(transcribed by B. Ekse, October, 2002)
DEEMER, J. The action is predicated on the publication of the
following article: "Billy Hamilton, of the Odebolt Chronicle, gives the
Cherry Sisters the following graphic write-up on their late appearance in his
town: 'Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and
Addie, the flower of the family, a capering monstrosity of 35. Their long,
skinny arms, equipped with talons at the extremities, swung mechanically, and
soon were waved frantically at the suffering audience. The mouths of their
rancid features opened like caverns and sounds like the wailings of damned souls
issued therefrom. They pranced around the stage with a motion that suggested a
cross between the danse du ventre and a fox trot,--strange creatures with
painted faces and hideous mien. Effie is spavined, Addie is stringhalt, and
Jessie, the only one who showed her stockings, has legs without calves, as
classic in their outlines as the curves of a broom handle.' " The
defendants pleaded that plaintiff, with her sisters, were engaged in giving
public performances, holding themselves out to the public as singers, dancers,
reciters, and comedians; that their performances were coarse and farcical,
wholly without merit, and ridiculous; that the Des Moines Leader is a newspaper
published in the city of Des Moines, which the other defendants were conducting,
and that the article appeared as a criticism of the performance given by
plaintiff, and to expose the character of the entertainment; that it was written
in a facetious and satirical style, and without malice or ill will towards
plaintiff or her sisters. This is clearly a plea of privilege, and the direction
to the jury to return a verdict for defendants was, no doubt, on the theory that
the plea of privilege was established. That it was published of and concerning
plaintiff in her role as a public performer scarcely admits of a doubt, and it
is well settled that the editor of a newspaper has the right to freely criticise
any and every kind of public performance, provided that in so doing he is not
actuated by malice. In other words, the article was qualifiedly privileged….The
occasion was such that the presumption of malice arising from the publication is
rebutted, and plaintiff, in order to recover, must prove actual malice….By the
term "actual malice" is meant personal spite or ill will, or culpable
recklessness or negligence. Such malice may be shown by extrinsic evidence, or
it may be gathered from the publication itself. There is absolutely no evidence,
outside the publication itself, tending in any manner to show malice; hence, if
malice be found, it must be from the article published. Ordinarily publication
of such an article as the one in question would of itself be an indicium of
malice, but, as applied to the facts of the case, we do not think it should be
so held. Plaintiff described the entertainment she and her sisters gave, in
part, as follows: "These entertainments are concerts,--literary
entertainments. I don't sing much. The others do. I have recitations and
readings; recite and read in costume. In feminine costumes. Dresses as long as I
have on, or shorter. I don't wear short dresses. Sometimes I have worn men's
clothes. I never dance. I recite essays and events that have happened, I have
written up of my own. I have none of them with me. One is, 'The Modern Young
Man;' the other, 'An Event that Happened in the City of Chicago.' I sing an
Irish song,--an Irish ballad; also a eulogy on ourselves. It is a kind of a
ballad composed by ourselves. I help the others sing it. I have forgotten it. It
is about an editor. In the chorus I walked a little around the stage,--kind of a
fast walk. A cavalier is a Spaniard, I believe. I represent a Spaniard. That is
given in the act that we call 'The Gipsy's Warning.' I wear my bicycle bloomer
rig. They reach to my knees, and are divided like leggings,--black leggings with
buttons on them. I wear a blue blouse,--a blue velvet blouse. Sometimes red and
sometimes green. I have many suits; wear them in turn. The leggings are always
black. In the chorus I walked a little around the stage,--kind of fast walk or a
little run. Had on different kind of clothes,--mostly silk. We had a
reproduction of the performance called 'Trilby.' The singing of Ben Bolt by my
little sister. I would come in and hypnotize her in a farce way. I would tell
the audience that I would hypnotize her while she would sing. I didn't appear at
any show without stockings. My little sister was barefooted in one act,--in very
long dresses to her ankles. She also appears in a long robe in a tableau
clinging to the cross. 'Cherries ripe and cherries red' is a eulogy song. I was
not asked to repeat only one verse. Q. What is the verse? A. 'Cherries red and
cherries ripe, the cherries they are out of sight, cherries ripe and cherries
red, Cherry Sisters still ahead.' " The defendant's evidence regarding
the character of the performance is in part as follows: "It was the
most ridiculous performance I ever saw. There was no orchestra there. The
pianist left after the thing was half over. She could not stand the racket and
left. There was no other music, except vocal music from the Cherrys. They had a
drum, and I think they had cymbals. As near as I can recollect, the curtain
raised at the beginning, and the Cherrys appeared and gave a walk around and a
song. I think it was 'Ta, ra, ra, Boom de ay.' They read essays and sung
choruses and gave recitations, interspersed with the remarks that, if the boys
didn't stop, the curtain would go down. One young man brought a pair of beer
bottles which he used as a pair of glasses. They threatened to stop the
performance unless he was put out, but he was not put out, and they didn't stop.
When the curtain went up the audience shrieked and indulged in catcalls, and
from that time one could hardly hear very much, to know what was going on, to
give a recital of it. There was no bad language used, however. When Jessie was
on the stage she appeared in the Trilby act in bare feet and short dresses. She
was asked to trim her toe nails, and such irreverent remarks as that. She
appeared more pleased than anything else. They had a washtub scene. I think
Effie and Addie appeared with bare arms showing to the elbow, which was quite
prominent. They went through the motions of washing, singing at the time. There
was another piece called 'The Gipsy's Warning.' One of the sisters appeared in a
male costume. Then there was a song, 'I want to be an editor,' and an
explanation, accompanying the song, that an editor down at Cedar Rapids insulted
them, and they made him pay dearly for it. The song was so jumbled up one could
hardly make anything out of it, except, 'I want to be an editor, I want to be an
editor,' whereupon the audience rose as one man and called on me to stand up. I
did not stand up. My wife was there. While Jessie sang this she was rolling her
eyes and swaying her body. I am not qualified to pass an opinion upon the merits
of the singing. The discord was something that grated on one's nerves. There was
short stepping around and swaying of the body. They went around the stage in one
of their pieces,--I cannot say which,--sort of a mincing gait, shaking their
bodies and making little steps. That is what made me describe it as a cross
between the danse du ventre and a fox trot. They had their hands in front of
them and at their sides. There was a tableau at the close, as I recollect.
Jessie was the central figure in that piece, with her eyes uplifted, red lights,
and so on. There was a 'Rock of Ages.' The audience was talking to the women,
and they (the Cherry Sisters) would talk back. They would say: 'You don't know
anything. You have not been raised well, or you would not interrupt a nice
respectable show.' Nobody left during the performance except the pianist."
In the light of this evidence, and some other that cannot be reproduced, the
trial court directed a verdict for the defendants. We are now asked to set aside
its order on the theory that the question of malice was for the jury. This
is, no doubt, the correct rule, when there is any substantial evidence of actual
malice, either in the publication itself, or in the facts and circumstances
surrounding the transaction. A mere scintilla is not sufficient, however, to
take the case to the jury. The evidence should raise a probability of malice,
and be more consistent with its existence than its absence. When the occasion is
privileged the presumption arises that the publication was bona fide and without
malice, and it is incumbent on plaintiff to overcome this presumption. If, from
defendant's point of view, strong words seemed to be justified, he is not to be
held liable, unless the court can say that what he published was to some extent,
at least, inconsistent with the theory of good faith. These rules are well
settled, and need no citation of authorities in their support. One who goes upon
the stage to exhibit himself to the public, or who gives any kind of a
performance to which the public is invited, may be freely criticised. He may be
held up to ridicule, and entire freedom of expression is guarantied dramatic
critics, provided they are not actuated by malice or evil purpose in what they
write. Fitting strictures, sarcasm or ridicule, even, may be used, if based on
facts, without liability, in the absence of malice or wicked purpose. The
comments, however, must be based on truth, or on what in good faith and upon
probable cause is believed to be true, and the matter must be pertinent to the
conduct that is made the subject of criticism. Freedom of discussion is
guarantied by our fundamental law and a long line of judicial decisions….[T]he
editor of a newspaper has the right, if not the duty, of publishing, for the
information of the public, 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; of privileged communications, for
which no action will lie without proof of actual malice….Surely, if one
makes himself ridiculous in his public performances, he may be ridiculed by
those whose duty or right it is to inform the public regarding the character of
the performance….Mere exaggeration, or even gross exaggeration, does not of
itself make the comment unfair. It has been held no libel for one newspaper to
say of another, "The most vulgar, ignorant, and scurrilous journal ever
published in Great Britain."….A public performance may be discussed
with the fullest freedom, and may be subject to hostile criticism and hostile
animadversions, provided the writer does not do it as a means of promulgating
slanderous and malicious accusations….Ridicule is often the strongest
weapon in the hands of a public writer; and, if it be fairly used, the
presumption of malice which would otherwise arise is rebutted, and it becomes
necessary to introduce evidence of actual malice, or of some indirect motive or
wish to gratify private spite. 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 guarantied by the constitution
is nothing more than a name. If there ever was a case justifying ridicule and
sarcasm,--aye, even gross exaggeration,--it is the one now before us. According
to the record, the performance given by the plaintiff and the company of which
she was a member was not only childish, but ridiculous in the extreme. A
dramatic critic should be allowed considerable license in such a case. The
public should be informed as to the character of the entertainment, and, in the
absence of proof of actual malice, the publication should be held privileged.
There is another rule of general application, now well known to the profession,
that is involved, and that is that a motion to direct a verdict should be
sustained when it clearly appears to the trial judge that it would be his duty
to set aside a verdict in favor of the party on whom the burden of proof rests….
Viewing the evidence in the light of the rules heretofore announced, and
remembering that the trial court had the plaintiff before it and saw her repeat
some of the performances given by her on the stage, we are of opinion that there
was no error in directing a verdict for the defendants. Affirmed.
Billy Hamilton and the Cherry Sisters
Articles from The Odebolt Chronicle about the Cherry Sisters and the lawsuit, February 10, 1898 - May 30, 1901
Read more about Billy Hamilton
Read more about the sisters:
Cherry Bomb,
the Story of the Awful Cherry Sisters, by Irwin Chusid
Cherry
Sisters, Vaudeville Performers, by Tom Longden, the Des Moines Register
The History Center in
Cedar Rapids, Iowa has an exhibit which includes the Cherry Sisters