Page 38 - Tacoma-Pierce County Lawyer Magazine - September October 2018

BOOK REVIEW
personal animus or ill will. It means the speaker knows what they are saying is false in their own mind or is speaking in reckless disregard of the truth.
Was truth a defense?
“ e truth is incontrovertible. Malice may attack it, ignorance may deride it, but in the end, there it is.”—Winston Churchill
Truth was a defense to libel under the Pennsylvania Constitution but the burden of proving it was placed on the defense until the US Supreme Court said otherwise in the 1980s.xii
When did the Rush v Cobbett trial start?
Friday the 13th of December, 1799.
Any pre-trial issues?
Cobbett chose not to appear in court. He relied on his three lawyers to present his defense while awaiting the outcome in New York.
How long was the trial?
e trial took two days, including Friday night and Saturday. Most of the trial was spent in opening statement and closing argument by six di erent lawyers. By late a ernoon on Friday the 13th candles were lit for illumination and trial was conducted in dark shadows.
What evidence was admitted?
Newspaper clippings and the testimony of three witnesses solely on the issue
of malice. No evidence was o ered or admitted on standard of care or e cacy of treatment.
What was the evidence of malice?
One witness recounted hearing Cobbett swear that if Rush did not drop his lawsuit, “then I will persecute Rush while living and his memory a er his death.” Another witness recounted hearing Cobbett grouse that Dr. Rush “had better con ne himself to medicine and let politics alone.” All three of
Cobbett’s lawyers objected but when one of the judges asked the witness what he thought this meant the man replied: “I thought he meant he would attack him on account of his principles. He gave me to undertsand that the complexion of it was ‘too republican’ for him—this was his own phrase.”xiii
Both revelations drew gasps from the crowd.
What was the best passage in plaintiff’s close?
When pestilence and death, walking
hand in hand, swept away the people of Athens with the besom of destruction,
the immortal Hippocrates threw himself undaunted into the midst of the danger, and endured the extremes of fatigue and distress to assist and deliver his perishing fellow citizens. How like this was the conduct of Dr. Rush in the memorable and dreadful year of 1793? He then stood foremost and almost alone to encounter and arrest the ravages of death. Athens heaped honors and wealth on her Physician and his posterity; but contumely and defamation have been the reward of ours.xiv
What was the best line in plaintiff’s close?
“Let the o ender know that though the law has leaden feet, yet it has iron hands, that though slow in its operation, it is direful when once it catches its prey.”
What was the worst line of the defense close?
My client, though an alien, is entitled to all the advantages which law and justice can bestow.
What did the plaintiff ask for?
General damages for mental distress and punitive damages to deter and punish.
What did the defense argue?
Cobbett overstepped the bounds of good manners and decorum but had
the right to speak freely on matters of public concern even if he was a foreigner. Inexplicably, they made no e ort to prove that Dr. Rush’s treament was in fact ine ective at curing yellow fever.
What happened after close?
A er closing arguments, the Chief
Judge announced that libel was clearly proven and instructed the jurors to focus on damages. e judge explained: “to suppress so great an evil, it will not only be proper to give compensatory but exemplary damages, thus stopping the growing progress of this daring crime.”xv
What was the verdict?
A er deliberating two hours, the jury came back with $5,000 and “the crowded room spontaneously broke into such clapping as was unprecedented and unrecorded in any Pennsylvania court.”xvi
What happened to Cobbett?
Cobbett was angry with his lawyers for not arguing truth in his defense and felt that $5000 was highway robbery. By exploiting the post trial publicity, however, he made as much as $10,000 selling an inside look at the trial in a series of pamphlets called Rushlight before sailing back to England to evade judgment.
Nigel Malden is an attorney in Tacoma and can be reached at nm@nigelmaldenlaw.com
Watch for a Friends of the Pierce County Law Library
presentation on the case entitled BLOOD LIBEL, coming soon.
xii. In Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986), the court ruled that the burden is on the defamation plaintiff to prove the falsity of the defendant’s allegations.
xiii. Dr. Rush was a Republican/Democrat allied with John Adams and Thomas Jefferson while Cobbett was a Federalist allied with Alexander Hamilton.
xiv. Athens suffered a mysterious plague between 430-426 BC which killed 25% of the population. Dr. Rush knew the story having translated Hippo- crates’ Aphorisms from Greek into English at age 17.
xv. The judge essentially directed the verdict on liability.
xvi. Neilson, Winthrop and Frances, Verdict for the Doctor, The Case of Benjamin Rush, Hastings House, New York (1958).
38 PIERCE COUNTY LAWYER | September/October 2018