Libel, in law, has one meaning in criminal law, or as a ground for civil action, and quite another as one of the processes of legal remedy. In both senses the word is derived from the Latin libellus, which means literally a little book, but was used for any brief writing. In the Roman criminal law the phrase was libellus famosus. In our law a libel may be defined as any published defamation. In The People v. Croswell, 3 Johnson's Cases, 354, occurs the following definition of a libel, which has been often commended: "A censorious or ridiculous writing, picture, or sign, made with a mischievous and malicious intent toward government, magistrates, or individuals." We propose to consider: 1, what this defamation must be; 2, what the publication; 3, what the punishment or remedies; 4, what may be the defence. Before proceeding to these topics, it may be well to remark, however, that libel is distinguished in law from slander, by the fact of publication; for while libel is published defamation, slander is only spoken defamation. (See Slander.) As to the requisite defamation, it need not charge any crime, nor anything which must affect a man's business or pecuniary interest, or indeed accuse him of any moral obliquity. It is quite enough if it holds him up to ridicule.
One reason for this is, that a man has a right to a respectable position in society, and is injured by anything which tends to degrade him in the opinion of his neighbors. But the reason most commonly given by courts and text writers is, that the essence of the offence of libel lies in its being dangerous to the public peace; and defamation which only makes its object ridiculous is quite as likely to make him angry and stir him to break the peace, as if it affected his pecuniary interests or exposed him to legal measures. On the same foundation rests the distinction between libel and slander; because the law considers that words which while spoken only are fleeting and transitory, become fixed and vested by publication, and capable of indefinite diffusion, and therefore their capacity of mischief is vastly increased; hence, while libel is indictable, slander is not. The defamation may be of the dead, provided it have a tendency to stir up to revenge or violence any living friends of the deceased.
A defamatory publication regarding a foreign ruler or government may be libellous, from its tendency to disturb amicable relations between the two countries; and the common law took notice of and punished libels on the government of the country, but it may be doubted if this doctrine is admissible in the United States. So it has been held that a publication is a libel which consists only of defamation of the Christian religion, of morality, or of decency. The publication may consist of any act or acts which put the defamation into distinct and apprehensible form; thus, not only printing it in any form is sufficient, but painting it, as on a sign, or drawing it, as in a caricature. Nor need the name of any person be mentioned if it be sufficiently obvious who is thus held up to public ridicule; nor need it be given to the public, for a letter sent to but one person is publication. Again, if the defamation be published in a work of general circulation, as a newspaper, the writer, the editor, and the publisher are all and severally liable; and the editor and publisher are liable although they give the name of the writer, or even if the writer's name be appended to the article; for if the law were otherwise, it would be easy to give publicity to any libel with impunity, merely by putting to it the name of some person who was not responsible in fact, because he had nothing to lose.
Nor is it held to be a defence to the editor or publisher, that he did not know the libellous character or nature of the matter published. It is as much publication if the book or paper be given away as if it be sold; and with every copy given or sold there is a repetition and renewal of the offence. It is doubtless of the essence of libel that malice enter into the act or motive; but this may be either express malice or constructive malice; that is, there may be direct proof of an actual malicious purpose in the words or act, or they may be such that the law will imply malice in the absence of proof, on the ground partly that no person could do such a thing if he were not malicious, and partly that the thing itself is so wrongful and mischievous, that the safety of society requires that the doer should be punished as if he were malicious, and that no one should be able to defend himself for doing so great a wrong by showing that it was done only through negligence or stupidity. - As to the punishment, any person guilty of libel may be indicted for the offence, as a crime against the public, and if convicted punished accordingly. But the person defamed may also bring his action for damages and recover full compensation. The punishment for libel is fine and imprisonment.
This is regulated by statute in some states, and in others rests on the common law, according to which libel is a misdemeanor. By the Roman civil law, the crime of libel was punished very severely. The twelve tables made it a capital offence. By the time of Augustus usage had so modified the law, that the punishment was only corporal; but Valentinian made it once more capital, and extended the punishment of death to him who wrote or published the libel, or omitted the destroying or suppressing of it if he could do so. By a law of Alfred, the inventor of a public falsehood (publicum mendacium) was punished by the loss of his tongue, nor could he redeem his tongue for less than the price of his head. The laws of Greece as well as those of Rome made many distinctions in relation to the law of libel, some of which were very nice; but they do not seem to have recognized that which has been for a long time the fundamental distinction, by the law of England and of this country, between published defamation or libel and merely spoken defamation, which, as we have seen, is only slander. - The defence against libel has presented questions which were once of great public interest; and if they are less so now, it is only because they are now quite well settled, and the law in respect to them stands on a basis which no one is disposed to disturb.
The earliest question in point of time, and one of the most important in its character, which has arisen in the history of the law of libel, is in relation to the function of the jury as distinct from that of the court. In the last century there was an endeavor in the English courts to confine the question before the jury to the mere publication of the words charged, leaving it for the court to say whether the words or thing published constituted a libel. This was so held by the court of king's bench in several cases; notably in The King v. Woodfall, as the publisher of Junius (5 Burrows, 2666); and finally in The King v. the Dean of St. Asaph (3 T. R., 428, in notes). The powerful and very eloquent speech of Ers-kine in this last case attracted very general attention to the subject; and soon afterward the statute 32 George III., eh. 60 (1792), commonly called Mr. Fox's libel act, provided that in every trial of an indictment or information for libel the court should give their opinion and direction to the jury on the whole matter at issue, as in other criminal cases.
This placed the whole question before the jury, who might, if they saw fit, bring in a general verdict of not guilty, although they were satisfied that the accused published the words alleged, and the court instructed them that these words constituted a libel. Still, it was thought that this question remained properly a question of law only. In 1803 the case of The People v. Croswell, for an alleged libel upon Thomas Jefferson, was tried before the supreme court of New York; and the court being equally divided upon this question, an act was passed in 1805, going further than the English statute, and providing that on every trial of an indictment for libel the jury "shall have a right to determine the law and the fact, under the direction of the court, as in other criminal cases." This may now be regarded as the settled law in every part of the United States. - Another question, next in time and not inferior in importance, is how far and under what limitations the truth of the words published is a defence against a criminal charge of libel. It is conceded that the truth is a good defence against a civil action for libel; but the law is certainly not so upon the trial of an indictment for libel.
It must be remembered that a libel was regarded as a crime, or a public offence, because it endangered the public peace; and as an inference from this principle, the common law did undoubtedly refuse to permit the truth of the words spoken to be any defence against an indictment for libel. Sir Edward Coke (5 Co., 125) said: " The greater appearance there is of truth in any malicious invective, so much the more provoking it is;" and Lord Mansfield only simplified and condensed the ancient rule in his famous saying: "The greater the truth, the greater the libel." This continued to be the law in England, until the statute 6 and 7 Victoria, c. 90, provided, in substance, that the truth should be a defence if it was published for the public benefit. In New York, by the statute of 1805, already referred to, it was enacted that the truth should be a defence, provided it were published with good motives and for justifiable ends; and this is now, either by constitutional provisions, by statute, or by adjudication, the law of every one of the United States. - Certain publications are said to be privileged; some absolutely, so that no action or prosecution can be sustained therefor; others in a qualified sense, so that the publisher is protected unless express malice is averred and proved.
As an instance of the first class may be mentioned the charge of crime in due form by the prosecuting officer for the purpose of putting the party upon trial, and other cases coming within the like reasons. Of the second class the illustrations are numerous. Petitions to the legislature for a redress of grievances within its jurisdiction, or to the proper authority for the removal of an officer or agent in whose duties the petitioner is concerned, are common instances, and so are replies made to inquiries regarding the character or conduct of one who has been in the person's employ. In these and the like cases the law encourages freedom of expression, so long as there is an honest purpose to give the facts, and will not permit mistakes of fact to render a party responsible in the absence of an intent to injure. It is the settled rule in this country that the publication of legislative proceedings is privileged, and this rule is now established by statute (3 and 4 Victoria, c. 9) in England after a very determined contest. Judicial proceedings may also be published with full privilege where they are given fully and fairly, and are not merely ex parte proceedings or examinations.
How far one is privileged in dealing with the pretensions of a candidate for public office is not very well settled. Certainly his qualifications for the office sought may be very freely discussed, but there are many cases which appear to hold that his moral character and former conduct are matters standing apart from his qualifications, and not to be discussed before the public, unless one is prepared to prove all he asserts. There are no decisions as yet which concede privilege to the publishers of news, and however careful they may be in gathering information, they cannot escape responsibility for injurious publications which prove mistaken, upon the ground solely of their own good faith and freedom from intent to injure. Upon the subject of defence, it may be proper to add, that many things which would not be sufficient for a full and technical defence (as for example, that the defendant, as printer, knew nothing of the character of the article, and had given the name of the writer), would operate strongly to mitigate the punishment if the defendant were found guilty under an indictment, or to lessen the damages in a civil suit.
It is proper to add also, that in the United States libels can only be punished criminally in the state courts and under state laws; it having been decided at an early day that the federal courts could not take cognizance of such cases in the absence of any law of congress, and the only law ever passed to operate within the states (the sedition law, so called, of 1798) having been repealed after a brief existence. - Libel is also the name of the first process in a suit in admiralty. In England the word is retained, for some purposes at least, in the canonical courts; but in the United States it is in practice confined to courts of admiralty. There are no especial forms which must be adhered to. The essentials are: 1, it should be properly addressed to the right judge; 2, it should state and designate with clearness and accuracy the parties to the action; 3, it should narrate the facts and circumstances, directly and affirmatively, upon which the libellant rests his case; 4, these should be sufficient, as stated, to give the court jurisdiction; 5, it should pray for the proper relief specifically, and the proper process, and for relief generally. A libel is sometimes "simple," that is, it tells a plain story, continuously, from beginning to end.
More often it is, and perhaps it should always be, "articulate," or divided into articles, which are successively numbered, and each one of which includes some one allegation of a specific, material fact. The purpose of this is, to enable the respondent to answer definitively and specifically each part of the libellant's case; some parts he would wish to admit, others to deny, and yet others to qualify.