Fair Comment

The year 1896 found Oscar Hammerstein in trouble. He was in debt, and the acts he had brought to Broadway weren’t doing well. He was desperate. “I’ve tried the best,” he is reported to have said. “Now I’ll try the worst.” So he sent for the Cherry Sisters. Effie, Addie, Jessie, Lizzie, and Ella Cherry clearly were the worst act of the day. They couldn’t dance, and they couldn’t sing. In fact, they couldn’t do anything at all. Except draw crowds.

The five sisters and their brother had been born on a farm near Cedar Rapids, Iowa, and lost both their parents while they were still very young. They apparently took care of each other until the girls were old enough for show business. Then, in the early 1890s, they put an act together and hit the road. Their brother, Isa, took off at the same time: “He hopped aboard a load of hogs headed for Chicago and has never been heard from since,” Carl Whyte told a newspaper reporter in 1945. Whyte was in a position to know. He was in love with Effie—the only sister who ever found romance. She was older than Carl—“but I can tell you I was completely hypnotized by her charms,” he said. “And her kisses took me completely out of this world.” Whyte played piano for the sisters as they toured the Midwest.

Their act was terrible, and everybody said so; but it exerted a sort of ghastly fascination over its audiences. By the time Hammerstein sent for the Cherry Sisters, they were on their way to becoming famous.

The great impresario found the women every bit as bad as he had been led to believe, and so did the critics. “Never before did New Yorkers see anything in the least like the Cherry Sisters from Cedar Rapids, Iowa,” wrote the New York Times when the act opened in the New Olympia Theater on November 16, 1896. “It is sincerely to be hoped that nothing like them will ever be seen again. ”

“Did you ever hear the musical ‘kerchunk’ of the half-flooded milk pail as the brindle cow kicked it over with her offhind foot?” asked the critic of the New York Herald . “Well, that is Lizzie’s voice. Did you ever hear the frightened squeak of the rooster when your sister-in-law’s first born jumped on him hard with his little copper-toed boots? If you didn’t, you won’t appreciate Jessie’s song about ‘Fair Columbia.’ ”

Nevertheless, the audiences loved them. Night after night young men crowded the New Olympia Theater at Broadway and Forty-fourth Street. Often they brought vegetables; sidewalk vendors were said to do a brisk business every evening selling onions and rutabagas and melons. “There was scarcely a young blade in the late nineties,” the Des Moines Register recalled in 1929, “but boasted he had heaved a cabbage or two at the Cherry Sisters.” Hammerstein himself may have encouraged such activity by rigging a fishnet across the footlights to protect the sisters.

The Cherry Sisters’ success might have been harrowing, but it was real. They were said to have made one thousand dollars a week in New York City and they continued to pack the houses when, after a month’s run on Broadway, they eventually took their show on the road. Everywhere they went the critics were apoplectic, with each trying to outdo the other. Finally, in 1901, a fellow in Iowa outdid them all.

“Effie is an old jade of 50 summers,” he wrote, “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 anon 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 the 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 with calves as classic in their outlines as the curves of a broom handle.”

Addie Cherry, the capering monstrosity, sued. The case, Cherry v. Des Moines Leader , was won by the newspaper on a directed verdict after the sisters performed in court for the judge. Although the sisters lost the case, the court action gave them something that eluded them in show business: lasting fame.

The ruling of the Iowa Supreme Court, upholding the lower court’s directed verdict, has become one of the strongest and most reliable bastions defending the right of “fair comment” in libel actions. It is the case that “is so often cited in judicial rulings on fair comment and criticism,” say Robert H. Phelps and E. Douglas Hamilton in their text, Libel—Rights, Risks, Responsibilities . “Without this defense, editorials would be anemic, commentary spineless, art criticism tepid and letters to the editor platitudinous. Sports reporters, feature writers and columnists would be straitjacketed.”

The Iowa court was forceful in its 1901 opinion. “It is well settled that the editor of a newspaper has the right to freely criticize any and every kind of public performance, provided that in so doing he is not actuated by malice,” Judge Horace E. Deemer wrote in affirming the ruling of the Polk County district court judge who threw out the case after watching the sisters perform. “Freedom of discussion is guaranteed by our fundamental law and a long line of judicial decisions. The editor of a newspaper has the right, if not the duty, of publishing … 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; and such a publication falls within the class of privileged communications, for which no action will lie without proof of actual malice.… Mere exaggeration, or even gross exaggeration, does not of itself make the comment unfair.”

And he added: “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 guaranteed by the Constitution is nothing more than a name.”

Not until seventy-three years later did the Supreme Court of the United States come down as strongly as the Iowa court had. “Under the First Amendment, there is no such thing as a false idea,” the Court wrote in Gertz v. Robert Welch, Inc. “However malicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”

But “the notion that opinion is constitutionally protected was hardly a novel one” by the time of the Gertz case, writes Robert D. Sack, a New York lawyer whose Libel, Slander and Related Problems has become the standard text on First Amendment law. And what case does Counselor Sack cite? Cherry v. Des Moines Leader .

The Cherry case may well have been the first in which a court relied upon the Constitution in recognizing “fair comment” as a defense to libel. Now, that defense seems complete when dealing with articles of opinion.

If there can be no such thing as a false idea, writes Sack, and if only a falsehood can be defamatory, this “seems to lead inexorably to a powerful syllogism: A defamation is actionable only if it is false; opinions cannot be false; therefore, opinions can never be actionable even if defamatory.” Whether under that line of reasoning the constitutional rule has wholly supplanted the common law fair-comment privilege is unsettled.

As for the sisters, their popularity inevitably waned as audiences discovered it was possible to get too much of a bad thing. But they didn’t give up. Their periodic comebacks were loyally heralded in the Des Moines Register .

Said a 1932 headline: CHERRY GIRLS PLAN TO BRAVE ‘EGGS’ AGAIN . And in 1934: CHERRY GIRLS TO SING AGAIN—FAMED SISTERS TO APPEAR IN CHICAGO NIGHT CLUB. And in 1938: STAGE AGAIN LURES TWO CHERRY SISTERS .

By now the raucous days of the 1890s had mellowed in the sisters’ memory, and they insisted the legend of their being regularly pelted with vegetables was false. “It’s not true, not a word of it, ” Effie said in 1935. “It was just a vicious plot by our envious rivals to ruin our act,” added Addie.

Between comebacks the sisters opened a bakery in Cedar Rapids—featuring, of course, cherry pie—and Effie took a stab at politics, twice running for mayor of Cedar Rapids. In 1926 she ran on the “moral uplift” ticket: “It’s the high prices, high taxes, high skirts, high life, one-piece bathing suits, high gas, light and water rates and white-collared gasoline hounds I am after.” And in a campaign article she added: “Public officials waste too much time playing golf. Women’s skirts are ridiculous; they are too short—ankle-length skirts will be the style if I have my way; next, more and bigger policemen.”

She also advocated a 9:00 P.M. curfew.

In the four-way primary, Mayor J. F. Rail got 3,413 votes. W. G. Loftus received 2,899. Frederick Burill got 566. And 347 people voted for Effie.

Yet despite Effie’s full life as a performer, a politician, a bakery proprietor, and in the eyes of Carl Whyte, a world-class kisser, the headline in the Des Moines Register marking her passing in 1944 read: CHERRY DEATH RECALLS NOTED SUIT FOR LIBEL .

The Cherry Sisters lived to see themselves better known in the law than the theater, but they never accepted that.

“I can’t understand why we’re persecuted as we are,” Addie said a few years before her death. “Why, prominent men have raised their hats when passing our house in Cedar Rapids on the streetcar.”