several States, which prohibit the harassment of debtors by the publication of their names as bad debtors; and, in one case, the constitutionality of the law was contested, but unsuccessfully.1 United States statutes also prohibit the writing of "dunning" communications to debtors on postal cards. The principal inquiry that concerns us in the present connection is, to what extent privileged communications remain so, when they are published through the public press. The privilege does not extend beyond the necessity which justifies its existence. Thus, for example, the law provides for the legal counsellor and advocate a complete immunity from responsibility for anything he says in the conduct of a cause. The privilege rests upon the necessity for absolute freedom of speech, in order to insure the attainment of justice between the parties. A publication of his speech will not aid in the furtherance of justice, and hence it is not privileged. But the law favors the greatest amount of publicity in legal proceedings, it being one of the political tenets prevailing in this country, that such publicity is a strong guaranty of personal liberty, and furthers materially the ends of justice. Hence we find that fair, impartial accounts of legal proceedings, which are not ex parte in character, are protected and are recognized as justifiable publications.2 The publication is privileged only when it is made with good motives and for justifiable ends.3 Observations or comments upon the proceedings do not come were in point of fact false." Judge Allen in Sunderlin v. Bradstreet, supra. 1 State v. McCabe, 135 Mo. 450. 2 Lewis v. Levy, E. B. & E. 537; Hoare v. Silverlock, 9 C. B. 20; Torrey v. Field, 10 Vt. 353; Stanley v. Webb, 4 Sandf. 21; Fawcett v. Charles, 13 Wend. 473; McBee v. Fulton, 47 Md. 403 (28 Am. Rep. 465); Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548. The privilege is also extended to the publication of investigations ordered by Congress. Ferry v. Fellows, 21 La. Ann. 375. * Saunders v. Baxter, 6 Heisk. 369. within the privilege. Nor, it seems, do the defamatory speeches come within the privilege thus accorded to the publication of legal proceedings. But ex parte proceedings, and all preliminary examinations, though judicial in character, do not come within the privilege, and are not protected when published in the newspaper. In one case, the court say: "It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends, that every man is presumed innocent of crimes charged upon him, until he is proved guilty. But the circulation of charges founded on ex parte testimony, of statements made, often under excitement, by persons smarting under real or fancied wrongs, may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of trial comes, the rule has been reversed, and the presumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be utterly groundless. If every preliminary ex parte complaint, which may be made before a police magistrate, may with entire impunity be published and scattered broadcast over the land, then the character of the innocent, who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down without any malice on the part of the publisher. The refutation of slander, in such cases, generally follows its propagation at distant intervals, and bring often but an imperfect balm to wounds which have become festered, and perhaps incurable. It is not to be denied that occasionally 1 Stiles v. Nokes, 7 East, 493; Clark v. Binney, 2 Pick. 112; Commonwealth v. Blanding, 3 Pick. 304 (15 Am. Dec. 214); Pittock v. O'Neill, 63 Pa. St. 253 (3 Am. Rep. 544); Scripps v. Reilly, 88 Mich. 10; Storey v. Wallace, 60 Ill. 51. 1 Saunders v. Mills, 6 Bing. 213; Flint v. Pike, 4 B. & C. 473. See Stanley v. Webb, 4 Sandf. 21. the publication of such proceedings is productive of good, and promotes the ends of justice. But in such cases, the publisher must find his justification, not in privilege, but in the truth of the charges."1 But the English courts have ately shown an inclination to depart from this doctrine, particularly in relation to the publication of police reports. In a late case,2 Lord Campbell indorses and acts upon the following quotation from an opinion of Lord Denman, expressed before a committee of the House of Lords in 1843: "I have no doubt that (police reports) are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties in unraveling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence; they know that such proceedings are only in the course of trial, and they do not form their opinions until the trial is had. Perfect publicity in judicial proceedings is of the highest importance in other points of view, but in its effect upon character, I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels au interest, probably in an exaggerated form, and the imputation may often rest upon the wrong person; both these evils are prevented by correct reports." The publication of police reports, or of any other preliminary proceedings of a judicial nature, will bring the news to the ears of countless numbers of strangers, who, not knowing the party accused, will not likely be prejudiced in his favor, and certainly would not have heard. or have taken any interest in the rumor of the man's guilt, 1 Stanley v. Webb, 4 Sandf. 21. See Usher v. Severance, 21 Me. 9 (37 Am. Dec. 33); Matthews v. Beach, 5 Sandf. 259; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548; Duncan v. Thwaites, 3 B. & C. 556; Charlton v. Watton, 6 C. & P. 385. 2 Lewis v. Levy, E. B. & E. 537. but for the publication. The readers of these reports, who are inclined to receive them in the judicial frame of mind, suggested by Lord Denman, are not numerous, and very few will dismiss from their minds all suspicions against the innocence of the accused when there has been a failure to convict him of the charge. Even when there has been a trial of the defendant, and the jury has brought in a verdict of acquittal, the publication of the proceedings is calculated to do harm to the reputation of the defendant. But the public welfare demands the freest publicity in ordinary legal proceedings, and the interest of the individual must here give way. On the other hand, there is no great need for the publication of the preliminary examinations. In only a few cases can the publication prove of any benefit to the public. The public demand being small, the sacrifice of private interest is not justified. Not only is the publication of the proceedings of a court of law privileged; but the privilege extends to the publication in professional and religious journals of proceedings had before some judicial body or council, connected with the professional or religious organization, which the publishing paper represents. And so likewise would be privileged the publication of legislative proceedings, and the proceedings of congressional and legislative investigating committees." SECTION 24. Security to reputation Malicious prosecution. 25. Advice of counsel, how far a defense. § 24. Security to reputation-Malicious prosecution. Although a prosecution on the charge of some crime may result in a verdict of acquittal, even where the trial would furnish to a judicial mind a complete vindication, by remov 1 Burrows v. Bell, 7 Gray, 301; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rev. 698). Terry v. Fellows, 21 La. Ann. 375. ing all doubts of the innocence of the accused, it will nevertheless leave its mark upon the reputation. Even a groundless acccusation will soil one's reputation. But it is to the interest of the public, as well as it is the right of the individual, that resort should be made to the courts for redress of what one conceives to be a wrong. While a litigious spirit is to be deprecated, since in the institution of legal order the right to self-defense is taken away, except as an immediate preventive of attacks upon person and property, it is not only expedient but just, that when a man believing that he has a just claim against the defendant, or that this person has committed some act which subjects him to a criminal prosecution, sets the machinery of the law in motion, he should not be held responsible for any damage that might be done to the person prosecuted, in the event of his acquittal. The good faith of the prosecutor should shield him from liability. Any other rule would operate to discourage to a dangerous degree the prosecution of law-breakers, and hence it has been recognized as a wise limitation upon the right of security to reputation. But the interests of the public do not require an absolute license in the institution of groundless prosecutions. The protection of privilege is thrown around only those who in good faith commence the prosecution for the purpose of securing a vindication of the law, which they believe to have been violated. Hence we find that the privilege is limited, and, as it is succinctly stated by the authorities, in order that an action for malicious prosecution, in which the prosecutor may be made to suffer in damages, may be sustained, three things must concur: there must be an acquittal of the alleged criminal, the suit must have been instituted without probable cause, and prompted by malice. A final acquittal is necessary, because a conviction would be conclusive of his guilt. And even where he is convicted in the court below, and a new trial is ordered by the superior court for error, the conviction is held to be con |