Fair Comment As Defense to Libel in Illinois

Chicago-Kent Law Review

Volume 8 Issue 2 Article 2

February 1930

Fair Comment as Defense to Libel in Illinois

Glen W. McGrew

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Recommended Citation Glen W. McGrew, Fair Comment as Defense to Libel in Illinois, 8 Chi.-Kent L. Rev. 4 (1930). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol8/iss2/2

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. Fair Comment as Defense to Libel in Illinois

James R. McVicker*

In General "While the qualification and fitness The prevailing doctrine of a candidate for office might prop- of fair com- erly be discussed with freedom by the ment has been stated in a leading case' press of the country, we are aware of as follows: no case that goes so far as to hold "There that the private character of a person Is no doubt that the public who Is a candidate for office can be acts of a public man may lawfully be destroyed by the publication of a made the subject of fair comment or libelous article in a newspaper, not- criticism, not only by the press, but by withstanding the election may be at- all members of the public. But the dis- tended with that excitement and feel- tinction cannot be too clearly borne In Ing that not unfrequently enters into mind between comment or criticism our elections... The law required ap- and allegations of fact, such as that pellee, as the publisher of a journal, to disgraceful acts have been committed publish facts, and not libelous articles. or discreditable language used. It is The character and reputation of appel- one thing to comment or criticize, even lant was as sacred, and as much en- with severity, the acknowledged or ap- titled to protection, when a candidate proved acts of a public man, and quite for office, as at any other time... It another to assert that he has been may be true that appellee supposed, guilty of particular acts of miscon- In the publication of the article In duct. In the present case the appel- question, he was doing a meritorious lants, in the passages which were act to the public. But, however that complained of as libelous, charged the may be, it would be establishing a respondent, as now appears, without dangerous rule to hold that the pro- foundation, with having been guilty of prietors of the press might, whenever specific acts of misconduct, and then they thought the public good required proceeded, on the assumption that the it, defame the character of the citizen. charges were true, to comment upon The law has given them no such pow- his proceedings in language in the er, and where its exercise Is attempted highest degree offensive and injurious. it must be at their peril." Not only so, but they themselves vouched for the statements by assert- The Illinois doctrine of fair comment ing that, though some doubt had been and privilege as applied to criticism of thrown upon the truth of the story, the public officials has been briefly stated'. closest investigation would prove it to be correct. In their lordships' opinion "The claim is next made that the there Is no warrant for the doctrine publication of the article was priv- that defamatory matter thus published ileged, as the criticism was directed is regarded by the law as the subject against public officials. Public con- of any privilege." duct of all public officers is a matter of public concern and may be made the Among other English and American subject of fair and reasonable criti- cases laying down the same general doc- cism, but the privilege does not ex- trine is the leading Illinois case, Rearick tend to false and defamatory statements imputing criminal v. Wilcox2 offense or . In this case the Illinois court moral delinquency to the officer In the said: discharge of his official duties."

I Davis v. Shepstone, L. R. 11 App. Cas. Burt v. Advertiser Newspaper Co (1891), 187, 190. This passage from Lord Chan- 154 Mass. 238, 242, 28 N.E. 1, 13 L. R. A. 97. cellor Herschell's judgment is quoted with Rearick v. Wilcox (1876) 81 Ill. 77 81. approval by U. S. Circuit Judge Taft in " The People v. Fuller (19d9), 238 Ill. 116, Post Pub. Co. v. Hallam (1893). 59 Fed. 530, 125; Rearick v. Wilcox, 81 Ill. 77. 8 C. C. A. 201, and by Justice Holmes in *Professor of Law, Chicago-Kent College of CHICAGO-KENT REVIEW

In a more recent Illinois case, the term, fair comment. Inasmuch as the court holds that a candidate for a public courts of the several states have differed office is considered as submitting his fundamentally in their interpretation of character in issue only so far as It may the term as applied in their decisions, respect his fitness and qualifications for the matter of the various distinctions the office sought, and that while every made in the use of the term and in its one may freely comment on his conduct meaning in the applicable law is im- and actions it is not the right, privilege portant. A consideration in general of or duty of a newspaper publisher to de- the doctrine of fair comment in the law fame the candidate, and that to a mali- of libel will conduce to a better compar- cious publication of libelous matter ative deduction of the Illinois law of fair against such candidate there is no de- comment. For this purpose It is con- fense on the ground that it is privileged sidered advisable to set forth the views nor that it is mistakenly and honestly of some of the representative legal made. The court said: writers on the question, with especial "It is not the privilege or duty of reference to the different theories and one publishing a newspaper to publish ' fundamental distinctions. libelous matter against any candidate There are two main theories as to the for public office. Such person has no principle upon which the defense of fair more right or privilege in that regard than any other person in the same comment is founded. The one is the community. The liberty of free speech theory that the defense of fair comment and of free press is the same in that is a branch of the defense of qualified, regard. When' any one becomes a or conditional, privilege; the other is the candidate for a public office, conferred by the election of the people, he Is theory that fair comment is a distinct considered as putting his character in defense in that the writing in behalf of issue, so far as it may respect his fit- which it is interposed is not a libel, bu, ness and qualifications for office, and is only rightful comment-an expression every one may freely comment on his conduct and actions. His acts may be of fair opinion, proper for any one to canvassed and his conduct boldly cen- express, as was done In the writing in sured. But the publication of false- question. These two theories basically hood and calumny against public officers or candidates for such offices is underlie the respective interpretations of an offense most dangerous to the the. doctrine of fair comment as enun- people and the subject of punishment, ciated by different courts in their varying because the people may be deceived decisions. An excellent exposition Is and reject the best citizen, to their in- R. Y. Radcliffel in the jury. An intention to serve the public that of Mr. Francis good in such a case cannot authorize excerpt herewith quoted: or justify a defamation of private character. Rearick v. Wilcox, 81 Ill. 77; "What is the principle upon which Sweeney v. Baker, 13 W. Va. 158, 31 the defence (of fair comment) is Am. Rep. 757; Jones v. Townsend's founded, and what are the limits of Adm'x, 21 Fla. 431, 58 Am. Rep. 676. its application? To a malicious Publication of libelous "As to the first point there are two matter against a candidate for public rival theories. The one is that ex- office there is no defense on the ground pounded by the Court of Common that it is privileged, and it is not a de- Pleas (Willes, Byles, and Brett, JJ.) in fense that it is mistakenly and hon- Henwood v. Harrison (1872) L. R. 7 C. estly made. Such matters go only in P. 606. The Court there says (at p. mitigation of damages." 622): 'The principle upon which these cases are founded is an universal one, Distinctions in Fair Comment that the public convenience is to be preferred to private interests, and In a consideration of the Illinois law that communications which the interests of society require to be unfettered of fair comment, the general question may freely be made by persons acting arises as to what is understood by the honestly without actual malice, not- SOgren v. Rockford Star Printing Co. $Mr. Francis R. Y. Radcliffe, 23 Law (1919). 288 Ill. 405, 417, 123 N. E. 587, 592. Quart. Review, 97 (1907). CHICAGO-KENT REVIEW withstandinh that they involve relevant is based solely upon public utility. It comments condemnatory of individuals.' is hard to see any logical distinction And the Court therefore came to the between the defence of 'fair comment' conclusion (at p. 625) 'that the fair and that of 'qualified privilege' in the ind honest discussion of, or comments ordinary sense. It is to the public ad- upon, a matter of public interest is in vantage that public matters and the point'of law privileged, and that it is actions of public men should be fully not the subject of an action, unless and freely discussed, and, therefore, the plaintiff can establish malice.' In although in such discussion defama- other words, the Court in that case tory language may be used, it is priv- held that the defence of 'fair com- ileged. The 'occasion' which gives rise ment' is merely a branch of the de- to the 'privilege' is the discussion of fence of 'qualified privilege' in the matters of public importance, and of ordinary sense. those alone: in which sense the priv- "The rival view was first expounded ilege is limited by the 'occasion' Just by Blackburn and Crompton, JJ., in as any other kind of 'qualified privi- Campbell v. Spottiswoode (186.3) 3 B. lege.' The true view would therefore & S. 769, 32 L. J. Q. B. 185. and has seem to be that the decision in Hen- since received the adhesion of the wood v. Harrison is right-that 'fair Court of Appeal in Merivale v. Carson comment' is only a form of 'qualified (1887) 20 Q. B. D. 275. In the first privilege,' and that proof of actual of these cases, Blackburn, J.,puts the malice will do away with the protec- matter thus: 'I think it of considerable tion which would otherwise prevail. consequence to bear in mind that the But how? Surely not by importing a case is not one of privilege, properly kind of defamatory flavour into that so called, but the question is whether which would otherwise not be defama- the article complained of is a libel or tory, but on a different principle. Cer- not.' And Crompton, J., says: 'The tain occasions justify the use of first question is libel or no libel, which defamatory words, but on public is for the jury; and they have*to say grounds alone. If a man tries to make whether the writing complained of goes use of the occasion as a "cloke of ma- beyond fair comment: if it does not liciousness,' he forfeits the special it is no libel.'... protection which he would otherwise "What then would be the logical enjoy, because the raison d'dtre of his solution of the matter? That the true defamatory statement is not a bona basis of the defence of 'fair comment' fide exercise of a public right, but a is that laid down in Henwood v. Harri- desire to gratify his private spite." son, and not that laid down in Camp- The view that the defense of fair com- v. Spottiswoode and Merivale v. bell ment imports that the alleged actionable Carson. Both Blackburn, J., in the former case, and Bowen, L. J., in the words are not defamatory of the plaintiff latter, distinguish the defence of 'fair and are not libelous because the stricture comment' from that of 'privilege,' prop- is not made upon his personal character erly so called, by saying that the latter but impersonally upon his work, was ex- is the peculiar right of a particular individual under particular conditions, pressed by Justice Deemer in an opinion a true privilegium; while 'fair com- of the Iowa Supreme Court', from which ment' is the right of every member of we quote: the public. With the greatest deference to the opinion of these two great law- "It is sometimes said that fair and yers, is that distinction sound? It may honest criticism in matters of public possibly be correct as regards what is concern are privileged, but there is a known as 'absolute privilege'-the manifest difference between fair and privilege of a Member of Parliament, honest criticism of public events and a Judge upon the Bench, and the like. privileged communications. In the But is not 'qualified privilege' the equal latter case the words may be defama- right of all the world? It is the oc- tory, but the defamation is excused or casion which is privileged and not the justified, by reason of the occasion man. very one has an equal right to while in the former case the words use defamatory language in giving the are not defamatory of the plaintiff, and character of a servant, in making com- are not libelous-the stricture or crit- plaint of a subordinate to his superior, icism is not upon the person himself, and the like. It does not depend upon but upon his work. In other words, It his position in life, or upon his being is Impersonal. Bearce v. Bass, 88 Me. a member of any particular class. It 521, 34 Atl. 411, 51 Am. St. Rep. 446; Ott v. Murphy (1913), 160 Iowa, 730, 141 N. W. 463, 467. CHICAGO-KENT REVIEW

Burt v. Advertising Co., 154 Mass. 288, tory, but the defamation exhused or 28 N. E. 1. 18. L. R. A. 97. Criticism justified by reason of the occasion, must be founded on truth, and false while in the former case the words statements or attacks. on private char- are not defamation of the plaintiff, acter are not permitted. Clifton v. and hence not libelous; the stricture Lange, 108 Iowa,. 472, 79 N. W. 276; is not upon the person himself, but Fry v. Bennett, 5 Sandf, (N. Y.) 54; upon his work-upon what he has said Haynes v. Clinton Ptg. Co., 169 Mass. or has written. Another. distinction is 512, 48 N. E. 275." that if criticism or comment is priv- The distinction between fair comment ileged, strictly, the plaintiff would in as a special privilege of the press and every case be required to prove actual malice, however false and however in- fair comment as the right of every one, jurious the strictures, while the de- not the privilege of any particular one, fendant would only have to prove that the distinction between privileged com- he honestly believed the charges he munications Justifying defamation by made: and this is not the law." "The onus is on plaintiff where a reason of the occasion and fair comment defense of fair comment is raised, just as not defamation of the plaintiff and as in any other case, to show that the hence not libelous because the stricture words are reasonably capable of being is not upon the person himself but upon understood as a libel on him, and it is for the judge to say whether the pub- his work, and the further distinction that lished article is capable in law of be- if the comment is privileged, then, ing a libel (McQuire v. Western Morn- strictly, the plaintiff would in every case ing News Co., 2 K. B. 100. 111 (1903), be required to prove actual malice while and the court having determined this point 'favorably to the plaintiff, then the defendant would only have to prove whether the words complained of are that he honestly believed the charges'he or are not fair comment is essentially made, and that this is not the law of fair a question for the jury (Campbell v. comment, are set forth in an opinion by Spottiswoode, 3 B. & S. 778. 32 L. J. Chief Justice Ostrander, of the Michigan R. Q. B. 185; Merivale v. Carson. 20 Q. B. Div. 275). Supreme Court', from which we quote as "'Fair comment does not negative follows: defamation, but establishes a defense "In making the defense of fair com- to any right of action founded on de- ment, defendant had no benefit of famation.' Per Buckley, L. J., in Peter 'privilege,' in the sense in which the Walker v. Hodgson, 1 K. B. 239, 253 learned trial judge used the term in (1909). 'It is precisely where the advising the jury; no privilege at- criticism would otherwise be action- taches to a newspaper in such a case, able as a libel that the defense of fair and the liberty of the press, unless comment comes in.' Per Lord Lore- affected by statute, is no greater and burn, L. C., in Dakhyl v. Labouchere, 2 no less than the liberty of every citi- K. B. 325, 327 (1908). See Cooper v. zen. McAllister v. Free Press Co., 76 Stone, 24 Wend. (N. Y.) 434; Dowling Mich. 338, 43 N. W. 431, 15 Am. St. Rep. v. Livingstone, 108 Mich. 321, 66 N. W. 318; Bee Pub. Co. v. Shields, .68 Neb. 225. 32 L. R. A. 104. 62 Am. St. Rep. 750. 94 N. W. 1029, 99 N. W. 822. Al- 702; Newell on Slander and Libel (3d though some eminent judges have used Ed) c. 20; Fraser's Law of Libel and the word 'privilege' to describe the Slander (5th Ed.) art. 24." public right of fair comment (Gray, J., "Clearly, the court was in error in in Gott v. Pulsifer, 122 Mass. 235, 238, instructing the jury that there was in- 239, 23 Am. Rep. 322), bona fide com- volved any question of 'qualified priv- ments on matters of public interest are Ilege,' in the sense in which the court not privileged; because it is the right used the term, and in advising them of every one, not the privilege of any that plaintiff must prove express particular one, to comment fairly and malice in order to recover. Quite as honestly on any matter of public inter- clearly, the court was not in error in est, and the defense of fair comment refusing to charge, as requested to do Is equally applicable whether the crit- by the plaintiff, that the only question icism be oral or written. One distinc- for the jury was the damages sus- tion between fair comment and priv- tained by the plaintiff. The jury should Ileged communications is that in the have been instructed that the article latter case the words may be defama- in question is libelous unless it is fair 7Van Lonkhuyzen v. Daily News Co. Arrangement of order of paragraphs. (1918). 203 Mich. 570, 170 N. W. 93, 99-100. quoted is the writer's. CHICAGO-KENT REVIEW

comment, and that whether or not it of facts in the statement of the mate- is fair comment was for them to de- rials upon which the comment was cide, under instructions to be given based." them. If it was fair comment, plaintiff The limitation of real comment to could not recover; if it was not, the merely the expression of opinion based rules to be applied in respect to the measure of recovery are those applic- upon accurately stated conduct or fact, able to any other case of libel." in contrast to the misdescription of fact The view that comment upon given or conduct as a false picture presented facts otherwise libelous, may assume a for Judgment, was defined in an Austral- 0 privileged character when founded on ian case" , as follows: facts not in themselves libelous by rea- "The error which is usually com- son of its being comment which any one mitted by those who bring themselves within the law of libel when comment- has a right to make upon a public man, ing on conduct is in thinking that they was thus remarked by the English Chief are commenting when in point of fact Justice Cockburn:$ they are misdescribing, Real comment "It is true that a comment upon is merely an expression of opinion. given facts, which would otherwise be Misdescription is a matter of fact. If libelous, may assume a privileged the misdescription is such an unfaith- character, because, though unjust and ful representation of a person's con- injurious, yet being founded on facts duct as to induce people to think that not in themselves libelous, it is a com- he has done something dishonorable, ment which any one is entitled to make disgraceful and contemptible, it Is upon a public man. For instance, sup- clearly libelous. To state accurately pose that any one states facts not in what a man has done, and then to say themselves libelous of a candidate for that in your opinion such conduct is dis- election to parliament, and on them honorable, or disgraceful, is comment bases the conclusion that he is not an which may do no harm, as every one honest politician. The comment may can judge for himself whether the be injurious, but it may be privileged opinion expressed is well founded or as a fair comment on the facts, if not not. Misdescription of conduct, on the malicious, because made on a public other hand, only leads to one conclu- man. On the other hand, to say that sion detrimental to the person whose you may first libel a man, and then conduct is misdescribed, and leaves the comment upon him, is obviously ab- reader no opportunity of judging for surd." himself of the conduct condemned, Another English judge briefly re- nothing but a false picture being presented for judgment." marked the distinction between fair com- In an English case", the ment and libelous misstatements of fact', court has and stated the essential of a plea of fair stated a summation of the law of fair comment, as follows: comment in three principles, viz., (1) "Comment, in order to be fair, must that the comment must bear on its face be based upon facts, and if a defend- Its character of comment only and show ant cannot shew that his comments con- plainly that it is not so intermixed with tain no misstatements of fact, he statement of fact that the reader cannot cannot prove a defense of fair comment. The usual way to begin such a Judge between what is report and what plea is by asserting that the facts on is comment, (2) that the writing must which the comment is based are true, give a true statement of existing facts that is, that the defendant has made in order to warrant a plea of fair com- no misstatements in formulating the materials upon which he has comment, and (3) that it must contain no mented. If the defendant makes a unwarranted imputations of evil from misstatement of any of the facts upon the truly stated premises: which he comments, it at once nega- "The law as to fair comment... tives the possibility of his comment stands as follows: (1) In the first being fair. It is therefore a necessary place, comment in order to be Justifi- part of a plea of fair comment to shew able as fair comment must appear as that there has been no misstatement comment, and must not be so mixed 10 0 Cockburn, C. J., in Queen v. Carden ChrIstie v. Robertson (1889), i0 New (1879). 5 Q. B. D. 1, 8. S. 1Wales1 L. R. 157. 161. 9 Collins, M. R., in the Court of Appeal. Per Fletcher Moulton, L. J., in Hunt v. in Digby v. Financial News 502, 507. (1907). 1 X. B. Star Newspaper Co. (1908), 2 K. B. 309. CHICAGO -KENT REVIEW

purpose, he up with the facts that the reader can- some ulterior and improper not distinguish between what is report th ereby displaces the immunity, and and what is comment... Any matter, th e defendant is liable, just as he if he had never therefore, which does not indicate w ould have been Hav- with a reasonable clearness that it br ought himself within the right. g to the reasons for which purports to be comment, and not state- inj regard ment of fact, cannot be protected by the th e occasion exists, the most obvious plea of fair comment. (2) In the next pr oof for this purpose would be cir- place, in order to give room for the cu mstances tending to show that the plea of fair comment, the facts must op inion expressed in the comment was be truly stated. If the facts upon not the defendant's genuine opin- which comment purports to be made ioin; or that he had no opinion of the com- do not exist, the foundation of the at all on the subject plea fails... (3) Finally, comment In ent, or otherwise published it with- Just, and in must not convey imputations of an out any belief that it was evil sort except so far as the facts re ckless indifference as to whether it truly stated warrant the imputation... WEas Just or unjust. If, however, such To allege a criminal intention or a honest belief in the justice of the com- disreputable motive as actuating an m ent existed in fact, it is wholly im- individual is to make an allegation of MAaterial whether, in an intellectual fact which must be supported by ade- se'nee, it was sound or unsound, con- quate evidence." viircing or irrational, unless it can be pr oved by independent evidence that Perhaps the law of fair comment may such belief, though genuinely enter- be considered as undergoing a general tained, was itself created by malice. growth and gradual development in this "It is obvious, therefore, that the rm 'fair,' as used in the English country, many of its features being anal- te cases, merely excludes those elements or borrowed from the English ogous to hich prevent the comment from fall- doctrine of fair comment which itself has in g within, or take it out of, the im- been developed largely within the past m unity arising from the occasion. But fifty years. In reviewing the general in so far as facts are assumed as the the criticism, or untrue alle- principles of the English and American basis of a tions of fact are introduced in the the defense of fair com- cg law regarding urse of it, or personal imputations ment Judge Van Vechten Veeder, in his ar e made not arising out of it,the pre- ' "Freedom of Public Discussion , a pro- tended criticism is not criticism at all. a question of its title to the of the principles of it is not found consideration ep ithet 'fair,' or to any other epithet; the whole subject, has ably developed the it does not answer to the description of fundamental distinctions in the law of comment, and is defamation pure and mple. Where, on the other hand, it comment, from which we quote the si fair is proved by the plaintiff that the com- following statement of the principles of m ent, though on the face of it answer- the applicable law relating to the element in,g to the description, was neverthe- ss the expression of an opinion which of malice negativing fair comment as le e critic did not in fact entertain or of the burden of th defense, the questions w Ls otherwise actuated by malice, it is proof, and the questions of law and of sufficient to say that the protection Is fact, the differentiation in the views of lost; there is no occasion to speak of the English and the American law on the fairness or unfairness. Everything in the rule prescribing criticism of personal conduct, and the th at is involved irness, would equally be contained in distinction between different fa criticised any rule which, omitting the term alto- kinds of imputation: gether, simply prescribed that the pub- "If comment conforms to the forego- liciation of any defamatory matter ing requirements the critic brings him- w hich is wholly and solely comment self prima facie within the immunity. on the 'public conduct or published But the occasion exists for a well-de- w ork of another is the subject of an fined public purpose, and if the plaintiff irimunity defeasible only on proof of can prove that the defendant, although In alice. It is clear that what is meant prima facie within the immunity, was by 'fairness' is neither more nor less nevertheless using the occasion for than the absence of malice, and the 12 Van Vechten Veeder, "Freedom of Pub- masterly passages, interspersed footnote re- lic Discussion," 23 Harvard Law Review ferences except last one are omitted. (1910). 413, 428-8, 431-4. In quoting these CHICAGO-KENT REVIEW

burden being on the plaintiff to allege dicial dicta is undeniable contrary to and prove the existence of malice, as the English view. In the majority of well as the fact that it prompted the the cases commonly cited in this con- comment, and not on the defendant to nection no distinction between com- allege and prove its absence, or to ment and statement of fact is made or negative any suggestion that his com- involved in the actual determination. ment was actuated thereby, the use of They are, almost without exception, a positive word in connection with cases involving direct statement as dis- comment is seen to be not only un- tinguished from comment; or, if in- necessary, but most deceptive, inas- volving any comment at all, no basis much as it imports the necessary pres- for the comment was proved, and ence of an affirmative quality as the privilege was claimed simply by vir- condition of immunity, whereas it is tue of the occasion being a matter the existence and influence of its op- of public interest. These cases are posite which is the necessary condi- not, therefore, in opposition to the tion of that immunity being displaced. English rule, for they were not cases "On a plea of fair comment the bur- of comment properly so called, and den is on the defendant to prove all privilege would have been equally de- the facts necessary to bring the case nied under that rule. They are simply within the foregoing requirements. He authority for the rule that a direct must satisfy the court that the sub- statement of fact is not privileged by ject of the comment is a matter of reason of the publicity of the occasion. public importance, and must establish The difficulty is that these decisions that the matter, on its face, is com- have generally gone beyond the actual ment, unadulterated with any of those issue, and, often using the term 'crit- alien elements which are sufficient to icism' as synonymous with derogatory prevent its coming within the province statements of fact, have expressed the of fair comment. If the plaintiff de- dictum that criticism is privileged, or sires to show that the prima face im- not actionable, so long as it does not munity, innocent as it appears to be attack the private character of the per- on the surface, was in fact actuated son criticized, or impute evil motives. by malice, the burden is on him to In other words, while the actual de- prove this. Whether the subject is one cision is generally unimpeachable, the of public interest, and whether there foundation is delusive, i. e., a distinc- is any evidence of the defamatory mat- tion between different kinds of imputa- ter constituting or not constituting fair tion, whereas the true distinction is be- comment, are questions of law. All tween comment and statement of fact. other issues in relation to a plea of While this doctrine recognizes some fair comment are questions of fact." latitude in the discussion of matters of * * * * * * "Whatever uncertainty may public interest, its practical futility is characterize some of the intervening shown by the conflicting and some- cases, it is now established by recent times fanciful ideas of the sort of im- English cases that 'a personal attack may putations which are held to fall within form part of a fair comment upon given it. But this doctrine, so far as it is facts truly stated if it be warranted intelligible, would seem to leave little, by those facts; in other words, if it if any, more practical freedom In the be a reasonable inference from those discussion of matters of public interest than that which is permitted In the facts. Whether the personal attack in discussion of the conduct of a private any given case can reasonably be in- person. It leaves the law" very much ferred from the stated facts upon in the attitude of saying, 'You have full which it purports to be a comment is liberty of discussion, provided, how- a matter of law for the determination of the Judge before whom the case is ever, you say nothing that counts.' tried; but if he should rule that this "Other and more carefully considered cases are in substantial agreement inference is capable of being reason- with the prevailing English doctrine.""2 ably drawn, it is for the jury to determine whether in that particular case it ought to -be drawn.' The law of fair comment Is of rather "In this country the weight of ju- modern development'. Ordinarily, com- Is "Howarth v. Barlow, 113 N. Y. App. McBee v. Fulton, 47 Md. 403; Smith v. Hig- Div. 510; McDonald v. Sun Printing & Pub. gins, 16 Gray (Mass.), 251; Burt v. Adver- Co., 45 N. Y. Misc. 441; Reade v. Sweetzer, tiser Newspaper Co., 164 Mass. 238; Mertens 6 Abb. Pr. n. s. 79, n.; Hart v. Townsend, 67 v. 1 Bee Pub. Co. 5 Neb. (Unofficial) 592." How. Fr. 88; Eickhoff v. Gilbert. 124 Mich. 4'Wason v. Walter (1868), L. R. 4 Q. B. 353; Dunenback v. Tribune Printin Co., 108 73, 93. Mich. 75; Belknap v. Ball, 83 Mich. 583; CHICAGO-KENT REVIEW ment or criticism is not actuated by a son criticized". It is thus an expression personal sense of duty but Is a voluntary of opinion upon facts upon which differ- expression of opinion'5 . Freedom of com- ences of opinion may properly arise'. ment Is more in the nature of a right Fair comment, as the term Implies, is which is possessed by everyone to ex- such expression of opinion upon a matter press his own opinion upon matters of public affairs as Is rightfully and fairly of public interest or public welfare", made. It is comment made upon given than in the nature of either a duty or a facts, truly stated, in a matter of public privilege. If a matter be a legitimate concern, without malice. When so made, subject of public opinion, then It Is one It is only in the exercise of a constitu- for the rightful expression of individual tional right which all persons have to opinion thereon. Such subjects are those so express their opinions upon such sub- relating to the conduct and qualifications jects of legitimate public concern, in- 2 of public officers, or candidates for office, terest, or welfare 2. legslatiye proposals, governmental poli- However, the right, as indicated, is not cies, and the merits of literary, artistic unqualified, but is limited to its exercise in good faith and without malice toward or commercial productions, offered to the public". The subjects of fair comment the persons concerned or criticized, or have been classified'3 , as follows: "1. who may be affected by the result of the Affairs of State. 2. The Administration comment-. There is a distinction be- defamation. While of Justice. 3. Public Institutions and tween comment and fair comment is not strictly defamation, Local Authorities. 4. Ecclesiastical Mat- it is said that it does not necessarily ters. 5. Books, Pictures and Architect- negative defamation and that it may es- ure. 6. Theatres, Concerts and other tablish a defense to a right of action public entertainments. 7. Other Appeals founded on defamation "4 . If the bounds to the Public." Necessarily, any such of fair comment have not been exceeded classification is not exclusive, but is in the expression of opinion upon mat- mainly broad and suggestive. ters of public interest and legitimate pub- Comment Is any remark or criticism lic concern, the defense of fair comment or note or observation intended to ex- is available in such case although the plain, illustrate, or criticize the meaning same expressions would be libelous if of a book or writing'. It is thus, by a they were made upon matters which are step, applied also to the criticism of the not legitimate subjects of public discus- - acts or sayings of a public officer or other sion '. Generally speaking, the latter public man. Criticism, as applied in the class of subjects are such falling within law of defamation, is any censure or' the scope of private affairs, private busi- - stricture upon the conduct or character ness, or conduct of private citizens '. or utterances or official acts of the per- The modern or latter tendency of the 5 1 Link v. Hamlin, 270 Mo. 319, 193 S. W. 1863); Merrey v. Guardian Pub. Co.. 79 587; Cook v. Pulitzer Pub. Co., 241 Mo. 326, N. J. L. 177, 184, 74 At!. 464 (1909): Bing- 145 0 S. W. 480. ham v. Gaynor, 203 N. Y. 27, 33, 96 N. E. 1 Bearce v. Bass, 88 Me. 521, 51 Am. St. 84, (1911); Const. U. S., I Amendment; Rep. 446, 34 AtI. 411; Cherry v. Des Moines Const. of 1870 (Ill.), Art II, Sec. 4. Leader. 114 Iowa. 298, 86 N. W. 323, 54 L. 28Bearce v. Bass, 88 Me. 521. 51 Am. St. R. A. 855, 89 Am. St. Rep. 365. Rep. 446, 34 AtI. 411; 36 C. J. Libel and ' Burdick, The Law of Torts, (4th, Stud. Slander, J 288, p. 1283; Const. of 1870 (Ill.), Ed., 1926), 1 342, p. 398. Art II, Sec. 4. Is Odgers, Libel and Slander (5th Ed.), 24 Bearce v. Bass, 88 Me. 521, 34 AtI. 411; p. 206. 51 Am SR446; Triggs v. Sun Prtg. etc. "9Webster, Int. Dict. Assoc., 179 N. Y. 144, 71 N. E. 739, 66 L.R. 20 Belknap v. Ball, 83 Mich. 583, 588. 47 A. 612; Merrey v. Guardian Prtg, etc., Co., N. W. 674, 21 Am SR622, 11LRA72; Okla- 79 N. J. L. 177, 74 Atil. 464; Campbell v. homa Pub. Co. v. Kendall (Okla.), 221 P. Spottiswoode, 3 B. & S. 769- Peter Walker 762; 36 C. J., Libel and Slander, § 277, p. & Son Ltd. v. Hodgson (1909), 1 K. B. 239; 1279. Van Lonkhuyzen v. Daily News Co., 203 21 McDonald v. Sun Prtg. etc. Co., 45 Mich. 570, 170 N. W. 93, 36 C. J., Libel aid Misc. (NY) 441, 92 NYS 37; Oklahoma Pub. Slander, § 278, p. 1279. Co. v. Kendall (Okla.), 221 P. 762, 36 C. J., 'Merrey v. Guardlin Pub. Co., 79 N. J Libel and Slander, J 277, p. 1279. L. 177, 184, 74 Atil. 464 (1909). 22 Blackburn, L. J. In Campbell v. Spottis- 26 36 C. J., Libel and Slander, 1 283, notes woode, 3 B. & S. 769, 32 L. J. Q. B. 185 9, 10, p. 1281. CHICAGO-KENT REVIEW law has been to erect In fair comment a the plaintiff but the defamation is excused distinct defense to a charge of libel by reason of the occasion even when they rather than to retain fair comment as a are not true, while in the case of fair com- form of conditional privilege. While ment the objectionable words are not re- many courts have not closely marked the garded as defamatory of the plaintiff' . line of distinction, these two grounds of This is because in the case of real fair defense, viz., fair comment and privilege, comment the facts actually exist, and the are distinct in their very nature and in criticism is based on them. In that sense, their practical application". fair comment is somewhat analogous to The defense of privilege implies im- the defense of justification on the ground munity given to particular individuals by of the truth. reason of the peculiar circumstances to In its practical application, if the de- say defamatory things, although the fense of fair comment were a form of things said may not be true in fact. Fair conditional privilege, strictly, plaintiff comment, on the other hand, is the right would in very case be required to prove enjoyed by all persons and each alike to actual malice, however false and injur- speak freely, and even with severity, Ious the strictures, while defendant would without liability, upon subjects of legiti- only have to prove that he believed the mate public discussion, although their charges he made; and that is not the opinions may be wrong but honest and lawn. fair and reasonable2s. The recognition accorded the defense The defense of privilege or conditional of fair comment as distinct from the de- privilege relates to the Immunity granted fense of conditional privilege is said to by the occasion to the utterance of de- be now perfectly clear and well settled, famatory words in the statement of facts. and is thus further stated by a writer In The very occasion gives an immunity to a recent text*2: the statement of facts although they may "1* * * When a defendant sets up not be true. Fair comment, on the other the defense of conditional privilege he asserts and must prove that he stands hand, is limited to an expression of opin- in such a relation to the facts of the ion concerning facts which must be true case, that he is justified in saying pr and must be truly stated. The right to writing what would be slanderous or so comment upon facts of legitimate pub- libelous in any one else. When his defense is fair comment, he asserts that lic concern gives an immunity to the he has done only what every one has a expression of opinion, although such ex- right to do, and that his utterance is pression of opinion may reflect upon per- not a libel, or slander, and would not sons responsible for the facts, and al- be a libel or slander by whomsoever though such opinion, in the judgment of published. To quote from a New Jer- sey decision: 'Comment of this kind others (as a jury), may be unsound or is not privileged by reason of the oc- unwarranted by the actual facts. How- casion. What is really meant is that ever, it is implicit in fair comment that fair and bona fide comment-and crit- this defense cannot avail if there be un- icism upon matters of public concern Is not libel, and that the words are not true statement as to a matter of fact defamatory.' " involved in the comment itself". Law of Fair Comment In the case of privileged communica- Illinois tions, the words may be defamatory of Legal writers have considered the

27 36 C. J., Libel and Slander, § 280, zen v. Daily News Co., 203 Mich. 570, 170 notes 95, 96, p. 1280. N.W. 93. 2s Burdick, The Law of Torts, § 341, P a Van Lonkhuyzen v. Daily News Co., 203 397. Mich. 570, 170 N.W. 93; 36 C. J., Libel and 29 36 C. J., Libel and Slander, § 280, cases Slander, § 280, notes 1 and 2, p. 1280. cited in notes 97, 98, 99. p. 1280; Christie a2Burdick, The Law of Torts, (4th Ed., v. Robertson, 10 New S. Wales, 157; Van 1926), § 341, p. 897; Merrey v. Guardian Pub. Vechten Veeder. "Freedom of Public Dis- Co., 79 N. J, L. 177, 184, 74 Atl. 464 (1909). cussion," 23 Harv. Law Rev., 413, 424. Accord: Diener v. Star-Chronicle Pub. Co., 90 36 C. J., Libel and Slander, § 280, note 232 Mo. 416, 132 S.W. 1143 (1910): Cook v. 99, p. 1280; Ott v. Murphy, 160 Iowa, 730, Pub. Co., 241 Mo. 326, 857, 145 S.W. 489 141 N. W. 463; Bearce v. Bass, 88 Me. 521, (1912); Bingham v. Gaynor, 203 N. Y. 27, 34 Atl. 411; 1 Am SR, 446; Van Lonkhuy- 33, 96 N. E. 84 (1911). CHICAGO-KENT REVIEW

American law of fair comment, in the only of that part of an article which great majority of our states, to be in a is libelous, as matters of opinion are very confused, unsatisfactory, and unde- not so. As may be seen by the opinior in the Ogren case however, fair com- veloped condition, especially with regard ment seems to be regarded as a kind to the decisions of many of the courts in of privilege." * * 0 not making or observing the distinctions "Finally, some criticism may be between comment and statement of fact made of the Supreme Court's discussion of fair comment and privilege in on the one hand, and between fair com- relation to statements about candidates ment and conditional privilege on the for public office or other public men. other. These two fundamental distinc- The law of Illinois, and indeed the tions, and various other distinctions prop- law of practically all the American states, has been and is still in a very erly to be drawn in a logical develop- unsatisfactory and confused state in ment of the law, have remained very regard to this branch of libel and largely confused, and while the courts slander. It is to be regretted that we in their administration have arrived at have not yet been accorded the clear correct results more often than they have and logical treatment given the subject by the English cases as summar- in logical development of the proper prin- ized and analyzed In Odgers on 'Libel ciples, it would seem that they have and Slander' (5th ed., chap. 8). The mainly left much to be desired and at- only cases in Illinois which deal even tained in the matter of proper develop- indirectly with the question are as follows: Rearick v. Wilcox, 81 Ill. 77; ment and sound policy in the law of n . Cerveny v. Chicago Daily News Co., lbel 139 Ill. 345; People v. Fuller, 238 Ill. In commenting on an Illinois Supreme 116 (141 Ill. App. 374): La Monte v. Kent, 163 Ill. App. 1; Sullivan v. Ill. Court decision rendered in a libel case Publishing and Printing Co., 186 Ill. in 1919"', a writer in the Illinois Law Re- App. 268, view", after discussing points on the "In none of these cases Is 'fair com- matter of the applicability of the defense ment' properly distinguished from 'privilege,' nor, in fact, are statements of justification to a part of the defama- of fact properly distinguished from tory matter where divisible from the statements of opinion." rest, and on the constitutional intent of On the defense of justification in a the defense of truth in civil suits, called case wherein an alleged libelous article attention to the insufficient distinctions may be divisible for purposes of defense, in the Illinois law of fair comment as and of a further analogous applicability well as the similar condition in other of a defense of fair comment in certain states. In writing on that part of the cases, this writer, in partu, said: decision with reference to the absence "It is difficult to ascertain how this of any right or privilege of a newspaper question was before the Supreme publisher to publish libelous matter Court, for, as stated in the paragraph against a candidate for public office", he of the court's opinion immediately pre- said: ceding the above excerpt, there were "Due no demurrers to the defendant's spec- to the fact that the defense of ial pleas. Inasmuch as the points on 'fair comment' has not yet been clearly which the Supreme Court seems to distinguished from the defense of have reversed the Judgment (which 'privilege' in this state, a third situa- was for the defendant in the trial tion is likely to present itself, namely, court) have to do with whether the where an article may be divided into articles complained of were libelous libelous statements which are true, and per se, whether parts of the articles fair comment thereon. Strictly this sit- were spoken of the plaintiff, whether uation should be governed by the rule they were within the bounds of fair that a defendant need plead the truth comment, and finally whether certain

88 Van Vechten Veeder, "Freedom of Pub- 35 L. G. C., 14 Illinois Law Review (1919), lic Discussion," 23 Harvard Law Review 226.8 (1910) 413, 416-419, 432, 433, 439; L. G. C., oOgren v. Rockford Star Printing Co., 14 Illinois Law Review (1919), 226, 228, 288 ill. 405, 417, 123 N. E. 587, 692; L. G. C., 231, 232. 14 Illinois Law Review (1919), 226, 228, 84 Ogren v. Rockford Star Printing Co., 231 282. 288 Ill. 405, 123 N. E. 587. af L. G. C., 14 Illinois Law Review (1919), 226, 227. CHICAGO-KENT REVIEW

evidence was erroneously admitted, it have been placed upon grounds making would seem that the above may be re- a distinction between different kinds of garded as obiter dictum. imputation, whereas the true distinction 'It will be noticed that the only authority cited by the court is Ruling is between comment and statement of . Case Law, which on examination factu Furthermore, it would seem, that shows that its statement of the law there are no such cases making a clear is supported by very scant authority. distinction between fair comment as a There are no Illinois cases in point. The Illinois law on the question may special defense and that of privilege. be summarized very briefly. Where a de- On the other hand, the Illinois Appel- fendant denies the publication of part late Court, in a case first heard before of an alleged libelous article, it is it on questions of pleadings onlyn, and clearly settled in this state that he need justify only that part of which afterwards, a jury trial having been had, he admits the publication, and need not upon assignments of error involving the plead or prove the truth of the rest: question of fair comment", has notably Cloidt v. Wallace, 56 Ill. App. 389; Sie- applied the doctrine of fair comment in gel v. Thompson, 181 Ill. App. 164. "Also it seems clear that a defend- the particular case then under considera- ant need justify only such parts of an tion. While the decisions of the Appel- alleged libelous article as are libelous: late Court" are not the final or determin- Dowie v. Priddle, 216 Ill. 552. Logic- ative formulation of the Illinois law of ally this same reasoning should extend to the case where the article com- fair comment, there is therein revealed plained of consists of libelous state- a careful consideration of the subject and ments and fair comment thereon; the it is submitted that the well-considered defendant should be required to prove opinion of this court Is, In general, indi- the truth only of the libelous statements and to be allowed to avail him- cative of the law of fair comment in self of the defense of fair comment as Illinois. In the case then under its con- to the rest, for statements of opinion sideration, the court, in its first opinion' -, as distinguished from statements of distinguished fair and reasonable com- fact are not to be considered libelous, if fair: Odgers, 'Libel and Slander,' ment from false statement of fact, stat- 5th ed., p. 202. ing further that "the subject of reason- "On the other hand it is. probably able comment and fair criticism must be settled law that if a libel is not divis- a fact and not a libel." The court made ible or separable into distinct charges, clear its distinction between fair com- and if the defendant admits the publication of the whole, he cannot justify ment and statement of fact in the follow- as to part: Gault v. Babbitt, 1 Ill, ing language: App. 130; Rice v. Aleshire, 72 Ill. App. "Fair and reasonable comment and 455; O'Malley v. Ill. Pub. & Pr. Co., 194 criticism upon the acts of Judicial of- Ill. App. 544; Harbison v. Shook, 41 ficers, which are matters of public con- 111.141." cern, are allowable, and are sometimes A 'search of the cases decided in the called 'privileged.' The right to make Illinois Supreme Court, discloses that the and publish such reasonable comment doctrine of fair comment has not been and criticism, however, does not extend so far as to permit false statements much considered or discussed, nor fully of facts and the subject of reasonable developed. This may be due largely to comment and fair criticism must be a the condition that in but few cases, in fact and not a libel." .. . general, is there any question of fair "The office of judge is considered by many as one of the most important in comment, as a distinct defense, fairly the community. It is, of course, raised or presented to the court for its unique, unlike all others; it deals only determination. Another reason has been in the administration of Justice, upon suggested that, like in many other states, which Is dependent, in part at least, the peace of the community. Of course while actually unimpeachable decisions all are free to speak and publish the have been made for individual cases they truth of the courts and judges; and 3S 28 Harvard Law Review, 413, 419 n. 218 Iil. App. 95 (1920). 3, 423 n. 1, 432 n. 2. 433 nn. 1, 2 434, n 1. "Cahill's Ill, Rev. Statutes. ch. 37, g 49, 6"Cooper v. Lawrence et al., 204 Ill. App. § 17. 1 1nner v. Illinois Pub. and Prti. Co.. 42 204 Ill. App., 261, 204, 267 (1917). CHICAGO-KENT REVIEW

reasonable comment upon and fair upon that which in untrue, it may still criticism of what they have done is to be put in as defense. Purther, we in- be encouraged; but a false statement timated that fair comment ipight be of fact concerning a judge may be pub- put in evidence under the general is- lished only at one's peril. 'It is one sue, but, it would seem to be proper thing to comment upqn or criticize, practice to plead that defense espe- even with severity, the acknowledged cially." or proved acts of a public man, and quite another to assert that he has In its recognition accorded the ever been guilty of particular acts of mis- prevailing influence and increasing power conduct.' Quoted with approval by Mr. of the press upon our civilization, the Justice Holmes in Burt v. Advertiser court drew the protective corrolary of Newspaper Co., 154 Mass. 288; People v. Fuller, 238 Ill. 116; 1 Starkie on the limit of its right in making fair Slander 118; Rearick v. Wilcox, 81 Ill. comment' to the publishing of the truth 77; Robbins v. Treadway, 25 Ky. 540; without malice": Triggs v. Sun Prtg. Pub. Co., 179 N. Y. "The press is the most important single 144; Commonwealth v. Clap, 4 Mass. psychological influence in our 163." civilization and determines, at least in part, The court indicated its adherence to the conscious thinking and will and the view that fair comment Is not libel conduct of a great multitude of people. Wielding such power as distinguished from the view that fair and given by the Constitution the right to utter the comment is a kind of conditional privi- truth with impunity, still, in the inter- lege, saying": est of organized society, that authority, "It is our opinion that where the under the guise of fair comment, should words charged constitute fair criticism not be allowed unjustly to assail the and are privileged (using the word integrity of the bench. And, so, it is 'privilege' in its popular sense) only the law, that, although publishing the as fair criticism, that the words truth, without malice, carries with it charged are then admittedly not libel- immunity from prosecution, publica- ous, and that the plea of the general- tion of that which is false entails lia- issue is sufficient." * * * "The fact that bility." pleas two, three, and four are allowed On the point of proper foundation to stand will not affect the defense, stated in fact as to the trial record because, with or without them. the de- of fendant is entitled to his endeavor to the plaintiff judge as the subject for the prove that the words charged are fair predicating of fair comment thereon, so criticism, that is, do not in and of that the reader could himself make his themselves constitute a libel." own inferences and draw his own con- Again, in its second opinion in the clusions in determining whether the pub- same case", rendered three years later, lished comment was reasonable, instead the court clearly drew the distinction be- of in merely giving to the reader what, tween fair comment and statement of in effect, was a series of dogmatic state- fact, recognizing the defense of fair comments, the Illinois court drew a funda- ment as one to be pleaded especially, in mental distinction recognized in the doc- proper practice. The court said: trine of fair comment, viz., that of the "We also stated as a principle of distinction between comment the law of libel that 'the subject of upon. given reasonable comment and fair criticism facts and the direct assertion of facts. must be a fact and not a libel'; that it The court said": must be the truth and not falsehood. "It will be observed that facts con- And, in discussing certain pleadings, stituting the trial record of Judge although we intimated that the de- Cooper are not set forth in the fendant par- would be entitled to an en- ticular text which constitutes the libel- deavor to prove that the words charged ous words of the second count; and it were fair comment and did not in and follows that any one reading that par- of themselves constitute libel, we only ticular publication would naturally as- intended by that'to announce a general sume that the injurious statements rule and did not mean that, where the therein made were considered to be alleged comment and criticism is based sufficiently proven by certain extrinsic 4 204 Ill. App., 261, 268 (1917). "2 218 Ill: '4218 Ill. App.. 95, 105, 106 (1920); 23 App., 95, 101 (1920). Harv. Law. Review 413 419-422; 36 C. J., '5 218 Ill. App. 95. 101, 102 (1920). Libel and Slander, § 286, p. 1282. CHICAGO-KENT REVIEW

facts known to the publisher. It is not the bounds of fair criticism have been as if the article in question had recited exceeded or not is a question of law what purported to be the trial record for the court.' of Judge Cooper and had .then pro- "Applying the foregoing principles ceeded, by way of inference and deduc- we are of the opinion that the words tion, to make comment thereon, for in charged in the second court are, as a such a case the reader of that publica- matter of law, statements of fact and tion would then be able himself to not comment, and that unless proven make inferences and deductions and to be true they are actionable: and. so determine whether the comment further, that the trial court should not which was actually published was rea- have submitted to the jury any part of sonable. In the article in question .the the article in question to determin, reader is merely presented with what. whether or not it was fair comment. in effect, is a series of dogmatic state- In regard to the burden of proof iL ments. He is given no opportunity to case the words are libelous per se and weigh and balance; he is told bluntly are, in part, statements of fact, the court that Judge Cooper is unfit. It may well be said that some of the words and consistently holds that there can be no phrases are, technically considered, in defense of fair commenta: the nature of comment upon what is "It is our opinion that the plaintiff implied in other words in the same was bound to prove the publication of publication and that the facts and such the words and then, having done that, comment are so intermingled that it is inasmuch as we are of the opinion that difficult to disassociate them one from the words are libelous per se, the the other. In such a case perhaps the burden was upon the defendant to in- best test is to consider what thoughts troduce evidence to show that they the reading of those words would were true, and, that being so, it fol- naturally give rise to in the mind of lows that the defendant was not en- the average person." titled at the close of the plaintiff's evi- With regard, to the question of sub- dence to a directed verdict on the mission to the jury of a controverted ground that the plaintiff had not prov- article for its determination as to en that the words of the libel were as the words charged whether it be fair comment, the court false. Inasmuch are, in part, statements of fact, and ruled in accordance with the accepted those words are libelous per se, there doctrine that such determination is a can be no defense of fair comment and question of law for the court": criticism." "It is strenuously contended by Conclusions counsel for the defendant that the trial In a study of a subject fraught wit court should have submitted the article complexity in a jurisdiction for which it in question to the jury to determine whether it was fair comment and crit- is desired to deduce an accurate state- icism. In Parsons v. Age-Herald Pub. ment of law, an avoidance of dogmatic Co., 181 Ala. 439, 61 So. 345, the court conclusions has been the policy of the the libel complained said: 'Whether writer. To this end, the presentation of may fall within this rule of privilege is a question of law for the court,' has been concretely set forth in extracts etc. Further, in the same opinion, the of flavor from original sources, as seemed court said in regard to a certain charge proper. This study of the subject as pre- which had been made, 'As matter of sented, it is thought, may warrant the law, it falls outside of the scope of comment and criticism, as we under- conclusions of the writer in a field stand their field of operation,' etc. In wherein others have been afforded prem- Patten v. Harper's Weekly Corporation, ises for drawing their own conclusions. 93 N. Y. Misc. 368, 158 N. Y. S. 70, the The writer's conclusions are therefore court said: 'If the charge were true as laid, it would be open to the defense of briefly submitted. justification but if asserted to be com- In the former presentation of the sub- ment. its appropriateness as such ject, the fact "as been sufficiently ad- should be dealt with as a question of verted to that the law of fair comment In law.' In Bingham v. Gaynor, 141 N. Y. App. Div. 301, the court said: 'Whether Illinois, as well as in the several states, HA218 Ill. App., 95, 106, 107 (1920)- 23 Law Review, 413, 427; 37 C. J.. Libel and Harv. Law Review, 413, 427, 428; 37 6. J. Slander, 501, p. 85, §1 546, 547, pp. 100, Libel and Slander, 3 654, p. 108. 101, 54, p. 108. "8218 I. App. 95, 116 (1920); 23 Harv. CHICAGO-KENT REVIEW

has been in a state of fluxion or in one As naturally to be expected, the appli- of undergoing a gradual development. cation of the principles has arisen espe- The opinions and pronouncements of cially with reference to candidates for both the supreme and appellate courts in public office, public officers, and other Illinois may be considered as not having public men. While freedom of public dis- resulted in even a comparatively fixed cussion of fitness and qualifications" Is doctrine of the law of fair comment in not to be denied, yet the public interest Illinois, and this condition is the common In the occasion does not justify either one throughout many of the several any citizen or the publisher of any news- states. In some of the more eastern paper to transcend the sphere of liberty states, notably Massachusetts, New York, allowed by defaming the candidate or New Jersey, Michigan, and others, ad- public person, or by casting unwarranted vanced ground has been taken upon imputations and aspersions upon his which there has been a notable tendency private character. Newspaper publishers to erect thereon the doctrine of fair have the same rights as other persons comment as it has logically developed In In this regard, and no more. The public the law of England. However, the de- man has the same protection to his velopment in Illinois has been such as to private personality and character as has clearly indicate the recognition of the any other citizen. His views as publicly doctrine of fair comment as a distinct expressed by him, his acts and his con- defense in libel. The courts may extend duct with reference to his public status. the doctrine to an ultimately fixed policy may be freely discussed, commented of law In the state, or they may recede upon, and censured even severely, and from ground seemingly attained. The for any such criticism there Is a complete prior decisions may control the future defense both in the justification as truth cases in a conservative application of for the statement of facts and In the former principles announced to new freedom afforded fair comment upon cases as they arise, or the courts may given facts. more largely base their opinions upon The public man's private character Is the growing authorities in this line from his own personal possession, as Is his other jurisdictions. private property, and is protected inviol- However, there is such a thing as too able against false and defamatory conservatively to estimate, or to limit charges, Imputations and aspersions. His dogmatically, the application of the prin- fitness and qualifications may be can- ciples indicated in the decisions, even vassed, criticised and adjudged by the when their meaning is not necessarily members of the public upon the given circumscribed by their very terms. The or proved facts and not upon defamatory true meaning may be found within the surmises, suspicions, aspersions and Im- spirit and in the implications permissible putations unwarranted by the given facts aside from a too literal Interpretation of even though such adverse opinions may the principles announced. With this be honestly entertained. The protection thought and in this light, the decisions of the public Interest does not require in Illinois may be read as a developing that he who holds an adverse opinion policy of law, and conclusions are not concerning another should be accorded necessarily limited by the lack of abso' full liberty or license for public expres- lute statement In particular cases. Ap- sion thereof as for a fact, if it be only a plying his own views as to the applica- surmise or suspicion or unprovable per- tion and meaning of the whole course of sonal Imputation, or opinion drawn from decisions In Illinois,- and particularly unproved premises of fact. with reference to the Illinois cases here- The saying that fair and reasonable tofore referred to and quoted from here- comment and criticism upon the acts of in, the writer submits his deductions as public officers is called "privileged" does to the Illinois law of fair comment. not mean that such criticism Is only sub- CHICAGO-KENT REVIEW ject to the defense of privilege, or con- to the reader of an opportunity. to ditional privilege, but only means that reason upon the facts and thereby also a it is within the scope of freedom per- denial to the subject of criticism of any mitted by the law in making statements semblance of fairness in the inferences upon truth and given fact and does not thus stated against him or in the infer- extend to invented or merely supposed ences that might be drawn in his behalf fact and therefore to libel. Comment by impartial and discerning readers. Di- upon or criticism of a public man upon rect assertion of fact implied in blunt the acknowledged or proved facts of his so-called comment, unfounded on given career is within the permissible scope, or recognized premises of fact, is not but to say that one has been guilty of comment properly so considered, but is particular acts of misconduct is trench- publication by direct assertion of fact ing upon the border of invention by the and is not entitled to a defense as fair speaker or writer, or is false, and in any comment at all since it is really not com- event unless justified by the truth of the ment. It would seem that the defense facts to be adduced In evidence, is defam- allowed to a charge of libel against one atory in the eye of the law. as for statements made In such direct The defense of fair comment is in its assertion of facts should only be that of nature, and is so recognized, as a sep- justification as on the ground of the arate, several one for true comment alone truth, and that only when published with and is to be established as such by the good motives and for justifiable ends. production of the basic facts into the When presented for determination Is evidence for the purpose of showing that the question arising from publication of the words charged are only fair comment a controverted article as to whether It thereon or are criticism based upon such be fair comment or not, such issue Is a established facts so as not to constitute matter of law for determination by the a libel. As such defense, fair comment court. The technical construction of the is one to be pleaded especially in proper article as to whether the bounds of fair practice in Illinois. criticism have been passed or respected The service, influence and power of the is properly matter of law within the press with the traditional and constitu- province of the court. If the facts stated tional rights of freedom of speech and therein require defense, as conceivably of the press is not to be minimized, cur- they usually would, the defense of justi- tailed or hampered, yet that right is one fication should be pleaded as to the facts to be exercised only with due and proper relied upon as a foundation, and a plea regard for the rights of the judiciary, of fair comment interposed as defense in public officers, candidates for office, and behalf of inferences based upon and other public men and citizens to the pos- drawn from such foundational facts. The session and protection of the right of character of comment on such facts as official integrity and of private character stated will then be determined as to Its undefamed. appropriateness by the court. When the When in the exercise of the constitu- court decides that the words charged are, tional freedom of comment, an official as a matter of law, statements of fact character or public man is made the sub- and not comment, then as such they reject of -criticism, the comment In ques- quire the Justification of truth as defense. tion must be based upon a proper foun- The defendant may go unscathed in law dation stated in fact for the proper pre- for fair comment that is only comment dicating of comment thereon, so that the permissibly drawn from correctly stated reader may himself make his Inferences premises of fact, but not for loose state- and draw 'his own conclusions as to the ments unfounded by any stated and Justi- fairness and reasonableness of the com- fied premises of fact. ment thus publicly made. The making In proper procedure In a case the plan- or publishing of dogmatic statements tiff has the burden of proving the publi- against a public man is in effect a denial cation of objectionable words. If the CHICAGO-KENT REVIEW

words are as a matter of law held libel- Book Reviews ous per se, the burden redounds upon the Cases and Other Materials on Inter- defendant to justify their truth, not as national Law. By Manley 0. Hudson, fair comment but as statement of fact. St. Paul: West Publishing Company, No burden attaches to the plantiff to 1929. prove that the words are false. The pub- We find here the latest and by far the lication has already injured him in his best collection of cases on international revolted feelings, if not in his legal right. law. Dr. James Brown Scott who pub- It Is clearly the defendant's burden to lished a collection of cases in 1902 and a show that he has acted within his legal second edition in 1922, has placed at the right in publishing only the truth without disposal of the editor the materials which malice, with good motives and for justifi- he had brought together. This book has able ends. If the words charged are by a great advantage over Dr. Scott's treat- the court held to be statement of fact, ise in not undertaking to deal with inter- or in part statement of fact, and are national law as a part of general sub- libelous In and of themselves, there is stantive law, but on the contrary, treats then no ground upon which a defense of It as a sub-division of public law. fair comment as such can be based or The decade since the end of the World stand in the law. War has made an important contribution And, finally: Upon a trial, after plain- to the materials which are open to the tiff has proved publication of objection- use of students. Probably at no time able and defamatory words and special have there been so many difficult prob- damage resultant therefrom, the duty is lems awaiting solutions. In consequence, then devolved upon defendant to show the boundaries of international law have that the subject of comment is a matter been much extended, and this collection of public interest or importance upon of cases is quite sufficient evidence which he has correctly stated true foun- of that fact. Wherever possible, the editor dational facts as a basis for fair comment has included cases in which the tribunals made by him thereon. After such duty have applied the general law of nations, has been performed by the defendant to and has distinguished them from those the establishment of his prima facie de- cases which have been based upon the fense, the duty is then cast upon the theory of international law of a single plaintiff to show withal that malice in state. fact has actuated the whole purpose or The only criticism which may be made course of the defendant in making the upon the book is that there is nothing publication complained of, and if there- like an adequate annotation of the peri- upon, malice in fact, or express malice, odipal literature upon the part of the defendant, be .by the on the subject. plaintiff proved, the defense of fair com- Corporate Meeting, Minutes, and Reso- ment fails at las t as wrecked upon de- lutions. By Lillian Doris. New York: fendant's malice. Prentice-Hall, Inc., 1929. The object of the writer in this case TUNE IN ON is to explain to those who are responsible for preparing the minutes of corporate WMAQ meetings, the elementary principles of Sunday, March 30 corporation law, a knowledge of which is 6 P. M. essential to a proper authorization of corporate action. RADIO DEBATE The forms include such as are useful Chicago.-Kent in the case of stockholders' and directors' VS. meetings, proceedings upon the meeting called for the purpose of organizing cor- Oklahoma University porations, resolutions concerning the management of the corporation, issuance