Full download ebooks at ebooksecure.

com

(eBook PDF) Mass Media Law 19th Edition

For dowload this book click LINK or Button below

http://ebooksecure.com/product/ebook-pdf-mass-
media-law-19th-edition/

OR CLICK BUTTON

DOWLOAD EBOOK

Download More ebooks from https://ebooksecure.com

More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Media/Impact, An Introduction To Mass Media 12th

Edition Shirley Biagi - eBook PDF

https://ebooksecure.com/download/media-impact-an-introduction-to-
mass-media-ebook-pdf/

(eBook PDF) Diversity in U.S. Mass Media 2nd Edition

http://ebooksecure.com/product/ebook-pdf-diversity-in-u-s-mass-
media-2nd-edition/

(eBook PDF) Writing for the Mass Media 9th Edition

http://ebooksecure.com/product/ebook-pdf-writing-for-the-mass-
media-9th-edition/

Mass Media and American Politics 10th Edition (eBook

PDF)

http://ebooksecure.com/product/mass-media-and-american-
politics-10th-edition-ebook-pdf/
Mass Communication: Living in a Media World 7th Edition
(eBook PDF)

http://ebooksecure.com/product/mass-communication-living-in-a-
media-world-7th-edition-ebook-pdf/

(eBook PDF) Dynamics of Mass Communication: Media in

Transition, 12th edition

http://ebooksecure.com/product/ebook-pdf-dynamics-of-mass-
communication-media-in-transition-12th-edition/

(eBook PDF) Media & Culture: An Introduction to Mass

Communication 12th Edition

http://ebooksecure.com/product/ebook-pdf-media-culture-an-
introduction-to-mass-communication-12th-edition/

Media & Culture: An Introduction to Mass Communication

11th Edition (eBook PDF)

http://ebooksecure.com/product/media-culture-an-introduction-to-
mass-communication-11th-edition-ebook-pdf/

(eBook PDF) Mass Communication: Living in a Media World

7th Edition

http://ebooksecure.com/product/ebook-pdf-mass-communication-
living-in-a-media-world-7th-edition/
 Contents

Telephone Records: The Contempt Power 435

The 2013 Associated Press Kinds of Contempt 436
Controversy 429 Contempt and the Press 436
Newsroom Searches 430 Collateral Bar Rule 437
How to Respond to a Subpoena 433 SUMMARY 438
SUMMARY 434 Bibliography 438

11 Free Press–Fair Trial: Trial-Level Remedies

and Restrictive Orders 441
Prejudicial Crime Reporting 442 Restrictive Orders to Control
Impact on Jurors 444 Publicity 454
The Law and Prejudicial News 446 Restrictive Orders Aimed
SUMMARY 448 at the Press 456
Traditional Judicial Remedies 448 Restrictive Orders Aimed at
Voir Dire 449 Trial Participants 460
Change of Venue 450 Contact with Jurors 463
Continuance 452 SUMMARY 465
Admonition to the Jury 452
Bibliography 466
Sequestration of the Jury 453
SUMMARY 454

12 Free Press–Fair Trial: Closed Judicial Proceedings 467

Closed Proceedings and Access and the Broadcast Journalist 488
Sealed Documents 467 Access to Evidence 488
Open Courts and the Constitution 468 Recording and Televising
Open and Closed Trials 471 Judicial Proceedings 490
Suspected Terrorists, Enemy SUMMARY 494
Combatants, Et Al. 476 Bench-Bar-Press Guidelines 494
SUMMARY 477 SUMMARY 496
Closure of Other Hearings 477 Bibliography 496
Accessible and Inaccessible
Documents 481

13 Regulation of Obscene and Other Erotic Material 497

The Law of Obscenity 498 Patent Offensiveness 506
Early Obscenity Law 501 Serious Value 506
Defining Obscenity 501 Other Standards 507
SUMMARY 502 Variable Obscenity 507
Contemporary Obscenity Child Pornography 509
Law 503 Children as Child Pornographers
The Miller Test 503 and Sexting 514
An Average Person 503 Obscenity and Women 514
SUMMARY 515
Community Standards 504

vii
Contents

Controlling Obscenity 515 Erotic Materials in Cyberspace 526

Postal Censorship 517 The Communications Decency Act 526
Film Censorship 518 The Child Online Protection Act 527
SUMMARY 519 The Children’s Internet Protection
Regulation of Nonobscene Act 528
Erotic Material 519 Current Issues Online: The New
Sexually Oriented Businesses 519 “Dot XXX” Domain 530
SUMMARY 530
Attacks on the Arts and Popular
Culture 524 Bibliography 530

14 Copyright 533
Immaterial Property Law 534 Copyright Protection and
Patents 535 Infringement 568
Trademarks 535 Copyright Notice 569
Plagiarism 540 Registration 570
Roots of the Law 542 Infringement 570
What May Be Copyrighted 543 Originality of the Plaintiff’s Work 571
Copyright and Facts 548 Access 572
Telephone Books and Databases 548 Copying and Substantial Similarity 572
News Events 549 Copyright Infringement and
Research Findings and History 549 the Internet 575
Misappropriation 551 Digital Millennium Copyright Act 576
Duration of Copyright Protection 553 File Sharing 577
SUMMARY 554 Film and Television 578
Politics and Copyright 579
Fair Use 554 SUMMARY 581
Purpose and Character of Use 556
Nature of the Copyrighted Work 560 Freelancing and Copyright 581
The Portion or Percentage Damages 582
of a Work Used 562
Bibliography 583
Effect of Use on Market 564
Application of the Criteria 566
SUMMARY 568

15 Regulation of Advertising 585

Advertising and the First Federal Regulation 600
Amendment 586 Telemarketing 603
Commercial Speech Doctrine 587 Regulating Junk E-Mail and Spam 605
Compelled Advertising Subsidies SUMMARY 608
and Government Speech 593 Federal Trade Commission 608
SUMMARY 594 False Advertising Defined 610
The Regulation of Advertising 594 Means to Police Deceptive
Self-Regulation 594 Advertising 613
Lawsuits by Competitors Guides and the Children’s Online
and Consumers 595 Privacy Protection Act 614
State and Local Laws 599 Voluntary Compliance 616

viii
 Contents

Consent Agreement 617 Special Cases of Deceptive

Litigated Order 618 Advertising 625
Substantiation 619 Testimonials 625
Corrective Advertising 619 Bait-and-Switch Advertising 627
Injunctions 620 Defenses 628
Trade Regulation Rules 622 Advertising Agency/Publisher
SUMMARY 623 Liability 628
The Regulatory Process 624 SUMMARY 630
Procedures 624 Bibliography 630

16 Telecommunications Regulation 633

A Prologue to the Present 634 Regulation of Political
History of Regulation 634 Programming 665
The Changing Philosophy Candidate Access Rule 666
of Broadcast Regulation 636 Equal Opportunity/Equal
The Prometheus Decision Time Rule 666
and Continuing Fallout 638 Use of the Airwaves 667
SUMMARY 640 Legally Qualified Candidates 669
SUMMARY 671
Basic Broadcast Regulation 640
Federal Communications News and Public Affairs 671
Commission 640 Video News Releases, Sponsorship
Powers 642 Identification and the FCC 672
Censorship Powers 644 The First Amendment 674
SUMMARY 675
Licensing 644
Multiple Ownership Rules 646 Regulation of New Technology 675
License Renewal 648 Satellite Radio 676
The Public’s Role and Internet and Broadband 677
Online Public Inspection Files 650 Cable Television 679
SUMMARY 650 Federal Legislation Regulating
Regulation of Program Cable Television 679
Purpose of the Law 680
Content 651
Jurisdiction and Franchises 680
Sanctions 651
Must-Carry Rules 681
Regulation of Children’s
Programming and Freedom
Programming 652
of Expression 683
Obscene, Indecent and Profane SUMMARY 685
Material 653
Violence on Television 664 Bibliography 685
SUMMARY 664

Glossary 688
Index 695

ix
 PREFACE

As the authors write this preface during the early fall of 2013, there is new movement in
Washington, D.C., to finally pass a federal shield law that would provide qualified protection for
journalists from revealing their confidential sources and information in federal court proceedings
(see Chapter 10 regarding shield laws). Known as the Free Flow of Information Act of 2013 and
sponsored by a bi-partisan group of U.S. Senators, the bill also would codify as law the Depart-
ment of Justice’s recently revised policies on the surveillance, search and seizure of the records
and activities of members of the news media. The revised guidelines were released in July 2013
by U.S. Attorney General Eric Holder, just two months after it was revealed that the Justice
Department had secretly seized the phone records of multiple Associated Press reporters for sev-
eral months in 2012 and seized the e-mails of Fox News reporter James Rosen. The records were
taken by the government in both instances to determine who was leaking classified information
to journalists. Many members of the news media, however, saw the tactic as a grievous and egre-
gious intrusion into press freedom. These controversies are discussed in Chapter 10 of this new
edition. Ultimately, they illustrate that the tension between the government and a free press in
the United States remains high more than 220 years after the adoption of the First Amendment
in 1791. Today, in brief, is a propitious and important time to be studying media law.
The 19th edition of the textbook is replete with updated information in every chapter,
as new cases, controversies and statutes affecting media law arise on an almost daily basis.
Among the new judicial rulings covered in this edition are three issued by the U.S. Supreme
Court in 2012 and 2013:
• United States v. Alvarez, in which the Court declared unconstitutional part of the
Stolen Valor Act that made it a crime to lie about having won a military medal of
honor. This case, which is discussed in detail in Chapter 2, illustrates many important
principles about both First Amendment and media law.
• McBurney v. Young, in which the Court faced the question of whether one state may
preclude citizens of other states from enjoying the same rights of access to public
records that the one state affords its own citizens. This case is addressed in Chapter 9.
• Federal Communications Commission v. Fox Television Stations, a high court
ruling affecting the FCC’s regulation of broadcast indecency and, in particular, its
targeting of so-called fleeting expletives. This case, which is covered in Chapter 16,
has far reaching implications, as the FCC was busy considering revamping its entire
indecency enforcement regime and rules in fall 2013. Expect much more in this area
from the FCC in 2014 and 2015.
This edition of the book eliminates from Chapter 3 a unit previously devoted to prior
restraint and censorship during wartime. With U.S. military involvement winding down in
both Iraq and Afghanistan, and with an eye toward comments from reviewers and keeping the
size of the book manageable, the authors decided to cut this material.

x
 Preface

The authors thank several individuals for their support. Clay Calvert thanks his undergrad-
uates at the University of Florida for making mass communications law an awesome teaching
experience. He also expresses gratitude to the multiple UF students who helped to read, review
and edit new content for this edition of the textbook; their feedback and advice was invaluable.
Clay Calvert furthermore appreciates Berl Brechner for continued support of his research and
writing endeavors. Last but certainly not least, Clay Calvert thanks Don R. Pember for having
him aboard the journey that is writing and assembling a timely and comprehensive book on mass
media law. For the record, Clay Calvert worked on Chapters 1, 2, 3, 7, 8, 9, 10, 13, 15 and 16
for this edition, while Don R. Pember took on Chapters 4, 5, 6, 11, 12 and 14.
This is the last time you will see Don Pember’s name on this book. After 19 editions
and nearly 40 years it is time for me to pack it in. I am certain Clay Calvert will continue to
do admirable work so the book will continue to stay alive. Many aspects of mass media law
have changed during the past four decades, but more have stayed the same. The growth of the
Internet has forced the most significant changes in the law, but the courts and legislatures have
been adapting.
I want to use my portion of this preface to thank some people. I am very grateful to Clay
Calvert for his work on the last six editions. After writing the book alone for about 25 years,
his insights and enthusiasm were invaluable. I am also grateful to all the instructors who, over
the years, chose to adopt this text for their classes. Support from peers is always appreciated.
But there are several people who helped me as a journalist and journalism teacher that I want
to especially thank.
Thanks goes to Lee Peel, who in 1955 introduced a high school junior to journalism.
And to Bud Meyers and George Hough III who helped this same young fellow get through his
undergraduate and early graduate studies at the Michigan State University School of Journal-
ism. Thanks also to Ben Kuroki, a feisty newspaper publisher who taught me what a news-
paper was supposed to do. And to Bill Hachten and Dwight Teeter who guided me through
my doctoral studies at the University of Wisconsin School of Journalism. I am grateful that
Henry Ladd Smith and Bill Ames were around when I got to the University of Washington to
teach me how to be a journalism teacher. And finally, and most importantly, I want to thank
my wife, Diann, for helping me get through the past 50 years of my life. Couldn’t have made
it without her.

IMPORTANT NEW, EXPANDED OR UPDATED MATERIAL

• New examples of equity law, including restraining orders in 2013 affecting the
Lifetime broadcast of the movie “Romeo Killer” and Gawker’s posting of a Hulk
Hogan sex tape and a porn parody of “50 Shades of Grey,” pages 8–9
• New content on the U.S. Supreme Court’s 2012 decision in FCC v. Fox Television
Stations, Inc. regarding the void for vagueness doctrine, page 12
• New content on the U.S. Supreme Court’s 2012 decision in United States v. Alvarez
involving the Stolen Valor Act and regarding plurality opinions and the limited First
Amendment right to lie, pages 23 and 65–66
• New content on the U.S. Supreme Court’s 2012 decision in American Traditional
Partnership, Inc. v. Bullock regarding corporate expenditures, pages 24 and 135

xi
Preface

• New examples of self-censorship of violent media content following the December

2012 school shooting at Sandy Hook Elementary School, pages 40–41
• Multiple new examples of symbolic expression (when conduct constitutes speech) in
political protest cases, pages 46 and 55
• Multiple new examples of school censorship, including censorship of newspapers,
t-shirts and “I Boobies” bracelets in public schools, pages 84, 87–88 and 96
• Updates on Clery Act violations by universities, pages 102–103
• New examples of thefts of college newspapers across the country, page 104
• New examples of efforts to ban books in public schools and libraries, page 108
• New content on federal appellate court ruling in Klen v. City of Loveland regarding
fighting words, pages 125–126
• New examples of true threats of violence using social media, pages 127–128
• New introduction to libel, pages 144–149
• New material on libel proof plaintiffs, page 151
• New material on Communications Decency Act libel defense, page 156
• New material on identification, page 158
• New material on limited purpose public figures, page 191
• New material on knowledge of falsity, page 201
• New material on single publication rule, pages 216–217
• New material on abuse of qualified privilege, page 229
• New material on facts vs. opinion, page 236
• All-new introduction to privacy, pages 250–252
• New discussion of 2013 federal appellate court ruling in Hart v. Electronic Arts
involving publicity rights of college football players in video games, page 266
• New content on anti-paparazzi statutes, pages 284–286
• New content on federal appellate court ruling in 2012 in Marsh v. County of San
Diego involving a familial constitutional privacy right over images of dead relatives,
pages 298–299
• New content on the 2013 federal appellate court ruling in Judicial Watch v. U.S. Secret
Service regarding FOIA access to White House visitor logs, page 350
• New discussion of the U.S. Supreme Court’s 2013 ruling in McBurney v. Young
regarding state public records laws, page 373
• Discussion of the government’s seizure of the telephone records of Associated Press
reporters, pages 393 and 429–430
• New and updated material on unmasking the identity of anonymous online posters,
pages 413–415
• Updated information on state shield laws, including new numbers, pages 423–435
• New material on pretrial publicity, pages 443–444
• New material on gag orders on trial participants, page 461
• New material on press contact with jurors, page 464

xii
 Preface

• New material on closing a judicial proceeding, page 470

• New material on open and closed court records, pages 482–484
• New material on cameras in federal courts, pages 491–492
• New material on the 2012 obscenity conviction of Ira Isaacs, pages 497–498
• New material on child pornography issues and cases, pages 509–512
• Updated material on sexting statutes, page 514
• All-new material on revenge pornography websites, page 529
• New material on trademarks, pages 535–540
• New material on plagiarism, pages 540–542
• New material on what can’t be copyrighted, pages 545–546
• New material on fair use, pages 555 and 567
• New material on copyright registration, page 570
• New material on copying and originality of plaintiff’s work, page 571
• New material on copying and access to plaintiff’s work, page 572
• New material on FTC regulation of privacy on social media and search engines,
pages 602–603
• New material on the FTC’s 2013 revisions to the Children’s Online Privacy Protection
Act (COPPA), pages 614–616
• New material on the FCC’s regulation of broadcast indecency, including the 2012
decision by the U.S. Supreme Court in FCC v. Fox Television Stations and the FCC’s
decision to only target “egregious” cases of indecency, pages 653–663

WEB MATERIAL
Banning registered sex offenders from online social networks, page 13
Access theory and the Internet, page 53
Violent-themed Internet postings, page 72
Wikileaks and prior restraints, page 75
Student speech rights on the Web, pages 94–95
Threats of violence on the Internet, pages 127–130
Information Superhighway and Net Neutrality, pages 135–140
Errors on web postings, pages 155–156
CDA libel defense, page 156
Single publication rule and the Internet, pages 216–217
Jurisdiction in Internet libel cases, pages 219–220
FTC regulation of privacy on the Internet, pages 252 and 255
Facebook’s “Sponsored Stories” settlement, page 259
Intrusion and the Internet, page 279
Familial privacy over death-scene images on the Internet, page 299

xiii
Preface

Private facts on the Internet, page 307

FOIA and electronic communication, page 345
E-mails and public records, page 373
Anonymity and the Internet, page 413
Defining who is a journalist on the Internet, page 421
Bloggers and shield laws, page 426
Using shield laws to protect anonymous posters, page 428
Community standards in Internet-based obscenity cases, pages 505–506
Aggregators, page 552
Copyright and the Internet, pages 575–577
File sharing, pages 577–578
Pirating film and TV shows, page 579
Politics and copyright, page 580
Variable obscenity and the Internet, page 508
Possession of child pornography on the Internet, page 513
Erotic materials in cyberspace, pages 526–530
FTC regulation of online privacy and social networks, page 602
Regulating junk e-mail and spam, pages 605–608
FTC jurisdiction over Internet ads, page 609
FTC enforcement of COPPA on the Internet, page 614
FTC regulation of blogging testimonials and reviews, pages 626–627
Online advertiser liability and CDA immunity, pages 629–630

xiv
chapter 1

The American Legal System

Sources of the Law 2 The Judicial System 16
Common Law 2 Facts versus the Law 17
The Role of Precedent 3 The Federal Court System 19
Finding Common-Law The Supreme Court 19
Cases 6 Other Federal Courts 25
Equity Law 7 Federal Judges 27
Statutory Law 9 The State Court System 28
Constitutional Law 11 Judicial Review 29
Executive Orders and Summary 30
Administrative Lawsuits 31
Rules 14 Summary 34
Summary 15 Bibliography 34

Before studying mass media law, one needs a general background in law
and the judicial system. In the United States, as in most societies, law is a
basic part of existence, as necessary for the survival of civilization as are
economic and political systems, the mass media, cultural achievement and
the family.
This chapter has two purposes: to acquaint you with the law and to
outline the legal system in the United States. While not designed to be a
comprehensive course in law and the judicial system, it provides a sufficient
introduction to understand the next 15 chapters.
The chapter opens with a discussion of the law, considering the most
important sources of the law in the United States, and it moves on to the judi-
cial system, including both the federal and state court systems. A summary of
judicial review and a brief outline of how both criminal and civil lawsuits start
and proceed through the courts are included in the discussion of the judicial
system.
Chapter 1

FIVE SOURCES OF LAW

1. Common law
2. Equity law
3. Statutory law
4. Constitutional law (federal and state)
5. Executive orders and administrative rules

SOURCES OF THE LAW

There are many definitions of law. Some people say law is any social norm or any organized
method of settling disputes. Most writers insist it is more complex, that some system of
sanctions and remedies is required for a genuine legal system. John Austin, a 19th-century
English jurist, defined law as definite rules of human conduct with appropriate sanctions
for their enforcement. He added that both the rules and the sanctions must be prescribed by
duly constituted human authority.1 Roscoe Pound, an American legal scholar, suggested that
law is social engineering—the attempt to order the way people behave. For the purposes
of this book, it is helpful to consider law to be a set of rules that attempt to guide human
conduct and a set of formal, governmental sanctions that are applied when those rules are
violated.
What is the source of American law? There are several major sources of the law in
the United States: the U.S. Constitution and state constitutions; the common law; the law of
equity; the statutory law; and the rulings of various executives, such as the president and may-
ors and governors, and administrative bodies and agencies. Historically, we trace American
law to Great Britain. As colonizers of much of the North American continent, the British sup-
plied Americans with an outline for both a legal system and a judicial system. In fact, because
of the many similarities between British and American law, many people consider the Anglo-
American legal system to be a single entity. Today, our federal Constitution is the supreme law
of the land. Yet when each of these sources of law is considered separately, it is more useful to
begin with the earliest source of Anglo-American law, the common law.

COMMON LAW
Common law,* which developed in England during the 200 years after the Norman Conquest
in the 11th century, is one of the great legacies of the British people to colonial America.
During those two centuries, the crude mosaic of Anglo-Saxon customs was replaced by a
single system of law worked out by jurists and judges. The system of law became common
throughout England; it became common law. It was also called common law to distinguish it
from the ecclesiastical (church) law prevalent at the time. Initially, the customs of the people
were used by the king’s courts as the foundation of the law, disputes were resolved according

* Terms in boldfaced type are defined in the glossary.

1. Abraham, Judicial Process.

2
 The American Legal System

to community custom, and governmental sanction was applied to enforce the resolution. As
such, common law was, and still is, considered “discovered law.”
As legal problems became more complex and as the law began to be professionally
administered (the first lawyers appeared during this era, and eventually professional judges),
it became clear that common law reflected not so much the custom of the land as the custom
of the court—or more properly, the custom of judges. While judges continued to look to the
past to discover how other courts decided a case when given similar facts (precedent is dis- Common law thus
cussed in a moment), many times judges were forced to create the law themselves. Common sometimes is known as
law thus sometimes is known as judge-made law. judge-made law.
Common law is an inductive system in which a legal rule and legal standards are arrived
at after consideration of many cases involving similar facts. In contrast, in a deductive system
of law, which is common in many other nations, the rules are expounded first and then the
court decides the legal situation under the existing rule. The ability of common law to adapt
to change is directly responsible for its longevity.
Fundamental to common law is the concept that judges should look to the past and
follow court precedents.* The Latin expression for the concept is this: “Stare decisis et non
quieta movere” (to stand by past decisions and not disturb things at rest). Stare decisis is the Stare decisis is the
key phrase: Let the decision stand. A judge should resolve current problems in the same man- key phrase: Let the
ner as similar problems were resolved in the past. Put differently, a judge will look to a prior decision stand.
case opinion to guide his or her analysis and decision in a current case. Following precedent
is beneficial as it builds predictability and consistency into the law—which in turn fosters
judicial legitimacy. Courts may be perceived as more legitimate in the public’s eye if they are
predictable and consistent in their decision-making process.

The Role of Precedent

At first glance one would think that the law never changes in a system that continually looks
to the past. Suppose that the first few rulings in a line of cases were bad decisions. Are courts
saddled with bad law forever? The answer is no. While following precedent is desired (many
people say that certainty in the law is more important than justice), it is not always the proper
way to proceed. To protect the integrity of common law, judges developed means of coping
with bad law and new situations in which the application of old law would result in injustice.
Imagine that the newspaper in your hometown publishes a picture and story about a
12-year-old girl who gave birth to a 7-pound son in a local hospital. The mother and father
do not like the publicity and sue the newspaper for invasion of privacy. The attorney for the
parents finds a precedent, Barber v. Time,2 in which a Missouri court ruled that to photograph
a patient in a hospital room against her will and then to publish that picture in a newsmagazine
is an invasion of privacy.
Does the existence of this precedent mean that the young couple will automatically win
this lawsuit? Must the court follow and adopt the Barber decision? The answer to both ques-
tions is no. For one thing, there may be other cases in which courts have ruled that publishing

*Appellate courts (see page 17) often render decisions that decide only the particular case and do not estab-
lish binding precedent. Courts refer to these as “unpublished decisions.” In some jurisdictions it is unlawful
for a lawyer to cite these rulings in legal papers submitted in later cases.
2. 159 S.W. 2d 291 (1942).

3
Chapter 1

FOUR OPTIONS FOR HANDLING PRECEDENT

1. Accept/Follow
2. Modify/Update
3. Distinguish
4. Overrule

such a picture is not an invasion of privacy. In fact, in 1956 in the case of Meetze v. AP3 a
South Carolina court made such a ruling. But for the moment assume that Barber v. Time is
the only precedent. Is the court bound by this precedent? No. The court has several options
concerning the 1942 decision.
First, it can accept the precedent as law and rule that the newspaper has invaded the
privacy of the couple by publishing the picture and story about the birth of their child. When a
court accepts a prior court ruling as precedent, it is adopting it and following it for guidance.
Second, the court can modify, or change, the 1942 precedent by arguing that Barber v. Time
was decided 72 years ago when people were more sensitive about going to a hospital, since
a stay there was often considered to reflect badly on a patient. Today hospitalization is no
longer a sensitive matter to most people. Therefore, a rule of law restricting the publication
of a picture of a hospital patient is unrealistic, unless the picture is in bad taste or needlessly
embarrasses the patient. Then the publication may be an invasion of privacy. In our imaginary
case, then, the decision turns on what kind of picture and story the newspaper published: a
pleasant picture that flattered the couple or one that mocked and embarrassed them? If the
court rules in this manner, it modifies the 1942 precedent, making it correspond to what the
judge perceives to be contemporary sensibilities and circumstances.
As a third option the court can decide that Barber v. Time provides an important prec-
edent for a plaintiff hospitalized because of an unusual disease—as Dorothy Barber was—but
that in the case before the court, the plaintiff was hospitalized to give birth to a baby, a dif-
ferent situation: Giving birth is a voluntary status; catching a disease is not. Because the two
cases present different problems, they are really different cases. Hence, the Barber v. Time
precedent does not apply. This practice is called distinguishing the precedent from the cur-
rent case, a very common action. In brief, a court can distinguish a prior case (and therefore
choose not to accept it and not to follow it) because it involves either different facts or differ-
ent issues from the current case.
Finally, the court can overrule the precedent. When a court overrules precedent, it
declares the prior decision wrong and thus no longer the law. Courts generally overrule prior
opinions as bad law only when there are changes in:
1. factual knowledge and circumstances;
2. social mores and values; and/or
3. judges/justices on the court.

3. 95 S.E. 2d 606 (1956).

4
 The American Legal System

For instance, in 2003 the U.S. Supreme Court in Lawrence v. Texas4 overruled its 1986
opinion called Bowers v. Hardwick5 that had upheld a Georgia anti-sodomy statute prohibiting
certain sexual acts between consenting gay adults. By 2003, American society increasingly
accepted homosexuality (evidenced then by both the dwindling number of states that prohib-
ited the conduct referenced in Bowers and by at least two Supreme Court rulings subsequent
to Bowers but before Lawrence that were favorable to gay rights and thus eroded Bowers’
strength). There also was growing recognition that consenting adults, regardless of sexual
orientation, should possess the constitutional, personal liberty to engage in private sexual
conduct of their choosing. Furthermore, six of the nine justices on the Supreme Court had
changed from 1986 to 2003. Thus, 17 years after Bowers was decided, there were changes in
social values, legal sentiment and the court’s composition. The Supreme Court in Lawrence
therefore struck down a Texas anti-sodomy statute similar to the Georgia one it had upheld in
Bowers. It thus overruled Bowers. Justice Kennedy noted that although “the doctrine of stare
decisis is essential to the respect accorded to the judgments of the court and to the stability
of the law,” it “is not, however, an inexorable command.” In the hypothetical case involving
the 12-year-old girl who gave birth, the only courts that can overrule the Missouri Supreme
Court’s opinion in Barber v. Time are the Missouri Supreme Court and the U.S. Supreme
Court.
In 2010, a closely divided Supreme Court in Citizens United v. Federal Elections Com-
mission overruled a 1990 opinion called Austin v. Michigan State Chamber of Commerce. The
Court in Austin had upheld a Michigan law banning corporations from spending money from
their own treasury funds in order to create their own ads in support of, or in opposition to, any
candidate in elections for state office. By 2010, the composition of the Court had shifted over
20 years and the five conservative-leaning justices (Anthony Kennedy, John Roberts, Antonin
Scalia, Samuel Alito and Clarence Thomas) in Citizens United voted to overrule Austin
in the process of declaring unconstitutional a federal law that prohibited corporations and
unions from using their general treasury funds to make independent expenditures for speech
expressly advocating for the election or defeat of a candidate for public office. In reaching this
conclusion, Justice Kennedy wrote for the majority about the importance of protecting politi-
cal speech, regardless of who the speaker is (a corporation, a union or the common citizen),
and he concluded “that stare decisis does not compel the continued acceptance of Austin.
The Government may regulate corporate political speech through disclaimer and disclosure
requirements, but it may not suppress that speech altogether.”
Obviously, the preceding discussion oversimplifies the judicial process. Rarely is a
court confronted with only a single precedent. Indeed, as attorneys would put it, there may be
several prior cases that are “on point” or may apply as precedent. And whether or not prec-
edent is binding on a court is often an issue. For example, decisions by the Supreme Court
of the United States regarding the U.S. Constitution and federal laws are binding on all fed-
eral and state courts. Decisions by the U.S. Court of Appeals on federal matters are binding
only on other lower federal and state courts in that circuit or region. (See pages 25–27 for a
discussion of the circuits.) The supreme court of any state is the final authority on the meaning of

4. 539 U.S. 558 (2003).

5. 478 U.S. 186 (1986).

5
Chapter 1

the constitution and laws of that state, and its rulings on these matters are binding on all state
and federal courts in that state. Matters are more complicated when federal courts interpret
state laws. State courts can accept or reject these interpretations in most instances. Because
mass media law is so heavily affected by the First Amendment, state judges frequently look
outside their borders to precedents developed by the federal courts. A state court ruling on a
question involving the First Amendment guarantees of free speech and press will be substan-
tially guided by federal court precedents on the same subject.
Lawyers and law professors often debate how important precedent really is when a
court makes a decision. Some suggested a “hunch theory” of jurisprudence: A judge decides
a case based on a gut feeling of what is right and wrong and then seeks out precedents to
support the decision.

Finding Common-Law Cases

Common law is not specifically written down someplace for all to see and use. It is instead
contained in hundreds of thousands of decisions handed down by courts over the centuries.
Many attempts have been made to summarize the law. Sir Edward Coke compiled and ana-
lyzed the precedents of common law in the early 17th century. Sir William Blackstone later
expanded Coke’s work in the monumental “Commentaries on the Law of England.” More
recently, in such works as the massive “Restatement of the Law, Second, of Torts,” the task
was again undertaken, but on a narrower scale.
Courts began to record their decisions centuries ago. The modern concept of fully
reporting written decisions of all courts probably began in 1785 with the publication of the
first British Term Reports.
While scholars and lawyers still uncover common law using the case-by-case method,
it is fairly easy today to locate the appropriate cases through a simple system of citation.
The cases of a single court (such as the U.S. Supreme Court or the federal district courts)
are collected in a single case reporter (such as the “United States Reports” or the “Federal
Supplement”). The cases are collected chronologically and fill many volumes. Each case
collected has its individual citation, or identification number, which reflects the name of the
reporter in which the case can be found, the volume of that reporter, and the page on which
the case begins (Figure 1.1). For example, the citation for the decision in Adderly v. Florida
(a freedom-of-speech case) is 385 U.S. 39 (1966). The letters in the middle (U.S.) indicate
that the case is in the “United States Reports,” the official government reporter for cases
decided by the Supreme Court of the United States. The number 385 refers to the specific
volume of the “United States Reports” in which the case is found. The second number (39)
gives the page on which the case appears. Finally, 1966 provides the year in which the case
was decided. So, Adderly v. Florida can be found on page 39 of volume 385 of the “United
States Reports.”
Computers affected the legal community in many ways. Court opinions are now
available via a variety of online services. For instance, two legal databases attorneys
often use and that frequently are available free to students at colleges and universities are
LexisNexis and Westlaw. These databases provide access to court opinions, statutory law
(see pages 9–10) and law journal articles. In most jurisdictions, lawyers may file documents
electronically with the court.

6
 The American Legal System

FIGURE 1.1
Reading a case citation.
Case name Abbreviated name Year case decided
of case reporter

Adderly v. Florida, 385 U.S. 39 (1966)

Volume number of Page number on which the report

case reporter of the decision in the case begins

If you have the correct citation, you can easily find any case you seek. Locating all cita-
tions of the cases apropos to a particular problem—such as a libel suit—is a different matter
and is a technique taught in law schools. A great many legal encyclopedias, digests, compila-
tions of common law, books and articles are used by lawyers to track down the names and
citations of the appropriate cases.

TYPICAL REMEDIES IN EQUITY LAW

1. Temporary restraining order (TRO)
2. Preliminary injunction
3. Permanent injunction

EQUITY LAW
Equity is another kind of judge-made law. The distinction today between common law and
equity law has blurred. The cases are heard by the same judges in the same courtrooms. Dif-
ferences in procedures and remedies are all that is left to distinguish these two categories of
the law. Separate consideration of common law and equity leads to a better understanding of
both, however. Equity was originally a supplement to the common law and developed side by
side with common law.
The rules and procedures under equity are far more flexible than those under common
law. Equity really begins where common law leaves off. Equity suits are never tried before a
jury. Rulings come in the form of judicial decrees, not in judgments of yes or no. Decisions in
equity are (and were) discretionary on the part of judges. And despite the fact that precedents
are also relied upon in the law of equity, judges are free to do what they think is right and fair
in a specific case.
Equity provides another advantage for troubled litigants—the restraining order. While
the typical remedy in a civil lawsuit in common law is damages (money), equity allows a

7
Chapter 1

judge to issue orders that can either be preventive (prohibiting a party from engaging in a
potential behavior it is considering) or remedial (compelling a party to stop doing something
it currently is doing). Individuals who can demonstrate that they are in peril or are about to
suffer a serious irremediable wrong can usually gain a legal writ such as an injunction or a
restraining order to stop someone from doing something. Generally, a court issues a tempo-
rary restraining order or preliminary injunction until it can hear arguments from both parties
in the dispute and decide whether an injunction should be made permanent.
For instance, in March 2013 a New York judge issued a temporary restraining order
(TRO) stopping Lifetime cable channel from airing a movie called “Romeo Killer: The
Christopher Porco Story.” The injunction came just four days before the movie was slated to
premiere. According to Lifetime, the movie was inspired by a true story—the conviction of
Christopher Porco for murdering his father and attacking his mother with an axe in Delmar,
New York. Although now behind bars, Porco sued Lifetime, seeking a judicial decree stopping
the movie’s broadcast. He claimed the movie violated his right of publicity (see Chapter 7
regarding the right of publicity). Such injunctions—even TROs, which are brief in time, as the
word “temporary” suggests—stopping the dissemination of truthful speech about a newswor-
thy matter (a murder) presumptively violate the First Amendment (see Chapter 2 regarding
prior restraints). Furthermore, newsworthiness is a defense against right-of-publicity lawsuits
(see Chapter 7). Lifetime thus sought and successfully obtained an emergency order from an
appellate court vacating the TRO and allowing the movie to air.
On the other hand, equitable remedies in the form of injunctions are more likely to
be granted in copyright cases where the plaintiff can demonstrate the defendant is selling
copyrighted material owned by the plaintiff (see Chapter 14 regarding copyright). Universal
Studios, which owns the movie rights to the “50 Shades of Grey” book series, sought an
injunction in 2013 against an adult-movie company called Smash Pictures to stop the dis-
tribution of a movie called “Fifty Shades of Grey: A XXX Adaptation.” While parodies that
make fun of or comment on the original work often are protected against copyright claims,
this porn parody copied many lines from the book nearly verbatim and simply claimed to be
a hard-core version of the book. The case ultimately settled, with Smash Pictures consenting
to a permanent injunction prohibiting the distribution of its parody.
Ultimately, a party seeks an equitable remedy (a restraining order or injunction) if there
is a real threat of a direct, immediate and irreparable injury for which monetary damages won’t
provide sufficient compensation.

WRESTLING WITH INJUNCTIONS:

THE HULK HOGAN SEX TAPE
In April 2013, former wrestler and reality TV star Hulk Hogan (real name Terry Gene
Bollea) was granted a temporary restraining order (TRO) by a Florida judge requiring
Gawker to take down a brief clip from a 30-minute sex tape and barring Gawker and
its affiliated sites from posting other excerpts. The tape purportedly shows Hogan
having sex with Heather Clem in a canopy bed.

8
 The American Legal System

While Gawker removed the tape from its site in light of the TRO, it left up a
lengthy narrative of the action, asserting it was newsworthy because Hogan is a
famous public person. As Gawker’s John Cook wrote in response to the TRO, “the
Constitution does unambiguously accord us the right to publish true things about
public figures.” The failure to follow a judicial order like a TRO, however, can place an
entity like Gawker in contempt of court, subjecting it to fines.
With more and more celebrities becoming “accidental porn stars” due to the leaking
or stealing of their sex tapes, one can safely bet that there will be more cases like
Hogan’s in the near future. In this particular case, Judge Pamela Campbell proved—
even if just temporarily—to be Hogan’s hero.

STATUTORY LAW
While common law sometimes is referred to as discovered or judge-made law, the third great
source of laws in the United States today is created by elected legislative bodies at the local,
state and federal levels and is known as statutory law.
Several important characteristics of statutory law are best understood by contrasting
them with common law. First, statutes tend to deal with problems affecting society or large
groups of people, in contrast to common law, which usually deals with smaller, individual
problems. (Some common-law rulings affect large groups of people, but this occurrence is
rare.) It should also be noted in this connection the importance of not confusing common law
with constitutional law. Certainly when judges interpret a constitution, they make policy that
affects us all. However, it should be kept in mind that a constitution is a legislative document
voted on by the people and is not discovered law or judge-made law.
Second, statutory law can anticipate problems, and common law cannot. For example, a
state legislature can pass a statute that prohibits publication of the school records of a student
without prior consent of the student. Under common law the problem cannot be resolved until
a student’s record has been published in a newspaper or transmitted over the Internet and the
student brings action against the publisher to recover damages for the injury incurred.
Third, the criminal laws in the United States are all statutory laws—common-law crimes no The criminal laws in
longer exist in this country and have not since 1812. Common-law rules are not precise enough the United States are
to provide the kind of notice needed to protect a criminal defendant’s right to due process of law. all statutory laws.
Fourth, statutory law is collected in codes and law books, instead of in reports as is
common law. When a bill is adopted by the legislative branch and approved by the executive
branch, it becomes law and is integrated into the proper section of a municipal code, a state
code or whatever. However, this does not mean that some very important statutory law cannot
be found in the case reporters.
Passage of a law is rarely the final word. Courts become involved in determining what
that law means. Although a properly constructed statute sometimes needs little interpretation
by the courts, judges are frequently called upon to rule on the exact meaning of ambiguous
phrases and words. The resulting process of judicial interpretation is called statutory con-
struction and is very important. Even the simplest kind of statement often needs interpreta-
tion. For example, a statute that declares “it is illegal to distribute a violent video game to
minors [emphasis added]” is fraught with ambiguities that a court must construe and resolve

9
Chapter 1

in order to determine if it violates the First Amendment speech rights of video game creators
and players (see pages 70–71 regarding regulation of video games). What type of content,
for instance, falls within the meaning of the word “violent” as it is used in this statute? How
young must a person be in order to be considered a “minor” under the law? Does the term
“distribute” mean to sell a video game, to rent a video game or to give it away for free?
Finally, because games are played in arcades, on computers and via consoles, just what pre-
cisely is a “video” game under the statute?
Usually a legislature leaves a trail to help a judge find out what the law means. When
judges rule on the meaning of a statute, they are supposed to determine what the legislature
meant when it passed the law (the legislative intent), not what they think the law should mean.
Minutes of committee hearings in which the law was discussed, legislative staff reports and
reports of debate on the floor can all be used to determine legislative intent. Therefore, when
lawyers deal with statutes, they frequently search the case reporters to find out how the courts
interpreted a law in which they are interested.

ATTACKING THE CONSTITUTIONALITY OF STATUTES: FACIAL

CHALLENGES VERSUS AS-APPLIED CHALLENGES
There are two primary ways to argue that a statute violates the First Amendment
right of free speech: (1) by attacking problems with its wording, terms and language
(known as a facial attack); or (2) by attacking problems with its actual application to a
particular factual scenario (known as an as-applied attack). A facial attack tests a law’s
constitutionality based on its text (its words and language), but does not consider the
facts or circumstances of a particular case. For instance, a challenge to a statute based
on the ground that it is either overbroad or unduly vague in its use of language (both the
overbreadth doctrine and the void for vagueness doctrine are described in the next few
pages of this chapter) are examples of facial challenges. In contrast, an as-applied attack
does not contend that a law is unconstitutional because of how it is written, but because
of how it actually applies to a particular person or particular group of people under
specific factual circumstances that allegedly deprive the person of a First Amendment
right. In general, as-applied challenges are the preferred method for attacking a statute.
As Justice Samuel Alito wrote in 2010 in United States v. Stevens,6 “the ‘strong
medicine’ of overbreadth invalidation need not and generally should not be administered
when the statute under attack is unconstitutional as applied to the challenger before
the court.” Ultimately, however, as Justice Anthony Kennedy wrote in 2010 in Citizens
United v. Federal Elections Commission7 (see pages 134–135 describing this case in
the unit “The First Amendment and Election Campaigns”), “the distinction between
facial and as-applied challenges is not so well defined that it has some automatic effect
or that it must always control the pleadings and disposition in every case involving a
constitutional challenge.”

6. 559 U.S. 460 (2010).

7. 558 U.S. 310 (2010).

10
Another random document with
no related content on Scribd:
The house was very still. A tiny creak startled her; and then a soft footfall.

"Bee!"—she said instantly.

A slight figure bent over her in the darkness, and a smothered voice murmured—

"I'm come—to say—good-night."

Amy held her in a long close clasp. Neither could speak at first; and one tiny sob might be
heard from Bee.

"And you forgive me, my darling!"

"I—had to! I—couldn't say my prayers. I couldn't say—Forgive me—as—"

Bee broke down.

CHAPTER XXII
"COULDN'T BE TIED!"

"I REALLY did think that dear boy had more sense," quoth Mrs. Miles, as her busy fingers
arranged rows of tucks in a small frock. Two little maidens of seven and eight brightened
the Vicarage home, and she made all their clothes herself.

"Ivor! What has he done?"

"He has done nothing. It's what he is going to do."

"Where is he to-night?"

"Gone to dine at Claughton. I thought you knew. That is not the point! Imagine his taking
to Magda, more than to Bee Major!"

"You think he has?"

"Quite sure. When he came back from his call yesterday, he had nothing to say, except
what a nice bright girl Magda was. And so she is; and I like her. But you can no more
compare her with Beatrice Major than—" Mrs. Miles paused for a simile, as she measured
the width of her tucks, and failed to find one. "Not that Magda isn't attractive in her own
way. But I wish one could bring her to a point. She is all loose ends, and vague dreams,
and general discontent. Nothing that one suggests in the way of work seems to be the
right thing. I suppose girls are often like that when they first get away from school; but it
is time she should settle to something."

"I thought she had given you some help of late."

"In a casual fashion—when nothing that she likes better happens to turn up."
"That seems to be the way with a good many of the Burwood ladies—older as well as
younger."

"I've tried my best to rouse them; and some respond all right. But with most of the girls, it
is—'Oh, I can't be tied!' Those Hodgson girls, for instance—five of them, strong clever
young people, and well-educated. And they're just running to seed. They do absolutely
nothing for any human being except themselves. A house-full of servants—no help wanted
there; abundance of money; and life one endless round of pleasure! Riding, hunting,
motoring, golfing, dancing, paying visits, travelling—nothing but amusement! I tackled
them one day in good earnest, and asked if one wouldn't help in the Sunday-school, and
another in the night-school, and another in the shoe-club, and so on. And one and all
made the same reply. Oh dear, no, they couldn't be tied! They liked to be free. Which
means—free to amuse themselves without stint."

"One wonders that any human being, with brains and character, can be content with such
an existence!"

"You see, dear, the point of the matter is that, if they undertake any regular weekly task,
something may turn up at that particular hour, which they don't like to miss. An invitation,
perhaps."

In the Vicar's strenuous life, work had habitually barred the way upon pleasure. But then
he had found his pleasure in his work.

"And if it does?" he said.

"Why, generally they accept the invitation, and toss up the work. I tried to get the
Hodgsons to see that they might perhaps owe a duty to other folks besides themselves;
and they took it very well. They really are nice girls, you know, only so fearfully useless.
One of them actually consented to help me in the library once a week for an hour. And she
came twice. Then something turned up that she didn't wish to lose; so she sent an excuse.
Next time she sent no excuse, but simply stayed away. And then she wrote a pleasant little
note, saying she was so busy-busy! That she was afraid she must give up the library."

The Vicar had put down his pen, and was gravely attentive. He knew it all, of course—
probably better than his wife; but she liked to pour forth and he liked to listen.

"There are delightful exceptions, I'll allow. Bee Major, for one. But she has been trained to
do her duty; and the others have been brought up from babyhood to think of nothing but
themselves. No real sense of duty! The Royston girls are different—except Magda.
Whatever you propose to her she doesn't want to do. She can't manage this, and she
doesn't 'like' that. Anyhow, I never came across a nicer girl than Bee Major. She would
make an ideal wife for Lance!"

"You can't choose his wife for him, my dear."

"More's the pity!" she retorted. "One could often choose for a man so much more sensibly
than he chooses for himself! However—since he likes Magda, he shall see her again. I'm
asking her and Pen and one or two others—Bee included—to spend the evening here the
day after to-morrow. You love having young folks about."

Ivor was already seeing Magda again. She and Pen had been invited to dine at Claughton
Manor; other guests being there also.

Bee was asked, and she accepted; and just at the last she had to send an excuse. Nothing
short of absolute necessity would have kept her away, since she realised what it might
mean. But that very afternoon Mrs. Major was taken with an acute attack of illness, to
which she was occasionally subject, connected with the heart, and serious enough to mean
actual danger. Bee could not leave her. Neither could she fully explain; for Mrs. Major had
an extreme dislike to being counted delicate; and Bee was under strict orders never to say
a superfluous word about her mother's health. The doctor had similar instructions; and he
alone, beside Bee and the faithful old "Nurse," knew how grave these attacks were, or
might at any time become.

Nothing could have been more unfortunate than one happening just now. Ivor, on hearing
of the excuse sent—that Mrs. Major was "very poorly," and that Bee could not be spared—
naturally drew his own conclusions. Coupled with her cold manner, it meant of course that
she wished to keep out of his way.

Partly, perhaps, in self-defence, and in consequence of the wet blanket to which he had
been treated, he turned a good deal of his attention to Magda that evening. She was again
at her best, in a prettily-made frock of thin black material, which suited the red-gold of her
hair, and the bright curiously-tinted eyes. A spray of variegated leaves, chosen and
fastened in by Merryl, gave exactly the right tone; and there was no other colouring to
compete with it. She talked well too. She and Ivor exchanged ideas, played upon words,
discussed opposite views, laughingly. He found her unformed, but clever, and on the whole
refreshingly simple. It went for little, so far; yet the fact that she was the sister of his most
intimate friend meant that they had many subjects in common.

For once Pen was in the background. Patricia showed herself, as always, daintily charming,
moving amid a circle of admirers. The personality of the admirers mattered little, so long
as they were there.

Magda was entirely occupied with Ivor—or rather, with Ivor's attentions. He managed to
draw her out, as she had not been drawn out before. He made her sparkle, and showed
her to herself in new and agreeable lights. A feeling of delighted gratification, which she
did not attempt to analyse, filled her mind in consequence.

Two days later they again met at the Vicarage; and once more Bee, though invited, was
absent, since her mother was still too ill to be left, though she might only hint at this. Ivor
had no further doubts.

"A convenient excuse!" he said bitterly to himself.

Amy, full of remorse, would gladly have taken Bee's place in the sick-room; but it was not
allowed; and, she knew Mrs. Major too well to venture on any full explanation to others.
She too had been invited, and she had to go, since Bee was bent upon her having the
pleasure. It was an evening which, for Amy, spelt the reverse of enjoyment.

Magda this time really shone. She seemed at one leap to have grown older, to have
become less school-girlish, more handsome, more taking. A slight consciousness made her
voice softer, her manner more restrained, than usual; yet with this came also a touch of
increased confidence. She found in herself a power to please, which she had not known
before; and the experience was delicious. Others watched her with a mingling of surprise
and amusement. Magda was developing, they said. She was "quite coming out."

Amy Smith's sensations included no amusement. She grew inwardly furious, more and
more furious, as the evening wore on. Bee's friend—to step in, like this, in Bee's absence!
—To try deliberately to win Ivor's love away from her! It was scandalous! Disgraceful! Amy
found it hard work to hold her wrath within bounds.
Nor did she—altogether. Early hours were the rule at the Vicarage; and by half-past ten a
general exodus took place. Wraps were donned, amid talk and laughter, in the breakfast-
room; and Amy, standing grimly apart from the rest, found Magda offering a good-bye
hand, all smiles.

"Hasn't it been a delightful evening?" Magda was saying.

Amy had always been impulsive; and she was so still, though fast leaving girlhood behind.
Without an instant's pause for thought, and not so much as remembering her promise to
Bee, she spoke words which leaped up in her mind—

"To you, I dare say! But—I couldn't—in your place! I call it—poaching!"

Then, with sudden contrition, as a flame of colour rushed into Magda's face, she knew
what she had done. "What do you mean?" came involuntarily.

"Oh, nothing!" Amy tried to laugh. "I'm talking nonsense. Good-bye."

Magda hesitated an instant; then walked off, holding her head high.

"I can't endure that Miss Smith," she said disdainfully to Pen, as they drove home. "Such a
stupid ordinary little person! I can't imagine what Bee sees to like in her."

Pen made some chilling reply. She was not pleased with Magda's prominence during the
two past evenings.

But Amy had blundered again. She had opened Magda's eyes.

CHAPTER XXIII
HERSELF OR HER FRIEND?

ONE may be walking on a most ordinary path, plucking flowers by the way, and doing—or
not doing—one's everyday duties. And suddenly temptation comes!

But in the meeting of that temptation it makes just all the difference, whether the
everyday duties have been faithfully carried out, or have been shirked. In the one case,
previous weeks have strengthened one's power to stand firm; in the other case, previous
weeks have lessened it.

Going to bed this night seemed to Magda almost impossible. There was so much to think
about. Life had assumed a new colouring.

A vague sense had dawned upon her—vague at first, but rendered more definite by Amy
Smith's unwise speech—that she had some sort of power over Lancelot Ivor. Power, it
might be, to make him like her. He seemed to enjoy her companionship. She had found
that she could interest him, could amuse him, could make him for the moment grave at
will. And Amy's remark set the seal to her discovery. If others saw the same, then it must
be real—then she could not only have fancied it.
The thought was immensely exciting.

Not that she cared markedly for Ivor himself. Magda did not know what real love meant.
But he was handsome and much liked; and her vanity was flattered. Hitherto she had
counted for little, either in her own home or among Burwood friends. His attention lifted
her upon a pedestal of importance.

He had deferred going away for another night or two; and next evening he was to dine
with them. She would see him again. She would have another chance to deepen the
impression which—perhaps—she had already made.

And—it meant—temptation!

She woke up to the fact slowly; and it was partly from what Amy had said that she
recognised the temptation as such.

Magda was not keenly observant. Thus far she had not known what Amy knew—that Bee's
heart belonged to Ivor. It was the last thing Bee would have wished her to know. Here
again Amy had betrayed Bee.

Not indeed directly. Her hasty speech at first only aroused Magda's ire, on her own
account. She disliked Amy, and she hated to be lectured and interfered with. But as she
restlessly walked her room, going over the evening in her mind, and as she thought again
of Amy's words, a new sense came into them.

"Poaching! What nonsense!" What could Miss Smith have meant? Poaching in another
person's preserve—that was the idea. What—in Bee's preserve? How ridiculous! As if Bee
had any particular rights over Mr. Ivor! And as if Bee cared!

But did Bee not care? She recalled her own announcement of Ivor's expected arrival, and
Bee's unwonted flush—then her absence, her dreaminess, her look of happiness. It all
seemed rather suspicious, even though Ivor had received no especially warm welcome
afterwards. Bee was always so funny about things—so slow to show what she felt. Perhaps
Miss Smith knew that Bee really did care—and perhaps that was why she had meddled.

If indeed it were so—what then?

Was Magda to cut in between, to steal Ivor, to destroy her friend's hopes of happiness? It
might mean all this! If left to himself, Ivor and Bee were not unlikely to draw together. But
if Magda should exert herself to win him—should use the power which she believed to be
hers—she might draw him on to like her more. And then—Bee might lose for ever the man
who perhaps had already won her heart.

"Well, I suppose, if she does care, it would be rather mean of me, on the whole,"
meditated Magda.

That ought to have settled the matter, but it did not. Magda went on reviewing pros and
cons.

If she now decisively drew back, and took no further pains to make herself attractive to
him, she might thus secure Bee's life-long joy. Ivor, no longer drawn ever so slightly in
another direction, would probably turn to Bee. Why not? They were well suited, each to the
other. And Bee had saved his life!

It was all conjecture; yet grave possibilities were involved. And whether the conjectures
were right or wrong, Magda's duty stood forth clearly.
One more of life's opportunities lay before her. An opportunity for self-denial, for self-
forgetfulness, on behalf of her friend. She had so wanted in the past to do something
great, something grand, something worth doing. Here was her chance. Self-sacrifice is the
grandest thing possible in the life of man or woman.

Nor was it of so severe a type as to be overwhelmingly difficult. She liked to be the

prominent person, winning attention and admiration. She also liked Mr. Ivor, and her vanity
was pleased. But that was all. Her heart was not affected. To draw back would mean no
question of heavy loss, still less of heartbreak.

Miss Mordaunt had spoken of "rehearsals" given beforehand of greater opportunities to

follow. What if this were one such "rehearsal"? What if the faithful carrying out of this
might mean something greater to come after? So it often is in life.

The thing looked worth doing, apart from any question of rehearsals. Magda thought she
would do it. For the sake of right, for the sake of honour, for the sake of her friend—she
would hold herself in the background. She would no longer exert herself to be delightful.
Mr. Ivor should find her dull and uninteresting. That would put things straight for Bee. She
got into bed at last, seeing her own conduct in rosy hues, self put aside, love for Bee
victorious, principle getting the upper hand over inclination.

But she forgot to look for Divine help in the carrying out of her good resolution. Some
perfunctory prayers had been said earlier—only said with wandering attention. That was
all. She had not asked to be made able to tread this path.

And when she awoke in the morning, things wore a different aspect. The road she had
marked out for herself had lost its sunshine.

A quiet background is no inviting place for a lively girl, who has just discovered her power
to please. And what if Mr. Ivor really were inclined to like her—more than others—more
even than Bee? What if he really did wish to see more of her? This thought flashed up
vividly. Was she to fling aside such a dazzling possibility, merely because she fancied that
Bee was perhaps in love? Why, it would be quite absurd!

Besides—how could she be so rude as to neglect Mr. Ivor, when he came to their house? It
would be her duty to make herself agreeable.

Not that Magda was usually bound by any obligations in this direction, when the guest
happened to be not to her liking!

Swayed to and fro by such opposite considerations, she went down to breakfast; and the
first test came soon.

"Would it be of any use to ask Beatrice Major here this evening?" Mrs. Royston inquired of
Penrose.

"I don't know, mother. Mrs. Major has been poorly, but I should think she is better now.
Magda will know."

Mrs. Royston looked at Magda, and the thin rope of her last night's resolution snapped
under the strain.

"I shouldn't think it would be much use. Bee has been nowhere yet."

"You might find out. She knows Mr. Ivor, and I dare say she would like to come, as he goes
to-morrow."
Would Bee not like it? Was her mother not well enough by this time? Magda was aware at
least that she might be able. But with the thought came a further temptation, as Pen said
—

"What has been the matter with Mrs. Major? Not influenza, I suppose? We don't want to
get that in the house."

"Something of the sort, I dare say!" Magda replied carelessly.

"Mean! Mean!" cried conscience. She knew she had done it now! Mother and elder
daughter exchanged glances, and the subject was dropped. No more chance of an
invitation for Bee! And Magda did not want her to come. She did not wish to have Bee as a
rival. But how contemptible it was! All her visions of a noble self-forgetfulness had faded
into smoke. Everything had given way before her desire to shine. And she knew that she
had not spoken the truth. She knew that Mrs. Major was subject to such recurring attacks,
though unaware of their exact nature.

When evening came, things did not go as she had hoped. In their own home Pen, as
eldest, was automatically more to the fore; and Magda, as the younger, had to submit to
being second. Mr. Royston too engrossed a large share of their chief guest. One brief ten
minutes' chat with him Magda had towards the close; only enough to make her want
more; and then Mr. Royston again took possession, and her enjoyment was cut short.

So she gained little by her disregard of Bee's interests. She had been worsted in her fight,
and had flung away another of life's opportunities; and all for nothing. She went to bed
feeling indignant and very flat.

And next day the young barrister returned to his busy life in town, without having again
met Bee.

That morning Merryl and Frip, as they walked down High Street, saw her coming out of a
shop; and she stopped at once to speak to them. Frip was still a small child; but Merryl,
since her illness, had shot up rapidly. She had grown much slighter; and her face, though
perhaps not strictly pretty, was very attractive, with its look of sunny repose.

"I hope Mrs. Major is better," she said. "We were so sorry to hear about her."

"Thanks, dear; she is getting all right again. She had quite a long drive yesterday."

Frip's shrill little pipe made itself heard before Merryl could reply.

"Why!"—came in astonished accents. "Why, mother wanted to have you to dinner last
night. And Magda said it wouldn't be any use, because you couldn't come. And she thought
it was influenza."

Bee flushed.

"No, no—Magda only fancied it might be that. She wasn't sure," explained Merryl, always
anxious to smooth things down. "She had not been to ask for a day or two, I think."

"No, she had not been. It was not influenza." Bee spoke in a mechanical voice, and her
smile was rather forced.

"I suppose—some one must have told her," ventured Merryl.

"People always say that sort of thing, don't they?" Bee remarked. Then, a little hurriedly,
she said good-bye, and went on.

"Frip, you shouldn't have told!"

"But I do wonder what made Magda say it. I should have thought she'd have wanted Bee
to come. And I'm almost sure Bee is sorry. I'm almost sure she'd have liked to come."

Merryl was quite sure, but would not say so; and the matter dropped. It did not, however,
end there. At luncheon some remark was made about Mrs. Major; and Frip, pricking up her
ears, put in a word which Merryl, at the other end, had no power to check.

"Mummie, we saw Bee to-day."

"You shouldn't call her 'Bee,' Frip. You should say 'Miss Major,'" admonished Pen.

"But she told me I might call her 'Bee;' so I may, mayn't I? And Mrs. Major is almost quite
well again; and it wasn't influenza, not one bit; and Bee could have come yesterday, if
you'd asked her, mummie. And I told her you wanted to, only Magda said it was no good.
And she looked—I don't exactly know how—only as if she was sorry."

"You do meddle, Frip!" burst out Magda.

"Frip was not very wise to repeat things. But why should you have said what was not
correct?"

"I thought it was—of course! How could I know?"

"It would have been kinder to Bee to find out."

That was all that passed; but Magda was much disturbed. It had never crossed her mind
that what she did might come to Bee's knowledge.

CHAPTER XXIV
SOMEBODY'S LOOSE ENDS

FOR a fortnight past—ever since Ivor's departure—those "loose ends" had been very
apparent. Magda had dropped into a state of hopeless inertia. There was energy enough in
her constitution, when it was aroused by a sufficient stimulus; but, like many strong and
energetic people, she could be unspeakably lazy. And that was her present condition.

Everything seemed dull and stupid, "stale, flat and unprofitable." Work went to the wall. All
that she cared to do was to sit before the fire, reading or pretending to read novels, and
going over in imagination those two delightful evenings, which had somehow demoralised
her, making nothing else in life worth consideration.

She had fallen back into her usual standing of a "nobody;" and she could not see why it
must be so. Other girls were made much of, admired, put forward. Why should it not be
the same with herself? She had found that—given certain conditions—it was in her power
to be taking. She wanted those conditions to recur. If only Mr. Ivor would pay another visit
to the Vicarage, she might again enjoy that delightful sense of power. There was nobody
now in the place for whom she cared or who cared for her.

So she made herself far from agreeable to her home-folks, for whom in reality she cared
very much; only, a cyclone was needed to reveal the fact. She forgot what she had to do,
and refused what she was asked, and replied snappishly, and resented being found fault
with, and behaved altogether like a querulous child.

"What are you doing, Magda?"

Mrs. Royston, coming into the morning-room an hour after breakfast, found her second
daughter lounging before the fire, with an open novel on her knee, and eyes fixed dreamily
on nothing.

Magda slowly stood up. "I'm—reading."

"I think, at this time of the day, you might find something better worth reading than that,"
as she glanced at the title. "I want you to leave one or two notes for me."

"Isn't Merryl going out?"

"No; not at present. What is the matter? Are you poorly?"

"No, mother."

Mrs. Royston stood looking at her. "Have you practised the last few mornings?"

"I do—sometimes."

"And you look 'sometimes' at your French and German, I suppose. It is a great pity that
you let yourself get into such idle habits."

"It's so stupid—practising for one's self alone."

"Why for yourself alone? Why not give other people pleasure. See how pleased your father
was yesterday with Merryl's playing."

"He wouldn't have cared for mine. Father hates classical music, and I hate jigs. Merryl only
strums. She hasn't a spark of music in her."

"At all events, she does her best; and you do not. You have a real gift for the piano, and
you are neglecting it."

"Whatever Merryl does is right, and whatever I do is wrong."

Mrs. Royston sighed. "You always have an answer ready, Magda. I did think at one time—
when we so nearly lost our darling Merryl—that you meant to be different. But you go on
now just the same. I should like these notes taken, please, at once—and you can ask for
the answers."

"Verbal?" Magda spoke in a hard tone, all the more because her mother's words had struck
home.

"I don't mind; only, if you bring verbal replies, do bring them correctly."

Magda took up one of the notes. "All the way to Claughton!"

"You used to think nothing of bicycling there two or three times a week. Why should you
mind it now?"

"Patricia was fond of me then."

"Patricia has a good deal to think about. I do not believe she has changed to you. Is
anything really the matter? If you are not well, tell me frankly."

"I'm quite well, mother."

"Then please take the notes."

Mrs. Royston left the room, and Magda stood staring out of the window—stirred
uncomfortably.

No doubt it was true that she had "gone on" lately, and especially in the last fortnight,
"just the same" as before Merryl's illness. She had lost sight of her remorse and her
resolutions, and had again been wrapped up in her own concerns, living an idle and
purposeless existence.

"This must be no empty repentance," Rob had said. "When you get back into everyday life
again, don't let yourself forget."

But she had allowed herself to forget. She had been beaten again and again, in the strife
between right and wrong.

She echoed her mother's sigh, and took up the second note.

It was to Mrs. Major; and strong distaste seized her. She had seen very little of Bee lately.
The two had met once or twice in public; but not in private. Magda had been careful to
avoid the latter. She knew that she had not been true to her friend; and she knew that Bee
must know it. Frip's words could not fail to be enlightening.

And now she was as likely as not to find Bee alone. And she had to go in—had to wait for
an answer.

She threw her book impatiently on one side, and left the chair with its crumpled cushions
before the fire. Which house to take first was the question. She decided on the nearer,
because then she could plead a need for haste.

As she went up the garden, she caught sight of Bee's head within the front room, bending
over some work. And when she rang the bell, Mrs. Major came out.

"How do you do? Have you come to see Bee?" Mrs. Major scanned the girl critically, having
remarked the rarity of her calls.

"I've come to bring a note from mother. She said a verbal answer would do."

Mrs. Major glanced down the page. "Yes—your mother wants an address. Will you ask Bee
to look it out in my address-book, please. I have an engagement and cannot wait."

So Magda had no choice. She made her way in, for once so noiselessly that she had time
for observation, before Bee awoke to her presence. Something in Bee's bent head and
quiet look impressed her—something of resolute patience in the sweet face, with its
downcast eyes and dark brows. It made Magda feel uncomfortable—almost guilty. She
stirred, and the other glanced up.
"Why, Magda! It is quite an age since you came last!"

Magda explained her object.

"Yes—I know where the address is. Sit down. I'll look it up."

"I mustn't wait. I've to go on to Claughton."

"Are you in such a hurry? You once said you could bicycle to the Manor in twenty minutes."

"Did I? Oh, I couldn't quite have meant that. It takes half-an-hour at least—and more! And
I ought to get back in time to practice."

Bee went to the davenport, where she hunted out the address and wrote it down.

"Will that do—without a note?"

"Oh yes, thanks!"

Magda stood up, and Bee came close, studying her gravely.

"You used not to seem so impatient to be off!"

"I've got to take mother's note."

"Yes, I know—but it is quite early still." Bee sat down, and a light touch on Magda's wrist
somehow made her do the same. "I don't think there can be such terrific haste, that you
cannot spare a few minutes. I want to ask you what has been the matter lately?"

Somehow, Magda had not expected this; and she flushed up.

"The matter! Oh, why—nothing! Of course not! What do you mean? Why should anything
be the matter?"

"You have not been quite the same lately. And I never like to let misunderstandings run
on. There is some misunderstanding—isn't there?"

"No! Nothing of the sort!" Magda spoke vehemently. "I don't know what you mean."

Then she felt that this was not true.

"Don't you, really?"

"No, of course, I—What do you mean?"

"I have noticed a difference, and I want to know the reason. We are old friends now—and
it seems such a pity to let anything come between us, when perhaps one word of
explanation—"

Magda broke in. "But there's nothing to explain. There isn't, really. I—it's only—I've been—
busy!"

"Busy about what?"

"Oh, I don't know. Heaps of things. Perhaps—more lazy than busy." She tried to laugh, but
could not face the wistful eyes bent upon her. "Oh, bother—why must you be so
inquisitorial?"
"Am I? Well—if you would rather not tell me—"

"I can't. I've nothing to tell."

"Are you sure? Things haven't seemed right. If you would rather drop the subject, I must
let you. Only, if I have hurt you in any way, or if you have thought me unkind, I am sorry."

"Bee! It isn't—"

Magda choked over the words. She hardly knew what to say; for the contrast between
herself and Bee was not pleasing to vanity.

"It isn't what?"

"It's not you! If either of us is wrong, it is I—not you!"

She remembered afterwards that Bee did not contradict the assertion.

"Anyhow, it need not put us apart."

"I suppose not, if—if you don't mind. But—only—" Magda spoke disjointedly, fidgeting with
a cushion-tassel. "Only—you know—one does feel horrid sometimes; and Frip told me she
had told you—and of course—though I really didn't mean to be unkind—"

"When didn't you?"

"You know. You heard what Frip said. And I suppose you would have liked to come—and I
ought to have known. And I dare say I did know, really—only one can't always decide
rightly, just in a moment. Well—if I'm to make a clean breast of it—I didn't want you that
evening, Bee. There! It's out!"

"But why?"

"I liked talking to Mr. Ivor. He was so jolly and amusing. And on the whole I rather thought
he liked talking with me. He is Rob's friend, you see. And he somehow sort of made me
able to talk—you know! As some people can, and only a few. And I wanted it over again.
And I knew I should have no chance if you, were there. He would only have cared to talk
with you."

Magda was not looking up, as she jerked out her little confession. Had she been, she could
not have failed to see the swift flash of response in Bee's face. It was quickly subdued, and
Bee asked mildly—

"Why?"

"My dear, you're dull to-day. You don't seem to understand anything. Why, of course—
because you are you! He would be after you fast enough, if you would let him. You can be
stiff—most people can, I suppose. But everybody says how pretty you are, and how taking.
It's not like Patricia's prettiness. Quite a different sort of thing. But I couldn't help noticing
that afternoon, when Mr. Ivor came to call here—though he and I were talking a lot, his
eyes kept going back and back to you, as if he couldn't help it; and twice he didn't hear
what I was saying."

"I didn't see!"

"Well, anyhow, I did. I declare, Bee, you are looking oceans better than when I came in.
You were so white."
"Just a little tired, perhaps. It does one good to have a chat. Don't worry yourself any
more about—that—or keep away. Come in as often as you can."

Magda stood up. "All right; I will. But I really must go now, or I shall be late for lunch."

"Yes; I won't keep you. But I am glad you came, dear."

Her good-bye kiss in its tender warmth surprised and touched Magda; for she did not feel
that she deserved it.

"I wonder what made me say that—about Mr. Ivor?" she debated, as she bicycled out of
the town. "But it was true. I'd forgotten, till the moment when I said it, how he did look at
her."

And Beatrice, left alone, stood in the room, with both hands pressed hard over her face.

"Oh, if it is! Oh, if it is!" she whispered once or twice.

Then she drew a long breath, and went back to her work quietly, but with a glad light in
her eyes.

"What a child Magda is still!" she uttered aloud, with a little laugh. "I seem to be years and
years the elder!"

CHAPTER XXV
MAGDA'S OLD CHUM

"SO you know the Roystons," remarked Edward Fairfax to his cousin, Mrs. Miles.

He had arrived the evening before, and had been occupied for an hour past with the
newspaper, near an open window. It was a fine day, late in July.

There was nothing restless or impulsive about him. Though only six years Magda's senior,
he might have been well over thirty, judging from his outlines, his immobility, and his
scanty hair. He was neither small and slim like Rob, nor tall and muscular like Ivor; but of
another stamp altogether. Medium in site, and solid in make, he had rugged features, yet a
very pleasant face. As he sat thus, silent and motionless, a looker-on could hardly have
imagined the possibility of Fairfax out of temper. He seemed to be made up of kindliness
and good sense. A queer little twinkle in his light-grey eyes gave promise of the "saving
sense of humour," which alone goes a long way; and he also had a well-shaped head. As
he spoke, he glanced over the edge of his newspaper.

"We know them well. Especially the second girl."

"Magda?"

"That is the one. She says she knew you in old days."
"Yes. Odd little scarecrow of a being, when I first came across her. She'd got into a way of
talking all over the shop about her troubles. I cured her of that—made her tell me instead.
I used to chaff her fearfully, and she took it well."

"Perhaps she wouldn't have taken it well from everybody. What sort of troubles?"

"Oh, a rum lot! She was always in hot water, somehow. I never could make out who was to
blame. So I just told her to keep a stiff upper lip, and not to worry. She had ripping hair—
all down her back."

"She has lovely hair now—rather wild sometimes. And she isn't bad-looking. The advice
given sounds extremely like Ned Fairfax."

"What else would you have had me say? I wonder if she remembers what chums we
were."

"Why—of course. It was she who told me first, when she happened to see your likeness."

"Yes—but still, it was she who dropped me, not I who dropped her. I wrote last, and had
no answer. So I stopped."

"You might have tried a second time, if you wanted to keep it up."

"I might—but I didn't."

"Some day soon you are sure to see her. She is rather fond of dropping in here. And you
will pay us a long visit."

"Anyhow, I think I'll look up Magda—presently."

"My dear Ned, you have not seen her since she was a child. Wouldn't you rather call her
'Miss Royston'?"

"She is not 'Miss Royston.' And 'Miss Magda Royston' is such a mouthful."

"I should imagine that she would expect it."

Fairfax returned to his paper for another half-hour. Then he put it aside, and went out,
aiming for Magda Royston's home.

It was quite true that he and she had been great chums, in the days when he was a big
schoolboy from fourteen to seventeen, and she an excitable little girl from eight to eleven.
He had made a pet of her, and she had made a hero of him. She had confided to him her
every thought and trouble; and he in return, from laughing and pitying, had grown to be
fond of the impetuous warm-hearted difficult child, whom nobody seemed to understand.
He was rather curious to see what manner of being she had grown into.

Reaching the house, he decided against a formal entrance by means of the front door. It
was not an hour for a stiff call; and as a boy, he had been free of the garden. He saw no
reason why he should not revert to old habits.

So, following a path amid bushes which led round behind, he found himself close to the
kitchen garden; and a few yards in advance of him, their backs turned in his direction, he
saw two girls; one small and long-haired; the other rather tall and slight.

"Yes, dear," the latter was saying in a soft voice. "But I don't think it does to mind that sort
of thing too much. It isn't worth while. Shall we go and feed the chickens?"
"She needn't be so cross, though—need she?"

"I don't think she means to be cross, darling. Perhaps she is worried about something.
That often makes people seem a little cross, you know."

"I beg your pardon—" Ned interposed, with lifted cap; and they turned promptly.

"No—not Magda!" Ned instantly decided. That serene brow, those smiling eyes and happy
lips, could hardly appertain to his quondam chum. Unless, indeed, the years had remade
her! But this girl was surely younger; hardly more than sixteen, with smooth dark hair.
Another sort altogether. Not pretty perhaps in the ordinary sense of the word—but
something in the sunshine of that childlike face enchained attention.

"I beg your pardon—" Ned was saying aloud, while such thoughts flashed through his
mind. "I fancied you might be Miss Magda Royston."

"Oh, no, I'm only her sister. I'm Merryl," came in frank reply. "Do you want to see Magda?"

"She and I are old friends. I am afraid I have taken rather a liberty in coming this way; but
it all looked so familiar that I—well, I came. You don't know me, of course. You must have
been one of the little ones in those days. I am Ned Fairfax."

Merryl's hand came out cordially.

"But of course I remember. I'm only two years younger than Magda—though we did seem
so far apart then. Of course I remember. You were always so good to us little ones. Will
you come indoors, and shall I call her? She has gone to the other end of the kitchen
garden."

"Then perhaps I might find her there. I should like to discover if she will recognise me—
unannounced."

"If you like—please do. But I am sure mother will wish to see you too."

"Hadn't I better choose a more orthodox hour for calling? One afternoon, perhaps. I've
come to the Vicarage for ten days."

"Yes, we heard you were coming; and Magda was so pleased."

"Then she has not quite forgotten me. And this of course is little Frip!" Ned's hand grasped
Francie's pleasantly. Children always took to him, and Frip proved no exception.

"Frip is our baby still," observed Merryl. "I sometimes think she always will be. We are
going now to feed the chickens. You are sure you would rather find Magda yourself?"

Ned was not quite sure. He felt tempted to ask if he might not first interview the chickens;
but this suggestion was resisted.

Merryl smiled a good-bye; and as the two went off, he overheard a shrill little voice saying
—"I like that man! Don't you?" Followed by a—"Hush, darling."

"That's a nice girl," Ned murmured. He recalled the plump plain-faced little Merryl of
former times, and marvelled over time's developments. Would Magda be equally
transformed? And if so, in what direction? She had been better-looking than Merryl,
despite her "scarecrow" outlines. Whether she would be so still remained to be seen.
Ned knew well the walk at the end of the kitchen garden. It had been there that Magda
was wont, in past days, to take refuge from a troublesome world, when in one of her
injured moods. He wondered whether she kept the habit up still. Then Merryl's words
recurred to his mind; and he questioned—was it Magda who had been "cross"?

There she was—pacing hurriedly along the grass-path, just as in old times. Something had
plainly gone wrong with her. She was walking away from where he stood; and he
examined the restless movements, contrasting them mentally with the repose of the
younger girl's look. Like many men, perhaps most men, Ned loved repose.

Now she was coming back, moving still with a quick impatient swing, as if working off
indignation. Her eyes were bent on the ground and he had time to analyse her further,
before she looked up. Improved in some ways, he told himself. Height and figure were
good; and she held herself well; and the sunshine, catching her hair, lighted the red-gold
into brilliancy. But the face at that moment was not a happy one.

Suddenly—as a result, perhaps, of his gaze—she glanced full at him. There was a
momentary hesitation; and then a glow of pleasure.

"Ned!" she cried, and drew back. "Oh, I beg your pardon. I mean—Mr. Fairfax."

"Since when have I ceased to be 'Ned'?" he asked, as their hands met.

"Since we grew into strangers," she replied readily. "Ages ago! But I heard you were
coming, and I wondered if we should come across one another."

"Was it likely that we should not?"

"How could I tell? Those are such far-off times. But it is nice to see you again. Have you
seen mother yet?"

"I did not suppose she would be grateful for so early a call."

"But how did you get round here?"

"Usual mode of progression—on my two feet."

"Oh, how like you are to what you used to be! We always talked nonsense together."

"Did we? My impression is that we discussed endlessly your heart-breaking trials and
dismal views of life."

"But then you always made them out to be nothing."

"And then you used to howl and be the better for it."

"Girls always are the better for it, I suppose. I don't howl now. And really I did not often
then."

"Not more than three times a week, on an average."

"Oh, I didn't! That is too bad."

"It was a safety-valve. You would have gone off in steam, otherwise."

"But what are you doing now, N—Mr. Fairfax? I mean—what are you—if you don't mind my
putting the question? I know nothing of your history."
"Yet we seem to meet very much on the old level."

"I always fancied we should. We were such real friends!"

"Though the friendship has been in complete abeyance!"

"Fizzled out into nothing," she rejoined. "Well, it wasn't my fault. I wrote last."

"I beg your pardon; I wrote last, and had no answer."

"N—Mr. Fairfax! You didn't."

"Miss Magda Royston—pardon me! I did."

"But I do assure you—"

"I sent you a lengthy and most interesting composition, full of sympathy for your bereft
condition. And that was the end. I had no reply. So I came to the conclusion that you had
found another Ned, and wanted no more of me."

"But indeed, indeed, I wrote last. I wrote sheets; and you never answered them. So I was
dreadfully miserable, and I knew you were tired of me, and delighted to get away. And so
—"

"So it meant a long gap. But old friends can always begin again, just where they left off."

"It's very nice," murmured Magda. Then she wondered what her mother and Pen would
say if she kept N—Mr. Fairfax all to herself out here. "I think I ought to take you indoors,"
she remarked. "Wouldn't you like to see the others?"

"I'm glad to see everybody. You asked a question just now."

"Yes. I thought you didn't mean to answer it."

"Why should I not? My mother has made a home for me in town, and I have a post in a
bank."

"I see—" with a note of disappointment.

"Not romantic, is it? A good many useful things in life are unromantic."

"But you like it?"

"One must do something, and that turned up. It seemed as good as anything else was
likely to be."

They began to move towards the house. Magda had suggested this, but it was Fairfax who
took the first step. Magda talked eagerly, bringing up one reminiscence after another, and
he responded sufficiently to keep her going.

Perhaps his interest was a little less keen than hers; for when they came across Mrs.
Royston and Merryl in the flower-garden, and Magda muttered an impatient—"Oh, bother!"
Fairfax showed no reluctance. He even quickened his pace to meet them. Magda wanted to
keep him longer to herself, for she had no notion of sharing her friend with others.
 CHAPTER XXVI
WHERETO THINGS TENDED

"WHAT is all this about, mother?" Rob asked three weeks later. "I mean, of course,—the
girls."

He had run down for a few days, spending the greater part of them with Patricia. Mrs.
Royston thought him looking pale and worried, even unhappy. But he said nothing which
could give a clue to the cause; and she was reluctant to force confidence by direct
questions. Rob, whatever his own cares might be, was not too much wrapped up in them
to note other people's concerns; and he very soon put the above query.

The condition of things which led to it was as follows.

Pen had an affair on hand, which had suddenly reached a forward stage, occupying the
whole of her attention. A recent acquaintance, the Honourable James Wagstaff, a sensible
and agreeable bachelor, well over sixty, with plenty of money, had taken a fancy to "neat
Pen," and was assiduously pursuing her. Pen showed no reluctance or hesitation. It became
clear that she was simply waiting for the word to be spoken.

There was nothing romantic or misty about this affair. It was straightforward and business-
like.

Ned Fairfax had been much in and out of the house. Having come to his cousin's for a
fortnight, he was there still. From the first he had dropped, easily and naturally, into his
old position of intimacy with the Royston family. Much as Mrs. Royston liked him, she
would have preferred a more cautious advance; but she found herself powerless. Fairfax
took it for granted that he might do as he liked; and he made himself so charming to her
personally, that she had not the heart to administer a check.

He was Magda's especial friend. All her world admitted the fact. She had the first right;
and she took care to claim it. When Ned came to the house, he of course came to see her;
and she was always on the spot, never doubting that he felt as she did.

It was delightful to have him again; to revert at once to the old order; to pour out
unreservedly in his hearing her aims, her wishes, her difficulties, her worries—to be
laughed at and genially set to rights by him. She enjoyed it heartily. Each day her mind
was more and more full of Ned—of nothing but Ned. As usual, her steed ran away with
her; and she could think of nought else. When Robert arrived, she did not so much as
notice his pale and altered look. Her whole world now consisted of—Ned.

So different, she told herself, from the time when she had that silly little fancy for Mr. Ivor!
She had never given him another thought since he went away; and he had not again been
to the place. But Ned was her friend—her property—and everybody knew it. Everybody
appeared to recognise her right.

Just exactly like former days!

Well, no; perhaps not exactly. As time went on, it dawned upon her that a distinction did
exist. Some measure of reconstruction in the manner of their friendship was needful.
Things had to be different from the days when he was a big boy and she a small girl. She
could not now rush after Ned, whenever she wanted him. She must wait till he chose to
come. He was a man—and she a woman—which altered the whole outlook.

He did very often come. But was it only or mainly after Magda? This was a question which
soon took shape in the mind of Mrs. Royston. He always saw Magda, it was true, for she
managed to be invariably to the fore; and the one desire of unselfish Merryl seemed to be
that Magda should thoroughly enjoy her old friend. So surely as Fairfax appeared on the
scene, Merryl effaced herself and left him to Magda. Mrs. Royston, watching with a
mother's solicitude, had doubts whether Fairfax was duly grateful.

No doubt he had at first thought mainly of Magda. He had even recognised a dim notion in
his own mind that, not impossibly, his one time little chum and playmate might suit him
for a life-mate.

But on his arrival, the first strong impression made upon him was imprinted, not by Magda
but by Merryl. And unfortunately for herself, Magda did not go to work in the right way to
counteract this impression, as she would have wished. She was making herself cheap. A
man often values more highly the thing that he cannot too easily obtain. There was about
Merryl a touch of the elusive which fascinated him. In Magda, he found no trace of the
elusive. He had begun to grow—though he hardly yet acknowledged the fact—rather tired
of her outpourings. And he could not but note that Magda always talked about herself—a
subject direfully apt to become boredom to the listener! Whereas Merryl never did.

True, he was very pleasant with his former chum. It was his way to be pleasant with
people in general, and he was not given to administering snubs. He treated her with frank
kindliness, and was always ready to respond to her sallies. That did not mean much, Mrs.
Royston thought; and she was troubled to see Magda so entirely absorbed in this revival of
a childish friendship—far more absorbed, she feared, with Fairfax, than Fairfax was with
her.

Sometimes she all but resolved to give a word of warning. But Magda was apt to receive
such words tempestuously; and also she had a wholesome dread of suggesting ideas and
feelings that had not yet taken shape. Ned Fairfax would soon return to London, and then
things would go back to their normal state; except that Magda would pass through one of
her uncomfortable states of discontent.

While she so debated, Rob came home, and before two days were over, finding himself
alone with his mother, he asked—

"What is all this about?"

"I think it is genuine with Pen and Mr. Wagstaff," she said.

"He's old enough to be her grandfather."

"There is a difference in age, but not so much as that, Rob. And after all, Pen has always
taken to people older than herself. And she is so staid and controlled—don't you think it
may be better for her than a very young husband?"

"Such a thing does exist as the happy medium! But if it is for her happiness—and if you
and my father are satisfied—"

"Your father likes Mr. Wagstaff. And I do think that Pen is—not exactly in love, perhaps, but
really attached to him."
"And what about Magda?"

"I don't know what to think. I am rather sorry that Mr. Fairfax has turned up. He is such a
good pleasant fellow; but Magda's head is completely turned. And I cannot see that it is
his fault. She takes it for granted that he is just the same now as when she was a child.
And really—such a friendship—after all these years—"

"That is all nonsense, mother."

"Magda doesn't see it so. She seems never to have a doubt. And his is not the manner of a
lover. He lets her talk, and he chaffs her, but I don't believe he is touched."

"Whether Magda is touched seems more to the point!"

"It is my fear. But what can one do? Speaking too soon might do harm. I don't want to put
the idea into Magda's head that he is after her."

"You don't suppose the idea isn't in her head already!"

"I really cannot say, Rob. She is still so oddly childish in some respects—actually in many
ways younger than Merryl, since Merryl's illness. Magda seems to think of nothing beyond
their old friendship. She is continually recurring to it. Mr. Fairfax must grow rather sick of
the subject. And—perhaps I am only fancying—but I do sometimes think he is a little taken
with Merryl."

"That infant!"

"Yes, of course she is very young, but she is old for her age now. And he is very discreet.
It may be nothing. Anyhow, he goes home in three or four days; so I hope all this will be
over. And Magda in time may forget."

"I wish Magda had more balance," he said with a sigh.

Mrs. Royston longed to ask him—"Is all right between you and Patricia?" Her cautious
reserve, and fear of saying the wrong thing, held her back.

Fairfax did not leave so soon as was expected. He again deferred his departure, not
leaving until the day after Rob.

Late that last afternoon he appeared; and for once Magda was not on the watch. She had
been called away; and he followed his favourite route to the back of the house, coming
upon Merryl. She met him with a little flush and smile of greeting, and he thought once
more, as often before, what a happy winsome face hers was.

"How do you do? Have you come to say good-bye to Magda? I'll call her."

"Not yet," he replied cheerfully. "There's plenty of time. I'll get through my good-bye to
you first."

"But Magda won't like—she will want to know at once!" Merryl showed uneasiness.

"Plenty of time," repeated Ned. He was not going to lose this opportunity. "Did you tell me
a day or two ago that you had a little greenhouse of your own? I wish you would show it to
me. It's all right," as she glanced round. "Magda will come after us directly." The old use of
Christian names had been reverted to.