Sacramento Daily Union, Volume 14, Number 112, 29 December 1881 — JUDGE ALLEN'S THEORY OF JOURNALISM [ARTICLE]

JUDGE ALLEN'S THEORY OF JOURNALISM

In 1877 the suit of George K. Fitch against Charles DeYoung & Co. was commenced. It was an action to recover damages for libel. The San Francisco Chronicle had charged the Bulletin and Call with having sold their columns to a corporation. The accused asked $5,000 damages for the alleged injury resulting from this charge. The case has dragged along until now. Some months ago the defendants interposed a demurrer on the ground that no sufficient cause of action was stated in the complaint, and that the article plained of was not libelous. Judge Allen has now delivered an opinion sustaining the demurrer. „ The full text of his ruling has not yet been published, but its tone may be gathered from the following excerpts : Judge Allen says that the "publishers of a newspaper have the same "duties as individuals in the ."support or "advocacy of any, matter, with perhaps "an increase of responsibility because ad- " dressing or reaching a larger number. "An advocate, or a minister of the gospel, "reaps the benefit of his talent, sells for "gain the product of his brain, and the " same can be done by newspapers. There "is no law which prevents a newspaper " from selling its talent, or that of those it " employs, and there is no libel in saying " that it does. The opinion concludes by "saying that it is co more libelous to ac"cuse one of selling his newspaper for "gain than to accuse a merchant of dispos- " ing of his wares."

7 The whole of this ' argument is illogical. The question to . be ' decided was whether the article complained of was libelous. To determine that, the effect of the article should have been considered. A statement is libelous : which tends to ' injure > the reputation and character of ' the.com- 1 plainant. '■'■ Judge - Allen has X taken ] the ground that it does 'not injure the reputation and ' standing of a newspaper to say tbat it can be bought for". any purpose. The test of that allegation is not difficult. When the Chronicle said that the Bulletin and Call had sold their columns it certainly did not - intend to compliment '■- them, |or merely to state a fact of no greater significance than an ordinary commercial transaction. It intended to injure the Bulletin and Call, and it took this method because it believed that public opinion condemned the sale of journalistic opinions as wrong. And it is not to be questioned that a public opinion of this kind does exist. Judge Allen cites the case of the advocate as an* alogous to that of the journalist. Well, the public " have even gone* so far as to convert that form of transaction into a term of reproach, and when it is desired to impair the influence of anyone who is tupporting an obnoxious cause, he is forthwith denounced and j held up ,to scorn and contumely as "a hired . advocate." ' .Again, when it is desired to say something very injurious about . a newspaper ; it is called '.' vend ; " and whenever that term is used it is used in an injurious sense. , 7% :

y Judge Allen's assertion " that it is no " more libelous jto accuse one of selling " his newspaper .for, gain than , to , accuse a ■'merchant of disposing of -his ware*'," is particularly ' unfortunate, ' for there is no analogy j between the _ cases. -"; In . every charge of venality against a journal there is implied an act of dishonesty towards the public. In every such charge it is faithless-

ness to a public i trust which is really intimated. It is sought to be conveyed that the journal has taken money to make the worse appear the . better cause ; to assist some one in perpetrating a wrong against the people ; to do iniquity and to refuse justice. Now to say that a . charge like this is merely the equivalent of statment that a merchant sells his wares, is to betray a singular ignorance of the nature of libel, and also of the nature of journalism. In order to • create a parallel Judge Allen must have declared that to charge a journal with venality was no more libelous than to accuse a merchant of selling adulterated wares, or of cheating his customers in making change. But as the latter charge would undoubtedly be libelous, it could not be employed, though nothing less will establish any analogy between the cases/ The proof of the libelous character of a statement can only be derived from its effect. In this case experience has shown that a charge of ; venality is regarded by the public as derogatory to the character of a newspaper. ', Whoever wishes to pay a journal . a high compliment will say that its columns cannot be bought. The in j'lriousne. - of the converse proposition is necessarily implied.

The question whether many or few journals do as a matter of fact . .11 their columns is not in issue. What is in issue is the character of a . particular charge of venality. There may be some who think all journals capable of being bought. There are men who pretend jto think that all women are capable of being seduced. But ,it remains a fact for i all this that venality !>nd prostitution are looked npon as disgraceful, and ; that charges of either offense are calculated to injure _ those against whom they are directed. Judge Allen's theory of journalism is one which has no point of contact with existing facts.' It is fantastic and unreal. The journal he imagines, which cannot :be injured by a ! charge of venality, does not exist. The ' doctrine that - all journals i have a right to sell their columns is contradicted every day by actual experience. _ The ' good- will of a nowapaper consists j largely in the popular belief in its integrity. _ No newspaper avowedly conducted jon - the 1 advocate's method could obtain a foothold. Whatever journal ' should declare its adhesion to Judge Allen's idea would lose the confidence " of : its readers. \, And this because the public do not believe that a journal which habitually- sells its columns can be - trusted as an adviser or a guide. In fact therefore the charge of ' venality doe 3 injure journals. In fact also the assertion .that a merchant sells 1 his goods does not injure the merchant.: In* short the cases i are dissimilar, and j the . attempt to | show a parallel between them is futile. 8 * j 7

Judge Allen's decision : must be regarded as bad law, and worse' reasoning. His assertion that there is no law which prevents a newspaper from selling its talents, is j irrelevant.' 4 There are" many things unpro- ' hibited by law which are yet prohibited by i public opinion, and the latter is . very frequently j. . more effectual preventive than the former. In this case there is no room for doubt as to the malevolent and injurious meaning and .tendency of the accusation which the | Judge holds to be no libel, and therefore he has really -decided! that newspapers cannot have redress "for injuries which are palpable and indubitably, and which come altogether within the scope of the statutory definition e f libel.