3.2 History of libel

Libel used to be any words, true or not, that damaged reputation.

Duel.Hamilton.Burr

Before libel lawsuits became possible in the early 1800s, conflicts over reputation often resulted in duels. This is a depiction of the tragic Burr-Hamilton duel of 1804.

The first state laws allowing civil suits for damage to reputation  were passed in the early 1800s. They  were thought to be a way to avoid duels, which could be deadly and often destroyed both plaintiff and defendant.  The most tragic example was the death of former Treasury Secretary Alexander Hamilton in a duel with then vice-president Aaron Burr in 1804.

Libel laws varied considerably from state to state, and the idea that a libel suit by a government official could be a First Amendment threat was not given much consideration until the mid-20th century.

In fact, the Bill of Rights (including the First Amendment) was not originally seen as applying to state law.   For example, in Barron v. Baltimore 32 U.S. 243, 1833, the Supreme Court decided not to overrule a state decision about damages apparently due the owner of a wharf. The case was broadly applied as a precedent for state supremacy in questions of Constitutional rights and was only overturned (officially) by the 14th amendment,  passed in 1866.  Unofficially, state laws were “incorporated” one by one under the US Bill of Rights over a period of decades.

The first time the First Amendment comes up as a defense against an overreaching state law up in this context were two mid-20th century prior restraint cases, Gitlow v. New York (1925) and Near v. Minnesota (1930).

In 19th and early 20th centuries, libel plaintiffs had a much easier time winning a libel case than they do today.  Here’s why:

  • The burden of proof was on the publisher. (Note: In Canada and some other nations,  the burden is still on the publisher. Britain changed its legal preference for the plaintiff in 2010.)
  • The case was judged under a “strict liability” standard — defamation under any circumstances would result in judgement against the media.
  • Harm was assumed to a plaintiff’s reputation; there was no need to prove general damages.

Because these rules had a chilling effect on freedom of speech, an offsetting system of privileges was developed in common law. Speeches by legislators, reports from official records, and fair comment about public officials or candidates for office became more or less tolerated under various state laws. Comments about literary or artistic works were also tolerated under the “fair comment” concept.

Despite this common law background,  state libel laws tended to lean towards the interests of the plaintiff and not the news media.


Famous Libel cases

The Cherry sisters

The Cherry Sisters

The most famous libel case in the U.S. (before the Sullivan case of 1964) was the Cherry v Des Moines Leader case of 1901.  The Cherry sisters were a homespun prairie vaudeville act. They were so  abysmally bad that they attracted audiences who enjoyed booing, hooting and throwing rotten vegetables at them. In fact, they often performed behind a net so that the rotten vegetables would not hit them.   Still, they felt compelled to sue for libel when Des Moines Leader newspaper editor Billy Hamilton wrote this scathing review:

Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35. Their long, skinny arms, equipped with talons at the extremities, swung mechanically, and soon were waved frantically at the suffering audience. The mouths of their rancid features opened like caverns and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre [belly dancing] and a fox trot –strange creatures with painted faces and hideous mien. Effie is spavined, Addie is stringhalt, and Jessie, the only one who showed her stockings, has legs without calves, as classic in their outlines as the curves of a broom handle.

Their lawsuit failed at the trial level, and the Cherry Sisters asked the Iowa Supreme Court for a finding of actual malice against Hamilton and the Des Moines Leader, which had republished his article. But the Court said:

One who goes upon the stage to exhibit himself to the public, or who gives any kind of a performance to which the public is invited, may be freely criticized … The comments, however, must be based on truth, or on what in good faith and upon probable cause is believed to be true, and the matter must be pertinent to the conduct that is made the subject of criticism. Freedom of discussion is guarantied by our fundamental law and a long line of judicial decisions. [T]he editor of a newspaper has the right, if not the duty, of publishing, for the information of the public, fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; of privileged communications, for which no action will lie without proof of actual malice. Surely, if one makes himself ridiculous in his public performances, he may be ridiculed by those whose duty or right it is to inform the public regarding the character of the performance. Mere exaggeration, or even gross exaggeration, does not of itself make the comment unfair. It has been held no libel for one newspaper to say of another, “The most vulgar, ignorant, and scurrilous journal ever published in Great Britain.”  A public performance may be discussed with the fullest freedom, and may be subject to hostile criticism and hostile animadversions, provided the writer does not do it as a means of promulgating slanderous and malicious accusations.

More about the Cherry Sisters:

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Oscar Wilde sues the Marquis of  Queensbury, 1895 (Britain)

 

 

Oscar Wilde was a famous playwright and wit about town in London in the 1880s and 90s.  He was also reckless.  In 1895, he brought a libel suit against the Marquis of Queensbury, the famous boxing rules champion, for insulting him in public, calling Wilde  “a sodomite” — a derogatory term for homosexual. If he lost, the marquis would have had to spend two years in jail.

However, during the trial, the marquis’ attorneys  brought some of Wilde’s lovers to the witness stand, including the son of the marquis.  Convincing evidence of his homosexuality inevitably came forward.

Not only did the marquis win the libel suit, but  Wilde was arrested and tried on criminal charges of sodomy.  He ended up spending two years in British jail and died, his career cut short,  in 1900.

For more on the Wilde trial: Prof. Douglas O. Linder‘s  Famous Trials

Old Bailey, the main courthouse in London, had never presented a show quite like the three trials that captivated England and much of the literary world in the spring of 1895.  Celebrity, sex, witty dialogue, political intrigue, surprising twists, and important issues of art and morality--is it any surprise that the trials of Oscar Wilde continue to fascinate one hundred years after the death of one of the world's greatest authors and playwrights?

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Annie Oakley and the Hearst papers 1903 – 1910  (US)   

Two Chicago newspapers belonging to William Randolph Hearst published an entirely false article on August 11, 1903, headlined “Famous Woman Crack Shot … Steals to Secure Cocaine.”

The story said Oakley had been sentenced to 45 days in a Chicago prison, for “stealing the trousers of a negro in order to get money with which to buy cocaine.”  Oakley’s beauty had vanished, the reporter said: “Although she is but twenty-eight years old, she looks almost forty.”

The truth behind the story was probably that someone arrested on cocaine charges signed her name “Annie Oakley” and the newspaper, with applying any ethical standard, took this at face value.  In fact, Oakley was 42, she was in New Jersey at the time of the story, and she was not a cocaine user.  She embarked on a series of 55 libel suits against newspapers that printed the story, winning all of them but losing money in the process.

Hearst’s smear campaigns were part of the way he did business. Any embarrassing rumor or half-truth would be used to ruthlessly ruin famous people and in the process boost Hearst and his publishing empire.

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Whistler v Ruskin, 1878  (Britain) 

One of Whistler’s London nocturnes.

Oxford professor John Ruskin, a well known romantic poet and literary critic, criticized a painting by the American artist James McNeil Whistler, saying:

I never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face.

Whistler sued Ruskin in British court for 1,000 pounds. The jury found Ruskin guilty but awarded Whistler only one farthing. Most observers believed it was a defeat for both men who had allowed their disagreement about art to become a costly public libel trial.

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Collier v Postum, 1907 (US) 

Charles W. Post, whose Post cereal company made Postum, claimed that eating Grape Nuts would “obviate the necessity of an operation for appendicitis.”  (The ad to the left shows the style of Postum’s advertising, although this is about 1920 and doesn’t make the medical claim for Grape Nuts.)

Reacting to the claim about appendicitis, Peter F. Collier, publisher of Collier’s magazine, said Post was engaged in “potentially deadly lying.” When Post launched a campaign of intimidation in response, claiming that Colliers tried to extort money in return for its silence,  Collier sued Post for libel and was awarded $50,000 damages.

On appeal, in 1912,  the judgement was reversed on error and remanded for a new trial that never occurred. Post is known today for a fictional account of his life, the Road to Wellville, which was a 1994 feature film.

More importantly, this shows the absolutely abysmal level of regulation over commercial medical claims in the early 1900s. It is part of the reason why advertising in general was not considered to have First Amendment protection until the 1960s at the earliest.

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US v Press Publishing Co (NY World), 219 U.S. 1, 1911

Pulitzer.giving.orders.to.world.color

Joseph Pulitzer, self-appointed manager of the universe. Puck, January, 1898.

When  Joseph Pulitzer and other publishers alleged that there had been a $40 million bribe in connection with the purchase of land for the Panama Canal, US presidentTheodore Roosevelt was outraged.  Pulitzer’s New York World newspaper alleged that Roosevelt and others had conspired to bribe French officials to relinquish claims to the Panama Canal.

The suit originated with grand jury indictments in Washington DC  on Feb. 17, 1909, on charges of criminal libel, and also in New York March 4, 1909, the day Roosevelt left office.

The New York indictment used an unusual tactic, alleging that the supposed libel was a violation of an 1825 federal law prohibiting malicious injury to harbor defenses.  Since the New York World newspaper had been circulated at West Point military academy, it was a harbor defense, and the attack on the president was a malicious act.

Arguments were heard before the Supreme Court on October 24, 1910, and not surprisingly, on January 3, 1911, the court quashed (threw out)  the criminal libel indictment. This was not the resounding victory for freedom of the press that Pulitzer had hoped for, but on the other hand, the court repudiated this use of an unusual law for political persecution by former authorities against their political detractors in the press.

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Henry Ford v The Chicago Tribune, 1916 – 1919

Henry_ford_1919.smIn 1916, Ford company warned its employees that they would lose their jobs if they volunteered for the National Guard in order to fight what was then a small-scale border war with Mexico.  This annoyed Robert McCormick, the irascible editor of the Chicago Tribune, who wrote  ran an editorial entitled “Flivver Patriotism:”

If Henry Ford allows this rule to stand, he will reveal himself not merely as an ignorant idealist but as an anarchist enemy of the nation which protects his wealth. The proper place for such a deluded human being is a region where no government exists except as he furnishes … Any place in Mexico should be a good location for Ford factories.
Ford sued for libel, and after procedural delays, the case was tried in 1919.  McCormick’s lawyers put Ford on the stand for nine days. Although it was clear that he was not an anarchist, it also became clear that Ford was basically an uneducated rube who thought chile con carne was a military unit and didn’t know the dates of major historical events.  “History is more or less bunk,” he said on the witness stand. “We want to live in the present and the only history that is worth a tinker’s dam is the history we make today.”
After spending hundreds of thousands on legal costs, Ford won the libel suit, although it was a pyrrhic victory — the jury awarded him only six cents.

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Quentin Reynolds v Westbrook Pegler and Hearst Corp. 1955

Quentin Reynolds

This was a classic newspaper feud between a liberal columnist (Quentin Reynolds) and a conservative one (Westbrook Pegler).

Pegler wrote about Reynolds in 1954, saying that Reynolds and his “girl friend of the moment were nuding along the public road,” that the neighbors might not understand, and if “they saw Reynolds and his wench strolling along together, absolutely raw, they would call the State police;” that “as Reynolds was riding to (Reynolds’ friend) Heywood Bruin’s grave with her, he proposed marriage” to the widow; that Reynolds “became one of the great individual profiteers of the war” and “cleaned up $2000 of the ill-gotten loot of the Garson brothers who, with Congressman Andy May, later were convicted of fraud in war contracts”; that he was a “four-flusher,” with “an artificial reputation as a brave war correspondent in the London blitz,” one of the “`let’s you and him fight’ school of heroes” and that Clare Boothe had “peeled him of his mangy hide and nailed it to the barn door with the yellow streak glaring for the world to see.”

The court found for Reynolds and fined Hearst $175,000 in damages — the largest fine ever at the time.   The trial became a Broadway play, A Case of Libel, and several made-for-TV movies.

Other libel suits