History of Oregon Newspapers/Libel and Violence Bear Fruit
LIBEL AND VIOLENCE BEAR FRUIT
Chapman's new policies on the Bee were yellower than those of Stearns, and a good many "fighting words" appeared in the paper directed at well-known citizens. One such incident in 1878 led to three events outstanding in the history of Oregon journalism. One of these was a gun fight in which one of the proprietors of a rival paper, the Evening Telegram, was killed; another was the formation of Oregon's first state editorial association, nine years in advance of the one formed at Yaquina in 1887; the third was the tightening up of Oregon's libel laws at the request of this newly-formed association, which appears to have been organized with this as one of its principal aims.
A. C. McDonald of the Telegram was the victim of the homicide, committed by J. K. Mercer, assistant editor of the Bee. The Oregonian's story of the killing, published the next day, September 20, is a fine example of the leisurely way in which the newswriters of that period told their news. Under the head "Shooting Affray" it starts with the full background of the incident:
Several days ago (said the Oregonian account of the tragedy) a long article was printed in this city which attacked the private character of A. C. McDonald of the Telegram, and in a spirit hitherto unheard of in this community, assailed him on the side of man's deepest sensibilities by the revilement of his family. One J. K. Mercer, a fellow utterly without character, assumes to be the responsible manager of the publication in which the attack appeared. Yesterday afternoon, three gentlemen were standing at the corner of First and Stark streets—Mr. R. E. Bybee, Mr. C. B. Bellinger, and Mr. A. Noltner—engaged in conversation. J. K. Mercer was standing in the doorway of Mr. O'Brien's cigar store listening to the conversation which was going on. The three gentlemen named were standing nearer the edge of the sidewalk than the door of the cigar store. While the conversation was going on, Mr. McDonald came along. He passed the gentlemen, going between them and the cigar store. Apparently his purpose was to pass along and not stop. Just as he came opposite the door he glanced up and, observing Mercer standing there, he stopped, confronting Mercer. Confronting Mercer, McDonald said: "Mercer, are you responsible for that article attacking my family?" The question was asked in an ordinary tone of voice, within hearing of the three gentlemen on the sidewalk and several who were in the cigar store at the time. When interrogated Mercer was observed to rather quail and shrink back. He admitted that he was responsible for the offending article, at the same time making some rather insulting remarks, in effect saying, "Well, what do you propose to do about it?"
The quarrel was then described at length, and finally the shooting, in which some eight shots were exchanged. The next day the Oregonian involved both Chapman, the editor, and Mercer, saying that Chapman had written the article from information given him by his associate. McDonald, fatally wounded, died the next day, and Mercer, tried for murder, was convicted of manslaughter and sentenced to 15 years in the state prison.
Commenting on the incident, the Oregonian, in an editorial September 20, called attention to the conditions which had resulted in the shooting:
There is a style of journalism (the editorial said) or pretended journalism, that is always a menace to the public peace. It is malicious and scurrilous, utterly without responsibility, has no regard for the decencies of life, wantonly as sails private character and even invades the sancticty of homes; it collects filth from all quarters and, passing it through its columns, makes it more filthy still; and, relying for immunity on its want of personal character and its utter pecuniary irresponsibility, it riots in slander and defies those whom it assails to obtain redress.
The editorial concluded by ascribing a share of responsibility to the patrons of the paper who made that sort of thing possible.
Somewhat similar sentiments on the part of other papers led to a movement to obtain a tightening of the existing loose laws on libel. Concerted action by the press on this and other matters was desired. The Bee appeared to cooperate with the movement to organize the newspapers and their editors and publishers into a state association and to mete out severe punishment to libelers. The Bee signed the call for a newspaper organization and, together with the other signers, published it. The signers were the Bee and the Standard of Portland, the Salem Record, the Astorian, the Hillsboro Independent, the McMinnville Reporter, the Harrisburg Nucleus, the Corvallis Gazette, The Dalles Inland Empire, the Oregon City Enterprise, and the New Tacoma (Washington Territory) Herald.
The legislature was already in session in Salem, and there was no trouble getting a large attendance of editors and publishers for the organization meeting. The State Press Association was organized early in the month, and the meetings, rather sketchily covered in the press, appear to have continued for at least two weeks. The organization committee was made up of A. Noltner of the Standard, W. H. Odell of the Statesman, J. H. Turner of the East Oregonian. Directors elected were J. H. Turner, Mart V. Brown, Albany, retiring state printer; D. C. Ireland of the Astorian, A. Noltner, and S. A. Clarke of the Willamette Farmer, formerly of the Oregonian and the Statesman. Brown was elected president, Turner secretary, Odell corresponding secretary.
Other matters besides the libel laws were handled, but these will not be touched on here. Regarding the libel laws, the association passed, unanimously except for the vote of J. G. Chapman of the Bee (who immediately announced withdrawal of his paper from the association) a resolution introduced by Mr. Clarke making severer the laws governing libel in Oregon.
The resolution read: "Whereas, the journalism of a state is an index of its culture, intelligence, and morality, and should be the conservator of true principles and correct action, and not the vehicle of unlicensed and unprincipled prejudice and slander; therefore,
"Resolved, that the press association present to the honor able the legislative assembly of this state, now in session, that in our opinion it is advisable that efficient legislation shall be had that shall define the responsibilities of public journalists and offer a check to undue license and that spirit of defamation sometimes prevalent and which is always to be deplored as an injury to social progress as well as to individual rights. We desire the press should be held sharply responsible for any undue transgression against private rights and the sacred ties of family."
Mr. Clarke's motion that a committee of three be appointed to draft a bill in consonance with the resolution was passed. On the committee were named Clarke, S. A. Moreland of the Oregonian, and Ireland (37). This committee at a later meeting reported having handed to the legislature a memorial and a bill covering the desired changes in the law. The bill was placed in the hands of Senator Lord of Marion county.
The law as passed unanimously by the legislature defined criminal libel and provided penalty as follows:
Penalty.—If any person shall wilfully, by any means other than words orally spoken, publish or cause to be published of or concerning another, any false and scandalous matter, with intent to injure or defame such other person, upon conviction thereof he shall be punished by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than $100 nor more than $500. Any allusion to any person or family, with intention to injure, defame or maliciously annoy such person or family, shall be deemed to come within the provisions of this section; and it is hereby made the duty of the prosecuting attorney of each judicial district to see that the provisions of this section are enforced, whether the party injured desires to prosecute such offense or not.
The momentum given this law by the Mercer-McDonald tragedy is indicated in the specific reference to "allusion to any person or family." In the Sunday Mercury case in 1893, the court ruled that malice is presumed unless it appears that the matter charged as libelous is true, and published with good motives and for justifiable ends.
In that same year of 1893 after one of the most thoroughgoing bits of defamation ever published in Oregon had been given to the Oregon public, the Oregon supreme court, Judge Robert Sharp Bean framing the decision (38), ruled that
This clearly worded ruling states the attitude of courts in Oregon in general to this day.
...it is not only the privilege but the duty of the public press to discuss before the electors the fitness and qualifications of candidates for public office conferred by the election of the people; and when a man becomes such a candidate, he must be considered as putting his character in issue so far as respects his fitness and qualifications for the office, and that every person who engages in the discussion, whether in private conversation, in public speech, or in the newspapers, may, while keeping within proper limits and acting in good faith, be regarded and protected as one engaged in the discharge of a duty. But ...an elector . . . has no right to calumniate a candidate for office with impunity.
The court ruled that a newspaper cannot copy without liability, libelous matter from another paper, but such fact may, when properly pleaded, tend to show want of malice and mitigate damages. The damages, it was held, are not necessarily affected by a failure to make good a plea of justification. It will depend upon motive and good faith.
This, incidentally, is the way the editor involved worked out a bit of defamation when he set his hand to it:
He . . . has already acquired the reputation of being a loathsome, venomous thing, without shame; a man without a spark of manhood, a betrayer of his party, a citizen whose word is not worth a straw; a vile and cowardly slanderer; an infamous scoundrel and a perjured villain . . . (name) had called publicly you, to your face, a perjurer and a thief. . . Deny this if you dare. We could recount many more of your ways that are dark, (name). But we think the above will suffice for the present.
One would think it might!
Commenting on the action of the association, the Bee (October 15, 1878) denied that J. G. Chapman, while a staff member, had any authority to represent the Bee at the meeting and said that "had he consulted this office he would have acted differently." It went on to declare for "a law to severely punish the libeler" and "to require a moral character of every leading editor in the state." In the issue of the 20th the Bee pointed to a bitter personal warfare in the editorial columns between Noltner of the Standard and Scott of the Oregonian, who were declared to be "using the most venomous, spiteful, and ill-natured language at their command, in which 'perjury' and 'penitentiary' mingle constantly." The Bee, further, noted the active part played by Mart V. Brown, late state printer, in the convention and all its actions.
The time was, indeed, one of loose morality in public affairs. A legislative committee appointed to investigate the conduct of state offices found, among other things, outrageous overcharging of the state for printing done by the recent state printer. The way in which the recent state printer, active in the new association—its president, in fact—had operated, is described in an editorial in the Oregonian which said:
When a state printer expands each page of matter over four pages (39) and prints each one of those pages on paper which is counted as four reams for one, and charges for com position, press work, etc., on this fraudulent basis, the bill against the state runs up by geometrical progression. Then the expert who is sworn to do his duty for the state is in the interest of the printer and certifies under oath the correctness of work he never measured (the investigating committee quoted Anthony Noltner as testifying he didn't measure a page, though he certified its correctness and charged six days for measuring it) hoping to become printer and get a like good turn himself, and if the secretary of state (Mr. Chadwick) is also accommodating, the printer has a remark ably good thing. Then a legislative committee, when it looks into the subject, gets a hint or two concerning the profits of an "organized office."
Mr. Noltner of the Standard replied with defamatory remarks about Mr. Scott. This incident gave William Galloway, one of the legislative investigators, a chance for a memorable bon mot in the course of a hearing. A witness had dealt rather loosely with the truth and then explained that he wasn't under oath. "A man of honor," said Mr. Galloway, "is always under oath."
The Oregonian minced no words in its description of conditions in the state printing office. In its issue of October 17, 1878, it pointed out one conspicuous example of overcharging:
For printing the amended school laws (the Oregonian said) the state printer charged the state $1,622.32. Examination by the legislative committee shows that the sum which should have been paid was $291.02. This is even a better profit than that made by Tweed's plumber on the New York city hall. Several other items in the printing show frauds equally gross. For instance, the charge for printing the rules and standing committees of the senate should have been $38.52, but General Brown got $237.40 out of it. These are some of the items which Mr. Noltner certified.
It was not, therefore, the most fortunate condition for the life of the young press association that both Mr. Brown and Mr. Nolt ner, under fire in connection with this printing bill, should have been so prominent in its activities. As the 1878 session adjourned, it was voted to meet in Portland the following June. Diligent search of files has failed to reveal any trace of such a meeting, and apparently the editors let the situation lie until 1887, when, as told elsewhere, the organization which has, under one name or another, lasted through the years, was formed at Yaquina City.From 1870 to 1880 a good many papers were started in Portland. In his History of Portland, on page 421, Harvey W. Scott lists 20 of these, of which he does not speak in detail. His list follows:
The Catholic Sentinel was started February 3, 1870, as a 7-col., 8-page paper, under the authority of Very Rev. J. F. Fierens, acting bishop of Oregon. H. L. Herman and J. F. Atkinson were publishers the first two years. Later Atkinson withdrew and a joint stock com pany of clergy took charge. Joseph R. Wiley became editor in 1881. One of the longest editorships was that of M. G. Munly, who took hold in 1886 and remained for many years, and John P. O'Hara, who took hold in 1905 and served through the 1920's. This is a weekly paper emphasizing news of the church in all parts of the world and giving the church angle on much of the current news. It is now, of course, one of the oldest papers in continuous publication on the Pacific Coast. Among others in charge have been W. R. McGarry and Henry E. Reed.
The Sentinel is one of the very few Oregon newspapers possessing virtually complete files since the beginning. One of the early years, however, is said to be missing.
When founded, and at various times since, the paper was under private ownership. It is now conducted by the Catholic Truth Society, representing the archdiocese, and issued each Thursday.
The Mercury, really, was started in Salem as a weekly paper in 1869 and moved to Portland after a few years. As the Sunday Mercury, under the direction of O. P. Mason, formerly of the New Northwest, and B. P. Watson it achieved unpleasant notoriety in connection with a libel case, involving Col. C. E. S. Wood, and both Mason and Watson were convicted after a trial in which the prosecution was aided by Judge George H. Williams, Judge L. L. McArthur, who had been a pioneer editor, and Colonel Wood, who was a top-ranking lawyer himself. The paper was placed in the hands of a receiver, A. A. Rosenthal, and both defendants were sentenced to a year in the county jail. The Mercury continued publication under the promise of the receiver to "make a decent paper of it."
He does not seem to have been able to convince the authorities. The Oregonian of November 19, 1893, carried a front-page story on a raid on the office by District Attorney Wilson T. Hume and seven police officers. The district attorney was quoted as saying he had found some indecent articles on crime and an obscene bit headed "Under the Teacups," which violated Oregon law (40). The police suppressed the issue, but, the Oregonian said the next day on page 5, three newsboys managed to get through the police with nearly 100 papers, which they sold at 75 cents to $1 a copy.
In an editorial on the 19th the Oregonian complimented Wood and Hume, saying they had "earned the gratitude of all decent persons. The Mercury has been no worse of late than it has been for years. It might have been suppressed at any time by the employment of the resolution and vigor these gentlemen have shown. The verdict of the jury in Wood's case cleared the way for the vigorous proceedings of Hume last night. Between them they have abolished a publication insidiously demoralizing as well as unspeakably offensive. It is not probable that the Mercury will ever resume publication."
37. Oregonian, October 15, 1878, page 3, column 1.
38. Upton v. Hume, 24 Oregon 420 ff.
39. By starting, for instance, each legislative bill low on the first page so that, with generous spacing, it ran over upon page 3 or even 4 instead of being confined to one or two pages, an abuse which had been growing, by the way, from less serious earlier practices.
40. H. W. Scott, History of Portland, 419.