THE subject of libel and its restraint by legal penalty is one of immense difficulty both in England and the United States, owing to the rôle which has been assigned in both countries to public opinion as represented by, or embodied in, the newspaper press. Restriction on the free expression of opinion through the press and on the criticism in writing of public officers is associated in all the best political traditions of the AngloSaxon race with attempts to establish or maintain arbitrary government. As a consequence of this it has been the policy of legislation, ever since the triumph of what may be called liberalism, — that is, in this country ever since the Revolution, and in England ever since 1815, — to encourage the press not to be afraid; to speak its mind freely about persons and things, and indeed, one may almost say, to take great risks in the matter of libeling, both as a sign and guarantee of freedom. An enumeration of the changes made in the law in both countries within the last century, in the direction of protecting and even stimulating newspaper boldness, would make it appear clearly enough that the press is not solely to blame for its own faults in the matter of excess. The tendency to excess has been fostered, and the proper legal treatment of libel made more difficult, in other ways also. As
the influence of authority, whether in the form of religious belief or of high social or official station, has grown weaker, we have come more and more to rely, for the sanction of our social morality, on the strong concentration of public opinion. This concentration of opinion against violators of received social morality is wrought mainly by the newspapers, and in fact, not to put too fine a point upon it, consists largely in what is familiarly known as “ newspaper attacks.” Thousands, if not millions, of good men sleep more comfortably because they think the newspapers are looking after the bad men, or at all events after the men they themselves do not like. Then, too, the newspaper press is placed, in democratic countries which have adopted the system of frequent elections and short terms of office, in a position of great responsibility. It has been charged in these countries with that function of inspection and investigation towards public servants which seems to be called for under all governments at the hands of some person, or body of persons, outside the regular administrative machine. Under the old monarchical régime, the sovereign discharged, or was supposed to discharge, the duty of seeing that “ none but good men got into office,” to use a now familiar phrase, and that men in office did their duty. This task, which is probably as important as any that a civilized society is called on to provide for, has in this country and in England been turned over to the newspaper editors, who are, in reality, a body of volunteer inspectors, who have to earn their bread by what we may call outside work, while serving the public. That is to say, they have to live by collecting and selling news, while devoting a large part of their time to watching and reporting on the character and conduct of public officers, from legislators to policemen. The contrivance is undoubtedly a clumsy one, and the work only indifferently done, but it is done under great difficulties, and no other mode of doing it has yet been thought of.
Copyright, 1880, by HOUGHTON, MIFFLIN & Co.
The only really efficient examination of the character of candidates for office is made by the press, and the most powerful check, though not by any means the only one, in official misconduct is the inquisitiveness and railing of the newspapers. This is perhaps not an admirable system of inspection, much less an ideal one, but it is the only one as yet devised, and it may be said that without it popular government by frequent election would hardly be possible in our time. Newspapers, however, could not, or would not, do this work if kept under close legal restraint. As a matter of fact, they are virtually exempt by law or opinion from all check in the matter of criticism of official persons. The public virtually says to them, “ Say everything that comes into your head about men in office ; some of it, at least, will probably be true, and our interest will be served by having the truth come out in any shape.”
So that, for one reason or another, there is probably no legal line more difficult to draw than the line between what we call the freedom and the license of the press. A timid press would be useless as an exposer of abuses ; a licentious press, on the other hand, causes great individual suffering. Three generations of lawyers and statesmen, here and in England, have been trying to make up their minds which of the two they prefer, and in what manner they can best secure the object of their choice, but without much success.
We have talked thus far as if all libeling were done by newspapers. For the purposes of this paper, at all events, we will assume this to be true. Slander, or spoken defamation, contains in the eye of the law the same ingredients as a libel, but to become a libel it has to be written or printed and put in circulation. It once figured prominently in the law reports, but is now very seldom the subject of legal pursuit. People care comparatively little what evil is said of them, as long as “ it does not get into the papers,” as the phrase is.
So much of whatever libeling is done in our time is done in the newspapers, and it is so necessary, to make a libel effective, that it should appear in the newspapers, that, although, strictly speaking, it may appear in a book, pamphlet, placard, or picture, the word libel conveys to most minds the idea of an attack on somebody in a newspaper, and nothing else. Some, indeed, whose antipathy to the press is unusually strong, often think of newspapers as simply instruments for the dissemination of libel, and of editors as persons who make their living by concocting libels. In fact, when we consider the enormous increase in the number of newspapers which has taken place within the last half century, and the extent to which vast communities now rely on them for nearly all they know or wish to know of what goes on in the world outside private houses, one is forced to admit that to no art has the progress of invention and the growth of population made such additions as to the art of holding persons up to public odium or contempt. Down to the beginning of this century, the power of any one person over any other person’s reputation or feelings, through what he might say or write about him, was very trifling. It could be exercised over only a very small area and within hearing of a very small number, and as a matter of fact a man could readily get rid of a damaged reputation by moving away a short distance.
Now what is a libel ?
A libel, the books say, is a censorious or ridiculing writing, picture, or sign. It is a malicious writing, printing, or sign, intended to blacken the memory of the dead, or expose the living to hatred, contempt, or ridicule. It is a publication which has a tendency to injure a man’s reputation, or disgrace or degrade him in society, or lower him in the esteem and opinion of the world ; to hold him up to scorn, or make him infamous or odious ; to deprive him of the benefits of public confidence and social intercourse, or impeach his honesty, virtue, or integrity, or publish his natural defects. In fact, if we were to infer the amount of protection against libel afforded by the law from the comprehensiveness and liberality of the legal definitions of libel, we should conclude that this protection was complete, and that no one was ever libeled with impunity. In truth, however, there is probably no injury to which man is exposed in civilized society from which the law does so little to protect him. There are two ways known to American and English jurisprudence of punishing a libel : you may either procure the indictment of the libeler on a criminal charge, or you may sue him in a civil action for damages. The theory on which the law grants you your remedy in either of these courses is very instructive. If you resort to the criminal charge, the law punishes the libeler not on the theory that his crime consisted in hurting your feelings and lowering you in the estimation of your neighbors, but on the theory that he provoked you in a manner which might have led you to commit a breach of the peace, that is, to assault him or challenge him to fight. In other words, the proceeding is in principle simply a means of preventing a brawl.
This was undoubtedly an advance on the earlier view, which did not regard slander as a fit subject for judicial cognizance at all, but left the slandered person to punish it by personal chastisement, and which still lingers as a curious survival of barbarism in nearly every civilized country, except England and the Northern States of the Union. At the South there is to-day a strong feeling that there is something unmanly or discreditable in seeking redress for libel in the courts, instead of challenging the offender to single combat. In France a similar sentiment prevails. In fact, failure to punish a libel by combat seems, with a large portion of French society, to do a man more damage than any libel, however malignant. Mr. Hamerton, the well-known author and painter, describes, in a recent number of Macmillan’s Magazine, his experience in seeking redress for a libel on him, printed in a French newspaper, in the city near which he was residing. He called on “a wise old lawyer ” about bringing an action for libel. Said the lawyer at once, “ Nobody expects you to fight the editor ; it would be doing him far too much honor; but you might, perhaps, challenge one of the highly respectable gentlemen who keep the paper agoing with their money, and pay the editor to do their dirty work. You might be able to get at one of them, I dare say, if it were agreeable to you.” Mr. Hamerton thereupon observed that “ dueling was not much in his line,” and that “ Englishmen did not generally fight duels.” “ This,” he adds,
“ was frank but imprudent. The lawyer looked at me seriously and sadly. A gentleman who was not strongly disposed to fight a duel could scarcely, I perceived, expect to maintain a very high place in his esteem. . . . After a while he recovered from the shock, and said, ‘ Well, nobody expects you to fight with that rascally editor, at all events.’ ”
That a man of good standing should wish to consult him about legal proceedings for libel did not, lawyer though he was, at first occur to him. Of course, the theory on which the indictment is formed makes little difference, as long as it is laid before a jury. In practice the jury deals with the offense as a simple injury, without considering, or being called on to consider, whether it was likely to have provoked a breach of the peace or not. But there is nevertheless a strong disinclination to punish libel as a criminal offense. Grand juries are reluctant, except in cases of great gravity and in which manifest and tangible injury has resulted, to find bills for libel. Libelers whom it is considered worth while to prosecute are often, in fact in most cases, persons with greater or less claims to social or political consideration, and the public is therefore somewhat shocked if they are sent to jail; and juries do not like to send them to jail. The punishment seems too great for the crime. In England, during the past year, one of the new class of newspapers called “ society journals,” which make a specialty of collecting social tittletattle and scandal, went so far as to make direct and very revolting attacks on two women of considerable prominence in the fashionable world, and the editor, who was an obscure adventurer, was promptly prosecuted and sentenced to a term of imprisonment with hard labor. The success of this proceeding caused forthwith a large crop of criminal prosecutions for libels of a comparatively trifling character. The consequence was a proposal — though I do not know whether any action has as yet been taken in the matter, or not — to make the approval on the part of the attorney-general necessary to the institution of criminal proceedings for libel. Here, where such proceedings are always in the hands of public prosecutors, and
where grand juries take on themselves more responsibility in the matter of finding hills, this danger of abuse of criminal prosecution is not likely to arise. In fact, the tendency is in the other direction. It may be said, indeed, that criminal treatment of libel is unsuited to our manners. Criminal proceedings must, in every country in which the jury trial exists, owe their efficacy largely to popular sympathy with the victims of a wrong. Now' the great difficulty in punishing assaults on reputation in all Anglo-Saxon countries, and more especially in this, is that sympathy with the victims of this particular wrong is very deficient. One would not infer this from the amount of denunciation of slander and the amount of lamentation over the license of the press one hears in every direction, and most people will doubtless, at first blush, be inclined to deny it. But a little close observation of some of the phenomena of libeling will put it beyond question. When a man in good standing — and he is the only man who feels disposed to punish libel —finds his character assailed in a newspaper, his pain and mortification, unless he has been long before the public and has been hardened by it, are apt to be intense. He often suffers more, in many cases vastly more, than if he had been robbed of property. He fancies that everybody who knows him has read the libel, and lias been deeply impressed by it. As lie walks down the street he thinks that every eye is turned on him as the person who has been shown up by the Argus or the Cerberus. He hates to have his family see the article. He winces terribly when he meets anybody who refers to it. As a matter of fact, however, his friends care little or nothing about it. If the attack is very vituperative, they are amused by it. Unless it is supported by something in the way of documentary proof, their opinion of him is not affected by it. With the general public, who do not know him, it has simply had the effect of making the paper in which it appeared seem “spicy.” It will very likely lower him in their estimation in some degree, but it makes nobody feel sorry for him. Those whom he consults as to whether he ought to take any notice of it are generally unanimous in advising him not to do so.
Finally, let me say, — and this is a suggestive fact, — some of the most prominent newspapers in the country have laid the foundation of enormous commercial success by wholesale indulgence in libel; they have found, in other words, steady and persistent attacks on the reputation of individuals to be the best mode of gaining the ear of the public and extending their circulation. There could not be a more striking illustration of the feebleness of the support which the judicial machinery for the punishment of libel receives from public opinion. So that libel may be said to be the one wrong to which an individual is exposed in civilized life in which keenness of suffering does not count, either in the eye of the law or of the public, as an aggravation of the offense, and does not diffuse a vivid sense of common danger. Anglo-Saxon law, as well as AngloSaxon politics, has never taken much account of sentimental grievances ; that is, of injury to the feelings. It cares for property greatly, and attacks on property move an Anglo-Saxon community to any needful extreme of severity in repression. It feels the deepest sympathy with the man who loses it, but it is unwilling to concern itself much about any man’s mental suffering, unless he can show that he is out of pocket by it. It requires that if he is hurt, even in the deepest recesses of his nature, he shall appraise his loss in dollars and cents before the law will bestir itself in his behalf. This appears very markedly in the other remedy for libel, the civil action. If a libel attacks a man in his professional or official capacity, the law presumes that he suffers pecuniary damage from it. If it accuses a doctor of want of skill, the law assumes that he will lose patients by it. If it imputes ignorance to a lawyer, the law assumes that he will lose clients by it. If it impeaches the integrity or capacity of a public officer, the law assumes that he will suffer in his authority or influence, or in his chance of reëlection or reappointment or promotion, and accordingly awards him pecuniary compensation, the amount of which it leaves the jury to fix ; though for the reason I have already given public officers very seldom seek redress in this way.
Supposing, however, that the libel does not touch you at all in any professional capacity, or injure you in your business, but simply assails your character as a man or woman, and yet does not charge you with an indictable offense, — that is, if it simply goes to make you ridiculous or odious, or make you “ the town talk,” in a way which is not likely to have any direct effect on your success in your calling, or on your authority or efficiency in some public station, — the law calls on you for proof of what is called “ special damage.” It asks yon how much, if anything, you have lost in consequence of the libel, and holds that if you cannot show that you have suffered any pecuniary loss, or the equivalent of pecuniary loss, through the libel, you are entitled to no compensation, and the libeler deserves no penalty. The law reports and the text-books on slander and libel are full of the strongest assertions of the doctrine that the law protects property, not reputation. “ Special damage,” says one of the authorities (Townshend on Slander and Libel, § 198), “ consists in the loss of marriage, loss of consortium of husband and wife, loss of emoluments, profits, customers, employment, or gratuitous hospitality, or being subjected to any other inconvenience or annoyance occasioning or involving an actual or constructive pecuniary loss.” “ All the cases,” said the judges in an action brought by a woman, “ proceed on the assumption that the plaintiff has sustained some pecuniary loss in consequence of the slander. It is not sufficient that she has fallen into disgrace, contempt, and infamy, and lost her credit, reputation, and peace of mind, or the society or good opinion of her neighbors [as a consequence of the slander], unless she has been injured in her estate or property.” (Woodbury v. Thompson, 3 N. H. 194.)
It has been held, too, that where a woman was shunned by her neighbors, and turned out of a moral reform society, she had no remedy, because she could show no “ special damage.” It has been held in another case, where a woman fell sick under a libel, that “ as the law gives no remedy for outraged feelings or sentiments, a sickness induced by mental distress in consequence of the language published, followed by inability to transact business, or expense for medical attendance, does not constitute special damage,” and that for such a libel no action would lie. (Terwilliger v. Wands, 17 N. Y. 54.) I have said already that editors are in popular estimation the great libelers of the day. There is probably no class of the community so much libeled, — of course by brother editors, — but they seldom or never sue for it. Indeed, an editor would have very little chance before a jury, in an action against a newspaper, so deeply rooted is the popular belief that his proper remedy is to libel back. There is one case on record, however, in which an editor did try to get damages for having his paper called a “ low, ignorant, and scurrilous journal.” This language, one would think, must surely be actionable, as touching his professional standing, yet the court ruled otherwise. But it held also that to say that the circulation of his paper was small was actionable. So that it seems to be law that you do not harm an editor by saying that he publishes a paper not worth reading, and which ought not to be read; but that if you say that very few people read it you have to pay something by way of compensation. (Heriot v. Stuart, 1 Esp. Cas. 457.) As if to make assurance doubly sure, the law also holds that the mere apprehension of special damage shall not entitle you to redress. It is not enough that the libel makes you fear that it may cause you damage, or that disinterested persons, like a jury, may consider your fear well founded. The damage must have actually occurred as the direct and provable consequence of the defamatory language of the libel.
It is to be said for this special-damage rule that it prevents the bringing of suits for trifling causes, and in the days before libel, when people sometimes brought each other into court for mere street abuse, it may have been very useful in saving the time of judges and juries from being wasted on trumpery quarrels. But the invention of the daily newspaper has introduced an aggravation of libel, or rather a new form of libel, for which the special-damage rule bars all remedy ; I mean the aggravation which results from repetition. There are a thousand taunts, jeers, imputations, insinuations, and epithets which, if only flung out against a man once in the columns of the newspapers, will cause him, if a man of sense, little concern, and will attract but little notice, but which, if repeated day after day, or even very frequently, will occasion him and his family the acutest suffering, and end by making him a conspicuous object of public ridicule or odium. Almost every reader must have known of such cases. I knew of one, a few years ago, in which a citizen of high character and standing was tortured in this way for weeks, and had finally to beg for mercy from the editor through the intervention of a common friend. The thing said of him was too trifling for notice, had it been said once, but when reproduced every second or third day it became persecution of the most intolerable kind; and yet, as the law now stands, it would not have supported a civil suit for damages, and would have seemed absurd if made the basis of an indictment. It would be easy to illustrate much more fully this branch of the power over individual comfort possessed by the press, and which it can and does exercise without bringing itself within the operation of the law of libel; but every reader of the newspapers can do it for himself. In fact, we see every week cases in which private individuals are injured in their reputation, — to recur to the legal definitions of libel which I have already quoted, — or lowered in the esteem and opinion of the world, or made ridiculous by quickly repeated and widely circulated charges, or epithets, or imputations, of which the law, as it now stands, will take no notice, and which inflict no appreciable material damages. In Scotland, and I believe in every country whose jurisprudence is based on the civil law, the special-damage rule does not exist. There, to borrow Lord Karnes’s words, “ scandal, or any imputation on a man’s good name, may be prosecuted even when the scandal is of such a nature that it cannot be the occasion of any pecuniary loss. It is sufficient to say, ‘ I am hurt in my character.’ ” Another authority says that whatever causes “uneasiness of mind” is actionable in Scotland, and I think this is the rule all over the Continent; but on the Continent libel is almost exclusively dealt with as a public wrong, like an assault. On the Continent, the legal immunity believed to be enjoyed by the newspapers in this country excites surprise so great that a distinguished French publicist 1 has described the American press as “ despotism tempered by assassination ; ” his belief being that the only real remedy against libel enjoyed by
the American citizen lies in the murder of editors. He relates, in illustration of this, that it is not uncommon for American newspaper offices to have a memorial marble plate over the door, inscribed with the names of the editors who have fallen in fight under the weapons of persons whom they have slandered, together with the date of each tragedy. The state of things in France is not much better than he imagines it to be here ; that is, the sword is still relied on there as the main defense, not only against attacks on character, but against persistent ridicule, or personal depreciation. That it is very effective in keeping down a mode of attack to which our newspapers resort much there is no question. A newspaper in France rarely ventures pertinaciously to plague or tease a man. Nevertheless, the law does afford powerful protection to those who are not disposed for single combat, and it contains some provisions which have a certain value for us in the way of suggestion. As a general rule, Continental European legislation concerning the press is not of much value to Americans or Englishmen, by way either of suggestion or comparison, for the simple reason that it is all based on, or has grown out of, the theory that the press is a necessary evil, and in practice has to be treated as a nuisance, which must be mitigated, but cannot be wholly abated. The American and English legal view of the press, on the contrary, is now based on, if it has not grown out of, the theory that the press is performing a useful public function, in which, however, it is apt to commit excesses and make slips, which have to be treated with a certain indulgence. But there is one feature of Continental jurisprudence which does supply matter for serious reflection, if it does not suggest a possible reform in our own law of libel. In our legal and political development, — if we may treat them as two different things, — we have displayed a constantly increasing respect for the person; that is, for the human body. We forbid, or try to avoid, even in inflicting punishment, everything which may bring shame or dishonor to it. When punishment is corporal, as most punishment has to be, we make it as little corporal — if we may use the expression — as possible.
There is probably no country in the world in which so much tenderness is shown towards physical peculiarities as in this; in which, in short, the person is so sacred. But it must also be said that respect has not increased for all that portion of the personality which is not physical or tangible, the tastes, habits, prejudices, sensitiveness, manners, relations with friends and family, and the like, about which the civilized man ordinarily dislikes to talk to strangers or have strangers talk, which are roughly described by the term “ private life,” and which, to every man who is worth much, make up by far the better part of his whole life. Nay, there are many reasons for thinking that it has within the last half century greatly diminished, and that the press is now in a fair way to make it a thing of which the coming generation will know but little. On this point something is undoubtedly to be learned from French jurisprudence, which puts it in every man’s power to prevent utterly those explorations of his private life which have lately become the fashion with a certain portion of our press, and which, especially in cases of bereavement or misfortune, give so much pain, — often as exquisite pain as mortals know. The French law forbids in any periodical the publication of anything relating to a man’s private life which is not actually before the courts in a criminal proceeding; but the law is set in motion only at the instance of the person interested, and no proof of the truth of the statement made is permitted, or any discussion of the facts. All the complainant has to show is that the newspaper spoke of matters in his private life. This has been so strictly construed by the courts that an editor was found guilty for announcing the names of certain persons who had gone on a religious pilgrimage. The penalty is a fine, and also damages to the party aggrieved, in the discretion of the court.
We have got so far away, in our newspaper ethics, from the point of view on which this legislation rests that there are but few newspapers which do not, on the slightest pretext, publish everything that they can learn of all that portion of a man’s sphere to which he least likes to admit the world outside ; and the practice grows. It ministers to a popular taste which is as old as civil society. There never was a time when people did not enjoy hearing about their neighbor the things which they knew he would not like to tell them. But as long as our law has a policy, as long as legislation aims to favor particular manners or customs from a regard to the general good, we must admit that nothing is better worthy of legal protection than private life, or, in other words, the right of every man to keep his affairs to himself, and to decide for himself to what extent they shall be the subject of public observation and discussion.
There is another and probably removable defect in the existing legal remedy for libel, which is perhaps the most serious of any, and that is the slowness of the procedure. It may be said, in fact, that for libel no remedy is of any value at all which is not prompt. The law’s delays are of course always partially destructive of the redress which the law offers for any kind of injury. But in the case of libel it may be said, in the larger number of cases, to be wholly destructive. This is certainly true of all those cases in which special damage cannot be shown. The injury of libel lies in the publicity. It is the publicity which causes all the pain. If a person libeled can bring the case speedily before the court, while the matter is fresh in the public mind, the pain of the publication and the pain of the trial are merged; that is to say, the suffering of having to go over the subject in a trial in court, and thus make it still more public, will be no aggravation, or a comparatively slight aggravation, of the original suffering caused by the libel itself. The libel and the remedy, then, form one and the same transaction. Moreover, a prompt trial, and a prompt trial only, makes the remedy complete as regards the vindication of character. The public which reads the attack keeps it distinctly in its mind only a short time, and is disposed to watch its consequences only a short time. In a month, even, it will have ceased to remember much about it ; but, unfortunately, it does remember something about it. It retains a vague impression that something unfavorable was said of So-andSo, and that it never saw any answer from So-and-So. It goes about its business with a dim, hazy conviction that there is something wrong about So-andSo. In other words, his reputation is slightly damaged, and remains damaged with thousands who know little about him beyond his name and calling. Supposing that So-and-So has done the only thing in his power to set himself right, by bringing an action against the libeler, and as is usual the case cannot be tried for many months, he is met with two cruel disadvantages. One is that, the public interest in him and his troubles having died out, the trial excites little attention, and the report of it does not catch the notice of one tenth of those who read the libel. The other is that, in seeking his remedy, after this long interval, he actually renews his wrong. He finds himself very much in the position of a man who, having brought an action for assault and battery, is compelled to submit to another assault and battery of the same nature before his case can go to the jury. He has to expose himself once more to that publicity in which the sting of the original libel lay, and may find it aggravated by additional ransacking of his affairs at the hands of the defendant’s counsel. Thousands are deterred from ever seeking legal redress for attacks on character by this slowness of justice. A man can wait patiently for the recovery of property. It is hard to wait; if he wins his case, however, his remedy is as nearly complete as human justice can make it. But if he has to wait long for the legal rehabilitation of his character, the remedy assumes, to a certain extent, the nature of an aggravation of his injury. It has been suggested, as a mode of meeting this defect in the law, that libel cases should have precedence of all others on the court calendars. That this would in some degree meet it is undoubtedly true, but everybody who has had any experience of legal proceedings knows that some of the longest and worst of the law’s delays occur before a case gets on the calendar at all. How these might be prevented, or whether they could be prevented, especially in cases in which the defendant undertakes to prove the truth of the allegations complained of, is something which could be discussed adequately by a professional man only, and on this point we shall not attempt to dwell.
They have in England a process for punishing libel which is what may be called the “ swell ” mode of doing it, and the one usually resorted to by persons who think they would be demeaned by going into a police court in quest of an indictment, or by bringing a civil action for damages, supposing the language complained of to be actionable. It consists in applying to the court of Queen’s Bench for what is called a criminal information. This has to be done on affidavits, and into the affidavits the complainant can put what he pleases ; in fact, his complete answer to the libel. The defendant either resists the application, or withdraws his libel, by affidavit also. In this way the whole case gets before the court and the public at once, as far as it can be produced without hearing testimony, and while the matter is fresh in the public mind. This has undoubted advantages in the matter of speed, such as are not afforded by any other process either in this country or that.
It is open to any one to say that he thinks the present procedure is good enough, and that the evils of libel are not great enough to call for any change. With those who are of this way of thinking I do not argue. I am addressing those who think that the private character and individual peace of mind are things for which a civilized community is bound to provide, if need be, by extraordinary precautions, and that no adequate adaptation of the law to the greatly increased power over private character and individual peace of mind which has been lodged in the hands of newspaper editors and proprietors, by the growth of newspaper circulation, has as yet been made amongst us. Though such adequate adaptation may be very difficult, or indeed impossible, yet something in that direction is possible, and deserves far more attention, both from lawyers and legislators and from editors, than it has yet received. The press has no longer anything to fear from legal restriction of any kind, as regards its influence or material prosperity ; while the community has a good deal to fear from what may be called excessive publicity, or rather from the loss by individuals of the right of privacy.
But it would be unfair to close without venturing to assert that the power over the individual peace of mind and private character, lodged now in the hands of editors, is not on the whole abused to anything like the extent to which it might be abused, considering how little the law does to prevent its abuse, and how much the public curiosity in its lowest form tends to stimulate its abuse. On the contrary, I think no class of the community makes as remarkable a display of successful resistance to temptation as the editors of the daily papers, considering how much they hold in their hands and dispense of what their fellowmen both ardently desire and greaty fear, and considering the lack of sympathy, of which I have already spoken, which is usually felt by his friends or neighbors for the victim of newspaper attacks or explorations. I may add that deliberate assaults on character which have little or no foundation, and for which all redress in the shape of editorial correction is refused, are rare. No accurate estimate of them can be formed from the number of libel suits brought, because a very large number of these suits are brought by persons who have not the least intention of pushing them to trial; and this, not because they shrink from publicity, but because they know that judicial inquiry would leave them worse off than ever. The commencement of the suit is intended to produce the impression that there exists a complete answer to the charge, which the indignant plaintiff will lay before the public at the proper time, but he really does not anticipate that this proper time will ever arrive.
E. L. Godkin.
- Maurice Block.↩