after publication interferes with freedom of publication, four limitations are well established: (1) The constitutional provision does not guarantee the liberty to intimidate by speech and writing.30 If this limitation may be enforced preventively as well as by penalty or damages, there is sufficient support for the cases presently to be noted, where publication incidental to or as part of an unlawful system of coercion or intimidation was enjoined.31 It will be seen that the only courts which clearly hold to the contrary in the latter case are those of Missouri and Montana. But the decisions in the former jurisdiction are not very consistent. Although in Marx v. Watson 32 the court held that the constitution protected a power to straints upon publications as had been practised by other governments, and in early times here, to stifle the efforts of patriots toward enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep firearms, which does not protect him who uses them for annoyance or destruction." Com. v. Blanding, 3 Pick. (Mass.) 304, 313.

The comparison is significant. See the remarks of Brown, J., in Robertson v. Baldwin, 165 U. S. 275: “The law is perfectly well settled that the first ten amendments to the constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy, (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant's motion (U. S. v. Ball, 163 U. S. 662, 672,); nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment (Brown v. Walker, 161 U. S. 591, and cases cited). Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial."

Blackstone's doctrine is announced in Patterson v. Colorado, 205 U. S. 455, 462. But the same court upholds "previous restraint" upon publication when incidental to enjoining an unlawful boycott. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 437.

30 See, for example, Thomas v. Railway Co., 62 Fed. 803; Jordahl v. Haydn, 1 Cal. App. 696, 82 Pac. 1079.

31 Infra, note 41.

32 168 Mo. 133, 67 S. W. 391. But see Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106.

36

intimidate through publication, in State v. McCabe 33 it held that the constitution did not protect a creditor in the power to compel a debtor to pay a just debt by publishing that it was unpaid and injuriously affecting the debtor's credit even if the publication was true. In State v. Shepherd the same court seems to adopt Story's doctrine. (2) The constitution does not protect the citizen in publishing immoral or indecent matter, nor guarantee such publication against prohibition by the legislature. All the courts seem to agree to this.35 (3) It does not give immunity for contempt in interfering with the course of justice. All courts are agreed as to this, though as we have seen, the sole American decision is against enforcement of this limitation preventively to secure a litigant against unlawful interference with his right to obtain justice in the courts by threatening or prejudicial publications. It may be noted that this question was involved in the earliest reported suit to enjoin a libel.37 (4) The constitutional provision does not preclude restrictions upon publication dangerous to the conduct of military operations in time of war.38 In the foregoing cases the legislature may prohibit publication and impose adequate penalties to enforce the prohibition. Except for the matter of trial by jury, to be considered presently, the difference between this course and the finding of a court that a threatened publication involves gross and palpable violation of private rights for which damages would be no remedy, followed by a contempt proceeding in case of violation, is 33 135 Mo. 450, 37 S. W. 123.

34 177 Mo. 205, 76 S. W. 79. In Flint v. Hutchison Smoke Burner Co., 110 Mo. 492, 19 S. W. 804, the court said that repetition of a libel after it had been so pronounced by a jury might be enjoined.

35 Typical discussions may be seen in State v. McKee, 73 Conn. 18, 46 Atl. 409, and People v. Most, 171 N. Y. 423, 64 N. E. 175.

36 See supra, note 14.

37 Elnet v. Belgrave (1395 or 1396) Baildon, Sel. Cas. Ch. No. 108. In this case plaintiff and defendant were litigating in the ecclesiastical court. The official (clerical judge of first instance) had fixed a day for hearing and defendant grossly libeled the official in order to deter him from hearing the cause. This was a contempt and a court might deal with it as such. But apparently the libel deterred the judge from doing anything. The official did not proceed for contempt nor sue to protect his interest of personality, but the plaintiff sued in equity to enjoin repetition of the wrong which prevented him from getting justice. Hence the question was not one of enjoining a libel as such, but of whether plaintiff's interest of substance could be secured by enjoining a libel on a third person which had the effect of paralyzing the legal machinery plaintiff was entitled to employ in vindication of his rights.

38 Ex parte Vallandigham, 1 Wall. (U. S.) 243.

not very substantial. It cannot be denied that for the most part these limitations may be reconciled with the doctrine that all preventive interference with publication is prohibited. But that doctrine makes the guarantee merely formal, and unless the language of the bill of rights in a particular jurisdiction clearly adopts Blackstone's view, it might well be held that there are limitations on the guarantee, whether invoked against preventive or against remedial justice.

A number of decisions adopt the view of Brandreth v. Lance, that the constitutional guarantee of free speech and free publication absolutely precludes an injunction against speaking and writing under any circumstances.39 But most of the cases which accord with the result of that decision proceed either upon the proposition that equity will not protect interests of personality or simply on authority.40

On the whole, the argument that defamation may not be enjoined because of the constitutional obstacle is the soundest reason that can be given for the doctrine of Brandreth v. Lance. But this argument is open to four observations: (1) As has been said already, it proceeds on a formal interpretation of the guarantee that deprives it of substantial efficacy when applied to legislation imposing prohibitive penalties. Moreover, so interpreted, the constitution would forbid administrative prevention of false labels under a pure food law. (2) It rests chiefly on history. But if history is to be the sole criterion of interpretation, Story's view is more nearly in accord with the ends indicated by the historical development of the subject. Moreover, it is generally conceded that this restricts the scope of the guarantee too narrowly. Hence it would seem that we cannot safely rely on history to give us the proper construction. (3) None of the cases that make this view of the constitution the basis of denying relief argue the question of the meaning or limitations of the constitutional guarantee. They are content to cite Brandreth v. Lance, where the interpretation is as

39 Life Ass'n v. Boogher, 3 Mo. App. 173; Marlin Fire Arms Co. v. Shield, 171 N. Y. 384, 64 N. E. 163; Juvenile Society v. Roosevelt, 7 Daly 188; Dopp v. Doll, 13 Weekly Law Bull. 335; Judson v. Zurhurst, 30 Ohio Circ. Ct. R. 9.

40 Balliet v. Cassidy, 104 Fed. 704; Vassar College v. Loose-Wiles Biscuit Co., 197 Fed. 982; Donaldson v. Wright, 7 App. D. C. 45 (semble); Christian Hospital v. People, 223 Ill. 244, 79 N. E. 72; Meyer v. Journeyman Stonecutters' Ass'n, 47 N. J. Eq. 519, 20 Atl. 792; De Wick v. Dobson, 18 App. Div. 399, 46 N. Y. Supp. 390; Owen v. Partridge, 40 Misc. 415, 82 N. Y. Supp. 248.

sumed. (4) A growing number of decisions allow an injunction where the writing or publication is part of a wrong which would be enjoined of itself." But this would be wrong on Blackstone's theory and also under the view taken in Brandreth v. Lance. Under such circumstances this basis seems a doubtful one on which to rest a sweeping rule that admittedly results in great injustice.

If it be conceded that the constitutional guarantee of free publication does not interpose an insuperable obstacle, the question next arises whether a common-law policy of trial of questions of defamation by jury, declared by Fox's Libel Act and analogous statutes in this country, requires the issue as to truth of the publication sought to be enjoined to be tried by jury and so precludes jurisdiction in equity. This point was first raised in Fleming v. Newton.42 In that

41 Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551; Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Emack v. Kane, 34 Fed. 46 (intimidation by false circulars maliciously issued); Cœur D'Alene Mining Co. v. Miners' Union, 51 Fed. 260 (intimidation of employees); Casey v. Cincinnati Typographical Union, 45 Fed. 135 (handbills incidental to boycott); Lewin v. Welsbach Light Co., 81 Fed. 904; Seattle Brewing Co. v. Hansen, 144 Fed. 1011 (notices incidental to boycott); American Federation of Labor v. Bucks Stove & Range Co., 33 App. D. C. 83 (advertisement as part of boycott); National Life Ins. Co. v. Myers, 140 Ill. App. 392 (malicious publication as part of conspiracy to destroy business); Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471, 35 N. E. 280 (libel incident of malicious attempt to destroy plaintiff's business); Gilly v. Hirsh, 122 La. 966, 48 So. 422 (libelous sign treated as nuisance); Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307 (nuisance in form of banners displayed in front of plaintiff's premises); Beck v. Teamsters' Protective Union, 118 Mich. 497, 77 N.W. 13; Pratt Food Co. v. Bird, 148 Mich. 631, 112 N. W. 701 (bill of peace, unlawful threats of prosecution in printed circular); Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106 (intimidation); Gilbert v. Mickle, 4 Sandf. Ch. 357 (placard posted before door of auctioneer warning against "mock auctions"); Newton v. Erickson, 70 Misc. 291, 126 N. Y. Supp. 949; McCormick v. Local Unions, 32 Ohio Cir. Ct. R. 165 (printed cards in course of boycott).

Francis v. Flinn, 118 U. S. 385 (semble); Citizens' Light Co. v. Montgomery Light Co., 171 Fed. 553; Reyer v. Middleton, 36 Fla. 99, 17 So. 937 (cloud on title); Marx v. Watson, 168 Mo. 133, 67 S. W. 391 (boycotting); Lindsay v. Montana Federation of Labor, 37 Mont. 264, 96 Pac. 127. Contra.

Also there is coming to be good authority for enjoining circulars charging infringement of a patent and threatening purchasers from plaintiff with legal proceedings, where such circulars are published with no intention of suing for the alleged infringement or in pure malice. Celluloid Mfg. Co. v. Goodyear Dental Co., 13 Blatchf. 375 (semble); Emack v. Kane, 34 Fed. 46; Kelly v. Ypsilanti Mfg. Co., 44 Fed. 19 (semble); Lewin v. Welsbach Light Co., 81 Fed. 904; Farquhar v. National Harrow Co. (C. C. A.), 102 Fed. 714; Adriance v. National Harrow Co. (C. C. A.), 121 Fed. 827, 98 Fed. 118; Dittgen v. Racine Paper Co., 164 Fed. 85; Electric Renovator Co. v. Vacuum Cleaner Co., 189 Fed. 754; Atlas Underwear Co. v. Cooper Underwear Co., 210 Fed. 347; Bell v. Singer Mfg. Co., 65 Ga. 452 (semble). 42 1 H. L. Cas. 363.

case the Court of Session in Scotland had granted an interdict against publication of a public record of protested and dishonored bills and notes. This order was reversed on the ground that anyone had a right to publish the contents of the public record as a matter of general information, so that there was no legal wrong and no ground for the proceeding, apart from any question of power to enjoin a libel. But Lord Cottenham said obiter that if the Court of Session claimed the power to enjoin libels, it must be considered

"How the exercise of such a jurisdiction can be reconciled with the trial of matters of libel and defamation by juries under the 55 Geo. 3, cap. 42 [Fox's Libel Act] or indeed with the liberty of the press. That act appoints a jury as the proper tribunal for trial of injuries to the person by libel and defamation; and the liberty of the press consists in the unrestricted right of publishing, subject to the responsibilites attached to the publication of libels." 43

The second point urged in this dictum has been discussed above. What shall we say as to the first point?

It might be argued that Fox's Libel Act applies only to criminal prosecutions and to actions on the case for damages; that it does not refer to the jurisdiction of equity at all, nor was it intended to affect procedure in equity. It was enacted because courts of law had been directing verdicts upon the question whether a publication was or was not a libel. But this had been happening in prosecutions where courts took it on themselves to pronounce publications libelous from mere inspection of their contents, irrespective of the truth of their contents or the motives of publication. Hence, for example, the statute had no reference to failure of a defendant to prove the truth of a publication libelous per se and a consequent charge that the defendant in an action for libel had failed to sustain the burden of proof which the law casts upon him. Accordingly two answers might be made to Lord Cottenham's dicta. First, it might be said that neither in terms nor upon consideration of the mischiefs that led to its enactment does Fox's Libel Act apply to the remedy, if any, in equity. But this would be unduly narrow. After all there is a clear policy in favor of jury trial of an issue of truth in a charge of defamation. Juries are peculiarly adapted to try such an issue, so that in England to-day, where relatively few civil cases are tried to juries, libel, slander, malicious prosecution,

43 Id., 376.