of the newspapers joining in the agreement had a circulation even half as large as the present circulation of appellant. No at- tempt was made to show their respective plant investments, the prevailing prices of supplies, or the wage scales then in force. Evidence of the rates charged in previous years is irrelevant unless it is also shown the services were rendered under substantially the same conditions as those prevailing in 1936. Nor should such evidence be admitted if it raises collateral and confusing issues: Wigmore on Evidence, 2d ed. 1923, Vol. 1, Sec. 463, p. 847. SHARON HERALD CO. V. MERCER COUNTY, 132 Pa. Super. 245; 200 Atl. 880 (1938) 484 PART III Related Fields of Journalism CHAPTER XVII Law and Radio Journalism SUPPLEMENTARY READING Anonymous, "Radio Editorials and the Mayflower Doctrine," Columbia Law Review, v. 48 (July, 1948), pp. 785-93 J. L. Berry and W. M. Goodrich, "Political Defamation-Radio's Dilemma," University of Florida Law Review, v. 1 (Fall, 1948), pp. 343-59 R. C. Donnelly, "Defamation by Radio-A Reconsideration," Iowa Law Re- view, v. 34 (November, 1948), pp. 12-40 Federal Communications Commission, The Public Service Responsibility of Broadcast Licensees (Washington, 1946), passim Ann Freeman, "Proposed Changes in the Federal Communications Act," Journalism Quarterly, v. 25 (December, 1948), pp. 363-8 Gray, "Court Lays Down Rule for Privacy on TV," Editor 6 Publisher, v. 85 (August 23, 1952), p. 40 D. H. Remmers, "Recent Legislative Trends in Defamation by Radio," Har- vard Law Review, v. 64 (March, 1951), pp. 727-58 P. M. Segal, "Recent Trends in Censorship of Radio Broadcast Programs," Rocky Mountain Law Review, v. 20 (June, 1948), pp. 366-80 *Thomas C. Sorensen, "Constitutionality of Nebraska's Statute Limiting Lia- bility of Radio Station for Defamation," Nebraska Law Review, v. 29 (November, 1949), pp. 133-39 Wittenberg, Dangerous Words, c. 13 Swindler, Bibliography, nos. 197, 742, 743, 755, 760, 762, 770, 779 BACKGROUND NOTE Because of the relative newness of radio broadcasting, radio law is itself a relatively new development. The first Radio Act was passed by Congress in 1912, and was conceived to facilitate the use of wireless communications be- tween land installations and ships at sea. The very rapid growth of commercial broadcasting led to a Radio Act in 1927, which created a Federal Radio Com- mission charged with devising a reasonable program of regulation for the con- fused welter of private stations continually interfering with one another on * See Sorensen v. Wood, pp. 493-494 below. 487 the airwaves. In 1934 Congress passed the Federal Communications Act, setting up the present Federal Communications Commission to take over the work of the earlier commission and to administer this country's part of the international program worked out, after several previous meetings, at a world radio and telecommunications conference in Madrid in 1932. The problems with which radio law seeks to deal are manifold and com- plex. A large part of these problems has to do with technological or engineer- ing details; others arise from the essential interstate or international aspects of radio broadcasting, which obviously does not stop at national frontiers; still others are presented by the fact that radio law is largely unprecedented-sui generis, as the law puts it-and where old laws, such as those relating to defamation, do not apply effectively, the courts or the legislatures have had to pioneer new paths. Not the least troublesome is the question of the proper relationship between the free speech guarantee of the First Amendment and the implications of control in the very fact that Congress must apportion the public domain (the ether) among a larger number of applicants than there is air space to accommodate. Although radio journalism-a rather general term which may be taken to cover radio newscasting, public events broadcasts, and radio advertising-is only part of the total broadcasting activity of the radio industry, and is the only part which the present chapter can consider, it is the subject of a con- siderable proportion of the law which has grown up in the twentieth century to deal with this phase of mass communications. Virtually all that has been discussed in the present textbook to this point has its particular application to radio journalism, and several cases revolving around a radio broadcasting station have been covered in earlier chapters. What follows are certain opin- ions representative of the special problems of law-several of these being problems as yet unsolved-relating to radio journalism: the interstate charac- ter of radio broadcasting and the necessity of its administration by a federal agency; the dependence of radio defamation upon revisions of the statutes in the various states to cover the peculiar aspects of this new type of tort; the attempt of Congress to prohibit censorship and to promote full freedom of expression by a directive in the Communications Act, and the dilemma with which the broadcaster is now confronted as a consequence; the question of the right of radio stations to take sides on public issues in a manner com- parable to newspaper editorializing; and the concept of "public service re- sponsibility" of broadcasters and the attempt of the Federal Communications Commission to use this concept as a standard of values when a broadcaster's license comes up for renewal. On almost all of these special problems a vigorous debate has been-and in most cases still is-in progress between the private industry of radio and 488 Law and Radio Journalism television broadcasters on the one hand and the courts, the commission, and the legislature on the other. The much-debated FCC "Blue Book" (The Public Service Responsibility of Broadcast Licensees) and the radio industry's comment on it in various articles and editorials in successive issues of the trade magazine Broadcasting, epitomize the basic issue of "free radio" (the broadcasters' term for a minimum of administrative regulation) and radio operating in conformance with a standard of "public service" administered by the FCC. The gist of the FCC thesis in the "Blue Book" is that radio and the com- mission alike have an interest in maintaining a reasonable balance between network and local broadcasts, between "live" and transcribed programs, and between sustaining and commercially sponsored broadcasts. In its hearings on license renewals, the commission has sought to apply this standard of public service responsibility by comparing the promises of the broadcaster when he originally petitioned for a license, and the performance of the broad- caster after he received it. Obviously, such a policy is fraught with explosive charges, since many borderline decisions would turn upon subjective or qual- itative factors. Adverse rulings on an application for a license or for its renewal touch off frequent outcries in the trade press and in Congress as well; while on general issues of policy such as the FCC statement on editorializing by radio stations, those who oppose the statement petition the commission to reconsider its pronouncement and perhaps reverse it. On the other hand, when the commission finds itself up a blind alley as in the case of the legal prohibition of censorship in the matter of political broadcasts, Congress may fail, as it has to date, to come to the agency's rescue. These are suggestive of the extensive legal problems which radio-and still less television-has had so little opportunity as yet to solve. In little more than forty years since the first federal law was enacted to regulate ship-to-shore wireless communications, primarily in the interest of safeguarding life at sea, the radio industry has experienced an almost astronomical growth: From the first radio news station which went on the air in Detroit in 1920, standard (AM) broadcasting stations had grown to more than 2,400 by the end of 1953; while television, dating from six licensed stations in 1943, in a decade had reached a total of lol with more than twice as many additional stations authorized and under construction. In this short period both lawmakers and jurists have discovered that statutes or cases drawn from an earlier time, relating either to the regulation of tele- graphic communications or to material published and circulated in printed form, frequently have been inapplicable, or at least rather ineffective, with respect to radio. It is not surprising, therefore, to find the law currently in a state of change and evolution; and it should be remembered that in the state- 489 Background Note Law and Radio Journalism ments which follow, the courts or the Federal Communications Commission have, as often as not, tried to state a problem rather than to pronounce its solution. Congress made extensive revisions to the Communications Act in 1952-although it left a number of problems still unsolved, . is more than likely that further revisions, and significant new statements of law as a result, will be required in the near future. GENERAL PRINCIPLES 1. Radio broadcasting is essentially interstate in nature. In 1936 the United States Supreme Court considered the question of whether radio broadcasting is essentially interstate in nature, and hence is sufficiently within the area of federal jurisdiction that a state tax may amount to a burden upon interstate commerce. In the course of determining this question the court emphasized, in broader terms than any tribunal had ex- pressed up to that time, the authority of the federal government to assume jurisdiction over broadcasting because of the practical impossibility of con- fining the activity to a single political subdivision, or to the United States it- self. The question was presented on an appeal from the Supreme Court of Washington, which had upheld that state's power to levy an occupation tax upon the entire gross receipts of a radio station even though the station de- rived most of its revenue from advertising from outside the state and its broadcasts were heard well beyond the borders of the state. In reversing the state court's ruling, the United States Supreme Court held that the activity of broadcasting is interstate in nature, although it indicated clearly that there are certain aspects of a radio station's operation which might be subject to state taxation. Mr. Justice Stone read the unanimous opinion. Broadcasting, according to the allegations of the complaint, is accom- plished by the generation, at the broadcasting station, of electro-magnetic waves, which pass through space to receiving instruments which amplify them and translate them into audible sound waves. The essential elements in the broadcasting operation are a supply of electrical energy, a transmitter, the connecting medium of "ether" between the transmission and receiving instruments, and the receiving mechanism. Appellant's entire income consists of payments to it by other broadcasting companies or by advertisers for broadcasting, from its Washington stations, ad- vertising programs originating there or transmitted to them from other states by wire. Appellant "sells time" to its customers at stipulated rates, during which it broadcasts from its stations such advertising programs as may be agreed upon. During such time as is not sold, it broadcasts, at its own expense, "sustaining" programs, as required by the regulations of the Federal Radio 490 Fisher's Blend Station v. Tax Commission Commission. The customers desire the broadcasts to reach the listening pub- lic in the areas which appellant serves, and a large number of persons, many of them in other states, listen to the broadcasts from appellant's stations . Appellant is thus engaged in the business of transmitting advertising pro- grams from its stations in Washington to those persons in other states who "listen in" through the use of receiving sets. In all essentials its procedure does not differ from that employed in sending telegraph or telephone mes- sages across state lines, which is interstate commerce. In each, transmission is effected by means of energy manifestations produced at the point of reception in one state which are generated and controlled at the sending point in an- other. Whether the transmission is effected by the aid of wires, or through a perhaps less well understood medium, "the ether," is immaterial, in the light of those practical considerations which have dictated the conclusion that the transmission of information interstate is a form of "intercourse," which is commerce. See Gibbons v. Ogden, 9 Wheat. 1, 189. Similarly, we perceive no basis for the distinction urged by appellee, that appellant does not own or control the receiving mechanisms. The communi- cations broadcasted are no less complete and effective, nor any the less ef- fected by appellant, because it does not own or command the apparatus by which they are received. The essential purpose and indispensable effect of all broadcasting is the transmission of intelligence from the broadcasting sta- tion to distant listeners. It is that for which the customer pays. By its very nature broadcasting transcends state lines and is national in its scope and importance-characteristics which bring it within the purpose and protection, and subject it to the control, of the commerce clause. See Federal Radio Comm'n v. Nelson Bond 6 Mortgage Co., 289 U.S. 266, 279. It is unnecessary to determine whether, as the court below suggested and appellee argues, like considerations would require us to hold that the exposure of a sign board, in one state, to the view of dwellers in another, is likewise interstate commerce. Whether the practical and scientific aspects of such an operation bring it within the range of those factors which we deem controlling here, may well be left for decision when such a case is presented. See Pan- tomimic Corporation v. Malone, 238 Fed. 135. As appellant's income is derived from interstate commerce, the tax, meas- ured by appellant's gross income, is of a type which has long been held to be an unconstitutional burden on interstate commerce. But appellee further contends, as the state court thought, that, even though broadcasting involves interstate commerce, the maintenance and operation of appellant's stations include intrastate activities which may be subjected to state taxation, as was the generation of electricity, transmitted to points outside the state, in Utah Power 6 Light Co. v. Pfost, 286 U.S. 165. There the tax was measured by the amount of current generated at the taxpayer's hydro-electric plant, from which electric power was supplied to consumers in other states. This Court held that the operation of generating electrical power, although virtually si- multaneous with its transmission, is so distinct and separable from the opera- tion of transmission, in interstate commerce, as to be the appropriate subject of a state tax. The argument now made overlooks the fact that the present tax is not levied upon or measured by appellant's generation of electro- 491 magnetic waves, but by its gross receipts for the service it performs, which in- cludes both the generation of the energy and its transmission as a means of communication interstate. Whether the state could tax the generation of such energy, or other local activity of appellant, as distinguished from the gross income derived from its business, it is unnecessary to decide. It is enough that the present is not such a tax, but is levied on gross receipts from appellant's entire operations, which include interstate commerce. As it does not appear that any of the taxed in- come is allocable to intrastate commerce, the tax as a whole must fail, and the judgment of the state court must be reversed and the case remanded for fur- ther proceedings not inconsistent with this opinion. Reversed. FISHER'S BLEND STATION V. TAX COMMISSION, 297 U.S. 650; 56 S. Ct. 6o8; 80 L. Ed. 956 (1936) 2. What is the nature of radio defamation? The interstate nature of radio broadcasting had been considered two years earlier by the United States District Court for western Missouri, in a question of a local station's liability for a defamatory broadcast originated in New York. A person living in Missouri charged that he was libeled by the network broadcast. The local station offered the defense that it had no control over the network program and had no active part in the publication of the libel over the air. It further maintained that a defamatory statement made on an interstate network could not become the basis for a civil action within a state. The federal court refused to accept either argument, and Judge Otis remanded the case to the state court for trial. I see no essential distinction between a situation in which the owner of a broadcasting station in Kansas City sells the privilege of speaking over the station for thirty minutes to X who, speaking in the local studio of the sta- tion, suddenly and unexpectedly utters a defamatory sentence concerning A and a situation in which the same station sells the same privilege to X, who, speaking in New York, projects his defamation by telephonic means into the identical broadcasting apparatus in the Kansas City station. The mere matter of the distance of X from the broadcasting instrumentality when he speaks into it certainly cannot affect the liability of the owner of the station. Whether X's defamatory words reach the broadcasting instrumentality from afar by electrical impulses carried by wire or directly through air waves created by his voice certainly cannot affect the liability of the owner of the station. The sit- uations essentially are identical. The greater simplicity of the first of the situ- ations stated makes its consideration more convenient. In my thought, then, I put the primary offender in the local studio of KMBC at Kansas City. I assume his good reputation; I assume that nothing in any former performance by him should put the owner of the station on in- Law and Radio Journalism 492 quiry; I assume even that he has submitted a manuscript and that nothing in it is questionable; I assume a sudden utterance by him of defamatory words not included in the manuscript, an utterance so quickly made as to render impossible its prevention; I assume, in short, a complete absence of the slight- est negligence on the part of the owner of the station. With those assump- tions is the owner of KMBC liable to one of whom the primary offender has falsely spoken as an ex-convict who has served time in a penitentiary? The conclusion seems inescapable that the owner of the station is liable. It is he who broadcasted the defamation. He took the utterance of the speaker which came to him in the form of pulsations in the air. Those waves of air he changed into electrical impulses. Them he threw out upon the ether know- ing they would be caught up by thousands and changed again into sound waves and into a human voice. He intended to do these things. But for what he has done the victim of the defamation never would have been hurt. I conceive there is a close analogy between such a situation and the publi- cation in a newspaper of a libel under circumstances exonerating the publisher of all negligence. The latter prints the libel on paper and broadcasts it to the reading world. The owner of the radio station "prints" the libel on a different medium just as widely or even more widely "read." In the case of the newspaper publisher absence of negligence is no defense. Peck v. Tribune Company, 214 U.S. 185, 189, 29 S. Ct. 554, 53 L. Ed. 960, 16 Ann. Cas. 1075. Yet he is not helpless. He knows that without any fault of him or of any of his employees some one some time surreptitiously may insert in his paper some line of libel. He takes that risk. He can insure himself against resulting loss through the subscription and advertising rates he charges or otherwise. The owner of a broadcasting station knows that some time some one may misuse his station to libel another. He takes that risk. He too can insure himself against resulting loss. COFFEY V. MIDLAND BROADCASTING CO., 8 Fed. Supp. 889 (1934) The court's assumption in the Midland case that radio defamation was in the nature of libel was based on a statement by the Supreme Court of Ne- braska in a 1932 suit. The ruling in this latter case, which was cited for a num- ber of years as the leading authority for a definition of radio defamation as libel, was based upon an extensive analysis of the law presented to the court by Professor Lawrence Vold of the University of Nebraska, one of the earliest students of this phase of radio law.* Chief Justice Goss read the unanimous ruling holding that radio defamation was to be considered analogous to libel. It has often been held in newspaper publication, which is closely analogous to publication by radio, that due care and honest mistake do not relieve a publisher from liability for libel. In Peck v. Tribune Co., 214 U.S. 185, 29 S. Ct. 554, 555, 53 L. Ed. 960, 16 Ann. Cas. 1075, Mr. Justice Holmes said: * An extension of the statement Professor Vold prepared as a friend of the court (amicus curiae) in the 1932 case appears as an article in the Minnesota Law Review, v. 19 (May,. 1935), pp. 611-620, under the title, "Basis for Liability for Defamation by Radio." Sorensen v. Wood 493 494 Law and Radio Journalism "If the publication was libelous, the defendant took the risk. As was said of such matters by Lord Mansfield, 'Whenever a man publishes, he publishes at his peril.'" In Taylor v. Hearst, 107 Cal. 262, 40 P. 392, where the pub- lished article was libelous per se but the publisher made a mistake in the initials and intended the article to apply to another person, it was held: "Whether such publication was by design, or was the result of carelessness in setting the type, is a matter of no consequence so far as the question of ac- tual damages is involved." In the argument in Walker v. Bee-News Publish- ing Co., 122 Neb. 511, 240 N.W. 579, are cases to the same effect. So the instructions were erroneous in not clearly and unequivocally defining the li- belous per se statements as such. The court also erred in submitting the case to the jury by instruction No. 81/2, as if the law of negligence and not the law of defamation were the underlying basis for liability of radio broadcast- ing licensees for the publication of defamatory utterances by radio. These er- rors were prejudicial and require a reversal of the judgment. The defendant company, like most radio broadcasters, is to a large extent engaged in the business of commercial advertising for pay. It may be assumed this is sufficient, not only to carry its necessarily large overhead, but to make at least a fair return on its investment. For it appears that the opportunities are so attractive to investors that the available airways would be greatly over- crowded by broadcasting stations were it not for restriction of the number of licensees under federal authority. Such commercial advertising is strongly com- petitive with newspaper advertising because it performs a similar office be- tween those having wares to advertise and those who are potential users of those wares. Radio advertising is one of the most powerful agencies in pro- moting the principles of religion and of politics. It competes with newspapers, magazines and publications of every nature. The fundamental principles of the law involved in publication by a newspaper and by a radio station seem to be alike. There is no legal reason why one broadcasting station should be granted special favors as against one who may be a victim of a libelous pub- lication. SORENSEN V. WOOD, 123 Neb. 348; 243 N.W. 82; 82 A.L.R. 1098 (1932); subsequent appeal of the remanded case as KFAB v. Sorensen was dis- missed by the United States Supreme Court for want of a federal question, 290 U.S. 599; 54 S. Ct. 209; 78 L. Ed. 527 (1932)* The rule laid down in the Sorensen case and followed by the federal court in the Midland case, however, was far from settling the matter. The theory upon which radio defamation was defined as libel rested upon the fact that words which were broadcast over the air were read from a typed or printed script. What about extemporaneous comments-particularly those which were unexpectedly interpolated in a written script? Were these words, being oral, slander instead of libel? A New York court held that they were; after * This decision has apparently been nullified by a 1949 Nebraska law limiting liability for radio defamation (Neb. Comp. Stat. 86-6o); see pp. 5o8-5o9 below. reviewing the several leading cases on the subject up to that date (1937), the court ruled that in the absence of a statute changing the definition of libel and slander which had prevailed for so many years, it was compelled to de- fine such utterances as were not based on a script as slander rather than libel. Judge Pecora of the state supreme court said: The question here raised as to the sufficiency of the complaint involves a consideration of the relatively novel proposition of whether defamation over the radio constitutes the tort of libel, or that of slander. Owing to the com- parative infancy of the radio industry, it is not surprising that the question has not yet been directly raised and passed upon by the reviewing courts of our state. Counsel for the parties hereto have not, apparently, extended their research to outside jurisdictions. This has prompted the court to do so. In other jurisdictions the courts are in conflict. The only decision squarely in point is Meldrum v. Australian Broadcasting Co. [1932] Vict. L.R. 425, which held that the action was one for slander, and not for libel. In Sorensen v. Wood (1932) 123 Neb. 348, 243 N.W. 82, 85, 82 A.L.R. 1098, the radio address had been written before the broadcast, and was read by the defend- ant. The court there said: "There can be and is little dispute that the written words charged and published constitute libel rather than slander" (italics mine). It seems evident from the entire opinion in that case that the court's con- clusion rested upon the fact that the defendant read the defamatory matter from manuscript. In Coffey v. Midland Broadcasting Co., 8 F. Supp. 889 (D.C.W.D. of Mo. 1934), the court cites the Sorensen case, supra, with ap- proval. However, there the defamatory words charged that the plaintiff was an ex-convict. Whether libelous or slanderous, such defamation clearly would be actionable. In addition, the case involved a motion for remanding an action to the state courts. The opinion does not discuss the question here involved. It merely draws an analogy between the liability of the broadcasting company and that of a newspaper publishing a libel. In Miles v. Louis Wasmer, Inc., 172 Wash. 466, 20 P. (2d) 847, 848, an action for slander was brought against a broadcasting company. However, since the court considered the language complained of as slanderous per se, it held it was unnecessary to determine whether it constituted libel or slander. The court said: "The read- ing of that manuscript over the broadcasting station is the basis of this ac- tion. In the briefs, there is some discussion as to whether the action is one for libel or for slander. This question we shall not decide, because, in so far as this case is concerned, it is immaterial. We shall assume that the words spoken, if they are actionable, must come within the rule of slander." In Weglein v. Golder (1935) 317 Pa. 437, 177 A. 47, the script of a speech had been prepared and delivered to the newspapers before it was spoken over the radio. Although there was no evidence of actual publication in the news- papers, the court deemed that its delivery to the newspapers constituted a technical publication of a libel. It was held, therefore, that the lower court committed no error in submitting the case to the jury as one of libel, rather than of both libel and slander. In Singler v. Journal Co. (1935) 218 Wis. Locke v. Gibbons 495 263, 260 N.W. 431, 433, the court said: "Due to the fact that this was a radio broadcast, it is a serious question whether the case is governed by the law of libel or that of slander." However, our courts cannot legislate to eradicate the long-established dis- tinction between libel and slander. As Cardozo, C. J., said in Ostrowe v. Lee, 256 N.Y. 36, at page 39, 175 N.E. 5o5, 506: "The schism in the law of defamation between the older wrong of slander and the newer one of libel is not the product of mere accident (Veeder, "The History of the Law of Defamation," vol. 3, Essays in Anglo-American Legal History, 459, 461, 467, 468, 471; Fisher, "The History of the Law of Libel," 10 L.Q.R. 158; 1 Street, Foundations of Legal Liability, pp. 291, 292; 8 Holdsworth, His- tory of English Law, p. 365). It has its genesis in evils which the years have not erased. Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one abides and 'perpetuates the scandal.' (Harman v. Delany, Fitzgibbon, 253; Veeder, supra, p. 472; Street, supra, p. 294) ." It is manifest that not only should the "mischief" aspect of the distinction between libel and slander be considered, but the element of "permanence of form" as well. Libel has always been considered as written, and slander as spoken, defamation. Pollock, Law of Torts (13th Ed. 1929), p. 242; Odgers, Libel and Slander (6th Ed. 1921), pp. 6, 7. The broadcasting over the radio of an extemporaneous speech is no different in principle from the delivery of the same speech over an amplifier to a vast audience in a stadium. Both methods involve use of the spoken word, and if the utterances are defamatory they may be equally damaging in nature. The extent of the damage might obviously depend upon the number of persons hearing the defamation in ei- ther case. Since the words complained of in this action were not contained in the script, it is not necessary to decide whether a different ruling would follow in a case where, as in the Sorensen case, supra, the defamatory matter is read from a prepared manuscript. Perhaps in such a case the analogies of the cases holding that reading from a defamatory letter was libel, would apply. The ex- temporaneous interpolations by the defendant in this case, if actionable as defamation at all, must be considered as slander. LOCKE V. GIBBONS, 164 Misc. 877; 299 N.Y.S. 188 (1937); aff. 253 App. Div. 887; 2 N.Y.S. 2d 1015 (1938) The ruling in Locke v. Gibbons threw a serious doubt into this phase of radio law. Common law concepts of slander, developed in the period several centuries before the spoken word received such vast amplification by means of radio, had proposed liability which was often much less than the liability for libel. Many statutes on slander had subsequently followed the common law reasoning. This meant that under the doctrine of Locke v. Gibbons, radio defamation which was held to be slander was apt to escape appropriate legal 496 Law and Radio Journalism Summit Hotel Co. v. National Broadcasting Co. retribution. Did the answer lie in a legislative redefinition of libel to include all radio defamation? Did it lie in a stronger definition of slander? Or did it, as Chief Justice Klephart of the Supreme Court of Pennsylvania suggested in 1939, lie in the definition of a third type of defamation? The Pennsylvania case involved a national network program in which Al Jolson, well-known entertainer, was interviewing the winner of a champion- ship golf tournament. In response to a statement that the golfer had begun work at a hotel in Uniontown, Pa., Jolson interjected the remark, "That's a rotten hotel." The comment was made without warning, had not been in the script nor spoken at the rehearsal of the broadcast. The court accepted the broadcaster's plea that it had no possible way of preventing the libel under these circumstances. The court then undertook to review the problems in- volved in defining radio defamation either as libel or as slander, and concluded that a new type of defamation had been created by this twentieth-century de- velopment in mass communications. The important question raised is whether a radio broadcasting company which leases its facilities is liable for an impromptu defamatory statement, interjected "ad lib." into a radio broadcast by a person, hired by the lessees, and not in the employ of the broadcasting company, the words being carried to the radio listeners by its facilities. Although foreshadowed in one of two decisions and articles, this question is unique; it is the first time the precise question has come before an appel- late court in the United States or England. The law of defamation by radio is very much in its infancy, though there have been a few cases involving the liability of a broadcasting station or company therefor. But the situations in- volved in those decisions differ vastly from that which is before us. The court below held that defendant's liability was absolute though it was without any fault. The fact that it rented its facilities to another to publish and disseminate a nondefamatory program, and that the defamatory inter- jection was spoken by lessee's employee under circumstances which precluded anticipation or prevention by the broadcaster, was treated as immaterial. Appellant urges that to impose such liability for acts of the lessee upon a lessor who is utterly without fault, in no sense guilty of any wrong or negli- gence, is not only contrary to the common law but sets up a rule of liabil- ity that has never before existed. The feature which distinguishes this case from the many cases cited for so- called liability without fault, is that here the broadcasting company rented its facilities to the advertising agency to broadcast a legitimate program. For this purpose the facilities were under the control of the agency. Appellant's pro- gram director could not have prevented the utterance by lessee's performer because of its suddenness; the supervision he exercised was merely to see that the facilities carried the program contained in the script. The duty of the monitor in the control room was to modulate and correct vocal sounds, and secure the audible transmission of intelligible, harmonious speech; he was, to 497 this extent, as much a part of the rented facilities as the broadcasting equip- ment itself. His duty being to see that the program was produced clearly to the public over the air, he would be unable to exclude or eliminate a brief defamatory interjection, not only because of its suddenness, but also because his time is fully occupied with the technical details of his work. Moreover, it would require an expert in law to detect in extended remarks what was, or was not, defamation. In view of the positive assertion that, notwithstanding these circumstances, the broadcasting company is absolutely liable without fault, it will be necessary to examine the theory of absolute liability and the subjects to which it has been heretofore applied, so as to ascertain whether it is appropriate in this new form of defamation. Some writers have traced the origin of liability without fault to an ancient principle that every wrong must have a remedy, and therefore it is urged that the doctrine is not new to the law of torts, in many phases of which it may be found today. Others, on the contrary, have stated that the judicial deter- mination that there may be liability without fault cannot, in strict reason- ing, be applied to tort law, which is grounded in intentional wrongful conduct or negligence, but that it, rather, assumes an independent sphere of com- pensation for injurious acts. The confusion of concepts has come about through the extension of the principle of liability without fault covering in- juries to land or to rights in land, to tort liability to persons. Distinguished legal scholars, however, have pointed out that the rule of absolute liability persists in several actions, generally included in the field of tort law, such as trespass q.c.f., trespass for nuisance and trespass for injuries caused by wild or domestic animals known to be dangerous, as well as some others which will be touched on later. In our State, the doctrine of absolute liability has been invoked, almost without exception, only in that small group of actions which redress injuries to land, and it is only as to these that it can be fairly said that the doctrine prevails. This liability is a survival of the medieval law dictated by the land- lord, in which the protection of the uninterrupted enjoyment of real property was a primary consideration. In the very earliest times, all rights, real and personal, were probably enti- tled to absolute protection, and every injury redressed regardless of fault, but a sharp line of distinction has since been marked between liability for injuries to land and injuries to persons. The case of injuries to land may now be said to be the general exception to the modern rule that liability will not be predicated on innocent and diligent conduct. A tort today implies fault or wrong. Tort liability must be founded upon some blameworthy conduct, or lack of due care resulting in the violation of a duty owing to others. It was in the nineteenth century that the law of negligence in torts had its development. Personal-injury cases then consumed the greater portion of the time of the courts. Cases concerning rights in land yielded their earlier prominence, and the rules of law applicable to them have consequently re- mained, in the most part, unchanged, even to the present day. .. Considering the rule of supposedly absolute liability imposed in some juris- dictions on the publisher of a newspaper for his defamatory publications- and this is the rule here chiefly relied on-a close examination of the Penn- 498 Law and Radio journal ism Summit Hotel Co. v. National Broadcasting Co. 499 sylvania law will show that our rule is not one of absolute liability, but rather, of a very strict standard of care to ascertain the truth of the published matter. Clark v. North American Co., 203 Pa. 346; Shelly v. Dampman, 1 Pa. Superior Ct. 115. The fact of defamatory publication is evidentiary of such lack of due care. The rule that a newspaper publisher is absolutely liable for defamation originated in the English case of Thorley v. Lord Kerry, 4 Taunt. 355 (1812), and was apparently adopted by the United States Supreme Court in Peck v. Tribune Co., 214 U.S. 185. It may have been inspired by the frequency of defamatory newspaper publications or, as stated by one author, by their tendency to publish sensational and scandalous matter. It might be justified by the difficulty in proving negligence, since the facts of publica- tions are exclusively known to the publisher and his agents. The newspaper analogy of absolute liability has been approved in four cases as applied to radio broadcasting. This analogy to newspaper liability, either under the Pennsylvania rule as stated, or under the broader rule existing in some other states, would support liability in the cases referred to, on their facts. Nevertheless, the analogy itself has been properly subjected to criticism by almost every legal commentator. The American Law Institute in its Re- statement of the Law of Torts refused to adopt it. In Section 577 the gen- eral rule is stated: "Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed." To this is appended, in Comment (g), the following caveat: "The Institute ex- presses no opinion as to whether the proprietors of a radio broadcasting sta- tion are relieved from liability for a defamatory broadcast by a person not in their employ if they could not have prevented the publication by the exer- cise of reasonable care, or whether, as an original publisher, they are liable ir- respective of the precautions taken to prevent the defamatory publication." This caveat was adopted after full discussion, on the ground that the decided radio cases were insufficient in number to require the acceptance of an anal- ogy presenting such serious practical and legal difficulties. Moreover, the facts of this case must be kept in mind, as they differ greatly from the facts in the cases noted. The speaker here was an employee of a third party to whom the broadcasting company had leased its facilities. He was not under the broadcasting company's control, authority or command. The script used was examined and rehearsed exactly as written. It contained nothing offensive, and appellant, in renting its facilities, had no reason to be- lieve anyone would utter a defamatory statement. There was no power or means possessed by the broadcasting company that enabled it to prevent the transmission of the defamatory remark. It was physically impossible for the monitor or program director to have intervened, as the performer, without notice, interjected his terse defamatory remark so quickly that no one in ap- pellant's employ was able to prevent its transmission. In these circumstances the analogy between the radio broadcaster and the newspaper publisher is demonstrably weak, considering not only the practical differences between the two media of communication but the different condi- tions under which the industries operate. Newspaper matter is prepared in advance, reviewed by members of the various staffs, set into type, printed, proofread and then "run off" by employees of the publisher; at all times op- Law and Radio Journalism portunity is afforded the owner to prevent the publication of the defamatory statement up to the time of the delivery of the paper to the news vendor. The defamation thus may be said to be an intentional publication, or at least one published without due care. Similarly, the broadcaster may, as it did'here, require the submission of the script in advance for editing; it may require rehearsals and its production di- rector may prevent the transmission of doubtful matter. But where the cir- cumstances, like those now presented, are such that the defamation occurs beyond the control of the broadcaster, it is perfectly clear that the analogy between newspapers and broadcasting companies collapses completely. The superior control of the newspaper publisher is self-evident. Other analogies have been suggested which, when first mentioned, may be thought of assistance, but when analyzed possess inherent weaknesses. In communications by telegraph the rule of due care has been invoked. We know of no case where a telephone company has been held for defamation for the use of its lines, but its duty should rise no higher than that of a telegraph company. Both activities are public utilities, and cannot select the users of their facilities. Radio companies are not in that category. They may select their performers and choose between applicants for the use of their facilities, which are designed, not for private communications from one indi- vidual to another, but for those to the public generally. It has been suggested that the dissemination of matter by radio may be likened to dissemination by news vendors and booksellers, who merely repub- lish original utterances. The rule of absolute liability does not apply to such vendors. While this is possibly a close analogy, and has the support of eminent legal writers, its weakness is in the fact that the sound which is transmitted to radio listeners is carried directly by the facilities of the broadcaster, though the activating impulse may have been the spoken word at the microphone. It is a trifle more than the mere delivery of a newspaper to the purchaser. It has been held that it is the reproduction of the spoken word from the broadcast- ing room: Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 199-201. The combination of the voice and the transmitting apparatus is necessary to effect the broadcast. The speaking and publication of a defamation are simultane- ous. The closest analogy suggested is the loud-speaking device installed in pub- lie halls, owned, maintained and operated, very much like the radio, by the owner of the premises. The halls are rented for public addresses, and may be equipped with outside amplifiers or loudspeakers, increasing the size of the audience. The only practical difference here is in the number of persons who hear the remarks. If the newspaper analogy is to be carried to its logical conclusion, the owners of the loud-speaking devices should be liable for the defamatory utterances of those leasing or using these devices. The real difficulty arises from attempting to adapt to the new tort of radio defamation, rules of liability applicable in other fields of kindred, but not identical, types of wrong. Defamation in the law, until the radio appeared, was either libel or slander. Now, it is urged by some that the law of libel should be extended to defamation by radio because of the number of persons that hear it, others indicate that it should be treated as slander. 500 Summit Hotel Co. v. National Broadcasting Co. That part of the Roman law of defamation taken into the English law of libel was applicable to more serious cases. The strict rules of libel were orig- inally directed at the printing press, which provided a wider means of publica- tion. The differences between libel and slander, and the comparative ease of recovery in libel as against the more restricted and less stringent liability in slander, are well known. Some authors dispute these formal distinctions, as- serting there is no sound reason to support them. Among the factors to be considered in reaching a rule of liability for defamation is the extent of the publication; but that is not the only, or the main, reason for the distinction between libel and slander. The more serious consideration is the permanence of the printed libel, and its capacity for continuous future harm over a wide area. Slander, or the spoken word, is not bound to any set form; it is easily fabricated and made to appear much worse than actually spoken; it offers op- portunity for fraudulent and fictitious claims; it is usually uttered in the pres- ence of a few. The law has, therefore, encased it in most rigid rules. When the radio sound reaches the human ear it is the spoken word. It is urged that the radio gives to it a power or harm even greater than the print- ing press gives to the printed word, but this conclusion does not consider the factor of permanency just mentioned, nor the traditional belief in the veracity of the printed word, particularly important in the community where the injured person resides. Newspaper defamations possess possibilities for real harm far greater than defamations by radio, as they constitute permanent, continuing records, which, through circulation, are constantly republished. The radio word is quickly spoken and, generally, as quickly forgotten. Be- cause of the differences in power of the stations from which it is sent, it may receive widely varying circulation. The radio is, admittedly, a powerful agency for advertising and the convey- ance of important public matters, as well as the promotion of religion and politics. It also affords its listeners a measure of entertainment, and brings to them the reports of many occurrences more quickly than the newspaper could possibly do. It does, to a certain extent, compete with the newspaper. But these factors, standing alone, should not be sufficient to cast upon the radio the cloak of liability without fault for defamatory publications, as libels, by extension of the law applicable in some States to newspapers. The Restate- ment has taken the position that when the words broadcast are read from script it is libel, but has expressed no specific conclusion as to extemporaneous remarks. As suggested in Irwin v. Ashurst, 158 Ore. 61, 65, 74 P. (2d) 1127, 1129, the distinctions of libel and slander seem inapplicable to the law of radio. We did not pass on the question in Weglein v. Golder, 317 Pa. 437. Radio broadcasting presents a new problem, so new that it may be said to be still in a state of development and experimentation. It was not conceived nor dreamed of when the law of libel and slander was being formulated. Publication by radio has physical aspects entirely different from those attend- ing the publication of a libel or a slander as the law understands them. The danger of attempting to apply the fixed principles of law governing either libel or slander to this new medium of communication is obvious. But the law is not so firmly and rigidly cast that it is incapable of meeting a new wrong as the demands of progress and change require. In this State our tort 501 Law and Radio Journalism actions are in trespass; the pleader need not lay his cause either in slander or in libel, and, as defamation by radio possesses many attributes of both libel and slander, but differs from each, it might be regarded as a distinct form of action. Certainly, there is no necessity of extending to this situation a so- called rule of absolute liability without fault, particularly when our law of libel merely creates a high standard of care. A rule should be applied which will not impose too heavy a burden on the industry, and yet will secure a high measure of protection to the public or those who may be injured. That a rule of this nature should be adopted becomes increasingly apparent when it is considered that in the field of its operation radio broadcasting is subjected to many restrictions which are not imposed upon newspapers. Any person, firm, or corporation may publish a newspaper without asking the gov- ernment's consent. Newspapers are the freest medium of communication in this country today. They are protected by the Constitution, by statutes, and by the liberal decisions of many courts. They determine their own policies, print as they desire, unrestricted and unlimited, except by criminal statutes for libel and by the possibility of civil action. The rule of civil liability for libel applicable to them is just and fair, considering the opportunities of correction or control. On the other hand, a broadcasting company cannot operate without a li- cense from the Federal Government, which must be renewed from time to time. No license may be granted unless the licensee serves the public interest. Radio is a governmentally regulated industry. The number of stations, their locations and wave-lengths, the hours in which they may broadcast, and their transmitting power are all subject to regulation. In this manner their effective range of communication and the number of their listeners may be controlled. The power of Congress in this respect has been upheld as essential. Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266. Under the Act of June 19, 1934, c. 652, Section 303, 48 Stat. at L. 1082, as amended May 20, 1937, c. 229, Sections 5, 6(a), 50 Stat. at L. 190, 191, 47 U.S.C.A., Section 303, the Fed- eral Radio Communications Commission is given broad powers to formulate rules for the conduct of radio stations; severe penalties are imposed for viola- tions. A broadcasting company that oversteps these rules may have its license revoked and lose the value of its entire plant; this, in the realm of radio, is capital punishment. And the publication by a broadcasting station of defama- tory matter, as also the transmission of certain forms of false and fraudulent advertising, may, if persisted in, result in the revocation of the license of the station or its deletion. But even here: "It seems inherently unreasonable to suppose that a station should be deleted by the Commission for the dissemi- nation of defamation without knowledge or fault of the licensee." Again, if the broadcaster is to be adjudged liable without fault for a de- famatory remark and if the defamation is to be regarded as a libel, he might also become guilty of criminal libel, though, as in the circumstances before us, he is as innocent of wrong as one could possibly be. All of these considerations cause the newspaper analogy to fail utterly, and no consideration of public policy could in any sense cause a broadcaster to be punished by a rule of absolute liability such as that invoked by the court be- low. If, as has been suggested, the imposition of such liability on newspapers 502 Summit Hotel Co. v. National Broadcasting Co. was originally desirable as a matter of public policy because of the frequency of defamatory publications, and because no other means of discouraging the practice was available, these reasons do not exist in the case of radio broad- casting. Radio defamations have been infrequent, and governmental regula- tion affords a potent check. It has been stated that the public "will be best served by a rule which will release a broadcasting station from liability for defamatory remarks made by others, wherever it appears that the management of the station exercised due and reasonable care to avoid the utterance of the defamation." To inflict the rule of absolute liability would serve no useful purpose. It would not only place an unreasonably heavy burden upon the industry, but would open the door to frauds and perjuries as gross as could be practiced in actions of slan- der, and which could never be practiced successfully against a newspaper pub- lication for libel. In situations like the present case, for instance, the broad- casting company might just as easily be the victim of a conspiracy to defame, participated in by the hotel and the speaker. Such conspiracies to defame might wreck the strongest broadcasting company and might become a wide- spread evil. Here lies the strength of the newspaper, for its printed word can- not be distorted or fabricated. It is urged that appellant should have taken some steps to correct the re- mark before the program closed; that, not having done so, it in effect adopted the remark. From the evidence, the directors of both appellant and lessee en- deavored to have the statement corrected and were partially successful. How- ever, if appellant was liable when the remark was made, the explanation would have been merely in mitigation of damages. The converse is true. Not being liable nor responsible for the utterance when made, the lack of a full expla- nation or apology would not make appellant liable. Here again the facts that it was omitted would not, of itself, impose liability, under the circumstances before us, against the lessor whose facilities were leased to a responsible agency for the broadcast of a nondefamatory commercial program, without the slightest intimation that they would be abused. It is suggested that absolute liability should be imposed because appellant could protect itself therefrom by an indemnifying bond. This is the weakest of all arguments, and begs the question. It is indeed a new theory that a substantive rule of law should be based upon the possibilities of an indemni- fying bond to save an innocent person from loss. If an indemnifying bond is to be the basis of judgment, then in all actions for personal injury it would be well to establish a general rule of absolute liability, requiring the party to be held liable without fault to take out a bond. It is inconceivable that any bonding company would place at a reasonable figure a bond to indemnify a broadcaster against absolute liability, and against the revocation of its license by the Federal authorities, as a result of an act which it did not perform, inspire, nor control. In considering the basis of liability for defamation by radio and in balanc- ing the conflicting interests, due regard must be had to the rights of all par- ties, and to the ultimate and collateral effects any pronouncement might have on public interests. A rule unalterably imposing liability without fault on the broadcasting company under any circumstances is manifestly unjust, unfair 503 and contrary to every principle of morals. A fair aspect of the harm to the persons injured must be considered as well as the circumstances under which the incident occurred. An essential consideration in formulating a rule is the grave possibility of pyramiding damages as well as establishing criminal re- sponsibility if defamatory broadcasting is treated as libel. We therefore conclude that a broadcasting company that leases its time and facilities to another, whose agents carry on the program, is not liable for an injected defamatory remark where it appears that it exercised due care in the selection of the lessee, and, having inspected and edited the script, had no reason to believe an extemporaneous defamatory remark would be made. Where the broadcasting station's employee or agent makes the defamatory remark, it is liable, unless the remarks are privileged and there is no malice. SUMMIT HOTEL CO. V. NATIONAL BROADCASTING CO., 336 Pa. 182; 8 Atl. 2d 302; 124 A.L.R. 968 (1939) 3. The "Port Huron doctrine" emphasized station liability in political broadcasts. Although the courts, in rulings from the Sorensen case to that of the Sum- mit Hotel Co. case, had indicated more and more clearly that the solution of the problem of radio defamation lay in a restatement of the laws on the sub- ject in the various states, the problem was aggravated by a provision in the Federal Communications Act which read: If any licensee shall permit any person who is a legally qualified candidate for any office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station, and the Commission shall make rules and regulations to carry this provision into ef- fect. Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. (47 U.S.C. 315) In 1945 Station WHLS of Port Huron, Mich., granted time to a member of the city commission, one Muir, a candidate for re-election, to broadcast a campaign speech. In the course of the speech the candidate expressed opin- ions opposed to those of other commissioners but mentioned none of the lat- ter by name. The attorney who introduced Muir to the radio audience did attack by name one Mactaggart, a member of the city commission who was not a candidate in the forthcoming election. Upon a complaint to the station following the broadcast, that some of the statements made were considered to be actionable, the station canceled the remainder of the schedule of broad- casts by Muir and refused to sell or give time to any candidate for election to the city commission. A complaint was filed with the Federal Communications Commission al- Law and Radio Journalism 504 In re Port Huron Broadcasting Co. leging that WHLS had censored a political broadcast in violation of section 315 of the federal law by refusing to grant further time on the air after having made it available for one candidate's broadcast. The complaint was considered in 1948 when the station's renewal of its broadcast license was up for review. The station argued in defense of its action that under the law as it then read (and still reads, in spite of the 1952 revision of the Communications Act in general) a broadcaster was defenseless against an action for defamation in cases of political broadcasting. The commission conceded the dilemma: either a station could not be held liable for a defamatory statement over which it was prevented by law from exercising control, or the prohibition of censor- ship in the law itself could not have been intended by Congress to mean that a station could not take reasonable steps to prevent the utterance of a defamatory statement. While declaring that it was the responsibiliy of Con- gress to clear up the ambiguity in the law, the commission pronounced a doc- trine which it believed would afford appropriate relief: It is clear that the most effective means of censorship is complete suppres- sion of the offending item. It was, thus, no less an exercise of censorship when the station refused to carry the program by Mr. Muir, which it had con- tracted for, because of the allegedly libelous nature of some of the material it contained than if it had permitted the broadcast to be made but had in- sisted on the speaker making changes and deletions in his script to conform with the desires of the radio station. Nor can such censorship be excused on the claim that it represents a proper exercise of the station's option under sec- tion 315, to refuse the use of its facilities to all candidates. The privilege of a station to refrain altogether from the carrying of political broadcasts by can- didates for any office or offices in any particular election was certainly not in- tended to operate as an exception to the proviso prohibiting any censorship of specific political broadcasts already scheduled and arranged. It was, rather, designed to insure that broadcast licensees retain their authority and responsi- bility to make an independent determination as to the extent to which their broadcast schedule should be devoted to any particular type of radio program. Both the proviso and the last sentence of section 315 must be given meaning. But to hold that a station can adopt a policy of carrying broadcasts by the candidates for a particular public office, contract with the candidates to make such broadcasts, and then withdraw from the field of political broadcasts when they examine the script of the first scheduled program and find its con- tents displeasing, would deprive the proviso of a substantial part of its mean- ing and import in a manner which is not required to give the last sentence of section 315 meaning or effective scope for application. Thus both the pro- viso and the last sentence of section 315 are given full recognition in the con- clusion that licensees are free, in the exercise of their discretion, to refuse to carry altogether broadcasts by all political candidates for any given office in any particular election, but, having once exercised their discretion to carry such programs, may not censor. The question remains whether the prohibition of section 315 "that such li- 505 censee shall have no power of censorship over the material broadcast under the provisions of this section" is applicable in the case of broadcasters who require persons making political speeches falling within the provisions of sec- tion 315 to make changes and alterations or deletions in the prepared text to eliminate material which the station believes is possibly libelous or slanderous or might tend to subject the station to an action for damages. This is a ques- tion which has proved to be perplexing over the years to Congress, the Com- mission, and the broadcasters themselves. But it is a subject of vital signifi- cance which goes to the very heart of the problem of insuring a fair and balanced discussion of the relative merits of candidates for political office. It is important in considering this matter to determine just what would be the inevitable consequences of accepting the view that a licensee should have the power to require candidates to delete "possibly libelous matter." In most political campaigns there are one or both of two basic issues before the pub- lic. On the one hand there is the question of the relative moral, intellectual, and political integrity of the opposing candidates. On the other hand, in most cases the record of the persons and party in office is up for the voter's in- spection. Thus the question of the personal honesty of one of the candidates or the motives behind the actions of one group of office holders, may be, and often is, the principal area of contention between opposing candidates. This is not merely a question of "mud-slinging"; the legality of certain ques- tioned actions by one of the contesting parties in the election may well be the particular issue upon which the election does and should hang. These issues can only be brought before the public by statements of opposing groups. Such statements may or may not be libelous or slanderous. That will depend, in most cases, on whether the statements are true or false. But in every case of serious charges there is a possibility that the statement might be libelous or, even if not in fact libelous, might subject the station to suit. This means that if licensees are going to take it upon themselves to censor or restrict the broadcast of libelous material, they must either adopt a policy of requiring the elimination of all matter containing serious charges concerning the activities of opposing candidates or parties, which would seriously limit the effectiveness of radio broadcasting as a medium of political expression, or they must, in effect, set themselves up as the sole arbiter of what is true and what is false, what is in fact libel and what is not, an exercise of power which may be readily influenced by their own sympathies and allegiances. The Commission does not believe that it was the intent of Congress to give the licensees any such power or responsibility with respect to political broad- casts. The assumption of a right to censor "possibly libelous" matter, or state- ments "which might subject the station to suit" would give to radio stations a positive weapon of discrimination between contesting candidates which is pre- cisely the opposite of what Congress intended to provide in this section. Most of the complaints received by the Commission concerning alleged violations of section 315 concern instances in which the station has insisted on the dele- tion of matter which it alleged might subject the station to suits for damages. If the criterion for such censorship is to be merely whether the questionable item might possibly subject the station to suit, a category which as we have 5o6 Law and Radio Journalism In re Port Huron Broadcasting Co. seen may be extended to include almost every conceivable charge against the opposition, the opportunity for favoritism and discrimination would be omni- present. The legislative history of section 315 makes it abundantly clear that Con- gress did not intend licensees to have any right of censorship over political broadcasts. That section was taken over without change from section 18 of the Radio Act of 1927, 44 Stat. 1162. In the Senate draft of the bill, sec- tion 18 contained both the existing prohibition against any censorship by the licensee and a provision that a licensee "shall not be liable to criminal or civil action by reason of any uncensored utterances thus broadcast." (See H.R. 9971, sec. 4, 69th Cong., Ist sess. as reported with Senate amendments, May 6, 1926.) In the course of the Senate debates doubt was expressed prin- cipally by Senator Fess of Ohio as to the power of Congress to make provision for a complete exemption from liability. (67 Cong. Rec. 12503.) But the Senate debates reveal an unqualified agreement as to the objective to be at- tained by the section that licensees should be prevented from censoring po- litical speeches. (67 Cong. Rec. 12356, 12502-12505.) The bill as passed by the House had contained no provision with respect to political broadcasts and in conference the express provision for absolution from liability was elim- inated, although the prohibition against any censorship remained. No reason was given in the conference report (H. Rept. 1886, 69th Cong., 2d sess.), nor on the floor of either the House or Senate for the deletion nor was any suggestion made that the elimination of the additional language was in any way meant to weaken or limit the blanket prohibition against any censorship. Subsequent to the passage of the Radio Act the problems presented in connection with political broadcasts have received considerable attention by various congressional committees. During such hearings fear was occasionally expressed both by witnesses and by certain members of the congressional com- mittees that the language of the act as writter did not afford protection to the licensees from actions for damages. As a result two suggestions have been periodically advanced to cure the alleged deficiency in the existing law. One group has suggested the enactment of a Federal pronouncement, similar to that contained in the original draft of section 18 of the Radio Act, expressly absolving the station licensee of any liability arising out of any statements libelous or otherwise broadcast by a qualified candidate for public office. Oth- ers, on the other hand, have supported amendments which would modify the existing language expressly to allow licensees to delete from the scripts of political speeches material which is or may be libelous. But at no time during the course of any of these congressional hearings has it ever been suggested that it was the purpose of Congress in enacting section 18 of the Radio Act to do less than impose a complete bar to all censorship, including a bar on deletion of libelous remarks. And Congress has not only failed to change or modify in any respect the blanket prohibition on any censorship of political speeches to correct the alleged deficiencies in the language, but in the Com- munications Act of 1934 specifically re-enacted the language of section 18 of the Radio Act, without change, although the alleged danger under existing language from actions against licensees for damages arising out of libelous re- marks made during the course of a broadcast by a candidate for office was 507 expressly called to Congress' attention during the course of hearings on the Communications Act bill. Accordingly, we are of the opinion that the pro- hibition of section 31 against any censorship by licensees of political speeches by candidates for office is absolute, and no exception exists in the case of material. which is either libelous or might tend to involve the station in an action for damages. In reaching this conclusion, however, we hold merely that the censorship prohibited under section 315 of the Communications Act includes the refusal to broadcast a speech or part of a speech by a candidate for public office because of the allegedly libelous or slanderous content of the speech. Nothing in this opinion is intended to indicate that a licensee is nec- essarily without power to prevent the broadcast of statements or utterances in violation of the provisions of the Communications Act or any other Federal law on broadcasts coming within the requirements of section 315 of the Com- munications Act . It follows from what has been said that the action of the station was in violation of section 315 of the Communications Act. We realize, however, that the principles of law which have been enunciated in this opinion have previously been the subject of much confusion and that previous to this opin- ion there has been no clear pronouncement on the subject by the Commis- sion, nor have there been any rules or regulations specifically covering the situation. Therefore, since there is no evidence that the conduct of the li- censee was a deliberate or willful attempt to violate the provisions of the stat- ute, we do not believe that a denial of the renewal of license is required. This conclusion is reinforced by the statement in the licensee's petition that since the election in question the station has not refused time to any can- didate and that in the future the station intends to avoid violation of sec- tion 315. IN RE APPLICATION OF PORT HURON BROADCASTING CO., 12 F.C.C. 1069 (July 1, 1947-June 30, 1948) The Port Huron ruling was widely discussed and in some instances chal- lenged; the attorney general for the state of Texas declined to follow it, and in upholding him the federal court pointed out that the commission's state- ment was only an "opinion" and not an "order" (Houston Post Co. v. United States, 79 Fed. Supp. 199 [1948]). The commission had clearly invited Con- gress to revise the law to remove the inequity that had appeared, but no action materialized. In 1952 the commission announced that it would henceforth hold all broadcasters to a strict interpretation of section 315. Meantime, a state legislative movement which had gotten under way in Iowa following the ruling in Locke v. Gibbons was accelerated by the Port Huron ruling. In 1937 the Iowa libel law was revised to read: The owner, lessee, licensee or operator of a radio broadcasting station, and the agents or employees . . . shall not be liable for any damages for any defama- tory statement published or uttered or as a part of a radio broadcast, by one other than such owner, lessee, licensee, operator, agent, or employee thereof, if such Law and Radio Journalism 508 In re Petition of Homer P. Rainey owner, lessee, licensee, operator, agent, or employee shall prove the exercise of due care to prevent the publication of such statement in such broadcast. (Iowa Code Ann., 659.5) Nineteen states* now have such provisions in their libel statutes-nine of them making the change in 1949 following the Port Huron case. The doctrine of "due care" had been suggested by various legal writers as a satisfactory test of a broadcaster's liability; it may consist of an examining of the script (ex- cept where this is prohibited by section 315 of the Communications Act) in advance of the broadcast, and of instructing the station engineer to be pre- pared to cut a speaker off the air if he indulges in profanity, obscenity, or defamation. This state legislative movement may be said to be a direct result of the Port Huron ruling, which accentuated the problem of broadcasters' liability in the continuing state of ambiguity of the libel laws. Until a larger number of states have followed suit, however, and until the requirement of the federal law on political braodcasting is clarified, the problem represented in the Port Huron case cannot be considered resolved. 4. What are the "public service responsibilities" of broadcasters? In another complaint involving the federal law on political broadcasting, the FCC was asked to consider the practice of the Texas Quality Network, a group of radio stations owned by four leading newspapers, in defining the narrow limits within which time would be sold to candidates for political office. In particular the complainant charged that the stations, whose news- paper owners opposed his candidacy for governor, had acted unreasonably and in violation of section 315 in refusing him time beyond the period fixed by the station policies. These policies, as described to the commission, were: (1) to limit each candidate to one-half hour per week up to two weeks before the state primary election, at which time one hour per candidate would be per- mitted; (2) to sell one-half hour to each candidate willing to take the place of a regular transcribed network program of equal length; and (3) to make these times available on a "first come, first served" policy. The stations testi- fied that these policies were necessary to prevent the air from becoming over- loaded with political speeches, since in 1946 there had been fourteen candi- dates for the governorship alone. In reviewing the questions of public policy involved the commission said: The gravamen of the petitioner's charge is that, pursuant to concerted ac- tion by the four licensees composing the Texas Quality Network, he was de- * California, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Maine, Mon- tana, Nebraska, North Carolina, North Dakota, Oregon, South Dakota, Utah, Virginia, Washington, Wyoming. 509 prived of the opportunity to use the network facilities for the purpose of an- nouncing his candidacy for the office of Governor of Texas and of discussing the issues incident to the campaign for that office; and that the agreement of the four network stations to restrict the amount of time which would be al- lotted to political broadcasts, in the manner set forth above, was designed and intended to bring about his defeat in the gubernatorial election in Texas dur- ing the year 1946. These charges are not supported by the record. The evi- dence reveals that during the year 1940, or 6 years before the petitioner had made known his plans to become a candidate for the office of Governor of Texas, the four stations comprising Texas Quality Network instituted restric- tions upon the amount of time which would be devoted to broadcasts by candidates for public office. The evidence reveals that these restrictions were intended as a means of maintaining proper program balance of the stations concerned, and they were equally applicable to all political speeches, includ- ing those by candidates for public office. Through the successive years follow- ing 1940, the restrictions in question were continued in effect and were in some respects increased. However, while the record indicates that they have been applied with equality to all candidates for public office, nevertheless, we note that the stations involved did not adhere to their restrictions in connec- tion with political speeches made by a member of the United States Senate who was not a candidate at the time. With regard to the unfavorable publicity concerning the petitioner and his candidacy for the office of governor which appeared in the newspapers pub- lished by the owner of three of the licensees involved in the Texas Qual- ity Network, we find nothing in the record which would suggest that this Commission has jurisdiction to make inquiry concerning the matter of such publicity. Obviously, it would not be in the public interest for the licensee of any radio station, whether owned by a newspaper or not, arbitrarily to deny or restrict the rights of any person or group to discuss a public controversial issue (United Broadcasting Co. [WHKC], docket No. 6631). Where the li- censee has a connection with a newspaper in the community which has taken a position in regard to such controversy, then the failure, refusal, or arbitrary restriction on the right to present an opposing point of view of the contro- versy over the station, becomes aggravated. In the case before us, it appears that petitioner, prior to the date of certification of its candidacy by the State Democratic executive committee, did not request the use of the network fa- cilities for the purpose of stating his version of the issues raised in the news- papers. It was his stated intention to announce his candidacy for public office. Under these circumstances the question of a public controversial issue is not present. We find that no violation of section 315 of the Communica- tions Act was involved in the licensees' refusal to extend their radio facilities to the petitioner for this purpose; and as indicated above, there -is no evidence of concerted action on the part of such licensees to bring about the defeat of the petitioner as a candidate for public office by commenting upon him unfavorably in the newspaper and thereafter refusing him an opportunity to respond over the radio stations. Although no violation of section 315 of the Communications Act has been found, there remains for consideration the question as to whether the restric- Law and Radio Journalism 510 In re ... New York Daily News tions on political broadcasts imposed by the four licensees herein were calcu- lated to best serve the public interest. In the instant case each of the licensees had the policy of restricting discussions by primary candidates to a total of 30 minutes between the date when the candidates were certified and 2 weeks before the primary elections, and thereafter to sell a limited amount of time for such programs. It appears that the amount of time available for po- litical broadcasts had been set well in advance of the actual campaign and without particular attention having been given to the needs or public interest involved in the particular campaign. In view of the importance of the primary election in Texas, and further, since the licensees well knew that in the 1946 primary relatively few of the candidates for state-wide office would desire to purchase time over the networks, these restrictions do not appear to bear a reasonable relationship to the needs or public interest in the particular cam- paign. In addition to the question of reasonableness of these regulations, there is a serious question as to whether the agreement between these stations represented a surrender by the licensees of their individual responsibilities to determine the operating policies of their respective stations. However, each of the licensees has now indicated to the Commission that in future elections they will make separate and individual judgments as to the amount of time to be made available for political broadcasts and will predicate their decisions upon the importance of the campaign and the number of requests for time received. Accordingly, it appears that in the future the amount of time set aside for such broadcasts will not be arbitrarily determined in advance but will vary from time to time as the public interest requires, and this judgment will be made by the individual licensees and not in concert with others. Upon the basis of these representations we feel that this future policy will consti- tute an acceptance by the licensees of the responsibilities which lie with each of them individually. The petition herein requested: (1) A written statement from the licensees as to the charges set forth in the petition; (2) a public hearing on the charges; and (3) after such hearing a determination as to what changes, if any, should be made in the policies of the licensees regarding political broad- casts. We feel that this proceeding and our opinion herein have resulted in granting the relief sought and accordingly the proceeding is hereby closed without further order. IN RE PETITION OF HOMER P. RAINEY, 11 F.C.C. 898 (July 1, 1945-June 30, 1947) In 1948 the New York Daily News was among several petitioners for a broadcasting license. The American Jewish Congress appeared in opposition to the application of the Daily News, citing "twenty-three editorials, columns, and news stories and a letter to the editor published in the daily and Sunday [News] over a period from 1938 to 1946, which were alleged to show direct instances of 'bias and hostility' against Jews." The AJC also submitted con- tent analyses purporting to show "a [higher] percentage of undesirable men- 511 tion of the two groups [Jews and Negroes] within the news columns than of any other New York papers." After detailed and much criticized testimony on the charges of the AJC, the commission considered a motion by the Daily News to strike the testimony from the record, and in ruling against the motion the FCC undertook to define the standards of public policy which it considered important to apply in weighing, accepting, or rejecting an application for a broadcast license. It appears to us that three separate and distinct questions are raised by the motions to strike and the arguments in support of it. The first question raised is whether it is within the proper scope of inquiry in a radio licensing pro- ceeding to determine on the basis of an applicant's previous activities whether he is likely to be fair in his treatment of racial and religious groups in the community in discharging the duties and responsibilities of a license. The second question is whether the First Amendment or section 326 of the Com- munications Act bars such inquiry in the case of a newspaper applicant, where the activities of the applicant which are alleged to show his bias and lack of fairness are contained in the articles, news stories, and editorials printed in the paper. The final question is whether, if such an inquiry is permissible, the particular testimony offered in this case by AJC should be stricken from the record if, upon evaluating it, it is found to be lacking in probative force, or unreliable and inconclusive. In discussing these issues raised by the motion to strike, we are addressing ourselves to the general problems presented; noth- ing said in this opinion is to be taken as assuming that the particular testi- mony which is the subject of the motion to strike in fact proves what it is of- fered to show. We turn now to consideration of the first question of law presented by the motion to strike. With respect to all applicants for a radio station license, whether newspaper applicants or others, section 307(a) of the Communica- tions Act provides that an application shall be granted only "if public con- venience, interest or necessity will be served thereby." Section 309(a) pro- vides that if the Commission is able to find from an examination of an application that the standard of "public interest" can be met it may grant an application; if, however, it is unable to make such a finding, it must set the application down for hearing. Operation of a radio station in the "public interest" clearly contemplates more than that a licensee will have sufficient financial and technical resources to put out an audible signal which does not interfere with that of any other station beyond certain protected limits. Thus, section 3o8(b) of the Communications Act provides that the Commis- sion may require information from applicants for licenses concerning their citizenship, character, financial, technical and other qualifications to operate a radio station. And the courts have upheld Commission denials of applica- tions for licenses or renewal of licenses to persons who had been found to lack the requisite character qualifications.In the case of Federal Communica- tions Commission v. WOKO, Inc., 329 U.S. 223, and Calumet Broadcasting Corp. v. Federal Communications Commission, i6o F. 2d 285, the respec- tive denials of applications for a renewal of license and for an original con- Law and Radio Journal ism 512 In re . . . New York Daily News 513 struction permit were based on findings of lack of character qualifications because of falsifications and concealments practiced by the applicants in deal- ing with the Commission. In the case of Mester v. United States, 70 F. Supp. 118 (three-judge court, E.D.N.Y.), affirmed, 332 US 749, rehearing denied, 332 US. 820, the courts have upheld the denial of consent for the transfer of a license where, on the basis of evidence relating to infractions of law in the conduct of an edible-oil business, and evasions in giving testimony con- cerning these matters, the Commission concluded that the proposed transfer- ees did not possess the requisite character qualifications. The courts have also upheld denials based upon grounds that the licensees involved had been op- erating their stations in their own private interests as contrasted with the pub- lic interest of the listening public, by prescribing for sicknesses by radio on the basis of letters outlining the patients' symptoms (KFKB Broadcasting Asso- ciation v. Federal Radio Commission, 6o App. D.C. 79, 47 F. 2d 670), or by using the station to foster the licensee's own particular ideas on social problems while vilifying and blackmailing all opposite groups (Trinity Meth- odist Church, South v. Federal Radio Commission, 61 App. D.C. 311, 62 F. 2d 850, cert. denied 288 U.S. 599). In this latter case, one of the charges against the licensee was that he "had alluded slightingly to the Jews as a race and made frequent and bitter attacks on the Roman Catholic religion and its relations to the Government." The Court of Appeals held that the Commis- sion could reasonably find that this type of activity, along with the licensee's other activities, was not in the public interest and on that basis, could refuse to grant a renewal of its license. The exercise of the duties and responsibilities of a licensee to render a serv- ice in the public interest to the community in which he is authorized to operate, clearly entails something more than a mechanical doling out of al- lotted programs in the various categories of program service. For, under the Communications Act, the responsibility for the selection and presentation of programs rests with the licensee itself. Section 326 of the Act specifically for- bids the Commission to exercise any powers of censorship over radio pro- grams, and thus makes it clear that it is no business of the Commission to say that any particular program should or should not be presented. The li- censee itself, however, possesses an extensive discretion to select or reject pro- grams. The manner in which this discretion is exercised will, of course, deter- mine, in large part, the extent to which the station renders a public service to the community. Thus, the manner in which time is allocated for the discussion of controversial issues of public importance, for the presentation of religious services and other religious broadcasts, for the presentation of news events and discussions of civic importance in the community, and for numerous other types of programs of vital importance to the community served, will depend upon how the licensee exercises its judgment. It is evident that Congress in enacting the Communications Act, and in setting up the public interest as a standard for the granting of licenses, did not intend that this extensive discretion and authority of the licensee should be exercised for his own private interests in a grossly partial, discriminatory or unfair manner. Nor can the provision of section 3(h) of the act, that a person engaged in radio broadcasting shall not be deemed a common carrier, be regarded as con- Law and Radio Journalism 514 ferring on the licensee any such power to act arbitrarily. For that section makes clear that it is the licensee who shall exercise judgment as to what pro- grams shall be selected and broadcast. But it does not at all abrogate the duty of exercising that judgment in the light of the standard of public inter- est. The fairness with which a licensee deals with particular racial or religious groups in the community, in the exercise of his power to determine who can broadcast what over his facilities, is clearly a substantial aspect of his opera- tion in the public interest. Counsel for the News Syndicate, on oral argument, agreed that the Commission could examine the "acts" of an applicant, but not his "language" to determine whether he would be likely to exercise his authority as a licensee with fairness. These "acts" with respect to an existing licensee would, of course, be primarily his record as a broadcaster; in the case of an initial applicant, his record as a citizen and his record in the carrying on of any business in which he may have been interested and determined pol- icy. Such an inquiry into whether an applicant is likely to administer fairly his responsibilities as a licensee with regard for the interest of all groups in the community is not, and cannot properly be, an inquiry into the opinions and beliefs . . . social, economic, political or religious . . . of the applicant. Whether or not the applicant is a Democrat or Republican, is Protestant, Catholic or Jewish, is a conservative or radical, or has a personal preference or antipathy for any particular religious or racial group, is not at all the issue. The Commission has not in the past sought to inquire into these matters, and does not propose to do so. The issue is, rather, whether the applicant, what- ever his own views, is likely to give a "fair break" to others who do not share them. To that inquiry, evidence of past conduct which is reasonably indicative of the manner in which the applicant is likely to act in the future, is certainly relevant. But, clearly, that past conduct cannot be the mere expression of views, whether oral or in the pages of a newspaper or periodical, but must plainly constitute acts of unfairness as, for instance, denial of any opportunity to reply to attacks under circumstances where fair play requires the granting of such an opportunity, or the repeated making of irresponsible charges against any group or viewpoint without regard for the truth of such charges and with- out bothering to determine in advance of their publication whether they can be corroborative or proven. What we have said above about qualifications of licensees, generally, is even more true in cases, like the present one, where the issue is not whether a single applicant has the minimum qualifications to operate a radio station in the public interest, but which applicant of a number of mutually exclusive appli- cants for a lesser number of available frequencies is the best qualified. In such cases, prior to any action by the Commission pursuant to section 309(a) of the act, the applicants are entitled to a full opportunity for a hearing which will enable the Commission to make a fair, comparative consideration of the respective merits of the conflicting applications to determine which of the ap- plicants should be granted on the basis that their operation would better serve the public interest. Ashbacker Radio Corp. v. Federal Communications Com- mission, 326 U.S. 327. And, as the Ashbacker case makes clear, the choice In re . . . New York Daily News 515 must be based on a determination from the facts as to what grant or grants would best serve the public interest. Accordingly, a showing that a particu- lar applicant could not be relied on to exercise the extensive power and re- sponsibility of a licensee with fairness may be relevant to a showing that the grant of a competing applicant would better serve the public interest, on the ground that there would be a greater assurance that all groups in the community would be fairly dealt with by that licensee. Finally, in the present case, there exists one other reason why we believe that consideration of the record of the petitioner with respect to its treatment of minorities is relevant. This results from the fact that the petitioner, in its affirmative case, introduced a statement of policy indicating that if it secured a license it would treat all races and religions fairly and without bias or dis- crimination in its broadcast activities. Having itself so formulated its program policies with respect to these matters of obvious importance, it has clearly opened the door for evidence introduced for the purpose of impeachment. We come now to the second question, whether the First Amendment and section 326 of the Communications Act bar such an inquiry where an appli- cant for a radio station license is the proprietor of a newspaper and the "acts" examined into consist of matter published in the paper. We believe that the guarantees of freedom of the press, and of expression generally, embodied in the First Amendment, and reflected in section 326 of the Communications Act, do not require the elimination of all consideration of whether or not an applicant is likely to be fair in discharging his responsibilities of a licensee, in the case of a newspaper applicant, or, indeed, any other type of applicant. These guarantees are designed to prevent suppression of opinion by govern- mental action and are not at all intended to give newspapers a preferred posi- tion over all others who may seek to become licensees of radio stations by re- quiring a more limited inquiry into their qualifications. For the history of the First Amendment and the decided cases make two things clear: that govern- mental action which seeks to suppress utterance of opinion in advance of pub- lication, or which arbitrarily discriminates against any medium for expression of opinion is forbidden by the First Amendment; and that the press is not en- titled to immunity from nondiscriminatory official action which is equally ap- plicable to those engaged in other enterprises and which is not designed to suppress or curtail utterance of opinion. Any inquiry to determine which of a number of conflicting applicants is more likely to administer the responsibili- ties of a licensee with fairness to all groups and points of view in the com- munity can hardly be characterized as an effort to suppress opinion. It is, on the contrary, an effort to insure that the opportunity for free expression over the radio shall not be unduly curtailed by the whim and caprice of licensees. In urging that any such inquiry necessarily entails "censorship," the petitioner argues that censorship and suppression of opinion will result from the fact that newspaper applicants will, in order to secure licenses, suppress the type of opinions which they believe the Commission may disapprove and adopt the opinions which they believe the Commission approves. But this argument stretches the content of the word "censorship" beyond all recognition. And it assumes that in order to reach a conclusion whether an applicant is, in the Law and Radio Journalism light of his past conduct, likely to be fair in dealing with opinions and groups of which he disapproved, the Commission must sit in judgment on, and ap- prove or disapprove his opinions. But that assumption is neither a necessary nor a correct one. It would not require any appraisal of the merits in issue to say that a newspaper which permitted one side of a controversy to purchase unlimited amounts of adver- tising space while denying any opportunity to do so to the other side, would be acting unfairly. Where the Commission is able to conclude that past conduct of an appli- cant, demonstrative of unfairness, affords a reasonable basis for anticipating like conduct in the future as a licensee, no censorship within any intelligible meaning of that term is involved. KFKB Broadcasting Association v. Fed- eral Radio Commission, 60 App. D.C. 79 47 F. 2d 670, Trinity Methodist Church, South v. Federal Radio Commission, 61 App. D.C. 311, 62 F. 2d 850. Decided cases make it clear that censorship, within the meaning of the First Amendment, consists in suppressing expression of views in advance of publication (Near v. Minnesota, 283 U.S. 697), or in deterring expression of opinion entitled to protection of the First Amendment by threat of sub- sequent punishment (Bridges v. California, 314 U.S. 252), or requiring compliance with discriminatory licensing or taxing requirements as a pre- requisite to any expression of opinion (Grosjean v. American Press Co., 297 U.S. 233; Murdock v. Pennsylvania, 319 U.S. o10; Thomas v. Collins, 323 U.S. 516) or a mandatory requirement of compliance with an officially imposed viewpoint (West Virginia State Board v. Barnette, 319 U.S. 624). However, the fact that a publisher may be subsequently subjected to an ac- tion for libel because of his utterances does not constitute censorship, al- though that possibility may well constitute some kind of deterrence (cf. Rob- ertson v. Baldwin, 165 U.S. 275). The possible deterrent effect of a denial of an application for a license because of gross unfairness manifested by the ap- plicant in the conduct of his publishing enterprise is at least as remote as the possible deterrent effect of suit for libel. As in the case of libel, no adverse consequences ensue unless a case is actually made out, under circumstances where the publisher has an opportunity to dispute the allegations and show that they are without merit, if he can do so. And the possibility that a pub- lisher may be called on to meet allegations of unfairness in a Commission hearing in which his qualifications are being compared with those of other applicants is no more a burden on the freedom of the press than the- possi- bilitv that libel actions may have to be defended. The third question presented is whether the particular testimony offered in this case by AJC should be stricken from the record because upon evaluat- ing it, it has been found to be lacking in probative force or unreliable and inconclusive. After careful consideration, we have reached the conclusion that the testimony is relevant to issues which may properly be considered within the scope of this proceeding, and should, therefore, not be stricken from the record. IN RE APPLICATION OF . . . NEW YORK DAILY NEWS, ET AL., 12 F.C.C. 837 (July 1, 1947-June 30, 1948) 5.6 Mayflower Broadcasting Corp. 5. The "Mayflower Doctrine" seeks to define the broadcaster's freedom to editorialize. Is a radio station as a public service agency prevented from taking sides on public questions? The FCC at first answered this question affirmatively in the ruling involving the Yankee Network of Boston and the network's prac- tice of editorializing on public issues and in favor of particular political candi- dates during 1937-1938, over Station WAAB. The commission said: No attempt will be made here to analyze in detail the large number of broadcasts devoted to editorials. The material in the record has been care- fully considered and compels the conclusion that this licensee during the period in question, has revealed a serious misconception of its duties and functions under the law. Under the American system of broadcasting it is clear that responsibility for the conduct of a broadcast station must rest ini- tially with the broadcaster. It is equally clear that with the limitations in fre- quencies inherent in the nature of radio, the public interest can never be served by a dedication of any broadcast facility to the support of his own partisan ends. Radio can serve as an instrument of democracy only when de- voted to the communication of information and the exchange of ideas fairly and objectively presented. A truly free radio cannot be used to advocate the causes of the licensee. It cannot be used to support the candidacies of his friends. It cannot be devoted to the support of principles he happens to regard most favorably. In brief, the broadcaster cannot be an advocate. Freedom of speech on the radio must be broad enough to provide full and equal opportunity for the presentation to the public of all sides of public issues. Indeed, as one licensed to operate in a public domain the licensee has assumed the obligation of presenting all sides of important public questions, fairly, objectively and without bias. The public interest-not the private-is paramount. These requirements are inherent in the conception of public in- terest set up by the Communications Act as the criterion of regulation. And while the day-to-day decisions applying these requirements are the licensee's responsibility, the ultimate duty to review generally the course of conduct of the station over a period of time and to take appropriate action thereon is vested in the Commission. Upon such a review here, there can be no question that the Yankee Net- work, Inc., in 1937 and 1938 continued to operate in contravention of these principles. The record does show, however, that, in response to a request of the Commission for details as to the conduct of the station since September, 1938, two affidavits were filed with the Commission by John Shepard 3d, president of the Yankee Network, Inc. Apparently conceding the departures from the requirements of public interest by the earlier conduct of the station, these affidavits state, and they are uncontradicted, that no editorials have been broadcast over Station WAAB since September, 1938, and that it is not in- tended to depart from this uninterrupted policy. The station has no editorial policies. In the affidavits there is further a description of the station's proce- dure for handling news items and the statement is made that since Septem- 517 Law and Radio Journalism ber, 1938, "no attempt has ever been or will ever be made to color or editorial- ize the news received" through usual sources. In response to a question from the bench inquiring whether the Commission should rely on these affidavits in determining whether to renew the licenses, counsel for the Yankee Net- work, Inc., stated at the second argument, "There are absolutely no reserva- tions whatsoever, or mental reservations of any sort, character, or kind with reference to those affidavits. They mean exactly what they say in the fullest possible amplification that the Commission wants to give to them." Relying upon these comprehensive and unequivocal representations as to the future conduct of the station and in view of the loss of service to the pub- lic involved in the deletion of this station, it has been concluded to grant the applications for renewal. Should any future occasion arise to examine into the conduct of this licensee, however, the Commission will consider the facts de- veloped in this record in its review of the activities as a whole. IN THE MATTER OF THE MAYFLOWER BROADCASTING CORP., 8 F.C.C. 333 (March 1, 1940-August 1, 1941) This first pronouncement of the so-called Mayflower rule brought forth a storm of protest from the radio industry, which declared that it discriminated against broadcasters unfairly, to the advantage of newspapers and periodicals, and that it misinterpreted the true meaning of the public service responsibil- ity of a radio station. For almost a decade the commission declined to re- consider its position, but in 1948 it yielded to the continual protests of the broadcasters and ordered public hearings on the question. Finally, in 1949, the FCC enunciated the "new Mayflower" doctrine, saying: It is axiomatic that one of the most vital questions of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day. Basically, it is in recognition of the great contribution which radio can make in the advancement of this purpose that portions of the radio spec- trum are allocated to that form of radio communication known as radio-broad- casting. Unquestionably, then, the standard of public interest, convenience and necessity as applied to radio-broadcasting must be interpreted in the light of this basic purpose. The Commission has consequently recognized the ne- cessity for licensees to devote a reasonable percentage of their broadcast time to the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particu- lar station. And we have recognized, with respect to such programs, the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and view- points concerning these vital and often controversial issues which are held by the various groups which make up the community. It is this right of the pub- lic to be informed, rather than any right on the part of the government, 518 Editorializing by Broadcast Licensees 519 any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter, which is the foundation stone of the American system of broadcasting . It has been suggested in the course of the hearings that licensees have an affirmative obligation to insure fair presentation of all sides of any controver- sial issue before any time may be allocated to the discussion or consideration of the matter. On the other hand, arguments have been advanced in support of the proposition that the licensee's sole obligation to the public is to refrain from suppressing or excluding any responsible point of view from access to the radio. We are of the opinion, however, that any rigid requirement that li- censees adhere to either of these extreme prescriptions for proper state program- ming techniques would seriously limit the ability of licensees to serve the public interest. Forums and round-table discussions, while often excellent techniques of presenting a fair cross section of differing viewpoints on a given issue, are not the only appropriate devices for radio discussion, and in some circumstances may not be particularly appropriate or advantageous. More- over, in many instances the primary "controversy" will be whether or not the particular problem should be discussed at all; in such circumstances, where the licensee has determined that the subject is of sufficient import to receive broadcast attention, it would obviously not be in the public interest for spokesmen for one of the opposing points of view to be able to exercise a veto power over the entire presentation by refusing to broadcast its position. Fair- ness, in such circumstances, might require no more than that the licensee make a reasonable effort to secure responsible representation of the particu- lar position and, if it fails in this effort, to continue to make available its facili- ties to the spokesmen for such position in the event that, after the original programs are broadcast, they then decide to avail themselves of a right to reply to present their contrary opinion. It should be remembered, moreover, that discussion of public issues will not necessarily be confined to questions which are obviously controversial in nature, and, in many cases, programs initi- ated with no thought on the part of the licensee of their possibly controversial nature will subsequently arouse controversy and opposition of a substantial nature which will merit presentation of opposing views. In such cases, how- ever, fairness can be preserved without undue difficulty since the facilities of the station can be made available to the spokesmen for the groups wishing to state views in opposition to those expressed in the original presentation when such opposition becomes manifest. We do not believe, however, that the licensee's obligations to serve the public interest can be met merely through the adoption of a general policy of not refusing to broadcast opposing views where a demand is made of the station for broadcast time. If, as we believe to be the case, the public interest is best served in a democracy through the ability of the people to hear exposi- tions of the various positions taken by responsible groups and individuals on particular topics and to choose between them, it is evident that broadcast licensees have an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities Law and Radio Journalism for the expression of opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difficult if not im- possible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints. It should be recognized that there can be no one all-embracing formula which licensees can hope to apply to insure the fair and balanced presentation of all public issues. Different issues will inevitably require different techniques of presentation and production. The licensee will in each instance be called upon to exercise his best judgment and good sense in determining what subjects should be considered, the particular format of the programs to be devoted to each subject, the different shades of opinion to be presented, and the spokesmen for each point of view. In determining whether to honor specific requests for time, the station will inevitably be confronted with such questions as whether the subject is worth considering, whether the viewpoint of the requesting party has already received a sufficient amount of broadcast time, or whether there may not be other available groups or indi- viduals who might be more appropriate spokesmen for the particular point of view than the person making the request. The latter's personal involvement in the controversy may also be a factor which must be considered, for elemen- tary considerations of fairness may dictate that time be allocated to a person or group which has been specifically attacked over the station, where other- wise no such obligation would exist. Undoubtedly, over a period of time some licensees may make honest errors of judgment. But there can be no doubt that any licensee honestly desiring to live up to its obligation to serve the public interest and making a reasonable effort to do so, will be able to achieve a fair and satisfactory resolution of these problems in the light of the specific facts. It is against this background that we must approach the question of "editorialization"-the use of radio facilities by the licensees thereof for the expression of the opinions and ideas of the licensee on the various controver- sial and significant issues of interest to the members of the general public af- forded radio (or television) service by the particular station. In considering this problem it must be kept in mind that such editorial expression may take many forms ranging from the overt statement of position by the licensee in person or by his acknowledged spokesmen to the selection and presentation of news editors and commentators sharing the licensee's general opinions or the making available of the licensee's facilities, either free of charge or for a fee to persons or organizations reflecting the licensee's viewpoint either generally or with respect to specific issues. It should also be clearly indicated that the question of the relationship of broadcast editorialization, as defined above, to operation in the public interest, is not identical with the broader problem of assuring "fairness" in the presentation of news, comment, or opinion, but is rather one specific facet of this larger problem. It is clear that the licensee's authority to determine the specific programs to be broadcast over his station gives him an opportunity, not available to other persons, to insure that his personal viewpoint on any particular issue is presented in his station's broadcasts, whether or not these views are expressly identified with the licensee. And, in absence of governmental restraint, he 520 Editorializing by Broadcast Licensees would, if he so chose, be able to utilize his position as a broadcast licensee to weight the scales in line with his personal views, or even directly or indirectly to propagandize in behalf of his particular philosophy or views on the various public issues to the exclusion of any contrary opinions. Such action can be effective and persuasive whether or not it is accompanied by any editorializa- tion in the narrow sense of overt statement of particular opinions and views identified as those of licensee. The narrower question of whether any overt editorialization or advocacy by broadcast licensees, identified as such, is consonant with the operation of their stations in the public interest, resolves itself primarily into the issue of whether such identification of comment or opinion would inevitably or even probably result in such overemphasis on the side of any particular controversy which the licensee chooses to espouse as to make impossible any reasonably balanced presentation of all sides of such issues or to render ineffective the available safeguards of that overall fairness which is the essential element of operation in the public interest. We do not believe that any such consequence is either inevitable or probable, and we have therefore come to the conclu- sion that overt licensee editorialization, within reasonable limits and subject to the general requirements of fairness detailed above, is not contrary to the public interest. The Commission has given careful consideration to contentions of those witnesses at the hearing who stated their belief that any overt editorialization or advocacy by broadcast licensee is per se contrary to the public interest. The main arguments advanced by these witnesses were that overt editorialization by broadcast licensees would not be consistent with the attainment of bal- anced presentations since there was a danger that the institutional good will and the production resources at the disposal of broadcast licensees would in- evitably influence public opinion in favor of the positions advocated in the name of the licensee and that, having taken an open stand on behalf of one position in a given controversy, a licensee is not likely to give a fair break to the opposition. We believe, however, that these fears are largely misdirected, and that they stem from a confusion of the question of overt advocacy in the name of the licensee, with the broader issue of insuring that the station's broadcasts devoted to the consideration of public issues will provide the lis- tening public with a fair and balanced presentation of differing viewpoints on such issues, without regard to the particular views which may be held or ex- pressed by the licensee. Considered, as we believe they must be, as just one of several types of presentation of public issues, to be afforded their appropriate and non-exclusive place in the station's total schedule of programs devoted to balanced discussion and consideration of public issues, we do not believe that programs in which the licensee's personal opinions are expressed are in- trinsically more or less subject to abuse than any other program devoted to public issues. If it be true that station good will and licensee prestige, where it exists, may give added weight to opinion expressed by the licensee, it does not follow that such opinion should be expressed by the licensee, it does not follow that such opinion should be excluded from the air any more than it should in the case of any individual or institution which over a period of time has built up a reservoir of good will or prestige in the community. In any 521. competition for public acceptance of ideas, the skills and resources of the pro- ponents and opponents will always have some measure of effect in producing the results sought. But it would not be suggested that they should be denied expression of their opinions over the air by reason of their particular assets. What is against the public interest is for the licensee "to stack the cards" by a deliberate selection of spokesmen for opposing points of view to favor one viewpoint at the expense of the other, whether or not the views of those spokesmen are identified as the views of the licensee or of others. Assurance of fairness must in the final analysis be achieved, not by the exclusion of par- ticular views because of the source of the views, or the forcefulness with which the view is expressed, but by making the microphone available for the presen- tation of contrary views without deliberate restrictions designed to impede equally forceful presentation. Similarly, while licensees will in most instances have at their disposal pro- duction resources making possible graphic and persuasive techniques for force- ful presentation of ideas, their utilization for the promulgation of the licensee's personal viewpoints will not necessarily or automatically lead to unfairness or lack of balance. While uncontrolled utilization of such resources for the partisan ends of the licensee might conceivably lead to serious abuses, such abuses could as well exist where the station's resources are used for the sole use of his personal spokesmen. The prejudicial or unfair use of broadcast production resources would, in either case, be contrary to the public interest. The Commission is not persuaded that a station's willingness to stand up and be counted on these particular issues upon which the licensee has a definite position may not be actually helpful in providing and maintaining a climate of fairness and equal opportunity for the expression of contrary views. Certainly the public has less to fear from the open partisan than from the covert propagandist. On many issues, of sufficient importance to be allocated broadcast time, the station licensee may have no fixed opinion or viewpoint which he wishes to state or advocate. But where the licensee, himself, be- lieves strongly that one side of a controversial issue is correct and should pre- vail, prohibition of his expression of such position will not of itself insure fair presentation of that issue over his station's facilities, nor would open advocacy necessarily prevent an overall fair presentation of the subject. It is not a suffi- cient answer to state that a licensee should occupy the position of an impartial umpire, where the licensee is in fact partial. In the absence of a duty to present all sides of controversial issues, overt editorialization by station licensees could conceivably result in serious abuse. But where, as we believe to be the case under the Communications Act, such a responsibility for a fair and bal- anced presentation of controversial public issues exists, we cannot see how the open espousal of one point of view by the licensee should necessarily prevent him from affording a fair opportunity for the presentation of contrary posi- tions or make more difficult the enforcement of the statutory standard of fair- ness upon any licensee. It must be recognized, however, that the licensee's opportunity to express his own views as part of a general presentation of varying opinions on partic- ular controversial issues does not justify or empower any licensee to exercise his authority over the selection of program material to distort or suppress Law and Radio journalism 522 Editorializing by Broadcast Licensees the basic factual information upon which any truly fair and free discussion of public issues must necessarily depend. The basis for any fair considera- tion of public issues, and particularly those of a controversial nature, is the presentation of news and information concerning the basic facts of the con- troversy in as complete and impartial a manner as possible. A licensee would be abusing his position as public trustee of these important means of mass communication were he to withhold from expression over his facilities rele- vant news or facts concerning a controversy or to slant or distort the presen- tation of such news. No discussion of the issues involved in any controversy can be fair or in the public interest where such discussion must take place in a climate of false or misleading information concerning the basic facts of the controversy. During the course of the hearings, fears have been expressed that any effort on the part of the Commission to enforce a reasonable standard of fairness and impartiality would inevitably require the Commission to take a stand on the merits of the particular issues considered in the programs broadcast by the several licensees, as well as exposing the licensees to the risk of loss of license because of "honest mistakes" which they may make in the exercise of their judgment with respect to the broadcasts of programs of a controversial na- ture. We believe that these fears are wholly without justification, and are based on either an assumption of abuse of power by the Commission or a lack of proper understanding of the role of the Commission, under the Com- munications Act, in considering the program service of broadcast licensees in passing upon applications for renewal of license. While this Commission and its predecessor, the Federal Radio Commission, have, from the begin- ning of effective radio regulation in 1927, properly considered that a licensee's overall program service is one of the primary indicia of his ability to serve the public interest, actual consideration of such service has always been limited to a determination as to whether the licensee's programming, taken as a whole, demonstrates that the licensee is aware of his listening public and is willing and able to make an honest and reasonable effort to live up to such obligations. The action of the station in carrying or refusing to carry any particular program is of relevance only as the station's actions with respect to such programs fits into its overall pattern of broadcast service, and must be considered in the light of its other program activities. This does not mean, of course, that stations may, with impunity, engage in a partisan editorial campaign on a particular issue or series of issues provided only that the re- mainder of its program schedule conforms to the statutory norm of fairness; a licensee may not utilize the portion of its broadcast service which conforms to the statutory requirements as a cover or shield for other programming which fails to meet the minimum standards of operation in the public in- terest. But it is clear that the standard of public interest is not so rigid that an honest mistake or error in judgment on the part of a licensee will be or should be condemned where his overall record demonstrates a reasonable effort to provide a balanced presentation of comment and opinion on such issues. The question is necessarily one of the reasonableness of the station's actions, not whether any absolute standard of fairness has been achieved. It does not require any appraisal of the merits of the particular issue to determine whether 523 reasonable efforts have been made to present both sides of the question. Thus, in appraising the record of a station in presenting programs concerning a controversial bill pending before the Congress of the United States, if the rec- ord disclosed that the licensee had permitted only advocates of the bill's enact- ment to utilize its facilities to the exclusion of its opponents, it is clear that no independent appraisal of the bill's merits by the Commission would be required to reach a determination that the licensee had misconstrued its duties and obligations as a person licensed to serve the public interest. The Com- mission has observed, in considering this general problem, that "the duty to operate in the public interest is no esoteric mystery, but is essentially a duty to operate a radio station with good judgment and good faith guided by a reasonable regard for the interests of the community to be served." Northern Corporation (WMEX), 4 Pike & Fischer, R.R. 333, 339. Of course, some cases will be clearer than others, and the Commission in the exercise of its functions may be called upon to weigh conflicting evidence to determine whether the licensee has or has not made reasonable efforts to present a fair and well-rounded presentation of particular public issues. But the standard of reasonableness and the reasonable approximation of a statutory norm is not an arbitrary standard incapable of administrative or judicial determination, but, on the contrary, one of the basic standards of conduct in numerous fields of Anglo-American law. Like all other flexible standards of conduct, it is sub- ject to abuse and arbitrary interpretation and application by the duly author- ized reviewing authorities. But the possibility that a legitimate standard of legal conduct might be abused or arbitrarily applied by capricious govern- mental authority is not and cannot be a reason for abandoning the standard itself. And broadcast licensees are protected against any conceivable abuse of power by the Commission in the exercising of its licensing authority by the procedural safeguards of the Communications Act and the Administrative Procedure Act, and by the right of appeal to the Courts from final action claimed to be arbitrary or capricious. There remains for consideration the allegation made by a few of the wit- nesses in the hearing that any action by the Commission in this field enforcing a basic standard of fairness upon broadcast licensees necessarily constitutes an "abridgement of the right of free speech" in violation of the First Amendment of the United States Constitution. We can see no sound basis for any such conclusion. The freedom of speech protected against gov- ernmental abridgement by the First Amendment does not extend any privilege to government licensees of means of public communication to exclude the expression of opinions and ideas with which they are in disagreement. We be- lieve, on the contrary, that a requirement that broadcast licensees utilize their franchises in a manner in which the listening public may be assured of hear- ing varying opinions on the paramount issues facing the American people is within both the spirit and letter of the First Amendment. As the Supreme Court of the United States has pointed out in the Associated Press monopoly case: It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a Law and Radio Journalism 524 Editorializing by Broadcast Licensees command that the government was without power to protect that freedom . . . That Amendment rests on the assumption that the widest possible dissemina- tion of information from diverse and antagonistic sources is essential to the wel- fare of the public, that a free press is a condition of free society. Surely a com- mand that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not [Associated Press v. United States, 326 U.S. 1 at p. 20]. We fully recognize that freedom of the radio is included among the free- doms protected against governmental abridgement by the First Amendment. United States v. Paramount Pictures, Inc., et al., 334 U.S. 131, i66. But this does not mean that the freedom of the people as a whole to enjoy the maxi- mum possible utilization of this medium of mass communication may be subordinated to the freedom of any single person to exploit the medium for his own private interest. Indeed, it seems indisputable that full effect can only be given to the concept of freedom of speech on the radio by giving precedence to the right of the American public to be informed on all sides of public questions over any such individual exploitation for private pur- poses. Any regulation of radio, especially a system of limited licensees, is in a real sense an abridgement of the inherent freedom of persons to express themselves by means of radio communications. It is, however, a necessary and constitutional abridgement in order to prevent chaotic interference from destroying the great potential of this medium for public enlightenment and entertainment. National Broadcasting Company v. United States, 319 U.S. 190, 296; cf. Federal Radio Commission v. Nelson Brothers Bond 6 Mortgage Co., 289 U.S. 266; Fisher's Blend Station, Inc. v. State Tax Commis- sion, 277 U.S. 65o. Nothing in the Communications Act or its history sup- ports any conclusion that the people of the nation, acting through Congress, have intended to surrender or diminish their paramount rights in the air waves, including access to radio broadcasting facilities to a limited number of private licensees to be used as such licensees see fit, without regard to the paramount interests of the people The most significant meaning of free- dom of the radio is the right of the American people to listen to this great medium of communications free from any governmental dictation as to what they can or cannot hear and free alike from similar restraints by private li- censees. To recapitulate, the Commission believes that under the American system of broadcasting, the individual licensees of radio stations have the responsibil- ity for determining the specific program material to be broadcast over their stations. This choice, however, must be exercised in a manner consistent with the basic policy of the Congress that radio be maintained as a medium of free speech for the general public as a whole rather than as an outlet for the purely personal or private interests of the licensee. This requires that li- censees devote a reasonable percentage of their broadcasting time to the dis- cussion of public issues of interest in the community served by their stations 525 Law and Radio Journalism and that such programs be designed so that the public has a reasonable oppor- tunity to hear different opposing positions on the public issues of interest and importance in the community. The particular format best suited for the pres- entation of such programs in a manner consistent with the public interest must be determined by the licensee in the light of the facts of each individual situation. Such presentation may include the identified expression of the li- censee's personal viewpoint as part of the more general presentation of views or comments on the various issues, but the opportunity of licensees to present such views as they may have on matters of controversy may not be utilized to achieve a partisan or one-sided presentation of issues. Licensee editoriali- zation is but one aspect of freedom of expression by means of radio. Only in- sofar as it is exercised in conformity with the paramount right of the public to hear a reasonably balanced presentation of all responsible viewpoints on particular issues can such editorialization be considered to be consistent with the licensee's duty to operate in the public interest. For the licensee is a trus- tee impressed with the duty of preserving for the public generally radio as a medium of free expression and fair presentation. IN THE MATTER OF EDITORIALIZING BY BROADCAST LICENSEES* * Docket No. 8516; this opinion, which will probably appear in Volume 13 of the FCC reports which had not been printed as this book went to press, is available in mimeographed form from the commission. It is worth reading in its entirety, including separate and dissent- ing opinions which could not be included here for reasons of space. The "new Mayflower" doctrine provides an appropriate summary of the law on radio journalism as it exists at this writing. 526 Appendices Note on Legal Procedure An understanding of the structure of American law and of the machinery of court procedure is essential to a layman's study of any phase of jurispru- dence. For the journalist it is important not only for the study of law as it affects mass communications but for the reporting of court news, one of the most important areas of public affairs with which a newspaper can deal. What follows is a brief and highly simplified statement of law and legal procedure for the immediate use of the present book.* 1. The main features of American law. Two great systems of jurisprudence have developed in Western civilization -Roman or civil law, which has provided the pattern for most of Continental Europe and Latin America; and common law, a peculiar product of English political genius which has been the foundation of the law in most parts of the United States. Civil law, originating in the Code of Justinian and under- going a series of restatements of which the most recent was the Code of Na- poleon, has influenced the jurisprudence of Louisiana and Quebec-but aside from these areas of earlier French political and legal thought, the legal systems of both the United States and Canada reflect the principles of the common law of England. By common law was originally meant a law common to all of England- developed by courts in various parts of the country with the aim of creating a uniform system of rules throughout the realm. To insure the highest reason- able consistency, the common law early developed the doctrine of stare de- cisis (literally, "to stand by the decisions") by which courts referred to previ- ous cases on related subjects to determine the course to follow in current questions at trial. Out of this same search for uniformity and consistency in the administration of justice, English courts also evolved the doctrine of the "rule of law"-the proposition that rights once recognized by the state, usually through the pronouncement of courts, could not be capriciously set aside, * Two books which will be of particular value to a student wishing to study these subjects more thoroughly are Curtis D. MacDougall's Covering the Courts (New York, 1946), and Arthur S. Beardsley's Legal Bibliography and the Use of Law Books (Chicago, 1937). 529 Appendices 530 abridged, or altered without formal and well-recognized procedures of ju- diciary or legislature. Common law was at first unwritten law in the sense that it did not find expression in collections of statutes or codes. It was actually the application to the case at hand of precepts which had been devised by influential jurists, law teachers, and authors of treatises. These authorities sought to state gen- eral principles of behavior and responsibility in terms of current local needs; and this established the concept of flexibility in the interpretation of the law which continued into the modern period of written, statutory law. This con- cept is reflected in the readiness with which American lawmaking bodies may amend or repeal existing statutes, and American courts may abandon one precedent and create a new one when, in the opinion of the majority, chang- ing conditions demand such action all the while preserving the original in- tention of the law. It is this adaptability of jurisprudence to contemporary needs that many scholars have claimed as the chief benefit of the common law. Statutory law has very largely supplanted common law in modern American judicial systems. Statutes may incorporate the essentials of common law on a given subject or may specifically negate them. The intention of the legislature as expressed in the statute, and the interpretation and application of the statute by the courts, are the basic features of modern legal procedure in the United States. The statute has uniform application throughout the area of jurisdiction of the lawmaking body enacting it: Congress for the United States as a whole, the state legislature for the individual states, and-in the form of ordinances-the city council or its counterpart for local subdivisions of government. The subject matter of the law may be divided into various categories. For the purposes of this book they may be considered under three major headings -criminal law, private law, and public law. The first has to do with injuries or threats to the personal well-being and safety of the individual, with damage or threats to his property, or with injuries or threats to the state itself. With this branch of law the media of mass communications have relatively little contact; since the exercise of the power of prosecution was historically the means by which the state suppressed free expression, the English system by unwritten tradition and the American system by constitutional guarantee have discouraged criminal actions against newspapers and other media. The modern cases of criminal libel, sedition, obscenity, or contempt involving these media emphasize by their very rarity the strength of the Anglo-American doctrine of freedom of expression. Private law customarily falls into three subdivisions-torts, contracts, and property. Torts deal with personal injuries which may or may not have their Note on Legal Procedure 531. counterpart in criminal law. The most common tort of concern to the jour- nalist is, of course, defamation-spoken (slanderous) or written (libelous) injury to reputation. The invasion of privacy has been suggested by certain authorities as a new tort, but as yet it has not received general recognition throughout the country. Misrepresentation is another, somewhat vaguer, form of tort which may conceivably affect journalistic practices. Negligence, assault and battery, and trespass are other classic forms of tort which have less to do with the conduct of news communications. Contract law has assumed considerable significance for modern news media with the rise of the national advertising industry and the growth of organized labor movements within the industry. In the case of labor contracts, a major role has been assumed by administrative law in the form of the National Labor Relations Act, the Fair Labor Standards Act, and the Labor-Manage- ment Relations (Taft-Hartley) Act. Contract law has relevance in any of the business relations of a news medium, for it is that branch of law which formalizes the obligations agreed to between two or more parties to any type of undertaking. Traditionally it has depended upon the competence of the parties to make an agreement, a lawful subject matter for such an agreement, and a clear expression of the intent of each party concerned. Property law-usually divided into real and personal-relates to journalism in the matter of copyright and the legitimate title to an intangible such as news, of which the chief values are timeliness and priority of publication. This phase of law pertaining to journalism leads directly into two important areas of public law: concerning copyright and the protection of literary or intellectual property, it touches upon international law and the treaties and domestic cases defining this country's obligations under these conventions between states; while concerning other means of protecting property rights in news it depends upon the law governing unfair competition, an important area of administrative law. Public law-which actually includes criminal law-deals with the powers of and restraints upon the state itself. Its most important subdivision is con- stitutional law, under which the journalist is concerned with the guarantees embodied in the First, Fifth, and Fourteenth Amendments. It is amplified by the great volume of congressional enactments on many subjects affecting newsgathering and news practices-particularly the statutes regulating the contempt powers of the judiciary, defining the powers of various executive branches such as the post office with its authority to admit mailable matter under the second class of postage, or the presidency with its authority to issue executive orders classifying certain types of information. Administrative law has become of primary importance in the past three- quarters of a century in which government has sought to apply reasonable regulations to the growth of giant interstate industries including the news industry. Administrative law as applied by such agencies as the Federal Trade Commission, the National Labor Relations Board, and similar bodies has itself grown to a degree where many students of government consider the admin- istrative function to be virtually an autonomous fourth branch of government added to the traditional.trio of legislative, executive, and judicial. In addition to the regulation of labor relations, the surveillance of manufacturing and distributing products in interstate commerce, the financing of business enter- prises through the security market, and the like, administrative law is con- ceived by some authorities to include the tax-collecting and tax-levying activ- ities of the government since many taxes are regulatory.in purpose or effect. Another aspect of jurisprudence with which the layman should be familiar is equity, which was also called chancery in its English form of development. Originally conceived of as an extraordinary process for administering justice, "equity" came to be distinguished from "law" in that the latter was considered to represent the formal and systematic application of common or statutory law. For the cases that do not fit within this formal and systematic framework, equity jurisprudence frequently affords relief-a party instituting an action at law, for example, is required to show a specific issue to be settled in the form of damages claimed or debts owed or property withheld; in an action in equity the issues may be more general and the court may grant writs of injunction or mandamus (see Glossary) or specific performance, appoint a receiver for the administration of properties or revenues in settlement of debts, dissolve contracts (including that civil contract known as marriage) and in other ways offer broader remedies to many problems. 2. Courts and court reporting. As almost everyone is aware, the United States has a dual system of govern- ment-federal and state. This means that there is a dual judicial system, one to administer justice with respect to federal questions and the other with respect to state (that is, nonfederal) questions. It is important to understand the structure of the courts in each system, and also to know how to find the status of a particular law case in each. Although there are a number of specialized courts within the federal sys- tem, the three major types of tribunals which are most familiar will illustrate the operation of the judicial process. At the broad base are the United States District Courts, which are the trial courts of general jurisdiction-that is, most litigation originates in these tribunals. From the original thirteen judicial districts established under the Judiciary Act of 1789, the number has now grown to eighty-four, having a total of 197 district judges. No district crosses a state line; there is at least one federal district court in each state. A district Appendices 532 Note on Legal Procedure court may be presided over by a single judge, although special benches of two or more federal judges may be designated by the Department of Justice for particular occasions (e.g., the original trial of the AP antitrust suit). In 1891 Congress created the United States Circuit Courts of Appeals as an intermediate appellate tribunal to relieve the Supreme Court of the mount- ing pressure of cases for review. To afford effective relief, these courts were granted final jurisdiction over a certain number of questions such as copyright or trademark infringement, criminal cases, and certain issues of administrative law appealed from the decisions of the Interstate Commerce Commission and similar agencies. However, by insisting that a question of constitutionality is involved, cases under these or any other headings may be carried to the Su- preme Court for further review. The latter's decision, by denying that a con- stitutional question is involved, may have the effect of confirming and strengthening the circuit court's authority. There are eleven circuits, each having one of the justices of the Supreme Court as a circuit judge and consist- ing of from three to nine circuit judges of whom the senior in length of service is the chief judge. The highest tribunal in the land, of course, is the Supreme Court of the United States (assuming that a litigant has a proper federal question to bring before it). It may review cases appealed to it from any other federal court- many cases being carried directly to it from the original trial court without any intermediate appeals, particularly since the passage of the Expediting Act of 1937 which provided for direct appeal and immediate review of questions of constitutionality. The Supreme Court may also review questions appealed from the state supreme courts if a federal question is involved. Since the early period of its existence when, under John Marshall, it enunciated the principle of judicial review, the court has asserted the power to declare acts of Congress unconstitutional, to interpret the Constitution itself, and to pronounce the final definition of the rights and privileges of persons and public agencies under the federal system of law.* From its original composition of five jus- tices, the tribunal has grown to its present size of eight associate justices and a presiding Chief Justice. Many state judicial systems are patterned after the federal machinery, with trial courts (called district courts in most states), intermediate appellate courts, and a high court (called a supreme court or having some similar term except in Kentucky, Maryland, and New York, where the highest judicial branch is now called the Court of Appeals and in New Jersey the Court of * Any serious student of American jurisprudence should study such standard works as Charles Warren's Supreme Court in United States History (Boston, rev. ed., 1937) and se- lections from the four-volume Selected Essays in Constitutional Law edited by the Associa- tion of American Law Schools in 1938. 533 Errors and Appeals). The less populous states usually lack the intermediate appellate system. The state supreme courts or their equivalent have benches of justices ranging in number from three to nine. These several state and federal courts vary in degrees of influence, whatever their statutory authority may be. In most cases, of course, an opinion handed down by the Supreme Court of the United States will command the widest consideration-particularly if it is written as a unanimous opinion, or if the majority is sizable, or if the individual justice preparing the opinion is generally recognized as an expert in this particular phase of the law. The opinions of certain federal appellate courts and certain state supreme courts are also particularly influential-the Court of Appeals for the District of Columbia, for example, has an unusually high proportion of constitutional questions brought before it for review, because of the presence of many of the federal administrative agencies within its jurisdiction. A brilliant jurist will command attention wherever he may be sitting, of course-witness the distinguished career of Learned Hand, federal judge for the Southern District of New York from 1909 to 1924 and then circuit judge of the United States Second District from 1924 until his retirement in 1951. Certain high courts in states like Illinois, Massachusetts, New York, or Pennsylvania may be followed by courts in other states if there is uniformity or strong similarity between local codes of laws-and particularly in younger western states which may have patterned their constitutions and legal codes after one of the large eastern states. Where no appropriate American court opinions are found to cover a partic- ular legal question, American courts will often rely upon English cases, partic- ularly as these may furnish an exposition upon the parent stock of common law. To trace a particular case, or a particular subject in the law, through the scores of opinions which are handed down each year by these various courts, as well as through the hundreds of cases which have been reviewed not only throughout our history as a nation but through the still longer history of England, obviously demands a reasonably rapid and simple system of search. Several such systems are available for the lawyer and for anyone else wanting to consider the case law on a given subject. Some of these are official, government-administered systems of reporting cases, others are prepared and maintained by private publishers. While space does not permit an exhaustive list here, a student planning to delve very deeply into case law should prepare himself by reading a guide book such as Beardsley's mentioned earlier in this Note. The United States Government Printing Office prepares the official edition of the reports of the Supreme Court of the United States, and has done so Appendices 534 since 1875; prior to that date the opinions were compiled by unofficial re- porters (1789-1817) or officially appointed reporters (1817-1874) whose names (Dallas, Cranch, Wheaton, and so on) are usually used to identify the reports in question (see Abbreviations following). Since Volume 91 of the government-printed reports in 1875, these official books of cases have traditionally been cited under the abbreviation "U.S.," with the number of the volume preceding and the number of the page in the case (usually the page where the case begins) following. The government has never followed a consistent pattern of reporting the opinions of its lower courts, and unofficial reporters have done most of the publishing of the cases in this area. All available opinions from federal district courts and the older system of circuit courts from 1789 to 1879 were collected into an unofficial series under the title of Federal Cases. In recent years the government has adopted the practice of officially reporting the opinions of the Court of Appeals for the District of Columbia, as well as for certain territorial courts, tax courts, and so forth.. Two highly useful unofficial collections for the Supreme Court are those published by the West Publishing Company of St. Paul, Minn., and by the Lawyers' Co-operative Publishing Company of Rochester, N.Y. These are respectively identified by the abbreviations "S. Ct." and "L. Ed.," and are particularly convenient for practicing attorneys because they are usually pub- lished well in advance of the government volumes and because these pub- lishers have developed very effective systems of cross-references so that points of law may be traced readily. The West Publishing Company, which has developed what it calls the National and State Reporter System, publishes the only comprehensive collection of the opinions of federal district and circuit courts. It also collects many of the opinions of the higher state appellate courts into regional "Re- porter" series which are universally recognized by their appropriate regional abbreviations (e.g., "Atl.," "Pac.," and the like). All forty-eight states publish an official series of reports for their highest courts, and these are usually identified by an abbreviation of the name of the state. For full titles of all common abbreviations used in the present book, consult the Abbreviations following the Glossary. There are various other case collections, encyclopedias of law, and the like, with which the student, even if he is a layman, will rather easily familiarize himself simply by browsing in a law library. In addition to case law, of course, the statutes of the United States and of individual states are of prime importance. These are usually published in offi- cial editions as codes, compiled statutes, general laws or session laws, and so forth. In most cases they are also published by unofficial law book companies Note on Legal Procedure 535 in annotated editions-that is, with all pertinent cases interpreting a particu- lar clause or statute duly noted under the text of the law itself. This is a highly convenient medium for learning what the courts have said about the mean- ing and effect of a particular statute. Many smaller collections of laws on particular subjects have also been published, both by public and private agencies (e.g., the Postal Laws and Regulations). 3. Chief steps in civil and criminal proceedings. Although it is often only of secondary importance when a case is appealed, an understanding of the machinery of conducting an action at law (equity will not be considered here) or of prosecuting a criminal case in the original court will be taken for granted by a reviewing court in its opinion. It therefore behooves the layman to keep in mind the main steps in both civil and criminal proceedings. With respect to civil cases these may be outlined as follows: (1) A party wishing to begin an action engages an attorney who, after studying the problems involved, prepares a pleading, called a complaint or a petition, which is duly filed with a court having proper jurisdiction. (2) Notice is then served on the party or parties against whom the action is being taken. (3) Occasionally the defendant party will take no action and the suit will thus go to the plaintiff by default. Frequently the case will be settled out of court at a meeting of legal counsel representing both sides. If neither of these possibilities materializes, the defendant through his attorney will file an an- swer to the plaintiff's pleading, or may demur to it or may submit a motion to dismiss the case. Under certain circumstances he may file a counterclaim. In all of these preliminaries the attorneys for both sides may appear before the judge in open court to debate the procedure to be followed. Only when the court has acted upon all pleadings, demurrers, motions, and related actions will the case be ready for trial. (4) A date for the trial having been set and properly published, a jury may be called unless-as is becoming increasingly the practice in certain types of civil actions-both sides waive a jury trial. The prospective jurors are individu- ally examined, the attorney for each side having the right to challenge a cer- tain number of prospects; only when the panel of jurors is complete may the trial begin. (5) The plaintiff's attorney opens with a general statement of the issue to the jury, and indicates what he proposes to prove on behalf of his client. The witnesses for the plaintiff are then called and examined by the plaintiff's Appendices 536 Note on Legal Procedure attorney and cross-examined by the defendant's attorney. Appropriate docu- ments as further evidence in the case may be entered by the plaintiff's attor- ney. (6) The defense may take one of several steps. A motion for nonsuit may be entered and argued. If this motion is overruled, the defense may then present documents and call witnesses who are similarly examined. (7) The plaintiff's attorney may then call further witnesses or offer further documentary evidence in rebuttal. (8) When the submitting of evidence has been completed, the counsel for both sides prepare instructions for the judge to give to the jury, the purpose of the instructions being to make clear to the jurors what is the law on which they are to base their decision. The arguments of the attorneys respecting these instructions are conducted in the judge's chambers. When a list of in- structions has been agreed upon, the judge reconvenes the court and reads them to the jury. (9) The attorneys for each side then make their closing arguments to the jury. The jury retires to deliberate on the case and, when it has reached a verdict, notifies the judge who reconvenes the court and has the verdict read in open court. (lo) Usually the defeated party will file a motion for a new trial, or will move for a judgment "n.o.v." (see Glossary). If a motion is overruled, an appeal may then be taken to a higher court, perhaps on a writ of error. The same degree of orderliness in proceeding is seen in the conduct of a criminal case, although it naturally has important variations in certain details. (1) A criminal action may begin with a grand jury indictment, the filing of an information by the prosecuting attorney, or "upon the relating" of a com- plaint by a private party. (2) A preliminary hearing, unless waived, will then be held by an examin- ing magistrate (e.g., a justice of the peace in many states). This hearing is to determine whether a crime has been committed, whether there is reasonable evidence to indicate that the accused person may have committed the crime, and what the amount of the bail should be. A formal arraignment-advising the accused of the charges against him and entering his plea of guilty or not guilty-usually concludes such preliminary hearings. (3) A variety of pleas may then be submitted by the defense: pleas chal- lenging the jurisdiction of the court, requesting abatement of the charges, and the like. These will be argued before the judge in open court. (4) Once these pleadings are disposed of, the case may go to trial, following in general steps 4-10 outlined for a civil suit. 537 538 Appendices Appeals follow a particular form prescribed by the laws applicable to that particular jurisdiction. Essentially the appeal is based upon an allegation of some error or failure of the trial court--denial of a particular motion, overrul- ing of certain exceptions, dismissal of a suit, wrong instructions to the jury, and the like. The appellate court may admit the case for review, or it may deny the request. In instances where an important question of law is concerned, both sides and the trial court itself may seek an opinion from the higher court; sometimes, in fact, the court may be asked to rule on a specific point at issue-usually by handing down a declaratory judgment-before a trial pro- ceeds in a lower court. It is in the opinions of the highest courts respecting the nature of the law itself-frequently expressed in obiter dicta-that case law assumes its greatest importance, and upon the most recent and best reasoned arguments of these courts most modern Anglo-American jurisprudence is based. Glossary The following terms are selected as the most important or most frequently used in the materials selected for this book. For other legal terms or for an elaboration upon these definitions, consult a reference such as Black's Law Dictionary (St. Paul, 4th ed. 1951). action-any proceeding in a court of justice. affidavit-a sworn statement of facts taken before an officer of a court who is au- thorized to administer such an oath. affirm-the action of a higher court upholding the ruling or judgment of a lower court which has been brought before it for review. answer-the formal statement by a party in a civil suit against whom an action has been brought. appeal-the formal complaint to a higher court of an error or an injustice done to the party in a lower court's action on a case before it. appellant the party bringing an appeal; see appellee. appellee-the party against whom the appeal is brought. Note that the appellant and appellee in a particular case may be the opposite of the plaintiff and de- fendant (q.v.) in the original trial of the case. To distinguish the parties more clearly, courts sometimes refer to the party bringing the appeal as the plaintiff in error, and to the appellee as the respondent in error. case-a general term for any action brought before a court of justice. cause-sometimes used rather loosely as a synonym for case (above). More prop- erly, the ground or basis for the action. certiorari-Latin, "to inform." The formal writ issued by a superior court requir- ing a lower court to present it with the complete record of a case being brought before the superior court for review. charge-the formal accusation in a criminal case; more generally, any statement made by a party bringing an action. citation-the reference to a specific case or to cases being submitted in substantia- tion of an argument or opinion. civil action-in Anglo-American jurisprudence, any action between private parties, or between a private party and the state relating to issues not affecting the criminal or public law. code -a collection of the statutes currently in force within a particular govern- mental area (city, state, nation), classified under appropriate subject-headings. commissioner-an officer of the United States District Court or of certain state supreme courts, who may hear the arguments on certain cases and recom- mend an opinion to the court. common law-in its most general sense, law which is derived not from written 539 statutes but from usages and customs of long standing and from court opin- ions recognizing and enforcing such usages and customs. See Note on Legal Procedure. complaint-in civil actions, the formal opening of a suit by one party against an- other, the first party being called the plaintiff or complainant. In criminal actions, a specific charge against an individual, duly filed with a magistrate having jurisdiction over such actions. counterclaim- a complaint or statement made by the person against whom a civil action has been brought (defendant) and arising out of the original charges by the complainant or plaintiff; the effect of a counterclaim is to make it pos- sible for the judgment in the case to be against the original plaintiff instead of being for or against the defendant. damnum absque injuria-freely translated, "damage without legal injury." An in- jury for which there is no legal remedy. declaration-a formal statement of the facts and circumstances giving rise to a legal action. declaratory judgment-an opinion by the court which simply states its under- standing of the meaning of a particular statute, without an accompanying or- der requiring some action. decree-the judgment of a court of equity (q.v.). de facto-freely translated, "in fact" or "in deed." A term used to describe a condi- tion which lacks a legitimate or legal basis but which must be accepted as a practical reality. The antonym, de jure, connotes legitimacy or legality. defendant-the party against whom a civil or criminal action has been brought. See also appellee above. demurrer-a formal challenge to the pleading made by the other party in a suit, to the effect that the pleading lacks grounds sufficient to constitute a legal ac- tion. due process-law in its regular and orderly course of administration. The term has come to describe a considerable volume of legal theory and practice relating to constitutional guarantees embodied in the "due process" clauses of the Fifth and Fourteenth Amendments. equity-in its general meaning, a remedial form of justice; that is, a branch of jurisprudence which may afford relief or action which the common law or statutory law does not cover-hence "equity" in the sense of being extraor- dinary in its actions is usually distinguished from "law" which is the formal administration of justice. See Note on Legal Procedure. estoppal-an impediment to legal action (e.g., prior conduct or statements which prevent a party from making or denying certain subsequent allegations). exception-a formal objection to a ruling of the court during the trial of a case; it is upon these exceptions that an appeal may be based. ex parte "from (one) side"; a judicial proceeding on behalf of one party at in- terest without notice to or contest by any other party. ex rel.-abbreviation for ex relatione, "upon the relating" (i.e., of a fact or series of facts) by an individual, after which the state will initiate an action in its own name but at the instigation of one having a private interest in the issue. Frauds, Statute of-a statute originally enacted in England in 1677 which has been Glossary 540 a model for similar statutes in many American states. Its purpose was to limit civil actions for frauds by ruling out cases based solely upon the recollection of individual witnesses without written evidence of the original agreement which allegedly had been violated. habeas corpus-literally, "you may have the body." A writ requiring officers detain- ing an individual to produce the detained person and give an accounting of his apprehension and detention. Because this writ has insured that individuals will not be detained for unreasonable lengths of time without formal charges being preferred against them, it has been universally regarded as the basis of civil liberty. indictment-the formal action of a grand jury charging a specific person with a criminal offense. information-the formal charging of an individual with a criminal offense by some agent other than a grand jury (e.g., the state's attorney). in invitum-literally, "against one unwilling"; proceedings against another party to which he does not consent. injunction-a formal order in which a court "enjoins" or commands a party not to commit a certain act. instruction-an advice given by the judge to the jury as to the law governing a particular case. An appeal of the case may be based upon instructions which are alleged to be in error. judgment-the decision of a court as to the proper outcome of a case. jurisprudence-the philosophy or science of law. libel-printed or written defamation; from libellus, a "little book" (i.e., a news- book). Limitations, Statute of-a generic term for statutes which prescribe a definite time limit within which a particular kind of legal action must be initiated. litigation-any judicial controversy. malfeasance-the wrongful doing of an act which the individual has no right to perform; see also misfeasance and nonfeasance. mandamus-literally, "we command"; the formal order of a court requiring a party to carry out a duty stipulated by law. media concludendi-freely, the steps or stages of a legal argument. misfeasance-the improper performance of a lawful act. motion-a formal request to a court for a ruling; upon the court's acquiescence or nonacquiescence in the motion, an appeal may be based. nisi prius-an archaic term for courts of original jurisdiction-that is, for courts which assumed jurisdiction "unless prior" (nisi prius) jurisdiction could be shown. nonfeasance-failure to do some act required by law. non obstante veredicto-"notwithstanding the verdict," sometimes abbreviated to n.o.v.; a motion (q.v.) to issue a judgment in favor of the party against whom the jury has returned the verdict, which may be done by the courts in certain civil cases where the judge is convinced that justice can be achieved only by such action. nonsuit-failure of a plaintiff to make out a case. obiter dictum-literally, "statement aside"; a dissertation upon a general principle Glossary 541 of law relating to a case at hand; these dicta, when pronounced by outstand- ing jurists or by high courts, are statements of jurisprudence which often are of much greater importance than the outcome of the case itself. opinion-the formal statement of an appellate court in its review of a case brought from lower court. per curiam-literally, "by the court"; an opinion given by the court as a body, without being identified with an individual jurist. per quod-literally, "whereby"; in libel, an injury based upon words used in cer- tain circumstances whereby they impart a defamatory meaning to an other- wise innocent statement. per se-literally, "in itself"; words which are defamatory under any circumstances (e.g., "murderer"). petition, petitioner-a formal written request to a court or other appropriate agency of government; the party making the request. plaintiff-the party initiating a civil action through the filing of a complaint (q.v.). pleading-the system of presenting the allegations of the several parties in a suit. private law-the body of jurisprudence relating to civil cases in which all parties are private individuals (i.e., the state is not a party in any way). proceeding-the conduct of a court session; or a court action to enforce certain rights or judgments. property-tangible or intangible valuables belonging to an individual; these may be actual goods or they may be rights attaching to goods and their possession. See Note on Legal Procedure. proximate cause-the fact or event which appears to have been the immediate reason for the injury. public law-the body of law relating to the duties and limits of authority of the government. See Note on Legal Procedure. quo animo-literally, "with what intention (or motive) "; the court's test of the sincerity of a charge or claim of a party to an action. ratio decidendi-the "root" or basis of the decision. relator-the party who "relates" or tells the facts upon which the state may initiate an action. remand-to send a case back to the lower court from which it was taken for review, usually with instructions as to what further proceedings should be taken. report-the text of a judgment or opinion in an adjudicated case. This is usually a verbatim text although it may be a digest either by the court stenographer or an unofficial reporter. replication-the reply made by the plaintiff to the defendant's answer to the origi- nal complaint. res judicata-literally, "the thing judged (or decided) "; the principle or issue which has been settled in a legal action. respondent-the party against whom an appeal or an equity action has been brought. The term co-respondent usually refers to the party charged with adultery in a divorce (i.e., equity) action. reverse-to annul the judgment of a lower court. Roman law-sometimes called civil law; the basis for the legal systems of most of western Europe and Latin America. See Note on Legal Procedure. Glossary 542 rule nisi-a judgment of the court which will become final unless (nisi) some cause can be shown why it should not take effect. show cause-to appear before a court or administrative body to give evidence as to why a particular judgment or rule nisi (see above) should not take effect. stare decisis-literally "to stand by the decisions"; i.e., to base a ruling on a current case upon the precedent established in a comparable case in the past. sui generis-literally, "of its own kind"; a principle of law which is unique, new, or without any appropriate body of experience relating to it. supersedeas-a writ issued by an appellate court to stay the proceedings in a lower court. supra-Latin for "above." tort-a personal injury for which damages may be recovered in a civil action. See Note on Legal Procedure. trespass q. c. f. (quare clausum fregit)-trespass "before he broke the close" or boundary of the property; an action for trespass without requirement of actual proof of illegal entry. verdict-the decision of a jury upon the trial of an issue. voir dire-old court French (i.e., borrowed from Roman law), "to see to speak [truth]." The preliminary questioning of a prospective juror or witness by a court. writ-originally a writing in the form of a letter, from a superior court or other authority directly to a party of whom the court is demanding some action. A writ of error is commonly issued by a higher court formally advising a lower tribunal of the reasons for reversing or amending the lower court's judgment. Glossary 543 Abbreviations The following abbreviations are among those most commonly used in the pres- ent text. Certain infrequent references within the opinions themselves may have been overlooked; consult an exhaustive table of abbreviations appended to a refer- ence such as Black's Law Dictionary (St. Paul, 4th ed. 1951) . Abb. New Cas. aff. Ala. A.L.R. Am. Dec. Am. Juris. Am. Rep. Am. St. Rep. Am. State Trials Ann. Cas. App. D.C. App. Div. Ariz. Ark. Atl. Black Bl. Com. Calif. Calif. App. cert., cert. den. C.J. or Corp. Jur. Colo. Conn. Cranch Dallas Del. ex. F.C.C. Fed. Fed. Register Fed. Supp. Fitzgibbon Fla. 544 Abbott's New Cases (New York) affirmed Alabama Supreme Court Reports American Law Reports American Decisions American Jurisprudence, a leading law encyclopedia American Reports American State Reports American State Trials American & English Annotated Cases District of Columbia Court of Appeals Reports Appellate Division, New York Supreme Court Arizona Supreme Court Reports Arkansas Supreme Court Reports Atlantic Reporter (note that whenever "2d" appears after the name of any report, it refers to the second series of volume numbers) Black's United States Supreme Court Reports Blackstone's Commentaries California Supreme Court Reports California Court of Appeals Reports certiorari (see Glossary); certiorari denied Corpus Juris, a leading law encyclopedia Colorado Supreme Court Reports Connecticut Supreme Court of Errors Reports Cranch's United States Supreme Court Reports Dallas' United States Supreme Court Reports Delaware Supreme Court Reports exhibit (i.e., in evidence) Federal Communications Commission Reports Federal Reporter Federal Register Federal Supplement Fitzgibbon's English King's Bench Reports Florida Supreme Court Reports Abbreviations F.T.C. Ga. Ga. App. G.L. Hardres H. Doc. How. Ia. id., ibid. Ida. Ill. Ill. App. Ind. J. Kans. K.B. Ky. La. L. Ed. L.J. L.R. L.R.A. Mass. Md. Mich. Minn. Misc. Miss. Mo. Mont. N.C. N.D. N.E. Neb. N.H. N.J. N.J. Eq. N.J. Misc. N.L.R.B. N.M. n.s. N.Y. N.Y.S. N.W. Ohio App. Ohio Op. Okla. 545 Federal Trade Commission Decisions Georgia Supreme Court Reports Georgia Appeals Reports General Laws Hardres English Exchequer Reports House Document Howard's United States Supreme Court Reports Iowa Supreme Court Reports ibidem (Latin, "the same") Idaho Supreme Court Reports Illinois Supreme Court Reports Illinois Appellate Court Reports Indiana Supreme Court Reports Judge, Justice Kansas Supreme Court Reports King's Bench Reports (English) Kentucky Court of Appeals Reports Louisiana Supreme Court Reports Lawyer's Edition of United States Supreme Court Reports Law Journal (English) Law Reports (English) Lawyers Reports Annotated Massachusetts Supreme Judicial Court Reports Maryland Court of Appeals Reports Michigan Supreme Court Reports Minnesota Supreme Court Reports Miscellaneous Reports (New York) Mississippi Supreme Court Reports Missouri Supreme Court Reports Montana Supreme Court Reports North Carolina Supreme Court Reports North Dakota Supreme Court Reports Northeastern Reporter Nebraska Supreme Court Reports New Hampshire Supreme Court Reports New Jersey Court of Errors & Appeals Reports New Jersey Equity Reports New Jersey Miscellaneous Reports National Labor Relations Board Decisions & Orders New Mexico Supreme Court Reports new series New York Court of Appeals Reports New York Supplement Northwestern Reporter Ohio Appeals Reports Ohio Opinions Oklahoma Supreme Court Reports 546 Ore. Pa. Pac. Pa. Super. P.L. & R. Peters Q.B. R., Rex, Reg. R.C.L. seq. S.C. S. Ct. S.D. S.E. So., South. Stat. West. S.W. Taunton Tenn. Tenn. App. Tex. Tex. Civ. App. Tex. Crim. Rep. U.S. U.S.C. U.S.C.A. Va. Vt. Wall. Wash. Wheat. Wise. W. Va. Wyo. Abbreviations Oregon Supreme Court Reports Pennsylvania Supreme Court Reports Pacific Reporter Pennsylvania Superior Court Reports Postal Laws & Regulations Peters' United States Supreme Court Reports Queen's Bench (English) Rex (king) or Regina (queen) Ruling Case Law, a law compendium sequentia (Latin, "the following) South Carolina Supreme Court Reports Supreme Court Reporter South Dakota Supreme Court Reports Southeastern Reporter Southern Reporter Statute of Westminster Southwestern Reporter Taunton's English Common Pleas Reports Tennessee Supreme Court Reports Tennessee Appeals Reports Texas Supreme Court and/or Commission of Appeals Reports Texas Civil Appeals Reports Texas Criminal Appeals Reports United States Supreme Court Reports United States Code United States Code Annotated Virginia Supreme Court of Appeals Reports Vermont Supreme Court Reports Wallace's United States Supreme Court Reports Washington Supreme Court Reports Wheaton's United States Supreme Court Reports Wisconsin Supreme Court Reports West Virginia Supreme Court of Appeals Reports Wyoming Supreme Court Reports Index access to public records, ch. iii administrative law, 10-11, 65-79, ch. xii- xiv; historical development, 557-565 advertising, anti-trust laws and, 385-405; errors in, 448-451; freedom of press and, 71-73; liability for false, 445-447; news- papers and, 443-445; of prices by em- balmers, 72-73; of services by dentists, 73; of tobacco products, 71-72; photographs used in, 249-2 52 Akron (Ohio) Beacon-Journal libel case, 233-234 Albuquerque (N.M.) Journal libel case, 129-130 Alien and Sedition Acts (1798), 8 Alien Registration (Smith) Act of 1940, 27-37 Alton (Ill.) Telegraph libel case, 113-114 American Newspaper Guild, in Morris Wat- son case, 65-79; unfair labor practices charged against, 411-412 American Newspaper Publishers Association, suit on "bogus" rule, 436-442 American Society of Newspaper Editors, 82 if., 95 anonymous political cartoons, 75-76 Areopagitica, 5 Arizona Daily Star (Tucson), suit on access to records, 95-96 Articles of War, 9 Asbury Park (N.J.) Sun, definition of "le- gal" newspaper, 463-465 Associated Press, anti-trust suit against, 358- 384; copyright suit against, 312-313; libel suits, 123-125, 204-206; National Labor Relations Board and, 65-79, 357; suit against KVOS, 332-335; suit against In- ternational News Service, 321-328 Atlanta Constitution libel case, 143-144; privacy case, 550-552 Atlanta Journal libel case, 152-154 Atlantic Monthly copyright case, 316-318 Atomic Energy Act of 1946, 81 Augusta (Ga.) Chronicle libel case, 154- 155 Baltimore Sun, National Labor Relations Board and, 406-407 baseball broadcasting, property rights in, 335-336 Bayonne (N.J.) Times and American News- paper Guild, 411-412 Beckley (W. Va.) Post-Herald, suit on ac- cess to records, 96-97 Binghampton (N.Y.) Republican-Herald li- bel case, 182-183 Black, Hugo, dissent in Associated Press anti- trust suit, 367-370; dissent in Beauharnais v. Illinois, 159; opinion in Los Angeles Times contempt case, 47-52 Blackstone, Sir William, definition of libel, 99; dictum on freedom of press, 8n; on truth as libel defense, 167-168; on con- tempt, 273 blasphemy (in libel), 102 "bogus" rule, see International Typograph- ical Union Boone County (Ark.) Headlight, Wage- Hour Act and, 418-419 Boston Herald-Traveler libel case, 191-192 Brandeis, Louis D., dissent in Milwaukee Pub. Co. v. Burleson, 342-348; on law of privacy (with Samuel D. Warren), 246- 248; reference to opinions of, 28-30 Bridgeport (Conn.) Herald libel case, 121- 123 Burton, Harold, dissent in Times-Picayune anti-trust case, 404-40 5; opinion in A.N.P.A. v. I.T.U., 436-441; opinion in Lorain Journal anti-trust case, 389-393 business problems, law and newspaper, ch. xiii, xv Calhoun, John, 9 California retraction statute, 235 if. Carroll (Ia.) Daily Herald, right to refuse advertising, 443-445 censorship, 9, 14, 19 Central Oregon Press (Bend, Ore.), suit on access to records, 91-92 "chain libel" suits, 231-234 547 548 Charleston (W. Va.) Mail libel case, 212- 214 Chicago Daily News libel cases, 144-145, 216-219 Chicago Inter-Ocean, anti-trust case, 362- 363 Chicago Record-Herald copyright case, 314- 316 Chicago Tribune, copyright suit against As- sociated Press, 312-313; libel case, 107- o08 Chinook (Mont.) Opinion libel case, 185- 187 circulation, interstate nature and taxation of, 454-458; management as private enter- prise, 451-453; misrepresentation of, 450 Clark, Thomas C., dissent in A.N.P.A. v. I.T.U., 441-442; opinion in Times-Pica- yune anti-trust case, 394-404 Clifford, Nathan, opinion in Pollard v. Lyon, 100 "clear and present danger," 20-21, 48-49 Coke, Sir Edward, opinion de Libellis fa- mosis, 4 Colorado, constitutional provision on truth as libel defense, 176; statute on misrepre- sentation in advertising, 451 Columbia (S.C.) Record libel case, 183- 185 comic strips, copyright notice in, 320-321 Committee on Public Information (World War I), 9 comment, see fair comment common law, Revolution and, 7 Communist Party, 26-37, 54-56 "confidence," right of, 285-287, 306-310 Congress, Continental, 17 Congress, 78-79 Constitution, Fifth Amendment, o10; First Amendment, ch. i, ii; Fourteenth Amend- ment, ch. i, ii contempt, Act of 1831 and, 8, 10o, 274; free- dom of press and, 47-54; generally, ch. ix; historical development of, 49-50, 272- 287; "in-court" and "out-of-court," 273 Cooley, Thomas, 15, 246 copyright, common law and statutory, 311- 312; generally, ch. x; historical develop- ment of, 311-314; nature of newspaper, 314-316; notice in, 318-321; statute of 1909 on, 313 Corona (Calif.) Daily Independent tax case, 63-65 Corpus Christi (Tex.) Caller-Times libel cases, 190, 233 Cosby, Sir William, 5-6 county clerk's records, access to, 91-92 county jail records, access to, 93-95 criminal libel, 16, 102, 105, 155-165 Index damages (in libel), 99, 105 Dearborn (Mich.) Independent, public no- tice advertising and, 475-481 defense to libel, fair comment as, 169-171, 207-234; generally, ch. vi, vii; "honest mistake" as, 171-172, 238-241; privilege as, 168-169, 185-206; retraction as, 234- 239; special pleas in, 241-244; truth as, 6-8, 166-168, 172-189 Denver Post libel case, 230-231 divorce records, access to, 96-97 Douglas, William O., dissent in Dennis case, 34-37; opinion in Craig v. Harney, 291- 293; opinion in Esquire case, 44-47; opin- ion Mabee v. White Plains Journal, 414- 416 Dunkirk (N.Y.) Evening Observer libel case, 219-221 economic issues in law, 10-11, 70-71, ch. xii-xiv editorializing, radio, see "Mayflower doc- trine" Eisenhower Security Order, 81-82 errors, liability in libel for, 139-140; liability in newspaper advertising for, 448-451 Erskine, Thomas, 3, 7 Espionage and Sedition Acts of 1917, 9, 79 Esquire (magazine) and Post Office, 43-47 fair comment, generally, 169-171, 207-214; on public officials, 214-219; on politics, 221-234; on sports, 219-221 Fair Labor Standards Act (1938), constitu- tionality of exemptions, 414-416; news- papers generally and, 412-414; "profes- sional" news writers and, 419-420; weekly newspapers and, 416-419 falsity (in libel), 104 Federal Communications Act (1934), 488 ff., 504 Federal Communications Commission, "Blue Book," 489; first "Mayflower doc- trine," 517-518; New York Daily News and, 51 1-516; "Port Huron doctrine," 504-508; "public service" ruling, 509- 511; second "Mayflower doctrine," 518- 526 Federal Radio Act (1927), 487 Federal Trade Commission, 385 iff. Fort Worth (Tex.) Press, access to informa- tion, 79-80 Fox, Sir John Charles, 272 Fox's Libel Act (England), 4 Frankfurter, Felix, concurring opinion in As- sociated Press anti-trust suit, 371-373; dissent in Craig v. Harney, 293-295; dis- sent in Los Angeles Times case, 52-54; opinion in Beauharnais v. Illinois, 156- 158 Index freedom of press, generally, ch. i, ii, xii; his- torical development of, 3-11, 59-61 gambling news, wire services and, 74 Glendale (Calif.) News-Press libel case, 216-217 group libel, 103, 144-149, 156-162 Hamilton, Alexander, 7, o8 Hamilton, Andrew, 6 Hand, Learned, opinion in Associated Press anti-trust trial, 366; opinion in Public Ledger v. New York Times, 328-330 handbill ordinances, 38, 41, 57-58 "hatred, contempt, ridicule" (in libel), 104 headlines in libel, 135-139 Henry VIII, 4 Holmes, Oliver W., dictum in Peck v. Trib- une, 104; dissent in Abrams case, 21-25; dissent in Toledo Newspaper case, 283- 284; opinion in I.N.S. v.A.P., 327-328; opinion in Patterson case, 277-278; opin- ion in Schenck case, 2o; reference to opin- ions of, 28-30 "honest mistake" (in libel), 167, 171-172, 239-241 Hughes, Charles E., opinion in Defonge v. Oregon, 25-27; opinion in Lovell v. Grif- fin, Ga., 38-40; opinion in Minnesota "gag" law case, 12-19 Idaho statute on frequency of public notice, 482 identification (in libel), 125-128 Illinois "group libel" statute, 1 6; statute on proof of publication of public notice, 482-483 income tax publicity, 79 Indiana Farmers' Guide (magazine) tax case, 456-458 intent (in libel), 23, 35 International Copyright Union, 312 International News Service, suit by A.P. against, 321-328 International Typographical Union, "bogus" rule and, 436-442; Taft-Hartley Act and, 420-436 Iowa statute on radio defamation, 508-509 Kansas City Star, Sunday labor laws and, 453-454 Kent, James, definition of libel, 99-100oo Knoxville (Tenn.) Journal libel case, 114- 117 KVOS, Inc., A.P. suit against, 332-335 Labor-Management Relations Act (1947), 421-442 labor relations, newspaper, ch. xiv Lake Charles, La., libel prosecution, 171 Leavenworth (Kans.) Daily Commercial libel case, 172-176 Letters of Junius, 170 libel, common law of, 6; damages in, 99; definitions of, 104; freedom of press and, 12 ff., 101 if., 166-172; generally, ch. iv-vii; historical development of, 98-105, 166-172; identification in, 125-128; in- tent in, 23, 35; malice in, 103-104, 149- 155; of groups, 103, 144-149, 155-162; of municipality, 107-108; on dead (crim- inal), 162-163; per quod, 123-125; "per se, 109-123; publication in, 130-134; state statutes, 8 See also criminal libel, defense to libel littering streets, handbills and, 41 Littledale, Joseph, 168 Locke, John, 5, 7 de Libellis famosis, opinion, 4 lottery information, 8o, 352-354 Lorain Journal anti-trust case, 389-393 Los Angeles Examiner privacy case, 269-271 Los Angeles Times contempt case, 47-54, 273, 284-285 Madison, James, 7, 15, 16 malice (in libel), 103-104, 149-155 Maryland "confidence" statute, 285-286; "gag" law, 296-300 "Mayflower doctrine," first, 517-518; sec- ond, 518-526 McClatchy Newspapers (Calif.) libel case, 214-216 McReynolds, James C., opinion in Wash- ingtonian v. Pearson, 318-320 Meridian (Ala.) Star advertising case, 448- 450 Miami Herald contempt case, 287-290 Michigan Digest, suit on access to records, 90-91 Milwaukee Leader, second class mail privi- lege and, 342-348 military news security, 79-80 Milton, John, 5, 39 Minneapolis Times privacy case, 266-269 Minnesota "gag" law, 11-19 Mobile (Ala.) Register, suit on access to records, 93-95 Moscow (Ida.) Daily Star-Mirror, public notice and, 472-475 Murphy, Frank, dissent in Associated Press anti-trust case, 380-384 Nashville Banner libel case, 136-138 National Labor Relations Act, Associated Press and, 65-79; newsboys and, 407- 411; newspapers generally and, 406-407 New Orleans Item contempt case, 295-296; libel cases, 106-107, 198-200 549 550 New Orleans Times-Picayune anti-trust case, 394-404 New York American contempt case, 306- 308 New York constitution on libel and press freedom, lo1 New York Daily News, F.C.C. and, 511-516 New York Evening Post libel case, 192-193 New York Times copyright case, 328-33o; libel case, 139-140 New Yorker (magazine) privacy case, 263- 265 nominating petitions, access to, 54-56 notice (in copyright), 312, 320-321; see also public notice obscenity statute, freedom of press and, 348-351 Ohio statute on privilege, 191 Oregon criminal syndicalism law, 25-27 Paine, Thomas, 7 Parkersburg (W. Va.) Sentinel libel case, 197-198 Parliament, right to report, 77-78 Patterson, Thomas, contempt case of, 277- 278 Peck, James H., impeachment case of, 273- 274 Pennsylvania Newspaper Advertising Act (1939), 462 Philadelphia Bulletin libel case, 109-110 Philadelphia Public Ledger copyright case, 328-330 Philadelphia Record, suit on circulation dis- tributorship, 451-453 photographs, contempt in, 304-306; gen- erally, lo; privacy in, 248-253, 265-271; libel in, 140-141 Pitney, Mahlon, opinion in I.N.S. v. A.P., 321-327 political cartoons, anonymous, 75-76 poll books, access to, 88-89 "Port Huron doctrine," 504-508 Portland Oregonian libel case, 242-244 Post Office, Appropriations Act, 1912, 338 ft.; authority over mailable matter, 44-45, 342-348; Classification Act (1879), 43-47; generally, 9; qualifica- tions for second class mail and, 337-342 pragmatism, law and, 27 Printer's Ink "model" advertising statute, 445-447 privacy, Brandeis and Warren on, 246- 248; definition of, 253-261; generally, ch. viii; historical development of, 245-253; news situations and. a61-271 Index privilege (in libel), absolute, 168; condi- tional or qualified, 168; definition of, 189-190; generally, 168-169; judicial proceedings and, 190-197; official pro- ceedings and, 197-201; quasi-official pro- ceedings and, 201-206 property in news, generally, ch. x Providence (R.I.) Journal, suit on access to records, 86-88 public notice, "court newspapers" and, 469- 472; frequency of notice, 482; generally, ch. xvi; historical development of, 459- 462; "legal newspapers," 462-465; lia- bility for cost of notices, 483-484; "offi- cial newspapers," 472-481; proof of pub- lication of, 482-483; responsibility for, 481-482; qualifications for, 465-469 public officials, libel of, 13, 18 public records, access to, 89-90; definition of, 83; policy on, 82 "public service responsibility" in radio, 488, 509-516 public trial, press representation at, 84-85 publication, in copyright, 312, 316-321; in libel, 130-134; in public notice, ch. xvi radicals, free speech for, 20-37 radio, censorship of political broadcasts, 504- 509; defamation in, lo3, 492-504; edito- rializing in, 517-526; generally, ch. xvii; historical development in law of, 487- 490; interstate nature of, 490-492; "pub- lic service responsibility" of, 488, 509- 516; right to report Congress, 79 Raleigh (W. Va.) Register, suit on access to records, 96-97 rape, news of, 351-352 Reader's Digest (magazine) libel case, 125 Reed, Stanley, opinion in Pennekamp v. Florida, 287-290; opinion in Winters v. New York, 348-351 relativity, law and, 27 religious freedom and freedom of expression, 58 retraction (in libel), 172, 234-239 Richmond (Va.) News-Leader libel case, 187-189 right of reply, 167, 241-244 Roberts, Owen J., dissent in Associated Press anti-trust case, 373-380; opinion in "handbill" cases, 40-43; opinion in Mor- ris Watson case, 66-68 Rock Hill (S.C.) Evening Herald libel case, 241-242 Rocky Mountain News (Denver) contempt case, 277-278 Russian Revolution, 21 fif. Rutledge, Wiley B., opinion in N.L.R.B. v. Hearst Publications, 407-411; opinion in Index Oklahoma Press Pub. Co. v. Walling, 413-414 St. Louis Globe-Democrat lottery case, 352- 354 St. Louis Post-Dispatch contempt case, 302- 304; libel case, 201-204 St. Louis Star-Times, Post Office and, 8o De Scandalis Magnatum, Statute, 4, 101 Schenectady (N.Y.) Union libel case, 231- 233 Scroggs, William, 4 Seattle Times libel case, 119-121 Security Orders, Eisenhower, 81-82; Tru- man, 81 Sedition Act (1917), 9 Sedition Act (1798), 31 seditious libel, 101-102 Selective Service Act (1917), 20 Sharon (Pa.) Herald, public notice and, 483-484 "Shenandoah" (dirigible) libel case, 207- 212 Sherman Anti-Trust Act (1890), 367 if., 389 ft., 394 ft. slander, distinguished from libel, 103' Smith Act. See Alien Registration Act "sociological jurisprudence," 10 Social Security, information policy on, 79, 83 South Bend (Ind.) Tribune tax case, 454- 456 Spanish-American War, news policy in, 9 sports broadcast, property in, 335-336 Star Chamber, Court of, 4 Statute of Limitations, 130 Stone, Harlan, opinion in Fisher's Blend case, 490-492 Story, Joseph, 7, 8 suicide, libel in news of, 128-130 Sunday labor laws and press, 453-454 suppression of publications, 13 Sweeney, Martin L., "chain libel" suits, 231-234 Taft-Hartley Act. See Labor-Management Relations Act Tampa (Fla.) Tribune libel case, 141-143 tax records, access to, 86-88, 97 taxes on newspapers, 58-65, 454-458 Time (magazine) libel cases, 111-113, 130- 134; privacy case, 256-259 Toledo (Ohio) News-Bee contempt case, 278-284 Topeka (Kans.) State Journal libel case, 138-139, 221-227 551 trade libel, 104-105 Trading With the Enemy Act (1917), 9, 79 "trial by newspaper," 275 Truman Security Order, 81 truth, alone as defense, 172-177; generally, 167-168; "plus good motives," 177-179; privilege and, 185-189; "reasonably near" facts, 179-185 unfair competition in news practices, 313- 314, 321-336; in newspaper circulation and advertising, ch. xiii United Press libel case, 179-182; suit on access to court records, 85 Valdosta (Ga.) Press libel case, 151-152 Valente, Louis A., N.Y. Sp. Ct., ruling on court records in sex case, 85 Vinson, Fred, opinion in Dennis case, 27-30 Wage-Hour Act. See Fair Labor Standards Act Wagner Act. See National Labor Relations Act Washington (D.C.) Times libel rule, 227- 230 Washington statute on criminal libel, 162 Washington, George, libel on memory of, 162-163 Washingtonian (magazine) copyright case, 318-320 Watson, Morris. See Associated Press anti- trust case. Webster, Daniel, 9 White, Edward D., opinion in Lewis Pub. Co. v. Morgan, 338-342; opinion in Toledo Newspaper case, 278-284 Wichita (Kans.) Beacon advertising case, 446-447 Wigmore, John Henry, 286 Wilkes, John, 7 wire news, liability for libel in, 141-144 Woodfall, Henry, 7 World War I, 8-10 World War II, 77 Wyoming Eagle and Wyoming State Jour- nal (Cheyenne) libel case, 177-179 Yankwich, Leon, District Judge, opinion in Buxbom v. Riverside, 57-58; opinion in McComb v. Dessau, 416-418 "yellow journalism," 1o, 85, 245-246 Zenger, John Peter, 5-7 This book is a preservation facsimile produced for the University of Illinois, Urbana-Champaign. It is made in compliance with copyright law and produced on acid-free archival 60# book weight paper which meets the requirements of ANSI/NISO Z39.48-1992 (permanence of paper). Preservation facsimile printing and binding by Northern Micrographics Brookhaven Bindery La Crosse, Wisconsin 2009