The chief instances of restriction for protection of individuals are the libel law and the prohibition of unauthorized publication of photographs and names of individuals for purposes of adver tising or trade. This prohibition is statutory in two States (New York and California) and exists by judicial decision in others. It is destined to become general, if not universal.
Every State has libel law, usually expressed partly in statutes and partly in court decisions declaring common law rules. This is by far the most important phase of press law. It has its origin in the common law and many of its fundamental rules were laid down when the art and practice of printing were in their infancy. Even now the law for the most part is found, not in statutes or codes, but in court decisions. In general, the judicial tendency has been to abandon or relax common law rules thought too harsh for conditions of modern journalism. In the main, at least from the standpoint of importance, the statutes are relax ations of former harsh common law rules ; in some instances the legislatures have codified liberal court decisions and in others they have advanced beyond the courts in enlarging the freedom of decent journalism.
Fundamentally, the libel law in the various States is sub stantially the same, though naturally there are variations in details, some of which are important, and in the application of underlying rules. Published matter is libellous if its natural tendency, in the opinion of a substantial number of right-thinking persons, is to induce an ill opinion of an individual or is to affect injuriously a person's standing in his business, profession or office or is to impugn the management or credit of a corporation in such manner as to be calculated to cause pecuniary loss. Libellous publications may be the subject of civil suits and criminal prosecutions but may not be restrained by injunction.
The generally recognized complete defences are that the pub lished matter was true, that it was a fair and true report of legislative, judicial or other public and official proceedings pub lished without malice, that it was fair comment or criticism con cerning a matter of public interest, that it was published in good faith in defence of some attack upon the publisher or that it was published with the consent of the person named. Partial de-. fences—those which mitigate or reduce damages—are also al lowed. They consist generally of proof concerning the publisher's good faith and the reasons why he believed his publication to be true or otherwise justifiable.
The chief instances of restriction for the protection of public welfare are the statutes prohibiting publication of obscene mat ter ; advertisements of such matter as lotteries, betting odds and other data useful in gambling; intoxicating liquor, abortifacient drugs and instruments, cures for venereal disease, procuration of divorce ; false statements of circulation and false and misleading merchandise advertisements. Federal and some State statutes
require that reading matter which is in fact paid advertising shall be plainly marked as advertising. A few States, in varying forms of phraseology, prohibit the publication and sale of news papers "devoted to" or "principally made up" of stories of blood shed, lust or crime.
The protective branches of newspaper law consist mainly of constitutional guaranties of freedom of the press, the copyright law and trade-mark law. Comment upon the latter two branches, each of which is a special body of law not peculiar to newspapers, is beyond the scope of this discussion, except to say that news papers enjoy the same rights and privileges thereunder as do citizens generally.
The U.S. Constitution (1st amendment) provides that Congress shall pass no law abridging the freedom of the press and the State Constitutions, in varying phraseology, declare that citizens may freely speak, write and publish their sentiments on all sub jects, being responsible for the abuse of that right, and that no law shall be passed to restrain or abridge the liberty of the press. Controversy concerning the proper interpretation of these guaranties rages endlessly and even now the subject is in doubt. Those favouring a narrow interpretation contend that the guaran ties mean merely that there shall be no restraint in advance of publication or prevention of future publication, that Congress and the State legislatures are free to provide for punishment after the event for the publication of any sort of matter that they think objectionable and that the legislative conclusion of objec tionableness is not subject to judicial scrutiny. Those favouring a broad construction contend—and sometimes with more emotion than logic—that the guaranties, properly interpreted, prevent any form of legal responsibility for any publications except those which are seditious, obscene or libellous. That contention has been rejected in a number of decisions of appellate courts. The truth lies, it is believed, between the two extremes. These guarantees do not protect a publisher from the consequences of a crime committed by the act of publication. They mean, however, more than that there shall be no restraint of future publications. They imply not only liberty to publish but complete immunity from legal punishment for the publication so long as it is not harmful in its character when tested by such standards as the law affords.