Donahoe v. Star Publishing Co.

Lobe, C. J.,

charging the jury :

Gentlemen of the jury:—The plaintiff in his declaration alleges that the defendant company maliciously composed and published, in a public newspaper called The Star, issued by the defendant on the second day of September, 1900, a libel containing among other things, certain defamatory charges as to the conduct of the plaintiff, while a member of the General Assembly of the State of Delaware, in the session of 1899.

The plaintiff avers that he has been injured by such publication, and claims both compensatory and punitive damages therefor.

To this declaration the defendant has pleaded not guilty.

*181 It is not disputed that the alleged libel was actually published in The Star, a newspaper owned and issued by the defendant, on the day named. The first question that meets you therefore is, was it maliciously published.

The words of the alleged libel impute to the plaintiff a crime punishable by the laws of this State and are actionable in themselves. In such case the law presumes malice, and implies that the plaintiff has received some damage. Upon the plea of not guilty, the plaintiff, therefore, is entitled to your verdict for nominal damages. He would also be entitled to such actual or compensatory damages, as he may have shown you by the proof in this case that he has sustained; if any such! proof there be.

The plaintiff insists that he has proved not only the malice implied by law from the character of the libellous publication, but that express malice has also been proved, viz., that the libel was composed and published in a vindictive and malevolent spirit, with a malicious intent to injure the plaintiff, and that therefore he is entitled to punitive or exemplary damages.

Express malice must be proved; it is never implied or presumed. It may be proved, however, either directly or indirectly.

To rebut express malice, and in mitigation of damages, the defendant has been permitted, under the ruling of the Court, to put in evidence by a number of witnesses, the acts, expressions and conduct of the plaintiff, and the conditions surrounding him on the last day of the session of the Legislature of 1899—being the time set forth in the alleged libel; and also to prove the general reputation and rumors relating thereto which came to the defendant before the publication of the libel. Such testimony was admitted by the Court solely for the purpose of rebutting express malice and in mitigation of damages, and in no manner may be considered by you as a justification or in bar of this action.

In determining, therefore, whether there was express malice or not, it is your duty to consider all such acts, expressions and conduct of the plaintiff, the circumstances surrounding him, coupled *182 with such general rumors and reputation as may have been proved. If upon careful examination you are satisfied that they were such as would reasonably impress a fair-minded man that the plaintiff was then acting corruptly as alleged in the libel, and that the defendant was so impressed when the libel was composed and published, you should give such proof all due weight in rebutting express malice, and in mitigating the damages claimed by the plaintiff. For in that case such reasonable cause for belief, and . evidence that the defendant acted thereon alone, would rebut and disprove express malice. >

Ordinarily under the general issue the defendant may prove that the publication was a privileged one. The defendant insists that under the facts and circumstances proved in this case that this libel was privileged. The defendant claims that the plaintiff at the time of the publication was a candidate for public office, and as such submitted himself to all proper criticism as to character and fitness therefor; that the matter contained in the said libel was only such proper criticism.

The right of free discussion in the public press, of the conduct of public officers, and of candidates for public office, is safeguarded by the Constitutions of the United States and of the several states.

The Constitution of this State, adopted in 1792, contains the following provision, which has ever since remained unchanged:

“ The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty.” (Art. 1, Sec. 5.)

What is the extent of that liberty and what is the abuse of it ? The greatest freedom is allowed in the discussion and criticism of the acknowledged or proved acts of a public man (Davis vs. Shepstone, 11 Appl. Cas. L. R., 187), but publications of falsehoods *183 (even about public officers or candidates for office) are never privileged. (Belknap vs. Ball, 83 Mich., 583.)

In an action for damages for writing or publishing an alleged libel, the defendant, under a statute of this State (Ch. 449, Vol. 11, Laws of Del.) may plead and prove the truth of the charge, and that it was written or published properly for public information, and with no malicious or mischievous motives.

If such a plea is made and sustained by proof, it is a complete defense to the action. But if, on the other hand, in an action such as this, the defendant files no such plea of justification in bar of the action, but files only, as in this case, the general plea of not guilty, the utmost effect of evidence that the defendant had probable cause to believe that his charge against the plaintiff was true, and that the publication was made for the public good, would be to negative express malice and thus defeat the claim for exemplary damages.

The law as to privilege is well stated by Lord Hershall in Davis vs. Shepstone, 11 Appl. Cas., L. R., 187, where he used these words: “ There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment and criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.”

This seems to be a leading case, and has been quoted and approved as such in the case of Burt vs. Advertiser Newspaper Company, 1 54 Mass., 238, where Judge Holmes adds: “If one privileged citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer. Sheckell vs. Jackson, 10 Cush., 25 .”

*184 Again, in Post. Pub. Co. vs. Hallam, 59 Fed., 529 , Judge Taft approves this case, and adds: “ That the public acts of public men could be lawfully made the subject of comment and criticism, not only by the press, but also by all members of the public, for the press had no higher rights than the individual; but that while criticism and comment, however severe, if in good faith were privileged, false allegations of fact, as for instance, that he committed disgraceful acts, were not privileged, and that if the charges were false, good faith and probable cause were no defence, though they might mitigate damages.”

The law therefore seems to be clear that false allegations of fact, charging a candidate for office with a criminal offense are not privileged, and if the charges are false, good faith and probable cause are no defense. In such case the publisher of the libel takes his own risk, and can justify only by proving the truth of the charge.

In our judgment the doctrine of privileged publication is not applicable to this case, and you may not consider it in reaching your verdict.

With this instruction upon the law we now say to you :

That in any event you should find a verdict for the plaintiff for nominal damages.

In the absence of express malice, your verdict should be confined to nominal damages, unless the plaintiff has proved that he has suffered some actual damage. If he has made such proof, whatever actual damage has been so proven should be added to nominal damages.

If you should be satisfied, however, that express malice has been proved, and that the publication was maliciously and vindictively made with intent to injure the plaintiff, you may give exemplary damages, such as the circumstances of the case may warrant, to punish the defendant and to deter others from like offenses without regard to proof of actual damages. Punitive damages however, can only be given where there is clear proof of express malice.

Verdict for plaintiff for $700.