Dowling v. Livingstone

Grant, J. (after stating the facts). The propositions advocated by the plaintiff are thus stated in the third chapter of his book: “1. The suspension of all immigration to this country. ‘ ‘ 2. The making of eight hours a legal day’s work. “3. The prohibition of marriage under the age of 21 years. “ 4. The prohibition of the employment of children under 15 years of age in workshops, factories, and mines. “5. The fixing of the minimum rate of wages at $2 per day for all laborers, except domestic and farm laborers. “6. The reduction of the legal rate of interest to 4 per cent, per annum. “ 7. The purchase of all street railways, and the placing of them under the control and management of the municipal authorities. “8. The purchase of all telegraph, telephone, and railroad lines in the United States, and the placing of them under the control and management of the national government. “9. The prohibition of the purchase of lands in this country by nonresident aliens, and the compelling of all nonresident aliens who now own lands to sell them within a specified time, or forfeit their titles.” The book is mainly devoted to a discussion and elucidation of these propositions. No malice was shown on the [327] part of the defendants, unless it is fairly deducible from the article itself. On the contrary, it appears to be conclusively established that the defendants did not entertain any malice towards him, and that the book was placed by them in the hands of their critic, who wrote the article, without any comment or instruction. When an author places his book before the public, he invites criticism; and, however hostile that criticism may be, and however much damage it may cause him by preventing its sale, the critic is not liable in an action for libel, provided he makes no misstatement of any material facts contained in the writing, and does not attack the character of the author. The book and the criticism are both before the public. The language we used in Belknap v. Ball, 83 Mich. 589, applies to this case: “When language is truthfully stated, the criticism thereon, if unjust, will fall harmless, for the former furnishes a ready antidote for the intended poison. Readers can then determine whether the writer has, by the publication, libeled himself or the candidate. When the language is falsely and maliciously stated, privilege ceases to constitute a defense.” We think that case and the authorities there cited establish the principle governing this. Townshend (Sland. and L. § 258) states the rule as follows: • “As criticism is opinion, it can never he primarily material to inquire into its justness. The right to criticise implies the right to judge for one’s self of the justness of the criticism. It would seem to be but a delusion to say one has the right to criticise, provided the criticism be just. The justness or unjustness can never be more than matter of opinion. The test always is, was the criticism bona fide? It is like the case of one writing concerning the sanity of another. The test of the justification is not, was the statement such as a man of sound sense would have made? but, was it the honest conviction of the publisher? ” [328] The case of Bacon v. Railroad Co., 66 Mich. 166, has no application to this case. No question of criticism of an author’s writing was there involved. The defendant had reported the plaintiff as having been discharged from its employ for stealing. The report was a direct attack upon his personal character. There is in both reason and authority a wide distinction between language uttered concerning a person and criticism of his writings. Townsh. Sland. & L. § 255. It was said in Campbell v. Spottiswoode, 3 Fost. & F. 428: “The article, no doubt, is pungent, bitter, and caustic. At the same time, public men, and, above all, public writers, must not complain if they are sometimes rather roughly treated. Public writers, who expose themselves to criticism, must not complain that such criticism is sometimes hostile. * * * It was perfectly lawful for a public writer to say that it was an idle scheme, and that it was a delusion to suppose that, by forcing these papers [meaning the plaintiff’s newspapers] into circulation by free distribution, the great cause of missions would be promoted, and, in short, to denounce the whole scheme as pernicious and delusive.” In a note to the above case will be found cited several English cases sustaining the rule. See, also, Townsh. Sland. & L. § 254. It is not libelous to ridicule literary composition. Carr v. Hood, 1 Camp. 355, note. Lord Ellenborough in that case said: “One writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum absque injuria. Where is the liberty of the press if an action can be maintained on such principles ? * * * Every man who publishes a book commits himself to the judgment of the public, and anyone may comment on his performance. If the commentator does not step aside from [329] the work, or introduce fiction for the purpose of. condemnation, he exercises a fair and legitimate right.” It is unnecessary to cite or quote further from the authorities. The rule of law in such cases is clear. In applying it to the present case, we find that the personal character and reputation of the author are not attacked. His theories are. In no material matter is there any misstatement of fact or of the propositions set forth in the book. The critic was at liberty to attack or denounce them with sarcasm and ridicule. The learned circuit judge instructed the jury that “the defendants had the right to ridicule this book if, in the candid judgment of any fair man, the book or any part of it deserved ridicule.” This is not the law. • As already shown, when the critic correctly states the author, he (the critic) is the sole judge of the language of his criticism. Many fair men might disagree with him, and very likely would in this case. This is for the public, and not for a jury, to determine. If the plaintiff’s contention be the correct rule of law, then the protectionist might maintain an action for libel against the free trader who attacks his protection theories and arguments with sarcasm, ridicule, and contempt. Plaintiff insists that the defendants charged him 'with plagiarism because he did not give Henry George credit for a quotation from his works. The quotation was inclosed in quotation marks, but not credited to Mr. George, and the court very properly charged the jury that this did not charge him with plagiarism. The court also correctly instructed the jury that it was not libelous to call his remedy a “quack remedy.” It was not libelous to say that “ Horace Greeley advocated the prohibition of the acquirement of more land by a man than is actually needed by him for his business or homestead purposes,” even though it should appear that Mr. Greeley had not advocated such a doctrine. Complaint is also made of the statement that “he [plaintiff] denounces the single-tax scheme as robbery.” [330] In that part of the book to which this statement has reference, plaintiff is discussing the single-tax theory of Mr. George, and is denouncing his proposition to take the land from the present owners without compensation, which he denounces as “a gigantic piece of robbery.” As stated in the book, this was a part of the single-tax theory of Mr. George. The article complained of, however, correctly states the position of the plaintiff upon this subject. The declaration contains no innuendoes, and, álthough the criticism is undoubtedly severe and caustic, it does not exceed the bounds of legitimate criticism. The court should have directed a verdict for the defendants. Judgment reversed, and a new trial ordered. The other Justices concurred.