Tappan v. Wilson

^Opinion of the court, by Judge Wood: But one question is raised for decision: Are the matters set forth in this declaration, as there pleaded, libelous? A libel is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent toward government, magistrates, or individuals. It does not necessarily charge the plaintiff with a crime, for if its design be wanton and malicious ridicule, and the tendency of the publication to hold up the plaintiff to the scoffs and sneers of society; to degrade him and lessen his standing, an action may well be sustained. So, likewise, if its tendency will naturally excite to passion and revenge, and consequent breaches of the peace. Justice Thompson, in the People v. South-wick, 9 Johns. 214, says: “ To permit the press to become the instrument of malicious ridicule and contempt of individual character, would not only corrupt the moral taste, but speedily set society by the ears; and the common good of every people demands that, thus far, it should be restrained.” An editor may, [194] nevertheless, comment freely on the acts of government, officers, or individuals, and indulge in occasional mirth and wit, and it is only when the character of the publication is malicious and its tendency to degrade and excite to revenge, that it is condemned by the law, and subjects the publisher to sustain a prosecution. We have carefully perused this declaration, and are unable to perceive that it charges the defendant with having published of the plaintiff such terms of reproach or epithets, as can be seriously claimed, in their natural tendency, to excite the passions to revenge; nor can we discover anything which is calculated, in its result, to cast upon the plaintiff that contempt, which is calculated seriously to degrade him, or lessen his standing in the esteem of the world. The declaration does not charge the publication to be made of the plaintiff, as judge; but states the fact that he was a judge of said district court, and avers the publication was of Benjamin Tappan, innuendo, that it was made of him as a judge. The office of the innuendo is to direct to its object the charge made. It can neither enlarge nor restrain the natural sense and import of the words used; if they do not convey the sense and meaning, when their application is explained, the innuendo can not aid them. On the whole, we are of the opinion the demurrer should be sustained.