Historical

view of libel

Originally, libel law varied from state to state. That's because 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, Chief Justice Marshall would not overrule a state libel law).

The Fourteenth Amendment, passed in 1866, was intended to extend Constitutional protections against bad state laws, the first time the First Amendment came up in this context were two mid-20th century prior restraint cases, Gitlow v. New York (1925) and Near v. Minnesota (1930).

Still, political speech and entertainment criticism would usually be seen by courts as protected by the First Amendment. The Cherry sisters case was one widely celebrated First Amendment victory.

Cherry v Des Moines Leader, 1901 -- A homespun prarie vaudeville act, the Cherry Sisters were so abysmally bad they attracted audiences who enjoyed booing, hooting and throwing rotten vegetables at them. Still, they felt compelled to sue for libel when newspaper editor Billy Hamilton wrote:

'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 criticised. ... 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 decisionsÉ.[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 maliceÉ.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 performanceÉ.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."É.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 accusationsÉ

Whistler v Ruskin, 1878. --, Oxford professor John Ruskin, a well known romantic poet and literary critic, wrote this about a painting by the American artist James McNeil Whistler: "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 public libel trial.

Marquis of Queensbury v Oscar Wilde, 1895 -- Afraid that his son was being seduced by famous writer Oscar Wilde, the Marquis of Queensbury contrived to insult Wilde as "a sodomite" in public and bring on a libel suit. Wilde did sue and in the process of the trial, his homosexual exploits became known. As a result, Queensbury won the libel suit and Wilde was tried on criminal charges of sodomy and spent two years in jail.

Collier v Postum, 1907 -- Charles W. Post, whose Post cereal company made Postum, claimed that eating Grape Nuts would "obviate the necessity of an operation for appendicits." Robert Collier, publisher of Collier's magazine, called this "potentially deadly lying." When Post launched a campaign of intimidation in response, Collier's sued Post for libel and was awarded $50,000 damages. But 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, a 1994 movie.

Links

See Eric Husby's intersting analysis of libel and the Supreme Court