TRIGGS v. SUN PRINTING PUB. ASSN

MARTIN, J.

This action was for libel. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. By interposing a demurrer upon that ground, all the facts alleged in the complaint or which can by reasonable and fair intendment be implied from the allegations thereof, are deemed admitted. ( Marie v. Garrison, 83 N.Y. 14; Sanders v. Soutter, 126 N.Y. 193, 195; Ahrens v. Jones, 169 N.Y. 555, 559.)

A written or printed statement or article published of or concerning another which is false and tends to injure his reputation and thereby expose him to public hatred, contempt, scorn, obloquy or shame, is libelous per se. ( Riggs v. Denniston, 3 Johns. Cases, 198; Steele v. Southwick, 9 Johns. 214; Van Ness v. Hamilton, 19 Johns. 349, 367; Root v. King, 7 Cow. 613; Cooper v. Greeley, 1 Denio, 347; Shelby v. Sun Printing P. Assn., 38 Hun, 474; affirmed, 109 N.Y. 611; McFadden v. Morning Journal Assn., 28 App. Div. 508; Bergmann v. Jones, 94 N.Y. 51, 64; Moore v. Francis, 121 N.Y. 199; Morey v. Morning Journal Assn., 123 N.Y. 207; Mattice v. Wilcox, 147 N.Y. 624; Gates v. N.Y. Recorder Co., 155 N.Y. 228; Morrison v. Smith, 177 N.Y. 366.)

When the articles published by the defendant of and concerning the plaintiff are read in the light of the foregoing principles of law, it becomes obvious, we think, that they were libelous per se. It seems impossible for any fair-minded person to read the articles alleged in the complaint without reaching the conclusion that they were not only intended, but necessarily calculated, to injure the plaintiff's reputation and to expose him to public contempt, ridicule or shame.

It is contended by the respondent that the articles published were a mere comment or criticism of matters of public interest and concern, and, hence, were privileged. While every one has a right to comment on matters of public interest, so long as one does so fairly, with an honest purpose, and not intemperately and maliciously, although the publication is made to the general public by means of a newspaper, yet, what is privileged is criticism, not other defamatory statements, and if a person takes upon himself to allege matters otherwise actionable, he will not be privileged, however honest his motives, if those allegations are not true. When a publisher goes beyond the limits of fair criticism, his language passes into the region of libel, and the question whether those limits have been transcended may become a question of law but ordinarily presents a question for the jury. ( Fay v. Harrington, 176 Mass. 270.) It is true that an author when he places his work before the public invites criticism, and however hostile it may be, the critic is not liable for libel, provided he makes no misstatements of material facts contained in the writing and does not go out of his way to attack the author. The critic must, however, confine himself to criticism and not make it the veil for personal censure, nor allow himself to run into reckless and unfair attacks merely for the purpose of exercising his power of denunciation. If, under the pretext of criticising a literary production or the acts of one occupying a public position, the critic takes an opportunity to attack the author or occupant, he will be liable in an action for libel. ( Cooper v. Stone, 24 Wend. 434; Mattice v. Wilcox, 71 Hun, 485, 488; affirmed, 147 N.Y. 624; Hamilton v. Eno, 81 N.Y. 116.) Moreover, it is difficult to perceive how this privilege can be tried on demurrer, as the question whether the criticism was fair and just or willfully assailed the reputation of the plaintiff, would be for the jury. In this case it is obvions that the articles complained of go far beyond the field of fair and honest criticism, and are attempts to portray the plaintiff in a ridiculous light. As was in effect said by the learned judge in the dissenting opinion below: The articles complained of represent the plaintiff as illiterate, uncultivated, coarse and vulgar; and his ideas as sensational, absurd and foolish. They also represent him as egotistical and conceited in the extreme and convey the impression that he makes himself ridiculous both in his method of instruction and by his public lectures. They also ridicule his private life by charging that he was unable to select a name for his baby until after a year of solemn deliberation. In short they effect to represent him as a presumptions literary freak. These representations concerning his personal characteristics were not within the bounds of fair and honest criticism, and are clearly libelous per se.

It is likewise claimed by the respondent that these articles were written in jest, and hence that it is not liable to the plaintiff for the injury he has sustained. It is, perhaps, possible that the defendant published the articles in question as a jest, yet they do not disclose that, but are a scathing denunciation, ridiculing the plaintiff. If, however, they can be regarded as having been published as a jest, then it should be said that however desirable it may be that the readers of and the writers for the public prints shall be amused, it is manifest that neither such readers nor writers should be furnished such amusement at the expense of the reputation or business of another. In the language of JOY, C.B.: "The principle is clear that a person shall not be allowed to murder another's reputation in jest;" or, in the words of SMITH, B., in the same case: "If a man in jest conveys a serious imputation, he jests at his peril." ( Donoghue v. Hayes, Hayes, Irish Exchequer, 265, 266.) We are of the opinion that one assaulting the reputation or business of another in a public newspaper cannot justify it upon the ground that it was a mere jest, unless it is perfectly manifest from the language employed that it could in no respect be regarded as an attack upon the reputation or business of the person to whom it related.

The single purpose of the rule permitting fair and honest criticism is that it promotes the public good, enables the people to discern right from wrong, encourages merit, and firmly condemns and exposes the charlatan and the cheat, and hence is based upon public policy. The distinction between criticism and defamation is that criticism deals only with such things as invite public attention or call for public comment, and does not follow a public man into his private life or pry into his domestic concerns. It never attacks the individual, but only his work. A true critic never indulges in personalities, but confines himself to the merits of the subject-matter, and never takes advantage of the occasion to attain any other object beyond the fair discussion of matters of public interest and the judicious guidance of the public taste. The articles in question come far short of falling within the line of true criticism, but are clearly defamatory in character and are libelous per se.

It follows that the order of the Appellate Division and the interlocutory judgment entered thereon reversing the interlocutory judgment of the Special Term should be reversed, the judgment of the Special Term affirmed, with costs to the appellant in all the courts, and the question certified answered in the affirmative.

PARKER, Ch. J., BARTLETT, VANN, CULLEN and WERNER, JJ., concur; O'BRIEN, J., absent.

Order reversed, etc.