Though I concur in the conclusion reached — that defendant's utterance over the radio is actionable per se, without allegation or proof of special damage — I cannot agree with the court's rationale. It impresses me as unreal to have liability turn upon the circumstance that defendant read from a script when, so far as appears from the complaint before us, none of his listeners saw that script or, indeed, was even aware of its existence. As I see it, liability cannot *Page 301 be determined here without first facing and deciding the basic question whether defamation by radio, either with or without a script, should be held actionable per se because of the likelihood of aggravated injury inherent in such broadcasting.
Traditionally, the distinguishing characteristic of a libel has been its expression in "some permanent and visible form, such as writing, printing, pictures, or effigies", whereas a slanderous statement "is made in spoken words or in some other transitory form, whether visible or audible, such as gestures or inarticulate but significant sounds." (See Salmond on Torts [10th ed.], p. 370; 1 Street, Foundations of Legal Liability, p. 291.) Since "the material part of the cause of action in libel is not the writing, but the publication of the libel" (Hebditch v.MacIlwaine, [1894] 2 Q.B. 54, 58; Sheffill v. Van Deusen,79 Mass. 304), logically consistent application of the classic criteria of libel would seem to require that the publication itself — by which the defamation is made known to third persons — be by writing or other visible or permanent instrumentality, rather than by mere speech. (See Osborn v. Thomas Boulter Son, [1930] 2 K.B. 226, 231, 237; Meldrum v. AustralianBroadcasting Co., Ltd., [1932] Vict. L.R. 425, 435, 438; Salmond on Torts [10th ed.], pp. 387-388; cf. also, Penal Law, § 1340, defining a libel as "a malicious publication, by writing, printing, picture, effigy, sign or otherwise than by merespeech * * *." [Emphasis supplied.])
Where, as here, the contents of a defamatory writing reach a third person only in the form of spoken words, of "speech * * * upon the wing" (Ostrowe v. Lee, 256 N.Y. 36, 39), and with no hint of the existence of a writing, there is a publication of words, not of writing, which, considered apart from thedistinctive features of radio broadcasting, would, by traditional standards, constitute slander rather than libel.
Our attention is directed to the decision of the English Court of Appeal in Forrester v. Tyrrell (9 Times L.R. 257 [1893]), and to American cases in accord, that the reading aloud of a libelous document in the hearing and presence of a third person amounts to the publication of a libel. Those decisions, however, rest upon the dubious authority of general propositions enunciated by the English Court of Star Chamber in two early seventeenth-century criminal cases (De Libellis Famosis, 5 Co. Rep. 125a *Page 302 [1605]; John Lamb's Case, 9 Co. Rep. 59b [1610]) long before the advent of the civil action of libel. (See 8 Holdsworth, History of English Law, pp. 364-365.) Extremely broad rules ofcriminal liability were formulated upon those two occasions: thus, in John Lamb's Case (supra), it was announced that one who repeated in the hearing of others a libel which he had read or even had merely heard, was himself guilty of publishing a libel. Both cases involved prosecution for libel directed against certain ecclesiastical officials. Doubtlessly designed to aid the then purpose of the Crown to repress libels on Crown and Church officials (cf. 8 Holdsworth, History of English Law, pp. 337-341), and perhaps influenced by the policy of the Star Chamber to punish as a crime even speech of an allegedly seditious character (cf. 5 Holdsworth, History of English Law, p. 211; 8 Holdsworth, History of English Law, pp. 339-340), the broad rules of criminal liability thus declared by the Star Chamber are of highly questionable validity when applied to a civil remedy developed many years later and serving other ends.
It is significant that the most recent expressions on the subject by an English appellate court, albeit by way of dictum, are contrary to the view taken in Forrester v. Tyrrell (supra). (See Osborn v. Thomas Boulter Son, supra, at pp. 231, 237.) Moreover, even were we to accept the decision inForrester v. Tyrrell (supra) — that the reading aloud of a libelous document in the hearing and presence of a third person constitutes the publication of a libel — the same result would not necessarily follow when the hearer is unaware that the words are being read. There might, perhaps, be some basis for urging that where such a third person actually witnesses the reading of a written defamation, the extent of the consequent damage to reputation in the hearer's estimation is the same as if he had himself read the document. But certainly, where he does not know, and is not made aware, of the existence of a writing, and the scandalous matter reaches him only in the form of spoken words, the resultant injury is essentially the same as if the defamatory words had been uttered without any writing. (See LOWE, J., inMeldrum v. Australian Broadcasting Co., Ltd., supra, p. 443; Davis, Law of Radio Communication, pp. 160-162.) The writing in such circumstances can have no "sting". (See Ostrowe v. Lee,supra, p. 39.) *Page 303
If the base of liability for defamation is to be broadened in the case of radio broadcasting, justification should be sought not in the fiction that reading from a paper ipso facto constitutes a publication by writing, but in a frank recognition that sound policy requires such a result. (Cf. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 9.) Abolition of the line between libel and slander would, I agree, be too extreme a break with the past to be achieved without legislation. (Cf.Ultramares Corp. v. Touche, 255 N.Y. 170, 187.) It is, however, the function of the courts, when called upon to determine which of two competing standards of liability shall be applied in a novel situation, to re-examine and reapply the old rules and to give them new content in the light of underlying vital principles. (See Oppenheim v. Kridel, 236 N.Y. 156,164.)
The common-law action on the case for slander, in its sixteenth-century origin, embraced written as well as oral defamation, and the same rules were applicable to both. Certain classes of words — those charging the commission of a crime, those reflecting on one in his trade or profession, for instance — were held actionable per se, damage being presumed from the nature of the words used. All other defamation was actionable only upon allegation and proof of special damage. The newer tort of libel — adapted by the common-law judges in the latter part of the seventeenth century from the criminal law of libel administered in the Star Chamber — eliminated these refinements as regards written defamation, and made the writing itself presumptive proof of damage. (See Veeder, The History and Theory of the Law of Defamation, 3 Col. L. Rev. 546, 558; 8 Holdsworth, History of English Law, pp. 365-367.)
This emphasis on the form of publication was apparently designed to cope with the new conditions created by the development of the printing press. (See Jones v. Jones, [1916] 2 A.C. 481, 489; see, also, Veeder, The History and Theory of the Law of Defamation, 3 Col. L. Rev., pp. 561-563.) Another development, another invention — here the radio — invites a similar reappraisal of the old rules. (Cf. the decisions involving "talking" motion pictures, Youssoupoff v.Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L.R. 581 [1934];Brown v. Paramount Publix Corp., 240 App. Div. 520.) *Page 304
Though some have said that the differentiation between libel and slander is the result of historical accident, without rational basis (see Carr, The English Law of Defamation, 18 L.Q. Rev. 255, 388; Veeder, The History and Theory of the Law of Defamation, 3 Col. L. Rev. 571-573), this court, disagreeing, has regarded the "schism" as founded upon policy and "not the product of mere accident". (See Ostrowe v. Lee, supra, p. 39, per CARDOZO, Ch. J.) If considerations of principle are to control, there is no valid reason why the same consequences should not attach to publication through the medium of radio broadcasting as flow from publication through the medium of writing.
The primary reason assigned by the courts from time to time to justify the imposition of broader liability for libel than for slander has been the greater capacity for harm that a writing is assumed to have because of the wide range of dissemination consequent upon its permanence in form. (See Pollard v. Lyon,91 U.S. 225, 235; Ratcliffe v. Evans, [1892] 2 Q.B. 524, 530; see, also, Gatley on Libel and Slander, pp. 3-4.) When account is taken of the vast and far-flung audience reached by radio today — often far greater in number than the readers of the largest metropolitan newspaper (cf. Seelman on The Law of Libel and Slander, p. 3) — it is evident that the broadcast of scandalous utterances is in general as potentially harmful to the defamed person's reputation as a publication by writing. That defamation by radio, in the absence of a script or transcription, lacks the measure of durability possessed by written libel, in nowise lessens its capacity for harm. Since the element of damage is, historically, the basis of the common-law action for defamation (see Jones v. Jones, supra, p. 500), and since it is as reasonable to presume damage from the nature of the medium employed when a slander is broadcast by radio as when published by writing, both logic and policy point the conclusion that defamation by radio should be actionable per se. (See e.g., Restatement, Torts, § 568, subd. [3]; Vold, The Basis for Liability for Defamation by Radio, 19 Minn. L. Rev. 611, 639 etseq.; Finlay, Defamation by Radio, 19 Can. B. Rev. 353.)
The order should be affirmed, with costs, and the second question certified should be answered in the affirmative. The first *Page 305 question is not decisive of the appeal and should not be answered.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND and DYE, JJ., concur with THACHER, J.; FULD, J., concurs in separate opinion.
Order affirmed, etc.