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3 - The Transformation of Privilege

Published online by Cambridge University Press:  16 December 2021

Lyndsay Campbell
Affiliation:
University of Calgary
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Summary

Chapter 3 describes the evolution of privilege, as used by legislatures – especially in Nova Scotia – to discipline and punish both members and nonmembers for criticisms that impugned the dignity of the legislature or its members. As the reformist Nova Scotian assembly was, by the late 1820s, embroiled in budgetary disputes with the council, the stage was set for jurisdictional arguments. In his 1830 libel treatise the English writer Thomas Starkie advanced a framework to protect freedom of expression through expanding the reach of “qualified” privilege. Massachusetts courts were chiefly concerned with truth and bore a certain republican suspicion of privilege, so although the defense of privileged communication did arrive in Massachusetts, it did not attract much interest. In Nova Scotia, however, given the common law’s rejection of a truth defense to criminal libel and the prevalent concern with the jurisdiction of institutions, qualified privilege did take root, with journalist Joseph Howe relying heavily on Starkie in a famous trial in 1835.

Type
Chapter
Information
Truth and Privilege
Libel Law in Massachusetts and Nova Scotia, 1820-1840
, pp. 82 - 161
Publisher: Cambridge University Press
Print publication year: 2021

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