She has always been so cautious and so reserved that everybody was sure there was some reason for it at bottom. Mrs. Can. Why, to be sure, a tale of scandal is as fatal to the credit of a prudent lady of her stamp as a fever is generally to those of the strongest constitutions. But there is a sort of puny sickly reputation, that is always ailing, yet will outlive the robuster characters of a hundred prudes. . . (Enter Sir Peter Teazle.) Sir Pet. Ladies, your most obedient. (Aside.) Mercy on me, here is the whole set! a character dead at every word, I suppose. Mrs. Can. I am rejoiced you are come, Sir Peter. They have been so censorious-and Lady Teazle as bad as any one. Lady Teaz. But Sir Peter is such an enemy to scandal, I believe he would have it put down by parliament. Sir Pet. 'Fore Heaven, madam, if they were to consider the sporting with reputation of as much importance as poaching on manors, and pass an Act for the preservation of fame, as well as game, I believe many would thank them for the bill. Lady Sneer. O Lud! Sir Peter; would you deprive us of our privileges? Sir Pet. Ay, madam; and then no person should be permitted to kill characters and run down reputations but qualified old maids and disappointed widows. Lady Sneer. Go, you monster! Mrs. Can. But, surely, you would not be quite so severe on those who only report what they hear? Sir Pet. Yes, madam, I would have law-merchant for them, too; and in all cases of slander currency, whenever the drawer of the lie was not to be found, the injured parties should have a right to come on any of the indorsers. Crab. Well, for my part, I believe there never was a scandalous tale without some foundation. ACT II, Scene 1. A Room in Sir Peter Teazle's House. (Enter Sir Peter and Lady Teazle.) a charming set Sir Pet. Lady Teazle, Lady Teazle, I'll not bear it! of acquaintances you have made there! Lady Teazle. Nay, Sir Peter, they are all people of rank and fortune, and remarkably tenacious of reputation. Sir Pet. Yes, egad, they are tenacious of reputation with a vengeance; for they don't choose anybody should have a character but themselves! Such a crew! Ah! many a wretch has rid on a hurdle who has done less mischief than these utterers of forged tales, coiners of scandal, and clippers of reputation. Lady Teaz. What, would you restrain the freedom of speech? Sir Pet. Ah! they have made you just as bad as any one of the society. 891. SIR ARTHUR HELPS. Realmah. (1883. pp. 458, 469.)... Mr. Milverton commenced reading: "On the Art of making Men Comfortable." ... I pass on to other topics connected with the great subject of promoting the comfort of mankind. . . . The main enemies to human comfort are Intolerance, Denigration, Unjustifiable Repetition, Unjust Criticism, Uncalled-for Publicity.... Denigration. It may be very stupid in me, but I cannot understand the pleasure which people take in blackening each other. In the first place, it is such an easy thing to do. The clever thing to do is to find out people's merits. I do not say this satirically; but it is often the outer points of men's characters, -little foolish habits, modes of talk that are not agreeable, tiresome ways, unpleasant roughness on the surface, all which afford such easy opportunities for denigration, while to discern the sterling worth and merit and kindness which there are in so many human beings (I believe in nearly all) does require nice observation, guided by a kindly imagination. I should not care so much about this denigration if there were not always people ready to repeat to the person blackened all the dark and unpleasant things which others have said about him or her. Touching Unjustifiable Repetition, which makes so much mischief and destroys so much comfort in the world, I would only quote that good man, Thomas à Kempis, whom I have quoted before, and who says, "Do not hasten to repeat even those things which you believe" ("Nec audita, vel credita, mox ad aliorum aures effundere"). With respect to Unjust Criticism. The world is full of this, and the critics little know what pain they occasion. I do not say that critics should be able to do the work they criticise, but really they ought to sympathize to some extent with whatever they criticise. Do they ever think how difficult it is to do anything? It is lucky that we come upon the fruits of other men's work in former generations, when there was less criticism, for there is no knowing what good work might not have been stifled if it had been subjected to the same ordeal of criticism which abounds in the present day. If we do not take care, we shall enter into a Byzantine period of the world's history, in which there is endless comment and little or no original production. . . Now I come to Unreasonable Publicity. Publicity in these days is too rapid, and not inquiring enough. There comes out a flaming attack against some poor man, based upon certain statements. In a day or two the man generally contradicts some of these statements, and apparently with truth. But the mischief has been done. The accused person has been made very uncomfortable, for people are always in a great rage at being accused in any respect wrongfully. Now it occurs to me to ask, Why could not the accusing writer have made a little more investigation before he wrote the accusing article? I suppose the answer will be that he must write to live, and he cannot make a living out of it if he is to take all this trouble in investigation. All I can say is that, as there seems to be a likelihood of publicity increasing greatly, an immense amount of discomfort will be caused, both to public and to private individuals, by rash and injurious publications. 892. HERBERT SPENCER. Justice: being Part IV of the Principles of Ethics. (Appleton ed., 1891, p. 141.) (Ch. XVIII.) The Rights of Free Speech and Publication. . . . The assertion of the right to freedom of belief implies the right to freedom of speech. Further, it implies the right to use speech for the propagation of belief; seeing that each of the propositions constituting an argument or arguments, used to support or enforce a belief, being itself a belief, the right to express it is included with the right to express the belief to be justified. Of course, the one right like the other is an immediate corollary from the law of equal freedom. By using speech, either for the expression of a belief or for the maintenance of a belief, no one prevents any other person from doing the like; unless, indeed, by vociferation or persistence he prevents another from being heard, in which case he is habitually recognized as unfair, that is, as breaking the law of equal freedom. Evidently, with change of terms, the same things may be said concerning the right of publication-"the liberty of unlicensed printing." In respect of their ethical relations there exists no essential difference between the act of speaking and the act of symbolizing speech by writing, or the act of multiplying copies of that which has been written. One qualification, implied by preceding chapters, has to be named. Freedom of speech, spoken, written, or printed, does not include freedom to use speech for the utterance of calumny or the propagation of it; nor does it include freedom to use speech for prompting the commission of injuries to others. Both these employments of it are obviously excluded by those limits to individual liberty which have been set forth. . . . ... Proposals to limit the right of free speech, political or religious, can be defended only by making the tacit assumption that whatever political or religious beliefs are at the time established are wholly true; and, since this tacit assumption has throughout the past proved to be habitually erroneous, regard for experience may reasonably prevent us from assuming that the current beliefs are wholly true. We must recognize free speech as still being the agency by which error is to be dissipated, and cannot without papal assumption interdict it. Beyond the need, in past times unquestioned, for restraints on the public utterance of political and religious beliefs at variance with those established, there is the need, still by most people thought unquestionable, for restraining utterances which pass the limits of what is thought decency or are calculated to encourage sexual immorality. The question is a difficult one-appears, indeed, to admit of no satisfactory solution. On the one hand, it seems beyond doubt that unlimited license of speech on these matters may have the effect of undermining ideas, sentiments, and institutions which are socially beneficial; for, whatever are the defects in the existing domestic régime, we have strong reasons for believing that it is in most respects good. If this be so, it may be argued that publication of doctrines which tend to discredit this régime is undoubtedly injurious and should be prevented. Yet, on the other hand, we must remember that in like manner it was, in the past, thought absolutely certain that the propagators of heretical opinions ought to be punished, lest they should mislead and eternally damn those who heard them; and this fact suggests that there may be danger in assuming too confidently that our opinions concerning the relations of the sexes are just what they should be. In all times and places, people have been positive that their ideas and feelings on these matters, as well as on religious matters, have been right; and yet, assuming that we are right, they must have been wrong. . . . Doubtless there must be evils attendant on free speech in this sphere as in the political and religious spheres, but the conclusion above implied is that the evils must be tolerated in consideration of the possible benefits. Further, it should be borne in mind that such evils will always be kept in check by public opinion. The dread of saying or writing that which will bring social ostracism proves in many cases far more effectual than does legal restriction. ... It is superfluous to point out that, in common with other rights, the rights of free speech and publication in early times and most places either denied or not overtly recognized, have only gradually established themselves. . . . Of course, with increasing recognition of the right of free speech there has gone increasing recognition of the right of free publication. Plato taught that censors were needful to prevent the diffusion of unauthorized doctrines. With the growth of ecclesiastical power there came the suppression of writings considered heretical. In our own country under Queen Elizabeth, books had to be officially authorized; and even the Long Parliament reënforced that system of licensing against which Milton made his celebrated protest. But for these two centuries there has been no official censorship save of public plays. And though many arrangements for shackling the press have since been made, yet these have gradually fallen into disuse or been repealed. 893. HENRY SIDGWICK.. The Elements of Politics. (1891. p. 57.) . . . One specially important mode in which a man's relations to other human beings are liable to be injuriously affected is by statements damaging to his reputation. At the same time a most important part of the mutual services which the members of any society are capable of rendering consists in pointing out defects in the character and conduct of others. Here, accordingly, the problem of preventing as far as possible injury to reputation without doing more harm by restricting freedom of communication, is peculiarly difficult. The simple solution of allowing true damaging statements to be made, but prohibiting false ones, is not satisfactory; since to penalize every untrue damaging statement, even though made in perfect good faith, would render the functions of warning and criticism too dangerous, while, on the other hand, there are many true statements of which the publication would be clearly mischievous,— as the pain and bitterness caused by them would much outweigh their utility in the way of warning. Perhaps we may distinguish three classes of cases: ance. (1) There are certain public occasions in which the importance to the community of a full and candid utterance of a man's belief seems to be so great as to outweigh entirely the risk of harm to private reputations from such utterThus, according to English law, "the freedom of speech and debate in Parliament" cannot be "impeached or questioned in any place outside Parliament"; an action will not lie against a judge for words spoken by him judicially, nor against an advocate, party, or witness in any case for anything relevant said in the course of judicial proceedings. And these securities seem to be required for the due performance of governmental functions. (2) In other cases in which it is (generally speaking) clearly for the interests of society that men should state beliefs honestly entertained by them respecting the character or conduct of others, such statements, however injurious to reputation, should not entail a liability to legal penalties, even if they turn out to be unfounded, unless they can be shown to have been made from some improper motive or with reckless disregard of the ordinary means of ascertaining truth. Examples of this class are confidential communications about the character of a servant; warnings given by a solicitor to a client, or a guardian to a ward; "fair comments" on matters that have been brought before the public. (3) In cases where there is no general probability of advantage to society from the free communications of candid opinions, the importance of protecting individuals from damage to reputation would seem to outweigh the general considerations in favor of freedom of speech. In such cases, even if a man utters his honest opinion without malevolence, he should do so at the risk of having to make reparation if any statement seriously injurious to others should turn out to be false in any material point.-It is more doubtful whether a man should be liable to be punished even for true defamatory statements, unless he can show that it was for the public benefit that they should be made; but probably it should be illegal to make such statements from malice or with a view to private gain. SUB-TOPIC A. PROTECTION OF ONE'S OWN INTEREST 895. DELANY v. JONES NISI PRIUS. 1805 4 Esp. 191 THIS was an action on the case for a libel. Plea of not guilty. The declaration stated that the defendant, who then carried on the business of a stationer, intending to charge the plaintiff with the crime of bigamy and to bring him into danger of legal punishment, published the false and malicious libel following, that is to say: "TEN GUINEAS REWARD. Whereas, by a letter lately received from the West Indies, an event is stated to be announced by a newspaper, that can only be investigated by these means:-This is to request that, if any printer or other person can ascertain that James Delany, Esq. [the plaintiff), some years since residing at Cork, late Lieutenant in the North Lincoln Militia, was married previous to nine o'clock in the morning of the 10th of August, 1799, they will give notice to Jones [the defendant], No. 14, Duke Street, St. James's, and they shall receive the reward." There was an innuendo that the defendant meant thereby to insinuate, and to be understood, that the said plaintiff had been and was married before the time mentioned in the advertisement, and had another wife then living, he being then married to one Elizabeth Weston, his present wife. The defense relied upon and given in evidence was that this advertisement had been inserted by the authority of the plaintiff's wife, for the purpose of making a discovery which was important for her to know, namely, whether the plaintiff had another wife living. . . Lord ELLENBOROUGH, in summing up to the jury, said: This paper is relied upon as necessarily carrying with it the imputation that the plaintiff was guilty of bigamy. You must be of opinion that it does carry such imputation before you can find a verdict for the plaintiff, as that meaning is necessary to make the paper a libel at all. The plaintiff's counsel contend that you are to take into your consideration only whether the advertisement conveys a libellous charge against the plaintiff or not. I am of a different opinion: I conceive the law to be that, though that which is spoken or written may be injurious to the character of the party, yet if done bona fide, as with a view of investigating a fact in which the party making it is interested, it is not libellous. If, therefore, this investigation was set on foot and this advertisement published by the plaintiff's wife, either from anxiety to know whether she was legally the wife of the plaintiff or whether he had another wife living when he married her, though that is done through the medium of imputing bigamy to the plaintiff, it is justi |