The New York Clipper (February 1919)

THE NEW YORK CLIPPER February 19, 1919 UPHOLDS CRITICS RIGHT TO PUSH CAUSTIC PEN ACTOR LOSES DAMAGE SUIT The right of dramatic criticism, even though it mar be harsh, was clearly de- fined and upheld last week in the Supreme Court, where a jury before Judge Dogro returned a verdict for the defendants in a suit for damages brought by Geoffrey Stein, an actor, against Heywood Broun, the dramatic critic, and the New York Tribune. Stein, who is appearing in "Hobohemia" at present, sued to recover $10,000 for al- leged libel as the result of a criticism Broun wrote and the Tribune published regarding bis acting in a special performance of a play called "The Awakening of Spring." Stein played the character of Melchior, a boy, and Broun, in his review, stated that Stein's acting "was the worst he had ever seen." In bis charge to the jury, Judge Dugro laid great stress on the element of malicious- ness that must be proven before a person 'claiming libel can recover damages. The charge in part follows: "I hope yoa understand the case. The article is quite long, bat the part of it of which the plaintiff complains is not. "The sJaintiff claims the matter is libelous per m and the defendant disputes that, and the defendant says 'Even if it is, we had a right to publish it, because it was a fair comment on a performance, in a public theatre, by the plaintiff, who was an actor at that performance.' "When an actor acts in a public theatre and it is public performance, he invites criticism. Critics have a right to go there, and they have a right to criticise his act- ing, and, as long as they give a fair and honest criticism, they are protected in that, unless they are actually malicious. "In this case the defendants say that Mr. Broun, who was their dramatic critic, attended the performance, and he saw it, and that he wrote the article and sub- mitted it to them, and that it was a fair comment upon the acting that he saw on the part of this plaintiff. "You will consider the case, gentlemen. The law seems to be pretty well settled that a critic, so long as he gives his honest opinion, and that it is his fair and honest Opinion of the play, Is protected in that criticism with respect to that matter, if it is published, so long as he isn't malicious in the publication. He isn't bound to have the. opinion that the jury would have of the play,. or of the acting, and - the mere fact that tie Jury don't agree with him, with respect to the acting—rather think it was good when he thinks it was bad—that mere fact wouldn't suffice, for no man is bound to have the same opinion that another has. He. is entitled to bis own opinion. He is entitled to express his opinion, so long as it is a fair honest opinion, and he isn't bound to have a correct opinion; and he isn't bound to use any language that can't be characterized as extravagant. He may use his' own language in describing his opinion, and so long as it is fair and honest opinion, bis real opinion, his genuine opin- ion, why that protects him, unless it is malicious, and protects the publication, unless there is malice in it. "With respect to this, there is no ques- tion but that it was a public performance. They all agree to that. There is no ques- tion but that Mr. Broun was the dramatic critic of the Trionne, and that be wrote the article that was published. There la no question in regard to those matters. "The question in the -case is, was it a libel, and I charge you that it was, hut I charge you if it was written by Mr. Broun, published in the newspaper, and was a tm*r and honest comment, why that pro- tects the publication, unless Mr. Broun was actually malicious. That is, if he had a bad motive in- publishing it. Not merely a motive in publishing his genuine; honest, opinion, but more than that, something wrong, beyond It "I charge you as a matter- of law that every person has a right to publish fair and candid criticism, although the author (actor) may suffer loss from it. If the question be with respect to acting, such a loss the law doesn't consider an injury. "In this case, the plaintiff's imperson- ation-of the character of Melchior in the play 'The Awakening of Spring* was, as a matter of law, a proper subject of criticism or comment by the defendant "I charge that under the law, the plain- tiff's acting might, without subjecting the defendant to liability, be freely criticized, and entire. freedom of - expression used in argument, sarcasm and ridicule upon the act itself, so long as the criticism is fair and honest. "This privilege of criticism, in the ab- sence of actual malice, extends even to ridicule, and is without limitation, except that it should be fair and honest. "I charge that if the article sued on in this case is found by the jury to be criti- cism as denned, or in other words, is con- fined to comment upon a matter of public interest, the plaintiff's presentation of the character in the play, and doesn't attack the moral character or professional in- tegrity of the plaintiff, or impute to him unworthy motives, it is not defamatory, and the verdict must be for the defendant, no matter though it be severe, hostile, rough, caustic, bitter, sarcastic or satirical, in the opinion of the jury. "Now, gentlemen, I hope the matter is quite clear, and I hope you will recognize one thing in the case, and that is that the defendant isn't responsible simply because you don't think his opinion was a. correct one. In other words, even though you do think that his opinion was incorrect, that in your opinion it was, for instance, "a good piece of acting, that of itself, would not warrant a recovery in this case, because you will have to find beyond that, that the publication was not fair and honest com- ment ; or if fair and honest comment, that it was malicious, before you could find for the plaintiff. "There must be a reasonable latitude per- mitted in criticism, gentlemen, and a man is not responsible for his honest opinion, if he expresses it, with respect to the public performance of an actor, unless he is actual- ly malicious, and his criticism is not fair and honest comment. Of course, a man has no right to say that in his opinion it is bad acting, if he really thinks it isn't, be- cause that of course, wouldn't be fair and honest on his part. That, of itself, might cause one to think that there was malice there, actual malice on his part, but you must determine from die words used whether the comment was fair and honest." PRODUCERSKEEP TAB ON ONE NIGHT HOUSES EVERYTHING IS CHECKED UP Nettled by the action of the small town managers, who recently established a sys- tem of reporting road shows playing their houses, the Producing Managers' Associa- tion has adopted a system by which that organization gets reports on" all theatres in the East. Gus Hill, who is a prominent member of the managers' organization, is mainly responsible for the action of the associa- tion, as he has many attractions that play such theatres. By means of the reports made on the- atres the Producing Managers' Association will now be familiar with the exact con- dition of the affairs of every house, from the number of paases each manager gives out to the temperature and cleanliness of his place. The following are questions on the blanks the producing managers are send- ing out: "What do they charge per load for scenery? What do they charge per piece for baggage T What do they charge for stage hands T How many do they fur- nish? Does the manager* keep his house clean and warm? Does the manager take care of your paper? Does he try to turn in extra charges? Does he put up all your paper? How are his billing facili- ties? Does he run his stage well? Is he businesslike in settling? Do you con- sider him a hustler? Do you recommend his town for a show? Do they use slides for your attractions where pictures are shown? Is there an electric sign? What time is it lighted? Is treasurer or ticket- seller courteous? What times does the manager come to his office in the morn- ing T ■ Is the doorkeeper courteous to patrons? Was treasurer's rough state- ment correct? Did he give you dead-wood to count? How many passes used for newspapers, etc.? Have you any reason to doubt honesty of treatment in box office? Give in detail your opinion of the town and its possibilities. SETTLE "LIBERTY BOND" CASE The legal department of the Actors' Equity Association last week won a ver- dict against Gurden Oaussen in the Third District Municipal Court, amount- ing to about $1,200, as. the result of suits brought by eleven members of the "Moth- er's Liberty Bond" company for unpaid salaries. The show opened at the Park Theatre last August, and enjoyed an in- terrupted run of some three perform- ances, following which it suddenly closed, leaving a host of hungry creditors clam- oring for their money. The A. E. A. was represented by Clar- ence Nettles, and the defendant by Abra- ham Crosney. The case was tried before Judge Murray. BLUEBIRD A. BETROTHAL TO TOUR Winthrop Ames may' send out a com- pany next season which wfll alternately present "The Bluebird" and "The Be- trothal!" According to the reports cur- rent on Broadway this week concerning the plan, "The Bluebird" will be given the first three days of the week and "The Betrothal" the last three days. At the Ames offices the reported combination tour was spoken of as a remote possi- bility. THEATRE FOLK TO DANCE The Whit* Way Carnival and Ball, scheduled to he held in the Central Opera House on Feb. 28, is atracting many the- atrical folk. All of the-leading lights of the Broadway cabarets and many .film stars have agreed to be on hand. GET CAPITAL FUND PROGRAM Washington, D. C, Feb. 17.—The Act- ors* Fund announced to-day that the Wash- ington show for their annual benefit, would take place at the National Theatre, here, on Friday afternoon. Among those who will appear on the bill will be: "Nettie," to be presented by Daniel Frobman,' with Orrin Johnson, Har- old Howard and Benjamin Graham. The play was written by George Ade. May Irwin and Beatrice Hereford will appear in a playlet. Austin Strong, Theodore Steinway and Henry Clapp Smith in a sketch by Austin Strong, Florence Nash; the "Oh Boy" Company, with Anna Whea- ton, Hal Ford, Ralph O'Brien, Ethel Ford: "Tumble Inn" Company, with Peggy O'Neil, Charles Buggies, Zelda Sears and William Hslligsn: Ann McDonald, Harold Vosburgh, Lieut. Gitz-Rice, A. Baldwin Sloane, Harry Carroll, Raymond Hubbell, Louis A. Hirsch, Gus Kerker. Jerome Kern, Rudolph Friml and Sylvio Hein. "PENNY WISE'* IS HOMELY COMEDY Providence, R. L, Feb. 17.—"Penny Wise," ah English farce by Mary Stafford Smith and Leslie' Vynef, with the record of a long London run behind it, was given at the Providence Opera House tonight by an English company headed by Molly Pearson. Miss Pearson, the delightful Btinty of other days, is in character surrounding, as has seemed to be her lot in this country. The scene is in Lancashire, England, and the characters -a family of peasants and their neighbors. They are without excep- tion an unimaginative, thick-headed, dumb sort of people and their cavortings through the farce are boisterous and coarse. The story, which has to do with* the scheme of taking the most shiftless one of the family, sending him to Manchester and calling him dead to get his insurance, is carried through in as clumsy and stupid a manner as the people themselves are. The preposterous situation and the. com- plications that followed brought much laughter, mainly through the various queer personages. Their way of speech and homely manner ip the telling of the story bring laughs. The authors have built loosely and none too well, though they have provided many a touch which may be considered true to the soil. - . The chief burden rests with Louie Emery as the mother who, in desperation for money to support her indigent family, thinks up and doggedly carries through her plan until her house of cards falls about her. Miss Pearson has no opportunity at all to display the charm and grace of her "Bunty." The others are types given with variously amusing results. The cast is as follows: Louie Emery, John P. MacSweeney, Harold De Becker, Molly Pearson, William Lennox, Nesta Keerin, Alf Holton, Alice Belmore, Kevitt Manton, Sallie Bergman and Gilbert Girard. SHUBERT-HEARST FEUD OFF The rather strained relations which have existed between the Shuberts and the Sunday American for the last six or seven weeks, brought about by the Amer- ican's boosting of its Sunday advertis- ing rate to ninety cents a line, are ap- parently a tb'"g of the past. The Amer- ican carried the regulation Shubert ad- vertising space for each attraction as formerly, last Sunday, instead of the one- inch ads. that the Shuberts have been running since the rate was tilted from seventy-five to ninety cents a line. Whether or not the Shuberts received a concession. from Hearst could not be ascertained, representatives of both parties being disinclined to talk about the matter. FRAZEE OPENS NEW FARCE ToBONTO, Ont, Feb. 17.—"Thirty Days" a new farce by A. E. Thomas and Richard Bennett, in which Frank Mclntyre and an excellent supporting cast appeared before a large audience in the Royal Alexandra Theatre last night, proved tojw ui enter- taining offering. While the tangled webs in which wouldbe deceivers become in- volved, has furnished the theme for count- less plays of the lighter order, the col- laborating playwrights have, in the present instance, given a novel twist to the plot and have contrived a number of situations which are distinctly diverting. Frank Mclntyre is a comedian whose style is peculiarly adapted to the part he is called upon to\play, that of John Cad- wilader Floyd, a young New York business man who is well meaning but maladroit in his casual encounters with the fair sex. Mclntyre, rotund of person and with an unusual capacity for depicting comic dis- may by fatal expression and voice inflec- tion was amusing at all times and the audience gave frequent indications of its appreciation. The leading femmine roles, those of Lucy Ledyard, Mrs. Floyd and Carlitta Polenta, were well taken by Kathleen Gomegys, Maud Milton and Olin Field. William Sellery, as Warden Brennan, gave an ex- cellent portrayal of the hectoring and venal official whose bullying tactics are changed to cringing servility when he finds that his defalcations are discovered. Jean De Briac, as an inexorable Italian, gave a clever characterisation and the other chief masculine roles, those of Hunt- ley Palmer, Judge Hooker and Donnelly, a politician, were capably taken by Chas. Wyngate, Ethelbert Hales and Eric Jewett. "KATTNKA" RE-OPENS . "Katinka," the Arthur Hammerstein play which ran successfully in Ne«* York, reopened Monday in Columbus, OMo. . The offering is now under the direction of Fred Bishop,' with Frank Moulan in the leading role, formerly played by. T. Roy Barnes. George Sweet will be seen in Sam Ash's role and Lynn Cantor will play the Ada Meade part. "Katinka,''.'will be sung by Fern Rogers. George Nathan son, Arthur Burckley, Sarah Edwards and John O. Grant complete the cast.