The Expositor: Libelous of the deepest dye?

[LeSellers]

So which specific parts of the Expositor did what you say above (in bold)?

What part of "Fire!" causes people to die in a crowded theater?

Lehi

[Aquilifer]

The Expositor didn't provoke the deaths of Joseph and Hyrum Smith--Joseph Smith's illegal destruction of the press is what provoked his death.

I'm not going to get into an argument with you about whether or not the subtlties of your argument here is in fact representative of the laws of those times. As I'm not a 19th century lawyer, and I'm not qualified to evaluate such things. I'd rather trust the opinion of Thomas Ford who was a legal expert of that time and place.

I truly, deeply do not understand how you think that Ford's views represent an objective determination of a matter in which he played a personal part. I cannot conceive of a credible historian or legal scholar who would use Ford as a source for determining the legality of the council's actions.

Edited to add: I haven't taken a position on either side of this legal argument, being insufficiently versed in the facts and complexities of the case (or what would have been the case but for the Carthage Greys). But if Thomas Ford is the centerpiece of your argument as it has been on two threads, you need to go back and rethink your approach.

[cinepro]

I truly, deeply do not understand how you think that Ford's views represent an objective determination of a matter in which he played a personal part. I cannot conceive of a credible historian or legal scholar who would use Ford as a source for determining the legality of the council's actions.

So what do you think of Elder Oaks' appraisal of the legality of the destruction of the press?

[Aquilifer]

So what do you think of Elder Oaks' appraisal of the legality of the destruction of the press?

Are you suggesting that Oaks used Ford as a credible source pertaining to the legality of the action? I'd find that difficult to believe, at least sans the usual list of qualifications thrown up by historians when using a 'hot' source.

Or are you suggesting that Oaks is not credible either because he has a vested interest in the legality of the action? Sure, I think that his religious background is every bit as relevant and bears the same caveat as Ford's participation in the events in June '44.

But Oaks is at least trying to approach it academically 120 years later, rather than responding to affidavits alleging his personal role in a conspiracy and attempting to justify his decision-making process in the biggest controversy to happen to the state during his gubernatorial term.

[thesometimesaint]

cinepro:

Like this: http://en.wikipedia.org/wiki/Nauvoo_Expositor

[dblagent007]

What part of "Fire!" causes people to die in a crowded theater?

Lehi, truth is THE best defense against defamation (libel and slander). http://en.wikipedia.org/wiki/Defamation#Truth And it has been that way from the early days of English common law.

If someone shouts fire in a crowded theater and there really is a fire, then he has done absolutely nothing wrong. I have to note, however, that shouting fire in a crowded theater has little relation to defamation.

[thesometimesaint]

dblagent007:

The truth is an absolute defense against libel, but if I publicly call someone a jerk it is still libel whether the person is really a jerk or not.

[Aquilifer]

Lehi, truth is THE best defense against defamation (libel and slander). http://en.wikipedia.org/wiki/Defamation#Truth And it has been that way from the early days of English common law.

This is definitely true in a straight up libel lawsuit, but would it also be true here?

A problem that I have with approaching the analysis of The Nauvoo Expositor and the Nauvoo Council's response is that it isn't merely a defamation issue, but also a nuisance/destruction of property/municipal authority one. Different aspects of law intersect each other and that severely complicates the analysis, which is why I reserve my judgment on the substantive merits of destroying the press without better grounding and guidance in precisely what legal issues are involved

[dblagent007]

I'd like to discuss the content of the Expositor and whether or not the Nauvoo City Council correctly designated the paper a public nuisance. Was there actually anything libelous written in the paper? Was their reasoning sound? I have included a link to the full Expositor text.

Instead of trying to answer the ultimate legal questions of whether the Expositor was a nuisance or printed anything libelous, I think you should focus first on what was false in the Expositor. Matters of opinion don't count in this analysis. The only things that matter are facts alleged in the Expositor that are either true or false.

My recollection from previous discussions is that most of the facts contained in the Expositor are true. JS and other leaders were practicing polygamy. The Expositor contained some inaccurate facts, but they were less important. The really controversial facts were largely true.

Keep in mind that, at the time the Expositor was published, JS and other church leaders had repeatedly denied practicing polygamy. They were simply maintaining this position by alleging that the Expositor contained libelous falsehoods. JS showed that he would take extreme measures, including character assassination (e.g., Sarah Pratt) to keep polygamy secret. He was also willing to destroy a printing press too.

[dblagent007]

dblagent007:

The truth is an absolute defense against libel, but if I publicly call someone a jerk it is still libel whether the person is really a jerk or not.

No, publicly calling someone a jerk is not libel because it is considered a statement of opinion, not fact.

Edit: Try this hypothetical. You write on a blog that that Joe is sleeping with Fred's wife and you think he is the scum of the earth. The scum of the earth comment is opinion so there can be no libel for that. However, the adultery allegation is a statement of fact. If it is true, then there can be no libel. If it is false, then there still may be no libel if you did not act negligently. For exmple, if Fred's wife told you that she was sleeping with Joe and she is generally known to be trustworthy, then you probably did not act negligently and therefore are not liable for anything even though it turns out not to be true.

[dblagent007]

This is definitely true in a straight up libel lawsuit, but would it also be true here?

A problem that I have with approaching the analysis of The Nauvoo Expositor and the Nauvoo Council's response is that it isn't merely a defamation issue, but also a nuisance/destruction of property/municipal authority one. Different aspects of law intersect each other and that severely complicates the analysis, which is why I reserve my judgment on the substantive merits of destroying the press without better grounding and guidance in precisely what legal issues are involved

My understanding is that the Expositor was considered a nuisance because it was printing libelous falsehoods. Is it possible for the Expositor to have been a nuisance even though most of it was true? I doubt it. Also, JS and the Church were still publicly denying polygamy so it makes sense that they said it was false.

Interestingly, even Elder Oaks recognized that even if the Expositor was a nuisance, the Nauvoo City Council went too far when it destroyed the printing press. Once a nuisance has been identified, it should be abated in the least intrusive way possible. In this case, the problem was not with the press itself, but with what was being printed by the press. Destroying the press was an illegal trespass to property and the owners could have sued to recover the cost.

[Analytics]

I truly, deeply do not understand how you think that Ford's views represent an objective determination of a matter in which he played a personal part. I cannot conceive of a credible historian or legal scholar who would use Ford as a source for determining the legality of the council's actions.

Edited to add: I haven't taken a position on either side of this legal argument, being insufficiently versed in the facts and complexities of the case (or what would have been the case but for the Carthage Greys). But if Thomas Ford is the centerpiece of your argument as it has been on two threads, you need to go back and rethink your approach.

There are a couple of reasons I bring up Ford:

1- Ford describes the issue the way that we still think of it: Freedom of the Press is a Constitutionally guaranteed right, and that if there is an extreme case when the press is acting in a libelous way or is a public nusance, that needs to be addressed in a proper court where the defendents have the opportunity to defend themselves. That's what makes sense now, and it is what Thomas Ford said then--that proves that we aren't applying XXI legal standards to XIX events.

2- Ford was a very intelligent and thoughtful legal expert of the day who knew the details of the case. He wasn't a party to the case of whether or not the Expositor was a nusance. He was a third-party who was fully qualified to judge the legality of the city council's actions.

3- Ford didn't hesitate to blame everybody who was a party to the subsequent events--he blames a lot of stuff on the Mormons, but he also blames a lot of stuff on everybody else. He lambasted everybody, and that is why he had few friends. But he tried to be fair in recognizing who was responsible for what. As an example, he blames Cyrus Walker for giving bad legal counsel regarding how the Mormons could exploit the Nauvoo City Charter, and gives some leeway to the Mormons who took the advice of somebody who should have known better.

If the city council acted legally, Ford had no motivation to deny it.

4- Thomas Ford is considered a good historical source. A little self-serving at times, but he generally detailed, thoughtful analysis from the non-Mormon perspective of what was going on. He gives a detailed explanation of why the destruction of the press was illegal. I'm not merely relying on Ford's credibility as a legal scholar, I'm also relying upon the merits of his published analysis itself.

Can you point me to anybody who acknowledges Ford's analysis and gives a detailed exaplnation for why Ford was wrong?

[ed2276]

Your point apparently being that two wrongs make a right?

No. The point being that those who speak so vociferously against the destruction of the Expositor don't speak out with the same vehement passion about the Phelps press, if they even speak about it at all.

It's not about two wrongs, it's about hypocrisy.

[Lachoneus]

1- Ford describes the issue the way that we still think of it: Freedom of the Press is a Constitutionally guaranteed right, and that if there is an extreme case when the press is acting in a libelous way or is a public nusance, that needs to be addressed in a proper court where the defendents have the opportunity to defend themselves. That's what makes sense now, and it is what Thomas Ford said then--that proves that we aren't applying XXI legal standards to XIX events.

. . . .

Can you point me to anybody who acknowledges Ford's analysis and gives a detailed exaplnation for why Ford was wrong?

The very fact that Ford viewed the 1st Amendment's Freedom of the Press clause as a constitutional right applicable to the city of Nauvoo shows how out of step he was with XIX legal precedents. In 1844 the governing opinion on the extent of Freedom of the Press was Barron v. Baltimore, 32 U.S. 243 (1833), in which the Supreme Court held that the Bill of Rights applied only to the federal government, not to the States (and certainly not to individual cities). In other words, state and municipal laws could and did contravene the rights enumerated in the Bill of Rights. If Ford believed otherwise, he was wrong under XIX law. Even after the adoption of the 14th Amendment the Barron decision continued to be the law of the land (see, e.g., United States v. Cruikshank, 92 U.S. 542 (1875)). In fact, it was not until the end of the first quarter of the XX, in Gitlow v. New York, 268 U.S. 652 (1925), that the United States Supreme Court first held that the Fourteenth Amendment made freedom of the press applicable to the governments of the individual states and, therefore, to cities within them. You may think of Ford as being ahead of his time. I think he was just out of step.

[ed2276]

I spoke some months go to a legal scholar who was of the opinion not only that the Expositor was libelous, but that the action taken by the Nauvoo City Council for remedy was the most charitable under the circumstances. Had the city fathers gone after the newspaper's owners in a civil suit, it would have exposed the owners to substantial losses. As it was, the only loss they suffered was the destruction of the press, and the Nauvoo officials were quite willing to stand the cost of reimbursement for the property damage.

That was going to be my question: Why didn't the council/libeled individuals just file a tort claim in civil court for libel and get an injunction against the Expositor?

Towns/cities still have the lawful ability to abate nuisances today, but do they still retain the lawful ability to actually destroy a libelous press, or is the injunction/ money damages route the only one left to them in our present day?

[Analytics]

No. The point being that those who speak so vociferously against the destruction of the Expositor don't speak out with the same vehement passion about the Phelps press, if they even speak about it all.

It's not about two wrongs, it's about hypocrisy.

If somebody starts a thread about the legality of destroying the Phelps press and lots of people start arguing that it was perfectly legal, you can bet I'll get into the thick of it to argue that it is isn't legal for a mob to destroy a press.

Until that conversation starts, please don't interpret my silence on the issue as indication that I think what the mob did in that incident was somehow justifiable.

[ed2276]

The very fact that Ford viewed the 1st Amendment's Freedom of the Press clause as a constitutional right applicable to the city of Nauvoo shows how out of step he was with XIX legal precedents. In 1844 the governing opinion on the extent of Freedom of the Press was Barron v. Baltimore, 32 U.S. 243 (1833), in which the Supreme Court held that the Bill of Rights applied only to the federal government, not to the States (and certainly not to individual cities). In other words, state and municipal laws could and did contravene the rights enumerated in the Bill of Rights. If Ford believed otherwise, he was wrong under XIX law. Even after the adoption of the 14th Amendment the Barron decision continued to be the law of the land (see, e.g., United States v. Cruikshank, 92 U.S. 542 (1875)). In fact, it was not until the end of the first quarter of the XX, in Gitlow v. New York, 268 U.S. 652 (1925), that the United States Supreme Court first held that the Fourteenth Amendment made freedom of the press applicable to the governments of the individual states and, therefore, to cities within them. You may think of Ford as being ahead of his time. I think he was just out of step.

Very interesting!

[ed2276]

If somebody starts a thread about the legality of destroying the Phelps press and lots of people start arguing that it was perfectly legal, you can bet I'll get into the thick of it to argue that it is isn't legal for a mob to destroy a press.

My reply was to Spinner. I assure you, I didn't have you or any post you made in mind (I have not seen any of yours on the subject ) at the time I replied to Spinner.

Until that conversation starts, please don't interpret my silence on the issue as indication that I think what the mob did in that incident was somehow justifiable.

I have not done so, and will not do so.

[Analytics]

That was going to be my question: Why didn't the council/libeled individuals just file a tort claim in civil court for libel and get an injunction against the Expositor?

That would have been like allowing William Law to attend his own excommunication proceeding, wouldn't it?

The fact of the matter is that in an open and fair trial situation, the person on the truth's side usually wins. In this case, that would have been William Law. If there would have been a fair trial about the matter, the truth would have come out and William Law would have prevailed and Joseph Smith would have lost most of his followers. Joseph Smith knew that, which explains why he wanted to make sure William Law never got his day in court.

Thus, shut down the paper using the city council's presumed dictatorial powers where they wouldnâ??t have to bother with the pesky details of allowing the accused to make a defense.

[JackNimble]

What were the specific problems the Expositor was causing? Please provide examples.

From the FAIR site...

Prior to the publication of the Expositor, Hyrum Smith, Almon W. Babbitt, and Sidney Rigdon attempted to reconcile William Law to the Church. He announced he would reconcile only under conditions:

I told him [sidney] that if they wanted peace they could have it on the following conditions, That Joseph Smith would acknowledge publicly that he had taught and practised the doctrine of plurality of wives, that he brought a revelation supporting the doctrine, and that he should own the whole system (revelation and all) to be from Hell.

7 June 1844

the first (and only) edition of the Nauvoo Expositor was published. It detailed Josephâ??s practice of plural marriage, and charged him with various crimes, labeling him a â??blood thirsty and murderousâ?¦demonâ?¦in human shapeâ? and â??a syncophant, whose attempt for power find no parallel in historyâ?¦ one of the blackest and basest scoundrels that has appeared upon the stage of human existence since the days of Nero, and Caligula.â?

I would say that THAT was libel.

8 June 1844 - The town council held their meeting concerning the Expositor.

10 June 1844 - The Expositor and the press were destroyed. The destruction of the printed paper was deemed legal under the charter. Precedent was set by at least 19 other Illinois papers having been closed by the same type law.

[Aquilifer]

My understanding is that the Expositor was considered a nuisance because it was printing libelous falsehoods. Is it possible for the Expositor to have been a nuisance even though most of it was true?

This very close to the core question that I'm getting at. Is truth a defense where libel is claimed in a nuisance abatement proceeding rather than a defamation suit? Asserting truth as an affirmative defense may be relevant to the latter, but inapplicable to the former. If so, then the veracity of the paper's content isn't the issue, but the impact of the content on the community is. I'm skeptical that this is the case, but it's critical enough that it can't be assumed away.

As far as the thread's topic goes, perhaps too much effort is being spent on the issue of plural marriage, which was undoubtedly being practiced covertly at the time. The paper also makes other serious allegations against Joseph relating to financial misappropriations, preaching falsehoods such as the plurality of gods and what I take to be the Second Endowment, having a hostile spirit and conduct towards Missouri, creating theological tyranny, promulgation of "un-Christian" oaths, and <gasp> attending houses of revelling and dancing, dramshops, and theaters. These accusations and others need to be considered also where the issue of libel arises.

The paper also appeals to the anti-Mormon elements in the larger area, particularly the virulent press in neighboring Warsaw. It specifically advocates rejection of Joseph and Hyrum's respective political candidacies. It calls for the repeal of the Nauvoo Charter, which in the minds of the Saints provided them with protection that they lacked in Missouri.

And let's not pretend that the paper's editors were calmly laying out facts with supporting evidence in the interests of informing the public. The rhetoric is designed to be explosive (blood thirsty, murderous demons in human shape, anyone?). Was that often par for the course in the 19th century paper business? I think so. But for a group of people on edge after what they had endured and what they had rebuilt for themselves in Nauvoo, the line between rhetoric and action is very thin. Though the paper maintains that the Saints should not fear any unlawful mobs who act on the information that the paper puts out, that would have been cold comfort to any who had relocated from Missouri.

There's ample here to support JS's statement that the paper was "calculated to destroy the peace of the city, and it is not safe that such things should exist, on account of the mob spirit that they tend to produce." This is supported by Blackstone's Commentaries on the Laws of England, still the most authoritative treatise of the common law in that day, which labels as a public nuisance as "any thing that worketh hurt, inconvenience, or damage" that affects the public. This does not necessarily justify the destruction of the press, nor does it clairfy the legal issues involved, but I should think that the swift and decisive response that the press elicited would not be unexpected.

Interestingly, even Elder Oaks recognized that even if the Expositor was a nuisance, the Nauvoo City Council went too far when it destroyed the printing press. Once a nuisance has been identified, it should be abated in the least intrusive way possible. In this case, the problem was not with the press itself, but with what was being printed by the press. Destroying the press was an illegal trespass to property and the owners could have sued to recover the cost.

Again, I haven't done enough homework on this issue to come to any firm conclusions myself (It's high on my mental list of LDS history that I want to understand more thoroughly, but I suspect that my MMM readings of Juanita Brooks and Walker et al will supercede it.), but I'm definitely inclined towards the same conclusion, particularly with respect to recovering the cost of the printing press destruction.

[ed2276]

That would have been like allowing William Law to attend his own excommunication proceeding, wouldn't it?

The fact of the matter is that in an open and fair trial situation, the person on the truth's side usually wins. In this case, that would have been William Law. If there would have been a fair trial about the matter, the truth would have come out and William Law would have prevailed and Joseph Smith would have lost most of his followers. Joseph Smith knew that, which explains why he wanted to make sure William Law never got his day in court.

Thus, shut down the paper using the city council's presumed dictatorial powers where they wouldnâ??t have to bother with the pesky details of allowing the accused to make a defense.

Well, that is certainly your theory of the case. The truth certainly is a defense to a libel claim. However, the problem of your theory is set out with JackNimble's quotation of the language used against Joseph and his character in the Expositor.

Given the kind of rhetoric seen in that quotation, it is, to my mind, not as certain as you suggest that Law would have prevailed.

[JackNimble]

Aquilifer,

The destruction of the press and type was not legal but was a matter of civil law (not criminal). From what I've read, Joseph offered to pay for damages to the press. The destruction of the paper was legal as I stated in my last post.

[JackNimble]

Well, that is certainly your theory of the case. The truth certainly is a defense to a libel claim. However, the problem of your theory is set out with JackNimble's quotation of the language used against Joseph and his character in the Expositor.

Given the kind of rhetoric seen in that quotation, it is, to my mind, not as certain as you suggest that Law would have prevailed.

Especially given Law's previous correspondence with a friend...

I have carefully watched his movements since I have been here, and I assure you I have found him honest and honourable in all our transactions which have been very considerable. I believe he is an honest upright man, and as to his follies let who ever is guiltless throw the first stone at him, I shant do it.

[Analytics]

The very fact that Ford viewed the 1st Amendment's Freedom of the Press clause as a constitutional right applicable to the city of Nauvoo shows how out of step he was with XIX legal precedents. In 1844 the governing opinion on the extent of Freedom of the Press was Barron v. Baltimore, 32 U.S. 243 (1833), in which the Supreme Court held that the Bill of Rights applied only to the federal government, not to the States (and certainly not to individual cities). In other words, state and municipal laws could and did contravene the rights enumerated in the Bill of Rights. If Ford believed otherwise, he was wrong under XIX law. Even after the adoption of the 14th Amendment the Barron decision continued to be the law of the land (see, e.g., United States v. Cruikshank, 92 U.S. 542 (1875)). In fact, it was not until the end of the first quarter of the XX, in Gitlow v. New York, 268 U.S. 652 (1925), that the United States Supreme Court first held that the Fourteenth Amendment made freedom of the press applicable to the governments of the individual states and, therefore, to cities within them. You may think of Ford as being ahead of his time. I think he was just out of step.

Wow! Meaty reply.

I need to clarify my post and possibly retract a detail or two. But before I do that, I first need to point out that accusing Thomas Ford of being out of step with the laws of that time and place is a significant accusationâ??only a few years earlier he had been a justice on the State Supreme Courtâ??a position where his opinion literally set 19th century legal precedents.

That said, are you relying on me when you said itâ??s a fact â??that Ford viewed the 1st Amendment's Freedom of the Press clause as a constitutional right applicable to the city of Nauvooâ?? If you are you should reconsiderâ??Iâ??m not aware of Ford actually saying that, and if I said so, I retract it. As far as Iâ??m aware, Ford only talked about the liberty of the press as a natural right enjoyed by any republican peopleâ??not as something that the U.S. Constitution guaranteed the citizens of Nauvoo. He didnâ??t say the city council violated the lawâ??federal constitution or otherâ??in putting restrictions on the freedom of press per se. Rather, he says the violated the law on the following specific points:

1- assuming the exercise of judicial power

2- in proceeding ex parte without notice to the owners of the property

3- in proceeding against the property in rem

4- in not calling a jury

5- in not swearing all the witnesses

6- in not giving the owners of the property, accused of being a nuisance, in consequence of being libelous, an opportunity of giving the truth in evidence

7- not proceeding by civil suit or indictment, as in other cases of libel

What is your opinion on whether they broke the law on those seven specific points?

He went on to say, â??The mayor violated the law in ordering this erroneous and absurd judgment of the common council to be executed. And the municipal court erred in discharging them from arrest.â?

Regarding the issue of stomping out the free press, he didn't say they broke the law, but he did say this:

This proceeding touched the liberty of the press, which is justly dear to any republican people, it was well calculated to raise a great flame of excitement. And it may well be questioned whether years of misrepresentation by the most profligate newspaper could have engendered such a feeling as was produced by the destruction of this one press. It is apparent that the Mormon leaders but little understood, and regarded less the true principles of civil liberty. A free press well conducted is a great blessing to a free people; a profligate one is likely soon to deprive itself of all credit and influence by the multitude of falsehoods put forth by it. But let this be as it may, there is more lost to rational liberty by a censorship of the press by suppressing information proper to be known to the people, than can be lost to an individual now and then by a temporary injury to his character and influence by the utmost licentiousness.

In destroying the press, did Joseph Smith calculate his actions to raise a great flame of excitment? Interestingly, there is a sociological definition of the term "mob". According to that definition, a mob is, "a group of persons stimulating one another to excitement and losing ordinary rational control over their activity." If the Nauvoo City Council couldn't predict that destroying the press would be much worse for their people than letting it print, they must have been a sociological mob that had lost ordinariy rational control over their activity.

I wonder if Joseph Smith really thought that destroying the press would be a good move to promote peace and the general welfare of the people, or rather, if he went down this destructive route in order to distract attention from the Expositor's actual accusations.