This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The use of slander and the like would seem to be no more justifiable in trade disputes than in other cases. Accordingly, it is generally held that an action to recover damages will lie for slander in such cases.1 Sending out a statement that a contractor has been employing non-union men, and that union workmen will no longer work for him with the intention of preventing him from obtaining building contracts, is actionable if such statement is substantially false.2
Different considerations obtain when injunction is the remedy which is sought. In some jurisdictions it is said that injunction will not issue to prevent the publication of statements, whether written or oral, which will tend to interfere with the business of another, under a constitutional provision which guarantees the right of every citizen freely to speak, right and publish on all subjects, being responsible for the abuse of that right3 Under this theory the court has refused to enjoin the publication of a circular which denounced the autocratic method of an employer in chasing his employes down the street with a butcher knife.4 Under this theory, injunction will not issue to restrain the publication of notices that all who patronize a certain theater will be regarded as unfair to organized labor.5 The fact that the persons by whom such false statements are made are financially insolvent and are very numerous. dors not justify the court, under such theory, in issuing an injunction to restrain such false and malicious publications, since in theory at least, the right of action for damages against each individual is an adequate remedy at law.6
"By the express terms of Civ. Code 1913, par. 1464, the courts are prohibited from restraining orders or injunctions, the issuance of which prohibits any person or persons 'from attending at or near a house or place where any person resides, or works, or carries on business, as happens to be for the purpose of peaceably obtaining or communicating information, or of peaceably persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute; or from recommending, advising or persuading others by peaceful means so to do.' * * *
"In the absence of this statute, a serious question would likely exist in this jurisdiction. whether, as a matter of law, in the nature of things, 'peaceful' picketing may exist; but with par. 1464, supra, on our statute books, that question is eliminated as a question of law, and expressly made a question of fact during the existence of a labor strike; and, before the courts are permitted to interfere by injunction, the necessity must appear to prevent irreparable injury to property or property rights, and picketing in a peaceful manner creates no such necessity for injunction interference by the courts." Truax v. Bisbee Local, No. 380, Cooks' and Waiters' Union, 19 Ariz. 379, 171 Pac. 121.
See obiter, in Union Pacific Ry. v. Ruef, 120 Fed. 102.
13 Empire Theater Co. v. Cloke, 53 Mont. 183, L. R. A. 1917E, 383, 163 Pac. 107.
1 Standard Oil Co. v. Doyle, 118 Ky. 662, 111 Am. St. Rep. 331, 82 S. W. 271; Martineau v. Foley, 231 Mass. 220, 1 A. L. R. 1145, 120 N. E. 445.
Contra, by statute, Vacher v. London Society , A. C. 107.
2 Martineau v. Foley, 231 Mass. 220, 1 A. L. R. 1145, 120 N. E. 445,
3Truax v. Bisbee Local, No. 380, Cooks' and Waiters' Union, 19 Ariz. 379, 171 Pac. 121; Dailey v. Superior Court, 112 Cal. 94, 53 Am. St. Rep. 160, 32 L. R. A. 273, 44 Pac. 458; Goldberg v. Stablemen's Union, 149 Cal. 429, 117 Am. St. Rep. 145, 8 L. R. A. (N.S.) 460, 86 Pac. 806; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 90 Am. St. Rep. 440, 56 L. R. A. 951, 67 S. W. 391; Lindsay v. Montana Federation of Labor, 37 Mont. 264, 127 Am. St. Rep. 722, 18 L. R. A. (N.S.) 707, 96 Pac. 127; Empire Theater Co. v. Cloke, 53 Mont. 183, L. R. A. 1917E, 383, 163 Pac. 107. "Conceding the statements on the banners, circulars and language used in loud street talks, to the. effect that plaintiffs are 'unfair to organized labor,' that one of the plaintiffs, armed with a butcher knife, has a habit of chasing employes on the street, that plaintiffs habitually violate contracts with their employes, and other statements, attributing to plaintiffs acts and characteristics which in their nature tend to bring plaintiffs into disrepute, contempt, or ridicule; yet the statements made are statements spoken or written and published on the subject of the strike pending by persons interested therein, and
" 'Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.' Section 6, Article 2, State Constitution.
"If a court of equity may restrain and prohibit members of a labor union from speaking, writing and publishing on the subject of a dispute between the union and employers of its members, then the members of a labor union are not such persons as are within the contemplation of the said constitutional provision. Certainly, If the court issues its extraordinary writ of injunction prohibiting the defendants from displaying banners, circulars, and talking on the streets with respect to the strike, then, while the restraining order exists, the defendants restrained by the terms of such order are deprived of a constitutional right enjoyed by all other citizens of the state. Can a court of equity thus suspend the constitutional rights of a citizen because such citizen happens to be insolvent and unable financially to respond in damages for the abuse of. that right? What degree of wealth is required to authorize a citizen to enjoy all of his constitutional rights without interference by the courts? The answer is that the matter of financial worth does not limit the constitutional right to speak, write and publish on all subjects. If this right is abused to the harm of another, the remedy given is an action for damages, and that remedy is deemed adequate. If the public suffers injury because the things written, printed and published are maliciously false, and in their nature tend to bring any person into disrepute, contempt, or ridicule, the remedy is by a criminal action of libel. Section 221, Pen. Code 1913.
"In Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264, 96 Pac. 127, 18 L. R. A. (N.S.) 707, 127 Am. St. Rep. 722, the court, having before it the interpretation of a similar constitutional provision, used the following language:
" 'The guaranty of this section extends as fully to the poorest as to the wealthiest citizen of the state; and, though an abuse of the liberty so guaranteed may result in loss for which there can not be any adequate compensation, the framers of our constitution in preparing it, and the people in adopting it, doubtless concluded that it was better that such results be reached in isolated cases than that the liberty of speech be subject to the supervision of a censor. To declare that a court may say that an individual shall not publish a particular item is to say that the court may determine in advance just what the citizen may or may not speak • • • upon a given subject, is, in fact, to say such court is a censor of speech as well as of the press. Under similar constitutional provisions the supreme courts of California and Missouri have reached the same conclusion. Dailey v. Superior Court, 112 Cal. 94, 44 Pac. 458, 32 L. R. A. 273, 53 Am. St. Rep. 160: Marx & Haas Jeans Clothing Co. v. Watson. 168 Mo. 133, 67 S. W. 391, 56 L. R. A. 951. 90 Am. St. Rep. 440/
In other jurisdictions equity has not felt that the constitutional guaranty of free speech was intended to permit the use of slander or. fraud to wreck a business; and such wrongs have been restrained by injunction.7
If X has, by means of fraud, induced A to break his contract with B, B may recover from X.8
"I think this is the sound interpretation to be given the constitutional provision supra. The fact that the person attacked by the wrongful speech, writing, or printing, if injured, may recover damages by a civil action, he is the remedy furnished is adequate for the purposes, and equity may not be invoked because the offending person or persons are financially unable to respond in damages, or because a great number of lawsuits must be commenced." Truax v. Bisbee Local, No. 380, Cooks and Waiters' Union, 19 Ariz. 379, 171 Pac. 121.
4 Truax v. Bisbee Local. No. 380, Cooks' and Waiters' Union, 19 Ariz. 379, 171 Pac. 121.
5 Empire Theater Co. v. Cloke, 53 Mont. 183. L. R. A. 1917E, 383. 163 Pac. 107.
6 Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 90 Am. St. Rep. 440. 56 L. R. A. 951, 67 S. W. 391; Lindsay v. Montana Federation of Labor, 37 Mont. 264, 127 Am. St. Rep. 722, 18 L. R. A. (N.S.) 707, 96 Pac. 127.
7Collard v. Marshall , 1 Ch. 571; M. Steinert & Sons Co. v. Tagen, 207 Mass. 394, 32 L. R. A. (N.S.) 1013, 93 N. E. 584; Harvey v. Chapman. 226 Mass. 191, L. R. A. 1917E, 389, 115 N. E. 304.
8 National Phonograph Co. v. Edison-Bell Consolidated Phonograph Co. , 1 Ch. 335.