WHEN TRUTH IS DEFAMATORY
DAVID ARTHUR WALTERS
“Defamation” generally means using words to hurt the fame of a person (de bona fama aliquid detrahere: “to hurt his good fame.”) A person’s fame is his common or widespread reputation.
Spoken words may be easily forgotten, whereas writings may be preserved and referred to indefinitely. Defamatory words when spoken are slanderous, and, when written, libelous, although that legal distinction has been rendered obsolete in jurisdictions such as Australia. Indeed, the legal definition of defamation varies from jurisdiction to jurisdiction.
Presently, in the United States, the scandalous words must be false, or, if true, must have false implications. So it is said that the perfect defense against a defamation suit is truth. Elsewhere, depending on time and place, hailing back even to ancient Rome, statements injurious to reputation may be either true or false. That is, true statements can be defamatory, sometimes with the exception that they are allowed if justified as necessary to protect the public.
Some persons are more famous than others. The public order may depend on the good reputation or majesty of its leaders, especially when the leader happens to be a virtual god, say, a Roman emperor, or a king, say, of England, who rules by divine right, notwithstanding that any singular god is apparently both good and evil despite theodical caviling that attempts to explain how a presumably absolutely good and omnipotent god can countenance evil.
To publish a detraction of a majestic sovereign who claims to be the supreme or divine representative of the people would be a seditious libel whether its propositions were true or false, providing that the sovereign powers deemed it threatening to the peace of the state.
Some sovereigns have thinner skins than others, especially when envious nobles i.e. “known” or famous persons including “equals” are vying against one another and their ruler for fortune and power. Today, where the people are sovereign, seditious libel involves the publication of words designed to incite the violent overthrow of government.
Tiberius Claudius Nero, the emperor who ruled the Roman Empire as a virtual dictator from 14 AD to 37 AD, allowed that almost any offense against the law was an offense against his majesty and therefore treasonous. That allowed common informers known as “delators” to aid and abet rivalries and thus obtain wealth and titles by accusing or informing on people against whom they or advocates would bring action in the Senate, ostensibly presided over by the emperor. Tacitus relates (or delates) in his Annals that:
“If anyone impaired the majesty of the Roman people by betraying an army, by exciting sedition among the commons, in short, by any maladministration of the public affairs, the actions were matter of trial, but words were free. Augustus was the first who used to take cognizance of libels under pretence of this law, incensed by the insolence of Cassius Severus, which had prompted him to asperse distinguished persons of both sexes by coarse lampoons. Soon after, Tiberius, when Pompeius Macer, the praetor, consulted him ‘whether trials should be had under this law’ answered,’ said ‘that the laws must be executed.’ He also was exasperated by the publication of satirical verses written by unknown authors, exposing his cruelty, his pride, and dissensions with his mother.”
Of course experienced advocates or lawyers were more likely to be successful in taking a denunciation to trial, and senators disgraced themselves by acting as delators, exposing even one another and their own families to depredation, banishment, and death.
“This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times : equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion of the times. “(ibid)
A prominent, reputable person and his family might be defamed and ruined by a charge that would be considered trivial today, such as consulting with an astrologist or palm reader for advice as to what a judge will decide in a pending case. They were banished or executed and their estates confiscated. Suicide prior to judgement was for a time a way to save family and fortune. Tacitus tells us of a case brought under the imperium of Nero:
“A charge of recent date involved the daughter in her father’s (Soranus) peril: it was, ‘that she had distributed sums of money among the magi.” Such was the fact, it must be admitted; but it arose from the filial piety of Servilia, for that was her name, who out of affection for her parent, and with the simplicity natural to so young a creature, had merely consulted them “on the safety of the family: whether Nero would be disposed to mercy, and whether the investigation before the senate would issue in anything of a formidable nature”…. The accuser then questioned her, “whether she had not sold her bridal ornaments, and even the chain off her neck, to raise money for the performance of magic rites?” At first she fell prostrate upon the floor, and continued for a long time bathed in tears and speechless; afterwards, embracing the altar and its appendages, she said, ” I have prayed to no malignant deities: I have used no spells: nor did I seek aught by my unhappy prayers than that you, Caesar, and you, fathers, would preserve this best of fathers unharmed. With this view I gave up my jewels, my raiment, and the ornaments belonging to my station; as I would have given up my blood and life, had they required them. To those men, till then unknown to me, it belongs to declare whose ministers they are, and what mysteries they use; the prince’s name was never uttered by me except among the gods. Yet to all this proceeding of mine, whatever it were, my most unhappy father is a stranger; and if it is a crime, I alone am the delinquent.’ …. Thrasea, Soranus, and Servilia were indulged with the choice of their mode of death….” (ibid)
The reader should keep in mind when reading Tacitus that he tended to repeat what amounted to gossip, that his accounts of Tiberius were frequently contradictory and at variance with other historical narratives. The reader may consult The History of that Inimitable Monarch Tiberius (1811) by Reverend John Rendle for a scholarly exposé of Tacitus’ history and the elevation of Caesar Tiberius into virtual sainthood. Of one thing we can be sure, the empire was pestered and plagued by common informers.
Anyone who reads the law at length today might notice that the law especially case law or casuistry is irrational, and he might therefore resort to an astrologer for advice on cases. Americans prefer their laws in writing, but then lawyers i.e. licensed delators plead cases for fees, judges interpret it for salaries. The adjudications add to the vagaries of the “unwritten” or common law, which they all are wont to say is perfectly reasonable, protecting a profession that virtually rules every walk of life.
The more sophisticated Roman delators developed some rather absurd but winning arguments at trial to prove their cases. One interesting plea, a charge of defamation, is related by Tacitus, who as a historian is a sort of common informer or denunciator since his every writing constitutes an indictment of the ruling elite of the age. He certainly was interested in defaming emperors, who were creatures of their time and culture, some of which seems to persist to this day as the Cosa Nostra or what is popularly called the Mafioso.
Here is the legal tactic: Good can be found without evil in every man and the gods he projects. When prosecuting someone for slander, testify that he pronounced all the known faults of a person, not mentioning the virtues. People who know the person will believe those things were said about him because they are true.
“Granius Marcellus, praetor of Bithynia, was prosecuted for high treason by his own quaestor, Cepio Crispinus; Romanus Hispo supporting the charge. This Cepio began a species of avocation, which through the miserable times and the daring wickedness of men afterwards became very common and notorious; for, at first needy and obscure but of a restless spirit, by creeping into the good graces of the prince, who was naturally cruel, by secret informations, and thus imperiling the life of all the most distinguished citizens, he acquired influence with one, but the hatred of all, and thus exhibited an example, by following which men from being poor became rich, from being contemptible became formidable. and, after bringing destruction on others, would perish by their own arts. He accused Marcellus of “holding defamatory discourses concerning Tiberius,” a charge which it was impossible to repel, when the accuser collected all the most detestable parts of the prince’s character, and framed his accusation with reference to them; for because they were true they were believed to have been spoken. To this Hispo added,” that the statue of Marcellus was by him placed higher than those of the Caesars, and that having cut off the head of an Augustus, he had in the room of it set the head of a Tiberius.” At this (Tiberius) flew into such a rage, that breaking silence he cried out, that “he would himself, in this cause, give his vote openly, and upon oath,” that the rest might be under the necessity of doing the same. There remained even then some faint traces of expiring liberty. Hence Cneius Piso asked him, “In what place, Caesar, will you give your opinion? If first, I shall have your example to follow; if last, I fear I may unwittingly dissent from you.” Deeply affected by these words, and by how much the more indiscreetly he had let his passion boil over, by so much the more submissive now from regret that he should have committed himself, he suffered the accused to be acquitted of high treason. “(ibid)
So Tiberius shamed himself, and the truth set Marcellus free. But that did not have to occur. If the sovereign had not acted so shamefully as a person at the trial, Marcellus might have been convicted of insulting the sovereignty itself, strangled and hurled down the infamous steps to rot; and likewise anyone who begged askance or who loved him enough to shed tears. By the way, the other charge, that of peculation, was referred to a court of justice with jurisdiction.