Defamation Defined

Chicago-Kent Law Review Volume 43 | Issue 1 Article 3 April 1966 Defamation Defined Kevin Martin Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Kevin Martin, Defamation Defined , 43 Chi.-Kent L. Rev. 2 (1966). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol43/iss1/3 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . DEFAMATION DEFINED HISTORICAL BACKGROUND The law of defamation is divided into two distinct actions, libel and slander. Because of this division, or more accurately perhaps because there is no sound, logical reason for the division, there exists a great deal of confusion and disorder in the law of defamation. As a result, the general practitioner is severely handicapped in his ability to successfully try an action in libel or slander, mainly because of the anachronistic rules which apply to both substantive and procedural law in defamation.' Like most actions in tort, the law pertaining to defamation arose to meet a social need. In man's early stages, he satisfied a slur on his honor and name by violent means. Thus, a single incident could balloon into a bloody conflict between tribes, lasting generations. As man emerged as a social animal, however, he realized the necessity of resolving these disputes in a manner which allowed the injured party satisfaction for his injury, and, concomitantly, extinguished possible continuing feuds. To implement this need, a money payment, or wer, was allowed for words of dishonor. 2 To call someone a "wolf" or "hare" meant a three shilling fine; a spurious accusation of a woman's unchastity cost forty-five shillings; and if one falsely accused another of being a "thief" or "manslayer," the defendant not only had to pay damages, but also had to publicly confess himself a liar while holding his nose with his fingers. 3 In all of these cases, the penalty exacted aimed at giving the party offended a feeling of satisfaction or requited vengeance for the injury done to him. The injury to the plaintiff was always to his honor or esteem, and the harm could only be measured in relation to his peers in the community. Thus, in the 13th and 14th centuries, whenever an action in defamation was tried it would be conducted in front of those who were present when the at4 tack on the plaintiff's reputation was made. Whenever the injury to the person's reputation could conceivably be the result of some sin committed by the defendant, such as an attack on chastity, the plaintiff's business ethics, or the like, the ecclesiastical courts took jurisdiction. The usual punishment was an affirmation of the falsity of the insult in the presence of the clergy, and an apology to the person defamed.5 But this relatively mild penalty, coupled with a growing disenchant1 For a comprehensive analysis of the pitfalls of libel and slander pleadings, see Wyse, The Complaint in Libel and Slander, 33 Chi.-Kent L Rev. 313 (1955). 2 Veeder, The History and Theory of the Law of Defamation, 3 Colum. L. Rev. 546, 548 (1903). For other general sources on the history of defamation, consult Donelly, History of Defamation, 1949 Wis. L. Rev. 99; and Note, 69 Harv. L. Rev. 875 (1955). 3 Veeder, op. cit. supra note 2, at 548. 4 Id. at 549. 5 Id. at 551. LIBEL AND SLANDER IN ILLINOIS ment with these courts because of rampant corruption, eventually led to the dissolution of this type of tribunal. In 1275, the statute known as De Scandalis Magnatum was decreed, giving the King's courts jurisdiction over actions in defamation where the party defamed was the King or "great men of this realm," the latter including the nobility, judges, and "other great officers." 6 This gave the crown absolute control over political heretics, and the law was administered by the notorious Star Chamber. By the time of Elizabeth I, at the end of the 16th century, the King's courts had assumed jurisdiction over all actions in defamation. It was during this period that most of the formalistic procedure we know today was formed. The law of defamation only recognized certain actions: imputations of an indictable offense; imputation of a contagious disease; imputations affecting a person's business, trade or occupation; and, any imputation which in fact caused special damages. 7 Also during this time the courts developed the doctrine of mitior sensus, which was used in considering the alleged defamatory language in the writs.8 If more than one meaning could be construed from the language, then the courts would presume the words to be said in their less harmful sense. 9 There is no clear reason for the existence of these purely arbitrary rules, but it has been suggested that they were adopted as an expedient, since it appears that there was a surfeit of defamation litigation brought to the courts during this time, and the use of these rules was an effective way of unclogging the courts.' 0 With the advent of printing, the crown was quick to realize the inherent dangers in an unbridled press, and so it is not surprising to find actions in defamation emanating from the printed word under the jurisdiction of the Star Chamber. Previous to this, several instances of defamation by writing had appeared, but no distinction had been made between oral and written defamation. To provide for this novel situation the Star Chamber extracted, with modification, the provisions of the Roman Law, libellus famosus.11 Briefly, the doctrine applied to a defamatory statement made in a public manner, and was treated more severely, on the basis that the state6 Id. at 553. 7 Id. at 558. As the reader can see, these actions are identical with the modern elements for the action of slander per se. 8 Ibid. 9 The most ridiculous example of this doctrine is found in Holt v. Astrigg, 79 Eng. Rep. 161 (1607). The defamatory words alleged were: "Sir Thomas Cook struck his cook on the head, with a cleaver, and cleaved his head, the one part lying on the one shoulder, and another part on the other." Applying the doctrine of mitior sensus, the writ was held not to charge an indictable crime (homicide), since there was no allegation that the cook died. This doctrine was the harbinger of the innocent construction rule, which will be discussed later in this article. 10 Veeder, The History and Theory of the Law of Defamation, 3 Colum. L. Rev. 546, 558 (1903). 11 Id. at 653. CHICAGO-KENT LAW REVIEW ment was less easily corrected, and thus caused more harm, than one which was occasioned in a private gathering. Under this doctrine, truth was not a defense, whereas it was in the lesser offense. The basic test, whether there was an insult to reputation, was still applied, but because of the greater (...truncated)