Van Lonkhuyzen v. Daily News Co.

Ostrander, C. J. (after stating the facts). The considerable reference which has been made in the foregoing statements to the points presented upon the former appeal and to the opinion delivered is made partly because of- the use made in the briefs and in the opinion of the words justified and justifiable, partly to show the theories of counsel presented on the first appeal, and partly because it is a contention now made by counsel for plaintiff that this court, by its opinion, left to be determined upon a new trial (upon the same facts) only the question of damages, while the counsel for defendant say that the trial court correctly read the opinion as holding that on a new trial the questions directed to be submitted to the jury were: (1) “Whether or not the limits of fair criticism have been transcended,” and (2) “The question of justification.” It is clear that the article complained about is either a libel (actionable defamation), or it is fair comment. Plaintiff says it is actionable defamation; defendant, in substance and effect, that it is fair comment. The lower court, upon the first trial, held that the article was not libelous, and then, and illogically, if the term justified is used with its technical meaning, that the defendant was justified in publishing the article. This court held (1) that the words employed were libelous, and (2) that whether they were justified — excused, warranted — because they were fair comment, was a question for the jury. Unless we did then, and do now, wholly misapprehend the case presented by the pleadings and- the proofs, then, allegations of minor — 587 — errors aside, no other points of law were then, or are now, involved in a proper determination of the main question presented by the record. No separate question of justification or of privilege, giving these words their technical meaning, is presented, and we do not read the notice, given by defendant, of special defenses as raising these questions; we do read it as presenting, with the plea of the general issue, the contentions that the language is not libelous and, if it is, that all that was published was fair comment and therefore not actionable. Plaintiff cannot be heard to say that what he himself published and circulated was not matter of public interest, because he' addressed the public upon a matter of current public concern, criticising action of public officials and advocating certain action of public officials. What he published therefore invited, or at any rate excused, comment and criticism from those who held other views. Plaintiff, however, is not a public officer, nor a candidate for office, but is a person who had the legal right to frame and circulate a petition to the President of the United States, and to comment, fairly, upon governmental policies and actions. Good taste might well have influenced him, in view of his status, to omit the particular activity, and his status, if known, would be likely to qualify his arguments; but his legal right cannot be denied. Defendant commented upon and criticised what plaintiff had published and criticised his political activity, and in doing so used language about him • personally which we held, and now hold, to be libelous per se; of such a character as to require the court to advise the jury that unless defendant’s contention that it was fair comment was made out it imputed malice and injury. The onus is on plaintiff, where a defense of fair comment is raised, just as in any other case, to show — 588 — that the words are reasonably capable of being understood as a libel on him, and it is for the judge to say whether the published article is capable in law of being a libel, McQuire v. Western Morning News Co., L. R. 2 K. B. Div. (1903) 100, 111, and the court having determined this point favorably to the plaintiff, then whether the words complained of are, or are not, fair comment is essentially a question for the jury. Campbell v. Spottiswoode, 3 B. & S. 778, 32 L. J. R. Q. B. 185; Merivale v. Carson, L. R. 20 Q. B. Div. 275. “Fair comment does not negative defamation, but establishes a defense to any right of action founded on defamation.” Per Buckley, L. J., in Walker & Son v. Hodgson, L. R. 1 K. B. Div. (1909) 239, 253. “It is precisely where the criticism would otherwise be actionable as a libel that the defense of fair comment comes in.” Per Lord Loreburn, L. C*, in Dakhyl v. Labouehere, L. R. 2 K. B. Div. (1908) 325, 327. See Cooper v. Stone, 24 Wend. (N. Y.) 434; Dowling v. Livingstone, 108 Mich. 321 (32 L. R. A. 104); Newell on Slander and Libel (3d Ed.), chap. 20, p. 686 et seq.; Fraser’s Law of Libel and Slander (5th Ed.), art. 24, p. 155 et seq. In making the defense of fair comment, defendant had no benefit of privilege, in the sense in which the learned trial judge used the term in advising the jury; no privilege attaches to a newspaper in such a case, and the liberty of the press, unless affected by statute, is no greater and no less than the liberty of every citizen. McAllister v. Free Press Co., 76 Mich. 338; Bee Pub. Co. v. Shields, 68 Neb. 750 (94 N. W. 1029, 99 N. W. 822) Although some eminent judges have used the word “privilege” to describe the public right of'fair comment (Gray, C. J., in Gott v. Pulsifer, 122 Mass. 235, 238, 239), bona fide comments on matters of public interest are not privileged; because it is the right of every one, not the privilege of any particular — 589 — one, to comment fairly and honestly on any matter of public interest, and the defense of fair comment is equally applicable whether the criticism be oral or written. One distinction between fair comment and privileged communications is that in the latter case the words may be defamatory, but the defamation excused or justified by reason of the occasion, while in the former case the words are not defamation of the plaintiff and hence not'libelous, the stricture is not upon the person himself but upon his work — upon what he has said or has written. Another distinction is that if criticism or comment is privileged, strictly, the plaintiff would in every case be required to prove actual malice, however false and however injurious the strictures, while the defendant would only have to prove that he honestly believed the charges he made; and this is not the law. Clearly, the court was in error in instructing the jury that there was involved any question of qualified privilege, in the sense in which the court used the term, and in advising them that plaintiff must prove express malice in order to recover. Quite as clearly, the court was not in error in refusing to charge, as requested to do by the plaintiff, that the only question for the jury was the damages sustained by the plaintiff. The jury should have been instructed that the article in question is libelous unless it is fair comment, and that whether or not it is fair comment was for them to decide, under instructions to be given them. If it was fair comment, plaintiff could not recover; if it was not, the rules to be applied in respect to the measure of recovery are those applicable to any other case of libel. In view of the foregoing, it seems to us unnecessary to consider further and comment upon the charge of the court. However, it perhaps ought to be said that evidence of repetition of the libel before suit was — 590 — begun may be received in aggravation of damages, and repetition after suit begun and after a first trial may be proved as evidence of malice if the publication is not found to be, in fact, fair comment. It was error to admit' in evidence the article — editorial — headed, “Dr. Van Lonkhuyzen,” printed on November 4, 1915, after the first trial of the cause was' ended in the -circuit court. It was offered and received as tending to rebut malice. The editorial reads: “Dr. Van Lonkhuyzen. “You have declared before our magistrates your intention of becoming an American citizen. It is no reflection upon your character, your intelligence nor upon your ideals that in your four years of residence in the United States you have not as yet been able to grasp the spirit of American .patriotism in all its depths and fullness. You cannot understand in its entirety the American spirit until you become, thoroughly imbued with it. You cannot understand. the blessings .of American citizenship until you have shared in them. An American court has impressed you with some of these essentials. “We will welcome you as a citizen of our free country, as we welcome all men with Christian ideals. We will welcome you as we welcomed all men of leadership and achievements. We will extend to you the hand of freedom’s fellowship in the thought and hope that you, when instilled with that spirit which moves America, will lend your many excellent qualities, your unquestionable high character and your intellectual endowment to the forces that have made American citizenship what it is.” It is said by appellee that the plaintiff had offered to show malice, various publications appearing in defendant’s newspaper after the publication of the alleged libel, and that this article is— “only another article of the same class tending to show that the defendant was not actuated by personal ill will against the plaintiff.” — 591 — It might have been argued by plaintiff’s counsel, the article being in evidence, that it was a confession that the original editorial and its repetition were designed by defendant, not as fair comment upon what the' plaintiff had written and published, but to teach plaintiff himself a lesson, to personally humiliate him. We are of opinion that the court erred in receiving it. It is not of the “same class” as those offered by plaintiff. If regarded as favorable to defendant, it is self-serving evidence made by defendant in its own behalf. The judgment is reversed and a new trial ordered, with costs to appellant. ’ Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.