But while we concede that liberty of speech and of the press does not imply complete exemption from responsibility for every thing a citizen may say or publish, and complete immunity to ruin the reputation or business of others so far as falsehood and detraction may be able to accomplish that end, it is nevertheless believed that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.

An examination of the controversies which have grown out of the repressive measures resorted to for the purpose of restraining the free expression of opinion will sufficiently indicate the purpose of the guaranties which have since been secured against such restraints in the future. Except so far as those guaranties relate to the mode of trial, and are designed to secure to every accused person the right to be judged by the opinion of a jury upon the criminality of his act, their purpose has evidently been to protect parties in the free publication of matters of public concern,

to secure their right to a free discussion of public events [* 422] and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. To guard against repressive measures by the several departments of the government, by means of which persons in power might secure themselves and their favorites from just scrutiny and condemnation, was the general purpose; and there was no design or desire to modify the rules of the common law which protected private character from detraction and abuse, except so far as seemed necessary to secure to accused parties a fair trial. The evils to be guarded against were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.

The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the

citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offence, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. Or, to state the same thing in somewhat different words, we understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted.

At the common law an action would lie against any person publishing a false and malicious communication tending to disgrace or injure another. Falsehood, malice, and injury were the elements of the action; but as the law presumed innocence of crime or misconduct until the contrary was proved, the falsity of an injurious publication was presumed until its truth was averred and substantiated by the defendant; and if false, malice in the publication was also presumed unless the publication was privileged under rules to

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be hereafter stated. There were many cases, also, where [* 423] the law presumed injury, and did not call upon the complaining party to make any other showing that he was damnified than such implication as arose from the character of the communication itself. If it accused him of a criminal offence, involving moral turpitude, and such as would subject a party proved guilty of it to punishment by imprisonment, if it charged

1 Alexander v. Alexander, 9 Wend. 141; Wagaman v. Byers, 17 Md. 183; Castlebery v. Kelly, 26 Geo. 606; Redway v. Gray, 31 Vt. 292; Hoag v. Hatch. 23 Conn. 585; Burton v. Burton, 3 Greene (Iowa), 316; Wright v. Paige, 36 Barb. 438; Simmons v. Holster, 13 Minn. 249. But the charge must be unequivocal. Van Rensselaer v. Dole, 1 Johns. Cas. 279; Dexter v. Taber, 12 Johns. 239; Hopkins v. Beedle, 1 Caines, 347; Butterfield v. Buffam, 9 N. H. 156; Holt v. Scolefield, 6 T. R. 691; Jacobs v. Fyler, 3 Hill, 572; Crone v. Angell, 14 Mich. 340; Bonner v. McPhail, 31 Barb. 106; Mower v. Watson, 11 Vt. 536. Though it is not necessary that technical words be employed; if the necessary inference, taking the words together, is a charge of crime, it is sufficient. Morgan v. Livingston, 2 Rich. 573; True v. Plumley, 36 Me. 466; Curtis v. Curtis, 10 Bing. 477. It is not essential that the charge should be such as, if true, to subject the party now to punishment. It is the disgrace attending

him with an infectious disease, the effect of the charge, if believed, being to exclude him from the society of his fellows; if the charge affected the party in his business, office, or means of livelihood, like charging a trader with insolvency, and the like; or if any injurious charge holding a party up to public contempt, scorn, or ridicule was propagated by printing, writing, signs, burlesques, &c., 3-the law presumed injury, and the charge was said to be actionable per And although it was formerly held that to charge a female verbally with want of chastity was not actionable without proof of special damage, yet of late a disposition has been exhibited

se.

to break away from this rule in favor of one more just [* 424] and sensible, and the statutes of several of the States have either made adultery and incontinence punishable as crimes, whereby to charge them becomes actionable per se under the common-law rule, or else in express terms have declared such a charge actionable without proof of special damage.

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the charge that gives the right of action, and therefore to say that the person is a returned convict is actionable. Baum v. Clause, 5 Hill, 196; Smith v. Stewart, 5 Penn. St. 372; Utley v. Campbell, 5 T. B. Monr. 396; Holley v. Burgess, 9 Ala. 728. Or to accuse him of a crime for which prosecution would be barred by statute of limitations would be actionable. Van Ankin v. Westfall, 14 Johns. 233; Poe v. Grever, 3 Sneed, 664; Stewart v. Howe, 17 Ill. 71.

Carlslake v. Mapledorum, 2 T. R. 473; Bloodworth v. Gray, 7 M. & G. 334; Nichols v. Guy, 2 Ind. 82; Watson v. McCarthy, 2 Kelly, 57.

2 Lindsey v. Smith, 7 Johns. 360; Thomas v. Croswell, 7 Johns. 264; Riggs v. Denniston, 3 Johns. Cas. 198; Fonvard v. Adams, 7 Wend. 204.

3 Janson v. Stuart, 1 T. R. 748; Van Ness v. Hamilton, 19 Johns. 367; Clegg v. Laffer, 10 Bing. 250; Steele v. Southwick, 9 Johns. 214.

Gascoign v. Ambler, 2 Ld. Raym. 1004; Graves v. Blanchet, 2 Salk. 696; Wilby v. Elston, 8 C. B. 142; Buys v. Gillespie, 2 Johns. 115; Brooker v. Coffin, 5 Johns. 188; Bradt v. Towsley, 13 Wend. 253; Dyer v. Morris, 4 Mo. 214; Stanfield v. Boyer, 6 H. & J. 248; Woodbury v. Thompson, 3 N. H. 194; Berry v. Carter, 4 Stew. & Port. 387; Elliot v. Ailsbury, 2 Bibb, 473; Linney v. Malton, 13 Texas, 449; Underhill v. Welton, 32 Vt. 40.

See the cases of Sexton v. Todd, Wright, 317; Wilson v. Runyan, ib. 671; Malone v. Stewart, 15 Ohio, 319; Moberly v. Preston, 8 Mo. 462; Sidgreaves v. Myatt, 22 Ala. 617; Terry v. Bright, 4 Md. 430; Spencer v. McMasters, 16 Ill. 405.

See Frisbie v. Fowler, 2 Conn. 707; Miller v. Parish, 8 Pick. 384; Robbins v. Fletcher, 101 Mass. 115; Pledger v. Hitchcock, 1 Kelley, 550; Smally v. Anderson, 2 T. B. Monr. 56; Williams v. Bryant, 4 Ala. 44; Dailey v. Reynolds, 4 Greene (Iowa), 354; Symonds v. Carter, 32 N. H. 458; McBrayer v. Hill, 4 Ired. 136; Morris v. Barkley, 1 Lit. 64; Phillips v. Wiley, 2 Lit. 153; Watts v. Greenlee, 2 Dev. 115; Drummond v. Leslie, 5 Blackf. 453; Worth v. Butler,

But in any other case a party complaining of a false, malicious, and disparaging communication might maintain an action therefor, on averment and proof of special damage,1 though the truth of the charge, if pleaded and established, was generally a complete defence.2

In those cases in which the injurious charge was propagated by printing, writing, signs, burlesques, &c., there might also be a criminal prosecution, as well as a suit for private damages. The criminal prosecution was based upon the idea that the tendency of such publications was to excite to a breach of the public peace;

and on similar grounds to publish injurious charges against [* 425] a foreign * prince or ruler was also held punishable as a public offence, as tending to embroil the two nations, and

disturb the peace of the world.1

We are not so much concerned, however, with the general rules pertaining to the punishment of injurious publications, as with those special cases where, for some reason of general public policy, the publication is claimed to be privileged, and where, consequently, it may be supposed to be within the constitutional protection. It has always been held, notwithstanding the general rule that malice

7 Blackf. 251; Richardson v. Roberts, 23 Geo. 215; Buford v. Wible, 32 Penn. St. 95; Freeman v. Price, 2 Bailey, 115; Regnier v. Cabot, 2 Gil. 34; Ranger v. Goodrich, 17 Wis. 78; Adams v. Rankin, 1 Duvall, 58; Downing v. Wilson, 36 Ala. 717; Cox v. Bunker, Morris, 269; Smith v. Silence, 4 Iowa, 321; Truman v. Taylor, ib. 424; Beardsley v. Bridgeman, 17 Iowa, 242; Patterson v. Wilkinson, 55 Me. 45. The injustice of the common-law rule is made prominent in those cases where it has been held that an allegation that, in consequence of the charge, the plaintiff had fallen into disgrace, contempt, and infamy, and lost her credit, reputation, and peace of mind (Woodbury v. Thompson, 3 N. H. 194), and that she is shunned by her neighbors (Beach v. Ranney, 2 Hill, 310), was not a sufficient allegation of special damage to support the action.

1 Kelley v. Partington, 3 Nev. & M. 116; Steele v. Southwick, 9 Johns. 214; Hallock v. Miller, 2 Barb. 630; Powers v. Dubois, 17 Wend. 63; Weed v. Foster, 11 Barb. 203; Cooper v. Greeley, 1 Denio, 347; Stone v. Cooper, 2 Denio, 293. The damage, however, must be of a pecuniary character. Beach v. Ranney, 2 Hill, 309. But very slight damage has been held sufficient to support considerable recoveries. Williams v. Hill, 19 Wend. 305; Bradt v. Towsley, 13 Wend. 253; Olmsted v. Miller, 1 Wend. 506; Moore v. Meagher, 1 Taunt. 39; Knight v. Gibbs, 1 Ad. & El. 43.

2 See 1 Hilliard on Torts, 410; Heard on Libel and Slander, § 151; Townsend on Libel and Slander, § 73.

Commonwealth v. Clap, 4 Mass. 168.

427 State Trials, 627; 2 May, Const. History of England, c. 9.

is to be inferred from a false and injurious publication, that there were some cases to which the presumption would not apply, and where a private action could not be maintained without proof of express malice. These are the cases which are said to be privileged. The term "privileged," as applied to a communication alleged to be libellous, means generally that the circumstances. under which it was made were such as to rebut the legal inference of malice, and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the mere falsity of the charge. The cases falling within this classification are those in which a party has a duty to discharge which requires that he should be allowed to speak freely and fully that which he believes; where he is himself directly interested in the subject-matter of the communication, and makes it with a view to the protection or advancement of his own interest, or where he is communicating confidentially with a person interested in the communication, and by way of advice or admonition.2 Many such cases suggest themselves which are purely of private concern; such as answers to inquiries into the character or conduct of one formerly employed by the person to whom the inquiry is addressed, and of whom the information is sought with a view to guiding the inquirer in his own action in determining upon employing the same person; 3

answers to inquiries by one tradesman of another * as to [* 426] the solvency of a person whom the inquirer has been

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desired to trust; answers by a creditor to inquiries regarding the conduct and dealings of his debtor, made by one who had become surety for the debt; communications from an agent to his principal, reflecting injuriously upon the conduct of a third person in a matter connected with the agency; communications to a near 1 Lewis v. Chapman, 16 N. Y. 373, per Selden, J.; Townsend on Libel and Slander, § 209.

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"When a communication is made in confidence, either by or to a person interested in the communication, supposing it to be true, or by way of admonition or advice, it seems to be a general rule that malice (i. e., express malice) is essential to the maintenance of an action." 1 Starkie on Slander, 321. See Harrison v. Bush, 5 El. & Bl. 344; Somerville v. Hawkins, 10 C. B. 589; Wright v. Woodgate, 2 Cr. M. & R. 573.

Pattison v. Jones, 8 B. & C. 578; Elam v. Badger, 23 Ill. 498; Bradley v. Heath, 12 Pick. 163.

Smith v. Thomas, 2 Bing. (N. C.) 372; Story v. Challands, 8 C. & P. 234. 5 Dunman v. Bigg, 1 Campb. 269, note.

6 Washburn v. Cooke, 3 Denio, 110. See Easley v. Moss, 9 Ala. 266