Protecting the Best Men: An Interpretive History of the Law of Libel

By Norman L. Rosenberg | Go to book overview

Chapter Six ∣
The Law of Libel in the Age of Mass Politics

Despite the partisan conflicts of the Jacksonian period, the law of libel seldom became the prominent issue it had been during the earlier era of elitist-participant politics. Though writers vigorously assaulted the reputations of public figures--the vicious slanders against Rachel and Andrew Jackson and the sharp barbs flung at Abraham Lincoln were conspicuous examples-- both critics and conductors of political presses considered libel law a minor legal issue and an insignificant restraint upon rhetorical ingenuity. During a brief return to the journalistic battlefront in 1834, the old Jeffersonian warhorse William Duane immediately noted the absence of the frequent suits that he had faced earlier in the century. Editors "are not incarcerated, nor are the courts and lawyers arrayed against the press--they will not prosecute each other--'dog will not eat dog'--for they have all the slander to themselves, and enjoy a plenary indulgence."1


Mid-Nineteenth-Century Libel Suits: A Survey

Some nineteenth-century jurists and later historians attributed the declining significance of libel law to relaxation of strict common law rules. But during the first two-thirds of the nineteenth century, virtually every jurisdiction still followed some version of the Hamiltonian "truth-plus" test in criminal prosecutions and traditional common law doctrines for civil suits. Before the 1870s, only New Hampshire formally extended any significant legal protection to libelous falsehoods published in the press. The infrequency of partisan libel cases in mid-nineteenth-century America reflected basic changes in the general legal culture rather than significant alterations of substantive libel doctrines.2

Framers of mid- nineteenth-century constitutions generally incorporated the Hamiltonian truth-plus standard into their states' charters. In those constitutional conventions where the issue of a more libertarian standard was raised, most delegates finally supported the Hamiltonian rule. Significantly, however, few emphasized the old rationale of the need to protect the reputations of the best men; instead, most now argued that the good-motives and justifiable-ends tests protected private persons who had once committed some indiscretion but

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