CHAPTER X LIBEL AND SLANDER Radio communication in general, and broadcasting in particular, furnishes a new implement for the ancient art of defamation. As a medium of publicity, it classes with the newspapers and, like them, may be used for good or ill. If improperly used, it is a powerful weapon for character destruction. From the natural speech, through writing, to radio, there are progressive steps in defamatory possibilities, for while slander speaks with but a single tongue, the printing press multiplies the message to a thousand eyes and radio may carry the calumny to a million ears. It is to the credit of the broadcasters that matter transmitted by the new agency has been kept so clean that up to this time apparently only one case of alleged defamation by radio has reached the courts. Yet the mere fact that the agency exists and is susceptible of such use means that sooner or later men will so use it. The courts will again be confronted with the necessity of determining novel questions, for while the legal principles underlying liabilities and rights of recovery in case of defamation are well established, their application to the new method is by no means simple. Defamation May Be Either Libel or Slander. Actionable defamation has been legally divided into libel and slander, according to whether the publication is by writing or by word of mouth. The line of differentiation being usually clear, few twilight cases have arisen and it is generally a simple matter to determine to which division any given defamation belongs. It is sometimes necessary to make the decision, for while the underlying principles of the two wrongs are the same, they vary in important particulars. In most states, for instance, a libel subjects the offender to the penalties of the criminal laws, while a slander does not. So too there are differences in civil liability, damages being recoverable in many cases of libel though the same words orally uttered would not be actionable. Since the underlying theory in each case is the right of the individual to protect his reputation, which may in fact be injured as greatly in the one case as in the other, it is difficult to give adequate reasons for the technical distinctions between the two actions, and courts have freely criticized their artificiality; yet the differences remain permanently imbedded in the laws of most of the states and must be taken into consideration in discussing defamation by radio. Broadcasting Non-written Matter is Slander. Radio broadcasting is entirely oral as between the sender and the receiver. Whether it be song, prose, or verse, the broadcaster transmits only the spoken word. He conveys the matter by sound only. If that is all that appears in the actual case, obviously the defamation if any, constitutes slander, for the very fundamental element in libel, a writing of some sort, is entirely absent. Written Matter May Be Broadcast. But not all broadcasting presents so simple a case. In much of it there is a combination of speech and writing. The person before the microphone may read, from a newspaper, a book, or a magazine, matter to which he contributed no authorship, so that he is merely giving additional publicity to a libel originated by someone else. Or the speaker may read from his own manuscript which he has prepared in advance, a very common practice. In all such cases, the elements of libel and slander are both present, and it may become essential to determine which law governs. Oral Publication of Written Libel. The underlying question is not a new one. It has several times been presented to the courts, and the cases are uniform in holding that the oral reading of written libelous material is itself a libel. A text writer1 discussing this question has said: It may be that, after composing and writing it, the defendant reads it aloud to some third person, who listens to the words and understands them; in this case the same act may be both the uttering of a slander and the publication of a libel. One court has said:2 In the case de libellis formosis, 5 Rep. 125, it is said that publication may be "verbis aut cantilenis, as when the libel is maliciously repeated or sung in the presence of others." In Lamb's case, 9 Rep. 59, it is said that if one who has read a libel or heard it read repeats it, or any part of it, in the hearing of others, that is a publication. In Bac. Abr. Libel B. this is laid down as undisputed law. Other cases to the same effect are given in the note.3 The cases above cited all involve the oral reading of defamatory letters and are directly in point on the present discussion. A similar situation has arisen in the transmission of telegrams. The message is written out and handed to the telegraph company, which proceeds to reproduce it in audible dots and dashes and thus transmit it. In a case involving liability for so transmitting a libelous communication, the company contended that since the transmission was not by writing, it could not be libelous, but the court held to the contrary, saying:4 The fact affirmatively appears that the mesaage was trans mitted over the wires by sound, and the point is now made that the mode 1 ODGERS, "Libel and Slander," 4th ed., p. 151. 2 Adams v. Lawson, 17 Grattan (Va.) 251 (1867). 3 Van Cleef v. Lawrence, 2 N. Y. C. Hall Recorder, 41 (1817); Johnson v. Hudson and Morgan, 7 Ad. & E. (Eng.) 233 (1836); M'Coombs v. Tuttle, 5 Blackf. (Ind.) 431 (1840); Snyder v. Andrews, 6 Barb. (N. Y.) 43 (1849): Beardsley v. Tappan, 2 Fed. Cas. No. 1188a. * Peterson v. Western Union Telegraph Company, 74 N. W. (Minn.) 1022. See also 20 Columbia Law Review, 30; 369. of communication was oral, and not written, and therefore there was no publication of a libel; the distinction between slander and libel being that the former is oral defamation by spoken words, while the latter consists of a publication by writing, printing, pictures, or other durable mode Whether the means employed by the operator at New Ulm in dictating or communicating the contents of the message to the operator in St. Paul consisted of sounds representing letters, or dots or dashes representing the same thing, can make no difference. In either case, the purpose and result would be the same, viz., the transmission and copying in written form the contents of the written message in the hands of the operator in New Ulm. This case is direct authority as to the liability of a radio telegraph company, and very persuasive as to that of a broadcasting station. Statutory Definitions. In many states, the distinction between libel and slander is fixed by statutory definition, especially as to criminal liability. Even under such statutes, the proper classification of matter transmitted by radio is not always easy of determination.1 Application of Rule to Radio Communication. While the cases holding that reading a libelous letter constitutes the publication of a libel are few and comparatively old, there seems to be nothing later or to the contrary. As precedents they stand as the law on the subject. If the courts follow them, the broadcasting of defamatory matter which has been put in writing will be held to be libel rather than slander, with all the more serious consequences involved in that wrong. 1 The Washington statute, for instance, may be construed as declaring all radio defamation to be libel rather than slander. It provides (Rom. & Bal. Code, Secs. 2424, 2426): "Every malicious publication by writing, printing, picture, effigy, sign, or otherwise than by mere speech, which shall tend to injure any person, corporation, or association of persons in his or their business or occupation, shall be a libel Any method by which matter charged as libelous may be communicated to another shall be deemed a publication thereof." That these cases will be universally followed is, however, not certain. On principle, the facts seem distinguishable. In either libel or slander the harm to the defamed person is in the effect which the statement has upon the minds of those who hear or read it. The law has laid down the arbitrary rule, which may not be true in fact, that this effect is stronger if the matter is written than if merely spoken, based partly upon the form, which is permanent in one case and momentary in the other, and partly perhaps on the idea that man believes what he reads more readily than what he hears. In all the cases cited of oral reading of letters, the hearer was advised that what was being repeated to him was in written form. He heard the defamatory statement and knew that it had been made in writing. The effect upon his mind was precisely the same as though he read it himself. The courts therefore had no difficulty in determining that there was an actual communication or publication of the writing itself. In broadcasting, however, the situation may be precisely the opposite. If the speaker merely reads from manuscript which he himself has prepared, or from a book or written matter, irrespective of authorship, making no statement that his matter is in permanent form, nor reference from which that fact may be inferred, he is merely using written matter as a guide to oral statement, in lieu of memory. While he gives publicity to statements identical with those in the writing, it is stretching language to say that he has published the writing itself. Whether read or spoken extemporaneously, the operation and effect are the same. The audience receives precisely the same impression in each case. The manuscript is not itself circulated. It may be in more or less permanent form, but it is not delivered to the listeners nor seen by them, nor intended to be, nor is its existence known to them. It would seem that no importance whatever shoud be attached to it. Common sense would dictate that the words transmitted by radio under such circumstances should be classed |