character, made against a candidate, are privileged as matters of law, if made in good faith, and that the party making them is absolutely shielded against liability, it seems to me is a most pernicious doctrine. It would deter all sensitive and honorable men from accepting the candidacy to office, and leave the field to the profligate, the unprincipled, and unworthy; to men who have no character to lose, no reputation to blemish. . . . Under the guise of assisting the people to select a fit man, the voters are deceived by falsehood and induced to withhold their support from the maligned candidate, and so two wrongs are perpetrated: one upon the candidate, the other in misleading the voter. . . . The stability of our institutions, in a great measure, depends upon the confidence and esteem in which those occupying such high positions are held by their fellow-citizens. This cannot be attained if charges of crime against them, which are falsely made or circulated in the community, are absolutely privileged, though made in good faith. I think the circuit judge erred in laying down such rule. If the charges were false, and made in an honest belief of their truth, after reasonable and proper investigation, such facts would go to mitigate the damages. . . The article claims to state facts, and those facts charged the plaintiff with a crime, and I think the defendant cannot excuse himself from liability, without proving the truth of such charges.

The judgment must be reversed, and a new trial granted. The other Justices concurred.

937. COLEMAN v. MACLENNAN

SUPREME COURT of KansAS. 1908

78 Kan. 711, 98 Pac. 281

ERROR from District Court, Shawnee County; A. W. DANA, Judge. Action by C. C. Coleman against F. P. MacLennan. Judgment for defendant, and plaintiff brings error. Affirmed.

In August, 1904, the plaintiff held the office of Attorney General of the State and was a candidate for re-election at the general election, which occurred in the following November. By virtue of his office, he was a member of the commission charged with the management and control of the state school fund. The defendant was the owner and publisher of the Topeka State Journal, a newspaper published at Topeka, and circulated both within and without the State. In the issue of the date mentioned appeared an article purporting to state facts relating to the plaintiff's official conduct in connection with a school fund transaction, making comment upon them and drawing inferences from them. Deeming the article to be libellous, the plaintiff brought an action for damages against the defendant, alleging that the matter published concerning him was false and defamatory, and

that its publication was the fruit of malice. Among other defences the defendant pleaded facts which he claimed rendered the article and its publication privileged.

At the trial instructions presenting the plaintiff's view of the law of privilege were refused, and the following instruction was given to the jury instead:

"If you believe from the evidence in this case that on August 20, 1904, plaintiff was a candidate for re-election to the office of Attorney General, and that defendant published said article for the sole purpose of giving to the voters of Kansas what he believed to be truthful information concerning the acts of the Attorney General, and only for the purpose of enabling such voters to cast their ballots more intelligently, and that the defendant made all reasonable effort to ascertain the facts before publishing the same, and that the whole thing was done in good faith, and without malice toward plaintiff, and if you believe that the bulk of the circulation of the said paper was within the State of Kansas, and that its circulation outside of the State of Kansas was only incidental, then I instruct you that your verdict must be for the defendant, although you may believe that the principal matters contained in said article are untrue in fact and derogatory to the character of the plaintiff."

The jury found generally for the defendant. A motion for a new trial was overruled, and the plaintiff prosecutes error.

Charles Blood Smith, Jno. E. Hessin, and F. L. Williams, for plaintiff in error.

B. P. Waggener, W. P. Hackney, and Waters & Waters, for defendant in error.

BURCH, J. [after stating the facts and instructions as above]: Beyond their importance to the immediate parties, the questions raised are of the utmost concern to all the people of the State. What are the limitations upon the right of a newspaper to discuss the official character and conduct of a public official who is a candidate for reelection by popular vote to the office which he holds? . . .

1. The Constitution contains a provision which reads as follows:

"The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel the truth may be given in evidence to the jury, and if it shall appear that the alleged libellous matter was published for justifiable ends, the accused party shall be acquitted." Bill of Rights, § 11.

. . It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussions is so vast and the advantages derived are so great that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great.

The public benefit from publicity is so great and the chance of injury to private character so small that such discussion must be privileged.

. There is great diversity of opinion regarding the extent to which discussions of the fitness of candidates for office may go. In England and Canada the limit is fixed at criticism and comment, which, however, may be severe, if fair, and may include the inferring of motives for conduct in fact exhibited if there be foundation for the inference. In some of our own States the rule is more liberal, while in others it is more narrow. Accordingly to the greater number of authorities, the occasion giving rise to conditional privilege does not justify statements which are untrue in fact, although made in good faith, without malice and under the honest belief that they are true. A minority allows the privilege under such circumstances. The district court instructed the jury according to the latter view, and the instruction given has the sanction of previous decisions of this court.

. . Such is the clear declaration of the Court in the case of State v. Balch, 31 Kan. 465, 2 Pac. 609. True, that was a criminal case, but the rule of privilege is the same in both civil and criminal actions. It is the occasion which gives rise to privilege, and this is unaffected by the character of subsequent proceedings in which it may be pleaded. In Balch's Case a printed article making grave charges against the character of a candidate for county attorney was circulated among the voters of the county previous to the election. In the opinion holding the occasion to be privileged the Court said:

"If the supposed libellous article was circulated only among the voters of Chase county, and only for the purpose of giving what the defendants believed to be truthful information, and only for the purpose of enabling such voters to cast their ballots more intelligently, and the whole thing was done in good faith, we think the article was privileged, and the defendants should have been acquitted, although the principal matters contained in the article were untrue in fact and derogatory to the character of the prosecuting witness. . . . Generally we think a person may in good faith publish whatever he may honestly believe to be true, and essential to the protection of his own interests or the interests of the person or persons to whom he makes the publication, without committing any public offence, although what he publishes may in fact not be true, and may be injurious to the character of others. And we further think that every voter is interested in electing to office none but persons of good moral character, and such only as are reasonably qualified to perform the duties of the office. This applies with great force to the election of county attorneys."

The plaintiff asks that the decisions of this Court quoted above be overruled, and that they be supplanted by one which shall express the narrow conception of the law of privilege held by the majority of the Courts. . The fact that so many Courts of this country, all of high character, of great learning and ability, and all equally interested in correctly solving the problems of free government, differ from us, makes us pause; but a reversal of policy and the overturning of what

has been so long accepted as settled law would be tantamount under the circumstances to legislation. Such a step ought not to be urged upon the Court except for conclusive reasons. What are the reasons supporting the majority rule?

The decision most freely quoted since it was rendered in 1893 and chiefly relied upon by the plaintiff here is that of the United States Circuit Court of Appeals for the Sixth Circuit in the case of Post Pub. Co. v. Hallam, 16 U. S. App. 613, 8 C. C. A. 201, 59 Fed. 530. Counsel in the case had argued from the duty of newspapers to keep the public informed concerning those who are seeking their suffrages and confidence, and had asked, if it were possible, that the privilege allowed in discussing the character of public servants should be less than that which protects defamatory statements made concerning a private servant. The opinion by TAFT, J., states this argument, and then proceeds as follows:

"The existence and extent of privilege in communications are determined by balancing the needs and good of society against the right of an individual to enjoy a good reputation when he has done nothing which ought to injure it. The privilege should always cease where the sacrifice of the individual right becomes so great that the public good to be derived from it is outweighed. Where conditional privilege is extended to cover a statement of disgraceful fact to a master concerning a servant or one applying for service, the privilege covers a bona fide statement on reasonable ground to the master only, and the injury done to the servant's reputation is with the master only. This is the extent of the sacrifice which the rule compels the servant to suffer in what was thought to be, when the rule became law, a most important interest to society. But, if the privilege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with a single person or a small class of persons, but with every member of the public, whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable ground. We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good. We are aware that public officers and candidates for public office are often corrupt when it is impossible to make legal proof thereof, and, of course, it would be well if the public could be given to know, in such a case, what lies hidden by concealment and perjury from judicial investigation. But the danger that honorable and worthy men may be driven from politics and public service by allowing too great latitude in attacks upon their character outweighs any benefit that might occasionally accrue to the public from charges of corruption that are true in fact, but are incapable of legal proof. The freedom of the press is not in danger from the enforcement of the rule we uphold. No one reading the newspaper of the present day can be impressed with the idea that statements of fact concerning public men and charges against them are unduly guarded or restricted; and yet the rule complained of is the law in many of the States of the Union and in England.” ... Here the rule by which privilege is to be measured is correctly stated, as in Wason v. Walter, the balance of public good against private

hurt. The argument of counsel is then answered, and the statement is made that a candidate ought not suffer a loss in reputation with the whole public for the public good. That is the question to be decided, and not a reason why it should be so decided. Then the sole reason for the decision is stated that honorable and worthy men will be driven from politics. Then the consequences of the decision are commented upon: Freedom of the press will not be endangered an assertion, as shown by the manner in which public men are handled by the press at the present time, an appeal to experience for proof.

The single reason upon which the Hallam decision is based is also in the nature of a prediction, and is not new. It was advanced in this country in 1808 by Chief Justice Parsons (Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212) and by Lord Chancellor Walworth in 1829 in the case of King v. Root, 4 Wend. 114, 21 Am. Dec. 102. . These predictions call to mind that of Lord Thurlow, who, when protesting against the passage of the Fox Libel Act, said it would result in "the confusion and destruction of the law of England." 2 May, Const. History of England, p. 122. The actual results of the struggle ending in the enactment of that law are stated by the author cited as follows:

66

. . . The press was brought into closer relations with the state. Its functions were elevated, and its responsibilities increased. Statesmen now had audience of the people. They could justify their own acts to the world. The falsehoods and misrepresentations of the press were exposed. Rulers and their critics were brought face to face, before the tribunal of public opinion. The sphere of the press was widely extended. Not writers only, but the first minds of the age, men ablest in council and debate, were daily contributing to the instruction of their countrymen. Newspapers promptly met the new requirements of their position. Several were established during this period whose high reputation and influence have survived to our own time, and, by fulness and rapidity of intelligence, frequency of publication, and literary ability, proved themselves worthy of their honorable mission to instruct the people."

In opposition to the high authority of King ". Root and the Hallam Case may be placed Thomas M. Cooley, who must be reckoned with in the discussion of any question upon which he has deliberately expressed himself. Commenting on the foregoing quotation from King v. Root, he says:

"Notwithstanding the deplorable consequences here predicted from too great license to the press, it is matter of daily observation that the press in its comments upon public events and public men proceeds in all respect as though it were privileged. Public opinion would not sanction prosecutions by candidates for office for publications amounting to technical libels, but which were nevertheless published without malice in fact; and the man who has a 'character to lose' presents himself for the suffrages of his fellow citizens in the full reliance that detraction by the public press will be corrected through the same instrumentality, and that unmerited abuse will react on the public opinion in