## Facts

- The Baltimore City Delegation held widely publicized hearings on alleged misconduct by Baltimore Police Commissioner James Hepbron; witnesses (including Edgar Gordon Kirby, a former officer) were not under oath and were not cross-examined.
- After the Delegation urged removal, the Governor held a separate hearing and declined to remove Hepbron, finding only “indiscretions” and “poor judgment” insufficient for constitutional removal.
- The day after the Governor’s decision, a Baltimore newspaper published an editorial titled “Not Proved,” criticizing the Delegation’s process and motives.
- In criticizing witnesses against Hepbron, the editorial referred to “the infamous Kirby” and asserted that the important witnesses had motives.
- Kirby sued the publisher for defamation based on the “infamous” characterization.
- At trial, publication was admitted, and the parties conceded that calling a person “infamous” is libelous per se, creating a presumption of malice unless privileged.
- The defendant pleaded the general issue, which prevented it from proving truth as justification but permitted reliance on the qualified privilege of fair comment.
- The trial court confined the fair-comment inquiry to whether facts stated or referenced within the editorial itself supported calling Kirby “infamous” and excluded additional evidence of Kirby’s conduct and reputation that the publisher claimed were widely known.
- The jury returned a substantial verdict for Kirby, and the publisher appealed.

## Issues

1. Whether the editorial’s use of “the infamous Kirby,” in commentary on a public controversy over official misconduct proceedings, was protected by the qualified privilege of fair comment.
2. Whether the trial court erred by limiting the fair-comment defense to facts stated or referenced in the editorial and excluding other evidence of Kirby’s conduct and reputation allegedly known in the community.
3. Whether the evidentiary limitations and framing of the fair-comment question improperly deprived the defendant of a meaningful opportunity to establish privilege and rebut presumed malice.

## Decision

- The Maryland Court of Appeals reversed the judgment for Kirby and remanded for a new trial.
- The court held the trial judge erred by making fair comment depend solely on whether the editorial’s recited or referenced facts justified the epithet.
- The court held the defendant was entitled to have the jury consider additional evidence of Kirby’s conduct and activities (including matters associated with the Rackets Squad) that were asserted to be well known and relevant to whether the comment was fair.
- The court treated “infamous,” in this editorial setting, as evaluative comment in a public debate, requiring assessment against the broader factual background reasonably available to readers and the commentator.

## Legal Principles

- Fair comment provides a qualified privilege for editorial opinion on matters of public interest, including public investigations and controversies involving official conduct.
- In applying fair comment, the relevant factual basis is not confined to the “four corners” of the publication; the jury may consider other facts about the plaintiff’s conduct and reputation that were sufficiently known in the community and bear on the reasonableness of the comment.
- Even when words are libelous per se and malice is presumed, privilege may defeat liability; courts must permit a meaningful evidentiary showing to support the privilege.
- Evidence supporting the asserted basis for comment may also bear on the existence of malice where the publication attributes motives or credibility defects to a participant in a public controversy.

## Conclusion

The court set aside a libel verdict arising from an editorial’s harsh characterization of a prominent witness in a public controversy, holding that the fair-comment privilege required allowing the defendant to present broader, community-known facts relevant to whether the opinion was fair and non-malicious, and remanded for a new trial with proper evidentiary scope and instructions.


A.S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340 (Md. 1961)