Fair Comment

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The Iowa court was forceful in its 1901 opinion. “It is well settled that the editor of a newspaper has the right to freely criticize any and every kind of public performance, provided that in so doing he is not actuated by malice,” Judge Horace E. Deemer wrote in affirming the ruling of the Polk County district court judge who threw out the case after watching the sisters perform. “Freedom of discussion is guaranteed by our fundamental law and a long line of judicial decisions. The editor of a newspaper has the right, if not the duty, of publishing … fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls within the class of privileged communications, for which no action will lie without proof of actual malice.… Mere exaggeration, or even gross exaggeration, does not of itself make the comment unfair.”

In 1901 the Iowa court was forceful: “It is well settled that the editor of a newspaper has the right to freely criticize any and every kind of public performance, provided that in so doing he is not actuated by malice.”

And he added: “There is a manifest distinction between matters of fact and comment on or criticism of undisputed facts or conduct. Unless this be true, liberty of speech and of the press guaranteed by the Constitution is nothing more than a name.”

Not until seventy-three years later did the Supreme Court of the United States come down as strongly as the Iowa court had. “Under the First Amendment, there is no such thing as a false idea,” the Court wrote in Gertz v. Robert Welch, Inc. “However malicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”

But “the notion that opinion is constitutionally protected was hardly a novel one” by the time of the Gertz case, writes Robert D. Sack, a New York lawyer whose Libel, Slander and Related Problems has become the standard text on First Amendment law. And what case does Counselor Sack cite? Cherry v. Des Moines Leader .

The Cherry case may well have been the first in which a court relied upon the Constitution in recognizing “fair comment” as a defense to libel. Now, that defense seems complete when dealing with articles of opinion.

If there can be no such thing as a false idea, writes Sack, and if only a falsehood can be defamatory, this “seems to lead inexorably to a powerful syllogism: A defamation is actionable only if it is false; opinions cannot be false; therefore, opinions can never be actionable even if defamatory.” Whether under that line of reasoning the constitutional rule has wholly supplanted the common law fair-comment privilege is unsettled.

As for the sisters, their popularity inevitably waned as audiences discovered it was possible to get too much of a bad thing. But they didn’t give up. Their periodic comebacks were loyally heralded in the Des Moines Register .

Said a 1932 headline: CHERRY GIRLS PLAN TO BRAVE ‘EGGS’ AGAIN . And in 1934: CHERRY GIRLS TO SING AGAIN—FAMED SISTERS TO APPEAR IN CHICAGO NIGHT CLUB. And in 1938: STAGE AGAIN LURES TWO CHERRY SISTERS .

By now the raucous days of the 1890s had mellowed in the sisters’ memory, and they insisted the legend of their being regularly pelted with vegetables was false. “It’s not true, not a word of it, ” Effie said in 1935. “It was just a vicious plot by our envious rivals to ruin our act,” added Addie.

Between comebacks the sisters opened a bakery in Cedar Rapids—featuring, of course, cherry pie—and Effie took a stab at politics, twice running for mayor of Cedar Rapids. In 1926 she ran on the “moral uplift” ticket: “It’s the high prices, high taxes, high skirts, high life, one-piece bathing suits, high gas, light and water rates and white-collared gasoline hounds I am after.” And in a campaign article she added: “Public officials waste too much time playing golf. Women’s skirts are ridiculous; they are too short—ankle-length skirts will be the style if I have my way; next, more and bigger policemen.”

She also advocated a 9:00 P.M. curfew.

In the four-way primary, Mayor J. F. Rail got 3,413 votes. W. G. Loftus received 2,899. Frederick Burill got 566. And 347 people voted for Effie.

Yet despite Effie’s full life as a performer, a politician, a bakery proprietor, and in the eyes of Carl Whyte, a world-class kisser, the headline in the Des Moines Register marking her passing in 1944 read: CHERRY DEATH RECALLS NOTED SUIT FOR LIBEL .

The Cherry Sisters lived to see themselves better known in the law than the theater, but they never accepted that.