noting that, in an action for libel, the remedy of a retraction did not offend the Remedy Clause because “retraction can come nearer to restoring an injured reputation than can money”
How later courts described this case
- noting that, in an action for libel, the remedy of a retraction did not offend the Remedy Clause because “retraction can come nearer to restoring an injured reputation than can money”
- construing Article I, sections 8 and 10, together in determining whether right to demand retraction permissibly limits damages in defamation action
- the remedy guarantee clause is addressed to litigants who seek "to secur[e] the right to set the machinery of the law in motion to recover for harm already done to one of the stated kinds of interest"
- statute that bars general damages for defamation, absent timely retraction request, does not violate Article I, section 10
Written by the judges who cited it.
The opinion
LINDE, J.,
concurring.
In joining the court’s opinion I do not endorse everything that was said in Holden v. Pioneer Broadcasting Co., 228 Or 405 , 365 P2d 845 (1961). Some of the points made by the dissenters in that case and by Justice Lent today are well taken. But I think the question whether retraction of a defamatory statement is an "alternative remedy” that can satisfy article I, section 10, was and remains a false issue.
The guarantee in article I, section 10, of a "remedy by due course of law for injury done [one] in his person, *223 property, or reputation” is part of a section dealing with the administration of justice. 1 It is a plaintiffs’ clause, addressed to securing the right to set the machinery of the law in motion to recover for harm already done to one of the stated kinds of interest, a guarantee that dates by way of the original state constitutions of 1776 back to King John’s promise in Magna Charta chapter 40: "To no one will We sell, to no one will We deny or delay, right or justice.” 2 It is concerned with securing a remedy from those who administer the law, through courts or otherwise. But ORS 30.160 and 30.165 do not purport to entitle anyone to the "remedy” of a retraction. Indeed, if they *224 did, they really would raise genuine constitutional difficulties. See Miami Herald Publishing Co. v. Tornillo, 418 US 241 (1974). These sections merely provide the publisher of the alleged defamation with an opportunity to retract if he wishes by this means to limit his possible liability. A step taken by a putative defendant which the law does not compel but leaves entirely to his own balance between his sense of innocence or stubbornness on the one hand and his sense of obligation or calculation of risk on the other is not a "remedy by due course of law.” If an optional retraction plays a role at all in the validity of limiting the measure of damages for defamation, it would have to be that the retraction is deemed to reduce the "injury,” not that it is a substitute legal remedy.
But the validity of ORS 30.160 does not rest on the contingency of a retraction. The statute does not withdraw the common-law action for defamation. It limits the financial scope of the remedy, at least for unintentional defamation, to a measure of damages that corresponds to injuries measurable in money.
We need not pursue here the question how far the legislature must retain money damages as a constitutionally required remedy for noneconomic injuries when they existed at common law. Defamation is a special case, addressed by more than one provision of article I, Oregon’s Bill of Rights. The focus of section 10 is on assuring a remedy to one whose reputation has been injured. At the same time, article I, section 8, forbids all laws "restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever,” with the proviso that "every person shall be responsible for the abuse of this right.” The two sections must be construed together. They yield a coherent view of freedom and responsibility. The responsibility prescribed in section 8 is responsibility to others for injuries done to them, such as the injury to reputation accorded constitutional stature in section 10. Laws limited to remedying such injuries alone are not laws restraining the free *225 expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever. Laws that in terms impose sanctions on speech or writing beyond the needs of remedying such injuries, whether statutory or common law, are restraints and restrictions forbidden by section 8. See Deras v. Myers, 272 Or 47 , 535 P2d 541 (1975). Given the interrelation of our two explicit sections on freedom of speech and press and the right to a remedy for injury to reputation, a statute that matches financial compensation for unintentional defamation to demonstrable injuries measurable in money arguably exhausts the scope of that remedy under article I, section 8. In any event, it satisfies article I, section 10.
Gillette, J., pro tern., joins in this concurring opinion.
Article I, section 10, provides:
No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.—
See Sources of Our Liberties 145, 342, 348 (R. Perry ed 1959); A. E. Howard, The Road From Runnymede 210, 284-297, 483-484 (1968). As a claim to a remedy provided by the government, this section should not be confused with the guarantee of Magna Charta chapter 39 against deprivationshy the government "except by the lawful judgment of [one’s] peers and by the law of the land,” which gave us the "law of the land” and "due process” clauses of our 18th century constitutions. Several of these constitutions contained both of these distinct guarantees. For instance, the first constitution of Maryland in 1776 declared in one paragraph:
That every freeman, for any injury done him in his person or property, ought to have remedy, by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land.
and in another:
That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land. Md. Decl. of Rights §§ XVH, XXI (1776).
See also Pa. Const, art IX, §§ 9, 11 (1790), Del. Const, art I, §§ 7, 9 (1792), Ky. Const, art XU, §§ 10, 13 (1792). Other states adopted only one or the other, as did the precursors of Oregon’s version of Magna Charta chapter 40 stated in article I, section 10. A century earlier William Penn had included the equivalent of Magna Charta chapter 40 in his Frame of Government for Pennsylvania (see the Laws Agreed Upon in England art. V (1682) reprinted in B. Schwartz, The Bill of Rights: A Documentary History 140 (1971)), and New York include both it and a version of chapter 39 in its Charter of Libertyes and Priviledges (1683). B. Schwartz supra at 165.