Kastenberg on Historians in the Frick Libel Case

Joshua E. Kastenberg, University of New Mexico, has published, in the St. Louis University Law Journal, The Past May Be Uncomfortable: Frick v. Stevens, the Protection of Scholarly Inquiry, Knowledge, and a Free Society as a Retrospective and Salient Study for Our Time.  It is the first in a series of articles on historians as expert witnesses.  We will note the others as they appear.

The past may be “uncomfortable,” the Washington Post pointed out on July 1, 1966, before adding a far more serious observation: “[t]he suppression of history—which is to say the judgment of historians—is an incongruity of a free society.” A year earlier, Helen C. Frick sued Professor Sylvester K. Stevens in Pennsylvania’s Cumberland County Court of Common Pleas to prevent the publication of his recent history book, Pennsylvania: Birthplace of a Nation. She claimed that the book libeled her deceased father and caused her a loss of standing in the public’s estimation and emotional distress. Judge Clinton R. Weidner indicated his intention to decide the case on the state’s libel laws rather than to dismiss the suit on a First Amendment basis. Equally troubling, Weidner sided with Frick’s attorneys on their evidentiary objection to preclude Stevens from having distinguished historians testify as experts as to the merits of his book. In issuing his ruling, Weidner determined that the historian experts would simply provide otherwise inadmissible hearsay. Professional historians had, on at least eight occasions, testified as experts in state and federal trials as well as before Congress on critical issues such as arms reductions and neutrality legislation. Ironically, if not hypocritically, in 1935 Frick employed a professional historian, Frank Jewett Mather Jr. of Princeton University, when her curator sued her for libel. Perhaps from the vantage of the present, Frick’s lawsuit appears bizarre but in 1965 Pennsylvania’s libel laws included the phrase “tending to blacken the memory of the dead,” as did several other states, and in theory, these laws made her lawsuit feasible.

--Dan Ernst 

Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

The Reverend James Kelly of Liverpool was not well liked. His spat with the church’s organist was bad enough, but Kelly’s diatribes against city officials drew public attention to this pugnacious – and litigious – clergyman. Seemingly anxious over the fate of Anglicanism, Kelly – who preached about the Protestant martyrs of Bloody Mary’s reign to a new generation – balked at the appointment of a Roman Catholic priest as chaplain in one of the city’s jails and railed against voters who had returned Liverpool’s first Jewish mayor that same fall. Not content to issue commentary from the pulpit, Kelly broadcast his opinions in the local newspapers.

While a number of local papers followed Kelly’s squabbles with local notables, Randall Sherlock’s Liverpool Mail did so with particular glee. Under the heading “Irish Scandal at St. George’s Church,” the weekly newspaper detailed the “wolfish”-ness of Irish clergy. It began with a diatribe against the Irish clergy in general and then proceeded to describe the barbarity of Kelly using the church for “potato-boiling” and his penchant for brawling (typical of Irish stereotypes as well) [1].

This fusillade of ethnic stereotypes did not even attempt a pretext of defending Catholics from Kelly. The attack on Kelly ran next to a column decrying fanatical Roman Catholic priests “running mad” overseas. Sherlock tried to apologize later. Kelly was unsatisfied, however, and sued. He won, but the jury awarded him a symbolically negligible single farthing. Kelly appealed for a new trial, believing himself entitled to higher damages. The justices of the Queen’s Bench disagreed.

I love the point in research where one gets to immerse oneself in a single case for some time. While this can happen regularly with high profile cases, it is rarer in the cases of ordinary men and women. Indeed, piecing together the ins and outs of a defamation case is not easy at all. Those which appear in law reports can contain more about precedent than on the case itself. Newspaper coverage can be as terse as a few lines, or can stretch out over multiple articles for months – even years – on end. Reconstructing a case can entail a great deal of additional research, and this is simply not feasible to do for over 600 cases. It’s as I concentrate on a cluster of cases that seem to illustrate a broader phenomenon that I really get to plunge into the weeds. I zeroed in on Kelly for an upcoming conference paper initially for pragmatic reasons; I knew that, in addition to the law report which I had in my electronic file, there were a further 80+ articles about the Rev. Kelly in the British Library Newspaper Database. There’s often quite a bit to be unpacked even from a few lines about a trial. There is all the more to be uncovered when one has not only 80 articles, but seemingly verbatim coverage of the trials among them.

If I were telling a history of case law, I would address the two legal issues at issue in Kelly v. Sherlock. First, the Queen’s Bench found that they had no standing to allow for a new trial solely on the basis of insufficient damages. That would illegitimately circumvent the jury’s role. Second, the judge at the assize level provides a particularly eloquent defense of a clergyman’s privilege of preaching to his flock as he sees fit. His phrasing would be republished in legal text books for years [2]. I suppose these points will make their way into my account, but I, like many of you, am more interested in the case’s implications for society at the time. I am want to explore through newspaper and legal reports how a community works out norms of proper authority and the acceptable limits on stereotyping. Here, as in quite a few cases involving the clergy, the question centered on the authority of the pulpit and the privilege (even the duty) of the clergyman (as opposed to the newspaper) to criticize different social groups as a whole. Was Kelly’s behavior a proper subject of public interest (as Sherlock claimed)? Even if it were, what were the boundaries between proper discussion and malice or ridicule?

During this period, standards for legal judgment of such cases were beginning to crystalize. That is important. More interesting still, are the disagreements, however, as one finds in the columns of the newspaper, among judges and juries, and between trials. It is in these moments that one finds critical tensions over who gets to constitute community, its boundaries, and the language that helps to keep it in balance. Perhaps not surprisingly, more elite commentators seemed embarrassed by both Kelly and Sherlock—though Kelly especially. His brand of evangelicalism did not sit well with those who prized cosmopolitan rationality and were more accepting of religious heterodoxy in civil society [3]. Elite commentators themselves were not entirely enlightened, however: keen to distance themselves from Kelly’s bigotry, these commentators attributed it to the “hot-blooded” Irish. Sherlock lost his case because his diatribe against Kelly the individual descended to ridicule; but more genteel anti-Irish stereotyping, which suffused a good portion of those 80+ articles, remained within the bounds of community acceptability [4].

[1] “Irish Scandals at St George’s Church”, Liverpool Mail, February 6, 1864, p. 5. The newspaper continued the diatribe a week later: “Irish Scandals at St George’s Church, No. II”, Liverpool Mail, February 13, 1864, p. 5.

[2] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686. See, for example, John Townsend, A Treatise on the Wrongs Called Slander and Libel and on the Remedy by Civil Action for those Wrongs, (London: Steven & Haynes, 1868), p. 354-355.

[3] See, for example: “The Finance Committee,” Liverpool Mail, April 9, 1864, p. 4; and “When a man embarks on a sea of controversy…,” The Englishman, November 5, 1864, p. 5.

[4] “The Rev. James Kelly,” Pall Mall Gazette, August 16, 1865, p. 1.  

--Caroline Shaw

File on the Telegraph and Libel in the Progressive era

Patrick C. File, University of Nevada, Reno has published Bad News Travels Fast: The Telegraph, Libel, and Press Freedom in the Progressive Era with the University of Massachusetts Press. From the publisher: 

At the turn of the twentieth century, American journalists transmitted news across the country by telegraph. But what happened when these stories weren’t true? In Bad News Travels Fast, Patrick C. File examines a series of libel cases by a handful of plaintiffs—including socialites, businessmen, and Annie Oakley—who sued newspapers across the country for republishing false newswire reports. Through these cases, File demonstrates how law and technology intertwined to influence debates about reputation, privacy, and the acceptable limits of journalism.

This largely forgotten era in the development of American libel law provides crucial historical context for contemporary debates about the news media, public discourse, and the role of a free press. File argues that the legal thinking surrounding these cases laid the groundwork for the more friendly libel standards the press now enjoys and helped to establish today’s regulations of press freedom amid the promise and peril of high-speed communication technology.

Praise for the book:

"File’s research is impressive, and Bad News Travels Fast makes an important contribution to understanding this ‘forgotten period’ of libel law." - Samantha Barbas

"An important contribution to our understanding of the development of First Amendment law, with particular relevance to current debates about the role of journalism and legal protections for the press." - Tim Gleason

Further information is available here.

--Mitra Sharafi

Laws of Image

I'm very happy to have the opportunity to share my work on the Legal History Blog this month. I was invited to blog because of the recent publication of my book, Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). The book offers a cultural and legal history of privacy and libel law in the U.S. from the late 19th century to the present, and it reframes those areas of law by linking them to what I describe as Americans' image consciousness: our concern with our looks, public personas, and the impressions that we make. In the book, I describe libel and privacy law as "laws of public image": laws that protect our ability to control and defend our public images, and to feel good about our images and public presentation of self. In my posts this month, I'll share some highlights from the book.

The book starts with these anecdotes:

In 2013, a woman found that her daughter's picture had been used in an ad for a local ice cream store, without the daughter's or the mother's consent. Her daughter had simply "liked" the ice cream store on Facebook. The woman was outraged and embarrassed.

In 1948, the Saturday Evening Post ran a critique of cabdrivers in Washington, D.C. that accused them of cheating their customers. A photograph appeared with the article that depicted a woman cabdriver, Muriel Peay, talking to the article's author on the street. The caption didn't name her, and the article didn't refer to her. Although the woman had consented to be photographed, she didn't know that the picture would be used in an article on cheating cabbies.

Angry and humiliated, these people could have done any number of things. One thing they did was to initiate lawsuits.

In the past hundred years, Americans have turned increasingly to the law to help them defend and control their public images. The twentieth century saw the creation of a "law of public image," and the phenomenon of "personal image litigation."

Under these laws of image, you can sue if you've been depicted in an embarrassing manner, even if no one thinks less of you for it. If a newspaper or website publishes your picture in a way you find offensive, you can, under circumstances, receive damages for your sense of affront -- for the outrage that someone has taken liberties with your image and interfered with the way you want to be known to the world.

Why does the law in the United States acknowledge rights to one's image? As I'll explain in forthcoming posts, the development of image law is part of a broader story of how Americans became fascinated, even obsessed with manipulating, perfecting, and reflecting on their own personal images.