gered liberty and infringed an interest of personality in the days of hearsay presentments by grand juries.84

Next we may ask, How far is this interest, as one of personality, protected by law to-day? The extent of protection in the law of continental Europe has been indicated already. In our law the exigencies of the remedy and of the mode of trial have imposed certain restrictions, so that except as the interest in honor is protected by what have been called "parasitic" damages, it is for the most part regarded as one of substance only. But those who argue that the common law always treats reputation as an asset are compelled to recognize certain cases in which the law does not follow out the theory consistently. For example, in case of a wanton, intentional wrong the plaintiff may recover punitive damages in almost all jurisdictions. In this way juries are enabled to deal with cases of infringement of the interest of personality where actual damages, appropriate only to infringements of interests of substance, would afford no security. Another case, regarded by Mr. Bower as an anomaly, he states thus:

"In cases where there is no plea of defeasible immunity, and where, consequently, it is not material for the purpose of establishing such plea, or rather for the purpose of negativing any case of malice set up by the plaintiff, to prove good faith on the part of the defendant, such proof will nevertheless justify a mitigation of the penalty which would otherwise be inflicted on the defendant, and this, of course, involves a diminution of the compensation to be awarded as the value of the plaintiff's reputation." 85

From the standpoint of reputation as an asset, as Mr. Bower says, the foregoing rules are "strictly speaking illogical." The second seems to result from an idea that the damages here are a punishment. Indeed a penalty inflicted on the wrongdoer may

84 See the old refinements on this point in Bacon, Abridgment, Slander, B. Where the words import a contagious disease and so affect social relations or are prejudicial to one in his office or calling, interests of substance are involved on the face of the defamatory statements.

85 Bower, Actionable Defamation, 285. Mr. Bower states as a third "anomaly" that "in support of a plea of justification the defendant may give evidence of facts tending to show not merely that the plaintiff in fact had no reputation to lose, but that his conduct has been such that he ought to have had none." Id., 284. If this is a sound statement of the law, the result is out of accord with the theory of reputation as property only. But it seems without warrant in the authorities. Thompson v. Nye, 16 Q. B. 175, 180 (1850). See Wigmore, Evidence, I, §§ 79, 280.

well be the only practicable mode of vindicating the interests of personality of the wronged. The law of continental Europe proceeds chiefly in this way, although history has played a large part in the result, since the Roman actions ex delicto were penal.86 It is possible that the second of the two supposedly anomalous cases may rest also upon a social interest that cranks and zealots speak their minds freely. But the latter explanation is hardly consistent with the doctrine of reputation as property, since it allows private property to be destroyed without compensation to effect a remote and conjectural public good.

Two points seem open to criticism in the treatment of defamation in the common law. One is the attempt to reach a definite measure of actual money compensation where the injury is purely to the honor or dignity of the person injured, on the theory that even here the interest secured must be treated as one of substance. In these cases the jurisdictions which do not permit punitive damages, but purport to require a limitation of recovery to actual damages,87 attempt the impossible; and it may be questioned whether the common law does not in like manner attempt the impossible when it attempts an assessment of actual damages for mental anguish, mental suffering, and the like. As has been said, actual compensation in money is possible only where the injury is to an interest of substance. The attempt in our law to reach an absolute measure of damages in these cases grows out of the exigencies of trial by jury, and the margin of discretion in the jury in assessing damages in such cases hides the breakdown of the academic rules as to the measure of damage which are laid down in the charge of the court. The other point in which our law is open to criticism, — namely, our failure to extend preventive remedies to secure interests of personality, has been discussed elsewhere.88 It should be said, however, that practical considerations and the necessity of taking account of other interests make it peculiarly difficult to give adequate security to the individual interest in honor. So far as feelings and mental comfort are involved, all that has been said heretofore applies fully.89 In addition, very important 86 Liszt, Deutsches Strafrecht, 11 ed., §§ 95 ff.

87 Massachusetts, Michigan, New Hampshire, Colorado, Nebraska, Washington. See Sedgwick, Damages, 9 ed., I, § 358.

88 See supra, p. 362, particularly n. 62.

89 See supra, pp. 362–365.

social interests in free speech, free criticism, and free confidential communication have to be weighed against the individual interest. These social interests will be considered in another connection.

6. BELIEF AND OPINION 90

As an individual interest, the claim of the individual to believe what his own reason and conscience dictate and approve, and to express freely the opinions involved in such belief, is closely connected with the interest in the physical person. With good reason Spencer deduces it as a sort of free mental motion and locomotion.91 But it is also closely connected with a social interest in free belief and free expression of opinion as guarantees of political efficiency and instruments of social progress. Except as interference with free belief and free expression of opinion takes the form of interference with freedom of the physical person, it is probable that the social interest is the more significant. In our bills of rights, however, individual free speech is always guaranteed, as an individual natural right.92 In other words, we have been accustomed to treat the matter from the standpoint of the individual interest. Undoubtedly there is such an interest, and there is the same social interest in securing it as in securing other individual interests of personality. The individual will fight for his beliefs no less than for his life and limb and for his honor. Hence the social interest in general security is involved in any interference with the former as well as in interference with the two latter. Moreover, free exercise of one's mental and spiritual faculties is a large part of life. As civilization proceeds it may become the largest part. No one who is restrained in this respect may be said to live a full moral and social life. Thus the social interest in the moral and social life of the individual is also involved.

Recognition of the individual interest in free belief and opinion. is relatively recent both in law and in morals. Nor is this interest

90 Pollock, Essays in Jurisprudence and Ethics, 144-175; Mill, On Liberty, ch. 2; Stephen, Liberty, Equality, Fraternity, ch. 2.

91 Justice, §§ 73, 76.

92 The usual form is: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." N. Y. Const. (1821), art. vii, § 7.

everywhere recognized by public opinion. Press reports from time to time remind us that Mormon elders who preach nothing but the abstract doctrines of their faith are not always safe in every part of the country. Courts are frequently called upon to protect new, queer, or out-of-the-way sects from persecution by otherwise lawabiding communities. 93 Active intolerance of religious, economic, and sociological opinions not generally held by the community is common enough. Lehrfreiheit often has to be insisted upon against a strong popular feeling. But this feeling may have an important social interest behind it. For the individual interest in free belief and opinion must always be balanced with the social interest in the security of social institutions and the interest of the state in its personality. These interests may or may seem to require repression of forms of belief which threaten to overturn vital social institutions or to weaken the power of the state. In one way or another, moralists generally recognize some such qualification of the so-called natural right of free belief and free speech. 94

Historically, much that appears to be lack of recognition of the individual interest in free belief and opinion is rather an over-insistence upon the countervailing interest of the state in its personality or over-insistence upon the social interest in the security of some particular social institution. Almost all state persecution so called and most ecclesiastical persecution is to be explained in this way. Moreover, this interest extends only to belief and opinion. When belief and opinion are put into action, limitations which apply to other action may well apply. For example, prose

93 Commonwealth v. Arndt, 2 Wheeler Crim. Cas. 236 (Pa.) (1802). Cf. In re Frazee, 63 Mich. 396 (1886); Figg v. Hanger, 4 Neb. Unoff. 792 (1903); Beatty v. Gillbanks, 15 Cox C. C. 138 (1882).

4 Spencer, Justice, § 79; Paulsen, Ethics (Thilly's trans.), 698 ff.; Mill, On Liberty, ch. 2 (beginning). See Woolsey, Political Science, I, 272-274.

95 For recent examples see the federal law as to alien anarchists, Turner v. Williams, 194 U. S. 279 (1904); also the Massachusetts red-flag law: "No red or black flag and no banner, ensign, or sign having upon it any inscription opposed to organized government, or which is sacrilegious, or which may be derogatory to public morals shall be carried in parade within this commonwealth." Mass. Acts & Resolves, 1913, ch. 678, § 2. See Commonwealth v. Karvonen (Mass.), 106 N. E. 556 (1914). As to the conditions arising from the considerable alien population in large cities which may require such legislation, see Train, Courts, Criminals and the Camorra, ch. 9.

96

cutions of polygamy were not prosecutions of belief or opinion as to plural marriage, but prosecutions of the act of plural marriage based upon a social interest in marriage as a social institution." Again, the legal system ought not to interfere in any way with the views of persons who believe in healing by faith. But if these are carried into action in the form of neglect to provide for proper assistance to dependents or neglect to report contagious diseases, a countervailing social interest in proper care for dependents and in the general health as a part of the general safety may have to be considered and may be decisive.97 A similar balancing of interests was behind the distinction which the books used to make between heresy and blasphemy.98 The former has to do solely with belief and opinion. The latter may be a manifestation of the former. But if it goes further and actively disturbs the public peace or shocks the moral feelings of the community, social interests must be weighed over against the individual interest. The foregoing considerations apply also to political opinion. Under some circumstances the interests of the state in its personality may have to be weighed against the individual interest in free political belief and free expression thereof. This may mean that the social interest in the free development of the individual must be weighed with the social interest in the state as a social institution. Where men live congested in large cities, especially where there are great numbers subjected to severe economic pressure who are more or less ignorant of the local political institutions and more or less ignorant of the language in which the law is expressed, the danger of mobs, which are controlled by suggestion, may require confining of free expression of political opinions on certain subjects to times and places where such things may be discussed without grave danger of violence and disorder.99

96 Reynolds v. United States, 98 U. S. 145 (1878); Davis v. Beason, 133 U. S. 333 (1890); Wooley v. Watkins, 2 Idaho 555, 22 Pac. 102 (1889).

97 People v. Pierson, 176 N. Y. 201, 68 N. E. 243 (1903); Reg. v. Downes, 13 Cox C. C. 111 (1875). A good discussion of this matter from the standpoint of ethics may be found in Pollock, Essays in Jurisprudence and Ethics, 168-169.

98 State v. Chandler, 2 Har. (Del.) 553 (1837); Commonwealth v. Kneeland, 20 Pick. (Mass.) 206 (1838).

99 Several interests may enter into consideration in such cases, e. g., the social interest in general security, People v. Most, 171 N. Y. 423, 64 N. E. 175 (1902) (publications inciting to murder); the social interest in security and good order in public places, Fitts v. Atlanta, 121 Ga. 567, 49 S. E. 793 (1905) (public meeting on the