By David L. Hebert
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Extra info for The Bill of Rights - Freedom of the Press
Once “libel per se” has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. His privilege of “fair comment” for expressions of opinion depends on the truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co. (1913). Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements.
Boundaries sufficiently distinct for judges and juries fairly to administer the law. . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact or situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . ” In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.
For whatever wrong the appellant has committed or may commit, by his publications, the state appropriately affords both public and private redress by its libel laws. As has been noted, the statute in question does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court’s order, but for suppression and injunction —that is, for restraint upon publication. Prior Restraint Is Not Absolutely Prohibited The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited.
The Bill of Rights - Freedom of the Press by David L. Hebert