Under the law of defamation there is another class of communications which we are quite apt to make without realizing what may be involved, and this class is known as-
6. Confidential Communications. — Every individual has a moral duty to refrain from becoming a volunteer to defame another in a matter in which he has no legal or personal interest. There must exist some pressing emergency to warrant the justification. Defamatory words do not become privileged merely because they were uttered in the strictest confidence by one friend to another and, possibly, upon the most urgent solicitation of the latter. The situation which pertains to communications between husband and wife is regulated by a settled law that a wife may be libeled by a letter written to her husband, and that the husband may be libeled by a letter written to the wife. In other words, the relation between husband and wife is no protection to those who libel either by writing to the other'
The supreme court of Missouri, in the case of Finley vs. Steele (159 Missouri, 305), adopted the law as laid down in Byam vs. Collins (111 New York, 143). The court also held that " a libelous communication is regarded as privileged, if made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a person having a corresponding interest or duty, although It contains criminating matter which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation."
It was held by the supreme court of New York (in the case of Klinck vs. Colby, 46 New York, 42'7) that " the occasion in which it [privilege communication] was made, rebuts the inference arising, prima facie, from a statement prejudicial with the character of the plaintiff; and puts It upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill will, independent of the circumstances in which the communication was made."
No doubt when a person acts in the performance of duty, or in regard to a matter where his interest is involved, he may justify by showing that he had reasonable and probable cause to believe what he published, and that he acted bona fide and in the belief that what he published was true. In such a case he will be protected by the privilege which attaches to what he publishes from the consequences of an honest mistake.'
7. Threatening Communications. — Publications of a threatening nature should receive careful consideration before transmission. It was held by the supreme court of North Carolina that a publication sent to a boy of fourteen years of age, threatening the boy with prosecution for a theft, was libelous. (183 N. Car. Report, 309.)
8. Communications Regarding Church Discipline.— In the law of libel and slander, exceptions are made in regard to communications and oral statements of a disciplinary character made by ministers and those in charge of, or at the head of, religious organizations and societies. The privileges allowed under these exceptions relate only to church proceedings of a disciplinary character, rather than to utterances in ordinary church services. Communications coming within the bounds of church discipline may be qualified or conditional. Any one publishing defamatory words under a qualified or conditional privilege is liable, but only so upon proof of expressed malice. This has been so held by the supreme court of Connecticut and of other States.4
a. The Clergy.— Extreme caution should be observed by ministers, and those occupying similar positions, in what they say to members of a congregation in the way of criticism, whether directly or indirectly, unless it be a meeting especially appointed for disciplinary purposes, and dealing with some 'member of the church or the denomination of which the speaker may be a member. But even then, great care should be taken that the requirements are observed before the publishing of any statement or statements by ministers and officers of a denomination.
If a minister makes a slanderous statement concerning a member of his congregation, as a part of his sermon, on a theory that it is necessary for the welfare of his parish, the communication is, at most, only a qualified privilege, and hence sufficient to sustain a recovery of damages if proof of expressed malice is shown. Statements made by a clergyman in the pulpit, regarding parishioners, must be guarded with the greatest of care, in order that the clergyman shall not become liable for defamation. A priest or pastor may criticize from the pulpit the official acts of a public officer who is a member of his congregation, provided the acts in good faith in so doing; but he cannot make his sermon the medium for bringing false, malicious, and criminal accusations against an individual.5
In one case (Coombs vs. Ware, 8 Blackford Indiana Report, 170) it was held that words spoken or written, in the regular course of church discipline, to a member of the church, are, as among the members themselves, privileged communications, and not actionable unless express malice appears. But an accusation made by a member of the church on such an occasion, against one not a member, is not, as to him, a privileged communication.
The clergyman, according to the rules of certain churches, may sometimes be called upon to pronounce the sentence of excommunication on certain of his members. Such act, if done in good faith, will not lay the minister open to an action of slander, however much he may have to hurt the feelings of the excommunicated person .° Thus the reading from the pulpit of an excommunication of a married woman for a transgression of the commandment, has been held to be privileged.' However, if the clergyman goes further, and advises his people to shun the excommunicated person in business transactions, and not to come near his (or her) home or employ the excommunicated one in any capacity, he then steps outside of his privilege, and will be liable to an action of slander or libel.°
b. The Laity.—The position of the clergyman is far more delicate than that of a doctor or lawyer. Imputations which will cause little or no damage to a medical man, may forever shatter all confidence in a clergyman. Consequently the right of the clergyman to damages for libel has been upheld in numerous cases. While the acts of a clergyman may be commented upon, the commentator must confine his attention to them (the acts), and may not draw on his imagination for charges with which to soil the clergyman's character. Where the officers of a church find, upon inquiry, that their pastor is unworthy and unfit for his office, and thereupon, in the performance of what they honestly believe to be their duty toward other members and churches of the same denomination, publish through the church papers, in good faith, the result of their inquiry, and there is a reasonable occasion for such publication, it will be deemed to be privileged and protected under the lawsIf a publication is made in good faith, and for the members of a denomination alone, the fact that it incidentally may have been brought to the attention of others not members of the church, will not take away its privileged character.
In the case of Shurtleff vs. Stevens (51 Vermont Report, 501) the supreme court held it to be a privileged communication, where a county association, made up of Congregational ministers, at a regular meeting of the association, adopted a resolution withdrawing fellowship from said plaintiff, who was a minister, because of his untruthfulness, deception, and creating disturbance among the churches of the denomination, and published the resolution and the action of the county association in a church paper and also in a State paper. The plaintiff claimed that among the injuries he sustained by the publication of the action of the association, he was deprived of the right to a reduction of fare heretofore granted him by the railroads.
A slanderous statement by a member of a conference called for the purpose of electing church trustees or officers, concerning the character of one of the nominees, the statement being made in answer to inquiries as to why the defendant objected to a certain candidate, has been held to be a qualified privilege."
A minister occupies a prominent place in his community. He is the teacher of the young and the counselor of the old. He is largely responsible for the preservation of good morals by both. His example, whether good or bad, is to a large extent followed. His mode of life is the subject of discussion on the street corner and in other places. He is separated from the world by his public ordination, and carries with him constantly, whether in or out of the pulpit, superior obligations to exhibit, throughout his entire deportment, the purity of the religion which he professes to teach.
The Scripture says: " Whoso keepeth his mouth and his tongue keepeth his soul from troubles." Prov. 21: 23.
There is no higher calling than the ministry of God. He who occupies this exalted position should present only the message of God, eliminating from his own mind, and from the minds of others, those thoughts which tend to contaminate and lead to criticism and defamation.
Takoma Park, D. C.
1 Kramer vs. Perkins, 102 Minnesota Report, 455 ; 123 Mississippi, 550 ; 20 New Jersey Law Report, 208.
2 See also Marks vs. Baker, 28 Minnesota, 162 ; Briggs vs. Garrette, 111 Pennsylvania State Report, 404 ; Buisson vs. Huard, 56 Lawyers' Reports Annotated, 300, 106 Louisiana, 768 ; Hemmens vs. Nelson, 138 New York, 517 ; Caldwell vs. Stewart, 45 Lawyers' Reports Annotated, 735 (Ky.).
3 Sweet vs. Post Pub. Co., 102 Northeastern, 660 ; Douglas vs. Daisley, 114 Federal, 628, 57 Lawyers' Reports Annotated, 475.
4 Blakeslee & Sons vs. Carroll, 64 Connecticut Report, 223 ; Dennehy vs. O'Connell, 66 Connecticut Report, 175.
5 Hassett vs. Carroll, 81 Atlantic Reporter, 1013 ; 85 Connecticut Report, 23.
6 Servatlus vs. Pickee, 34 Wisconsin Report, 292.
7 Farmworth vs. Storrs, 59 Massachusetts, 412 ; Landis vs. Campbell, 79 Missouri Report, 433.
8 I Fertzgerald vs. Robinson, 112 Massachusetts, 371 ' • Morasse vs. Brochu, 151 Massachusetts, 567.
9 Bedgate vs. Rush et al 49 Lawyers' Report Annotated, 236 (Kans.) ; 61 Kansas Report, 480.
10 Howard vs. Dickie, 120 Michigan Report, 238 ; Cranfill et al vs. Hayden, 22 Texas Civil Appeal, 656.