Oliver Wendell Holmes, Jr.

“ In the absence of express malice of excess the defendant was not liable at all, and in the case of mere excess without express malice, the damages, if any, to which he was entitled, were at most only such as could be attributed to the supposed excess. But what really hurt the plaintiff was not the comment, but the fact. The witnesses for the plaintiff said that the people of Porto Rico considered the acts charged immoral, and the statute referred to showed that such was their conception of public duty. ”

“ For after saying to the jury that fair comment upon the actions of public officials was privileged, he went on: 'But you are instructed that in this case . . . [the articles] are what is known in law as libelous per se. . . . Therefore, in any event you must find for the plaintiff upon that issue, and give him such damages as you may believe, from all the facts and circumstances in the case, he is entitled to;' and after that proceeded to direct them only as to the conditions for finding punitive damages also. ”

“ It rather would seem from the previous explanations given to the jury of the independence of United States officials notwithstanding the source of their salaries, and the instructions that the plaintiff's acts were lawful, that the defendant, in order to justify himself, would have to prove that they were wrong in law, and that his inability to do so might be considered as aggravation of the damages to be allowed, that the latter considerations alone were the ground for what we have quoted from the charge. ”