The long struggle against the courts, culminating in the passage of the libel law in 1792, with which the names of Fox, Erskine and Camden are so honorably and brilliantly associated, is familiar history. The statutes De Scandalis Magnatum were not formally repealed until 1887, although prosecutions under them ceased long before. A species of censorship survives in the act of 1843 requiring 717 new plays to be submitted to the lord chamberlain for examination and approval, and the present state of the law of England on the subject of defamation is described in an essay, "The History and Theory of the Law of Defamation," in volume 3 of the Columbia Law Review, as follows:

"Unfortunately the English law of defamation is not the deliberate product of any period. It is a mass which has grown by aggregation, with very little intervention from legislation, and special and peculiar circumstances have from time to time shaped its varying course. The result is that perhaps no other branch of the law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies. It is, as a whole, absurd in theory, and very often mischievous in its practical operation": Page 546.

Little aid is supplied by a consideration of our own colonial history and the early history of our separate national existence. The colonies followed closely the practice of the mother country. Even the publication of general laws was forbidden by the magistrates, who yielded only after long and bitter struggles. Royal governors were instructed to prohibit printing, books were burned as offenders against the public welfare, and the school histories all tell about Governor Berkley's boast that free schools and printing-presses were not allowed in Virginia. The proceedings of the convention which framed the constitution of the United States were conducted in secret. The provision forbidding Congress to pass any law abridging the freedom of speech or of the press came into the constitution by way of an amendment. The debates of the Senate did not become open to the public until 1793. and the incident of the ill-starred sedition law in our consti tutional history shows how far ideas relating to the protee tion of personal character and governmental institutions were then unreconciled in legal theory with freedom of thought and expression upon public questions.

718 At the time the constitution of this state was adopted some progress had been made and some clarification had taken place. But statutory improvement had been halting and in

efficient, judicial decisions had often been narrow, illiberal and confusing, and the main principles of the law of libel remained substantially the same as they were when Blackstone wrote. The result is that "liberty of the press" is still an undefined term, and like some other familiar phrases of constitutional law must remain undefined. Certain boundaries are fairly discernible within which the liberty must be displayed, but precise rules cannot be formulated in advance to govern its exercise on particular occasions. In the decision of controversies the character, the organization, the needs and the will of society at the present time must be given due consideration. The press as we know it to-day is almost as modern as the telephone and the phonograph. The functions which it performs at the present stage of our social development, if not substantially different in kind from what they have been, are magnified many fold, and the opportunities for its influence are multiplied many times. Judicial interpretation must take cognizance of these facts. As Mr. Chief Justice Cockburn said in deciding a famous libel suit: "Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generations to which it is immediately applied": Wason v. Walter, [1868] L. R. 4 Q. B. 73, 92.

The constitutional guaranty clearly means that the press shall be free from previous government license, and the decisions are quite uniform, but not unanimous, that it shall be free from court censorship through injunctions 719 against publication. Early writers on constitutional law and early cases say that it means no more, but later commentators and later decisions maintain that it does mean more. Thus Judge Cooley has said: "But while we concede that liberty of speech and of the press does not imply complete exemption from responsibility for everything a citizen may say or publish, and complete immunity to ruin the reputation or business of others so far as falsehood and detraction may be able to accomplish that end, it is nevertheless believed that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of

the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications. . . . . The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation or pecuniary interests of individuals": Cooley's Constitutional Limitations, 7th ed., 603, 604.

This doctrine was recently authoritatively stated by the supreme court of North Carolina, as follows: "In its broadest sense, freedom of the press includes not only exemption from censorship, but security against laws enacted by the legislative department of the government or measures resorted to by either of the other branches for the purpose of stifling just criticism or muzzling public opinion": Cowan v. Fairbrother, 720 118 N. C. 406, 54 Am. St. Rep. 733, 24 S. E. 212, 32 L. R. A. 829.

Such also is the opinion of the supreme court of Texas.

Whatever more than freedom from previous license the constitutional guaranty may include, it is clear that it does not grant immunity for the publication of articles which imperil the public peace by advocating the murder of governmental officers and the destruction of organized society. Constitutional government may at least protect its own life, and Johann Most was properly convicted under a statute designed to secure the public peace, because of an article appearing in his newspaper, the "Freiheit," instigating revolution and murder, suggesting the persons to be murdered through the positions occupied and the duties performed by them, advising all persons to discharge their duty to the human race by murdering those who enforce law, denouncing those who would spare ministers of justice as guilty of a crime against humanity, and naming poison and dynamite as agencies to be employed in murder and destruction: People v. Most, 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509.

Constitutional government may also under its police power take reasonable steps to protect the morals of the people for whom and by whom it is instituted, and to this end may suppress the circulation of newspapers which, like the "Kansas. City Sunday Sun," of infamous memory, are devoted largely to the publication of scandals, lechery, assignations, intrigues of men and women, and other immoral conduct: In re Banks, 56 Kan. 242, 42 Pac. 693; State v. Van Wye, 136 Mo. 227, 58 Am. St. Rep. 627, 37 S. W. 938; Strohm v. People, 160 Ill. 582, 43 N. E. 622. Likewise newspapers may be suppressed which are made up principally of criminal news, police reports, and pictures and stories of bloodshed, lust and crime: State v. McKee, 73 Conn. 18, 84 Am. St. Rep. 124, 46 Atl. 409, 49 L. R. A. 542. 721 Newspapers like those just described display the licentiousness, and not the liberty, of the press. Here, as elsewhere in our political system, just rules and regulations are not badges of oppression, but are the necessary conditions of true liberty, and the constitutional guaranty under discussion is not opposed to penal and remedial laws upon the subject of libel and the regulation of procedure in the conduct of libel cases.

Even in these days, when the amassing of wealth absorbs so much of the energy of the race, it may still be said that a good name is rather to be chosen than great riches. Among sovereign states that "decent respect to the opinions of mankind" which prompted the appeal to public opinion made in our own Declaration of Independence is the chief sanction for the great body of rules known and observed as international law. The terror of social reprobation and public disgrace induces observance of the criminal law more than fear of fine and imprisonment. The desire to meet social standards of virtue contributes to business integrity. While the approval of conscience is a strong force, and may righteously isolate the martyr and the reformer for a time, the love of deserved social esteem-the innate craving for the social crown of “well done" is a most powerful motive to good conduct with the great mass of mankind. Without doubt it is responsible for a large share of our mental, moral and material progress. A good reputation honestly earned is not only one of the most satisfying sources of a man's own contentment, but from a commercial standpoint it is one of the most productive kinds of capital he can possess. Therefore it ought to find guaranties of protection in the fundamental law along with those which guard the liberty of the press, and such is indeed the The provision of the bill of rights quoted takes for

case.

granted a law of libel, and section 18 of that document places 722 injury to reputation on the same plane with injury to person and property. It reads as follows: "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay."

It is very clear that these words cannot, however, be given unlimited signification and force in all cases. Where the public welfare is concerned, the individual must frequently endure injury to his reputation without remedy. In some situations an overmastering duty obliges a person to speak, although his words bring another into disrepute. Such is the case of a witness testifying to relevant facts in court. Reasons of public policy forbid that the question of malice in his mind should be investigated, and the communication he makes, although damaging in the extreme, is absolutely privileged. He may be prosecuted for perjury, but a civil action based upon his statements is not permitted.

"A man may be defamed by an unjust removal from office on unfounded charges; by injurious testimony given in courts of justice; by the unwarranted deductions of counsel in presenting his case adversely to the jury, and in many other ways where, notwithstanding, the agent in the injury was wholly free from legal fault. Thus, a great public character may, perhaps, suffer in reputation all his lifetime from an impeachment for an offense never in fact committed; yet if the impeachment was instituted in good faith, and on grounds apparently sufficient, those concerned in it only performed a public duty. We unhesitatingly recognize the fact that in many cases, however damaging it may be to individuals, there should and must be legal immunity for free speaking, and that justice and the cause of good government would suffer if it were otherwise. With duty often comes a responsibility to speak openly and act fearlessly, let the consequences be what they may; and the party upon whom the duty was imposed must be left accountable to conscience alone, or perhaps to a supervising public sentiment, but not to the courts": Cooley on Torts, 2d ed., 246.

723 In other situations there may be an obligation to speak which, although not so imperative, will under certain conditions prevent the recovery of damages by a party suffering injury from the statements made. There are social and moral duties of less perfect obligation than legal duties which may require an interested person to make a communication to an