Thomas M. Cooley, Liberal Jurisprudence, and the Law of Libel, 1868-1884

• Publication year: 1980

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 4, No.1FALL 1980

Thomas M. Cooley, Liberal Jurisprudence, And The Law Of Libel, 1868-1884

Norman L. Rosenberg(fn*)

During the past two decades, and especially since 1970, there has been a steadily growing interest in American legal history.(fn1) This new interest has helped to redirect attention to the work of nineteenth century legal figures, including Thomas M. Cooley. Most scholars once dismissed Cooley as a simplistic apologist for laissez faire economics and late nineteenth century capitalism.(fn2) Recently, however, legal and constitutional historians have realized that his legal thought was much more complex.(fn3) In part, this article seeks to extend recent work on Cooley and to examine his ideas and judicial opinions on freedom of expression and the law of libel. Cooley's views about free expression, defamation law, and American journalism are excellent examples of the development and transformation of liberal ideas in the mid-to-late-nineteenth century legal community. In addition, Cooley's attempts to resolve the problems raised by some of the earliest mass media libel cases offer some historical perspective on recent efforts to sort out the conflicting issues and interests in political and public libel cases.(fn4)

Thomas Cooley's labors merit special attention because he approached the problem of libel and the press from two vantage points. First, as a writer of numerous legal treatises, Cooley served as one of the nineteenth century's most widely-read con-ceptualizers and "glossators."(fn5) One of America's first prominent lawyer-academicians, Cooley sought to derive and articulate justifications for prevailing legal rules and to formulate and advocate modifications to those standards. Second, as a member of the Michigan Supreme Court from 1864 to 1885, Cooley had the opportunity to argue with his skeptical colleagues about the viability of his approach and to apply the theories of the treatise-writer to the concrete problems of the appellate judge. In his application of legal rules to the realities of late-nineteenth century journalism, Thomas Cooley spoke to the problems of our own time as well. A comparison of Cooley's early efforts as a treatise-writer with his later work as a judge suggests that contemporary conflicts between libel law and freedom of the press are not simply the result of improperly-framed rules or the "conservatism" of President Nixon's Supreme Court appointees.(fn6) Ultimately, the dilemmas that faced Cooley, as well as those that confronted the Supreme Court of the past fifteen years, grow out of contradictions within the liberal marketplace view of free expression.(fn7)

I.

American liberals, including Thomas Cooley, have always placed great importance on a series of supposedly self-regulating marketplaces.(fn8) Cooley's earliest and most influential treatise, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Powers of the States of the American Union (Constitutional Limitations),(fn9) became famous for its implicit endorsement of a free, largely self-adjusting, economic marketplace. But Cooley's legalistic version of "marketplace theology" was more than a set of arbitrary doctrines which cynically or unwittingly sanctified the growth of capitalism and the profits of the robber barons.(fn10) In his writings, Cooley also glorified several other "liberal marketplaces," including the intellectual and the political. In Cooley's view, maintenance of these three marketplaces-the economic, the intellectual, and the political-provided the essential framework for the continued development of a liberal republic.

Writing, in Constitutional Limitations, about freedom of expression and American journalism, Cooley often used analogies from the expanding economic marketplace to bolster his arguments that similar benefits would follow from the free flow of ideas and from the unhindered clash of rival political forces.(fn11) Cooley believed that if political aspirants and ideas could freely compete for support, Americans would enjoy the steady advance of social and political wisdom; America's culture, government, and economy would thrive. And so, the task of lawmakers was to see that legal institutions released, rather than restricted, the flow of individual ideas into the intellectual marketplace.(fn12) Both as a treatise-writer and as a judge, Cooley sought to promote intellectual and political development by removing illiberal restrictions from public debate and from the primary channel of popular communication, the American press.

Traditionally, libel law was the most significant legal check upon political discussion and the press. Thomas Cooley, therefore, devoted considerable attention to eliminating what he considered the antiliberal features of defamation law. In Constitutional Limitations,(fn13) Cooley began to question the wisdom of common law doctrines.

Although some Jeffersonian opponents of the national Sedition Act of 1798 had articulated broad, theoretical defenses of free expression,(fn14) most of the leading spokesmen for the Democratic-Republican party ultimately supported libel doctrines, especially in the area of civil defamation, similar to those endorsed by their Federalist adversaries. Once partisan differences over the Sedition Act ended, prominent political and legal figures agreed that libelous falsehoods about individual political leaders could not be permitted.(fn15) Early nineteenth century legal authorities, such as James Kent and Joseph Story, demanded that courts retain the sturdy barrier of defamation law against those who sought to traffic in political libels. Judges and commentators feared that if courts tolerated circulation of libelous falsehoods in the political arena, voters might be fooled into rejecting the "best men" in favor of less qualified candidates or even totally unscrupulous demagogues. Nearly every judicial decision endorsed the principle of strict liability, a legal doctrine that neatly reinforced the "deferential-elitist" spirit of early nineteenth-century political culture. This theory of libel law implied that most citizens lacked the political sophistication to detect the lies and hyperboles of wily propagandists.(fn16)

Early American judges and legal commentators viewed partisan newspapers as the most dangerous source of libelous political attacks. Although some Americans might consider the political press the great security of our liberty, Joseph Story complained to a colleague at Harvard Law School, "it seems to be forgotten that the same instrument which can preserve, may be employed to destory."(fn17) The great task of clear-headed citizens was "to make the mass of the people see their true interests, there being so many political demagogues, and so many party presses, that are in league to deceive them."(fn18) Such fears about the dangers of "licentious" presses were expressed not only in political libel cases but also in a number of other early nineteenth century libel decisions which rejected any sort of special legal privileges for the press. Thus, in 1813, Judge James Kent held a printer absolutely responsible for a libelous piece, even though the newspaperman had identified the author and had merely provided him access to the public. "The injury is inflicted by the press, which, like other powerful engines, is mighty for mischief as well as for good."(fn19) Kent concluded that the printer's claim for some type of legal protection for inadvertent libels was "as destitute of foundation in law as it [was] repugnant to principles of public policy."(fn20) And in 1825, the Massachusetts Supreme Court compared the newspaper operator to the person who stored firearms at home: both possessed dangerous instruments and must be responsible for all harmful consequences.(fn21)

The early nineteenth century law of libel thus made few concessions to journalists who published untruthful, and in some cases truthful, political criticism. In criminal prosecutions for libel, most jurisdictions employed the so-called "truth-plus standard" first articulated by Alexander Hamilton and James Kent: defendants were required to demonstrate not only that they had published the truth but also that they had done so with "good motives" and for "justifiable ends."(fn22) In civil defamation cases, most courts held that proof of the truth of libelous political charges, by itself, could be a complete justification, but some even applied the more restrictive Hamiltonian standard in both civil and criminal cases.(fn23)

Insistence upon strict liability for libelous falsehoods, even in newspaper stories about public officials and candidates, constituted a significant exception to the general trend in nineteenth century tort law. In other areas, courts generally rejected strict liability in favor of less stringent standards such as negligence.(fn24) In a few types of defamation cases, particularly those arising out of business dealings, some courts did reject strict liability,(fn25) but most American courts refused to concede any privilege when newspapers and periodicals published libelous falsehoods about political leaders or private citizens.(fn26) When it came to the reputations of prominent citizens, the press remained an inherently dangerous instrument.

Beginning his political and legal career as a Jacksonian Democrat, and as a supporter of free soil, free trade, and free...