36 Introduction to Defamation’s Elements at Common Law (Until 1964)

Defamation is a distinctly different sort of legal claim from those covered in the course so far. It is in some key respects a hybrid tort. It usually requires some intent, making it at least partly an intentional tort insofar as the elements include (1) a defamatory statement (2) about the plaintiff (3) intentionally made (or “published”) to a third party, (4) without privilege or authorization to do so, that (5) caused “special damages” (which are pecuniary losses) or falls into a category of enumerated kinds of communications whose for which such damages may be presumed.

Yet contemporary defamation has become something of a hybrid tort. In some instances, such as when speaking about a private figure on a private matter, intent may not be needed and mere negligence may be deemed sufficient to allow recovery. Contemporary defamation’s culpability standard reflects the possible range from a minimum of fault amounting to at least negligence on the part of the publisher to a special standard you will learn about, known as “actual malice.” However, at common law, defamation was a strict liability tort, so the plaintiff was not required to prove fault merely to make out a claim.

It is important to learn the elements of defamation at common law because they shape pleading requirements and various defenses. However, it is equally important to understand at the outset that you will be learning about significant changes that have produced our contemporary defamation laws. For instance, until 1964, states were free to allow plaintiffs to bring defamation claims in strict liability; after that time, they were forbidden from doing so. In an unprecedented move, the Supreme Court handed down a landmark decision that year and thus launched an era of several decades of “constitutionalizing” state defamation law.

One reason for the complexity associated with studying defamation law is that it varies a great deal by state and the common law rules are arcane and technical. Yet another is the need to understand the law before and after its constitutionalization. Defamation cases are compelling, however, both legally and culturally, and they make efforts to learn the relevant law well worth it.

Defamation’s Elements at Common Law, A Deeper Dive

(1) A defamatory statement. The first element at common law is a defamatory statement. Historically, there was some variety regarding whether the burden was initially on the plaintiff to prove falsity (which is the modern trend) or whether it was up to the defendant to prove the truth of the communications as an affirmative defense. However at common law most jurisdictions, permitted the plaintiff to presume falsity (at least until 1964). This meant that the initial burden of proving truth or falsity was placed on the defendant rather than the plaintiff. That burden allocation reflected great solicitude for the reputational interests protected by the tort of defamation and a correspondingly lower protection for speech.

The standards and process for how to determine a statement’s defamatory potential meaning and impact were largely the same at common law as they are today even if the terminology has been modernized in some jurisdictions to some extent. Whether a statement was potentially defamatory is a question of law for the court. Whether it was indeed defamatory in its reception by others is a question for the jury, however. A statement is defamatory if it can be understood as an untrue communication that subjects the plaintiff to scorn or ridicule in the eyes of others. In evaluating any allegedly defamatory statement, the test is the effect it is “fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” Corabi v. Curtis Publishing Company, 441 Pa. 432, 447 (1971). Opinions, even when negative, are usually protected from defamation claims. In order for an opinion to be actionable, the “allegedly libeled party must demonstrate that the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Beckman v. Dunn, 276 Pa. Super. at 535, 419 A.2d at 587, citing Restatement (Second) Torts, Section 566 (1976). Mere statements of opinion that do not imply facts are not actionable. Defamation is a tort that protects against the reputational harm caused by allegations of false facts not simply unflattering opinions.

• Statements defamatory on their face: Some statements are very obviously defamatory and clearly identify the plaintiff. In such cases, at common law the plaintiff needed only to prove that the defamation was published to a third party without privilege and that this publication had either caused them pecuniary loss (“special damages”) or fell into a category that permitted the plaintiff to presume damages.
• Statements not defamatory on their face: However, if a statement’s meaning was unclear or not clearly about the plaintiff, the plaintiff faced additional pleading requirements. In a special part of the pleading known as the inducement, the plaintiff was required to offer extrinsic evidence and support for their theory of why the statement was defamatory and referring to them. The innuendo was the plaintiff’s explanation of how the statement was to be understood as defamatory.

(2) About the plaintiff. The statement must be “of and concerning” the plaintiff. This is still sometimes referred to as the colloquium requirement. In many cases, the defamatory statement clearly identifies the plaintiff, but if there is doubt on this question, or if the statement could plausibly be made to refer to many different possible people, the plaintiff must prove that it referred to them.

(3) Made to a third party, or “publication.” The tort of defamation is not designed to protect against hurt feelings but rather to guard against the loss of standing in the minds of people other than the plaintiff. Consequently, defamation requires that at least one third party have heard or seen the allegedly defamatory content. This is known as the “publication” requirement. A defamatory statement need not be “published” in the lay sense that describes a book or magazine’s publication, or even a website’s being posted or updated. For instance, an oral communication may be a publication. What matters is that it be an intentional communication to a third party.

(4) Publication must have been made without a justification or privilege. A privilege may be conditional or absolute, rather like the forms of immunity described in Module 4. An absolute privilege extends, for instance, to judicial proceedings and there can be no defamation claim pertaining to statements made about the parties in connection with a lawsuit, so long as the matters discussed are pertinent to the lawsuit. In suing a physician for medical malpractice, for instance, it would not be relevant to make allegations that they were an adulterer, unfriendly neighbor, or irreligious person, for instance (unless something about those characteristics caused the malpractice). Going off topic exceeds the scope of the privilege. A conditional (or “qualified”) privilege arises in particular contexts based on the idea that some interests could be harmed or limited if people did not speak due to fear of defamation liability. For instance, qualified privileges shield from liability hiring conversations between a potential and former employer. Similarly, such privileges protect admissions processes through which entities may provide references or letters of recommendation for a prospect. These parties can discuss the prospective employee’s or student’s record and performance without fear of a defamation suit’s succeeding, even if they share negative impressions of the applicant. Generally, such conversations are protected based on a theory that they are based on a mutual interest in the need for accurate informational exchange. (You will learn more about defenses and privileges below, but it is important to understand that a successful defamation claim requires that the publication of the statement not be privileged. You can think of this as somewhat analogous to the way that defeating “consent” can play a role in the plaintiff’s making out a prima facie case when pleading battery.)

(5) Caused “special damages” or qualifies for presumed damages. In a significant number of defamation scenarios at common law, harm could be presumed. This possibility has become much more limited with the constitutionalization of defamation law. However, at common law, there were two major categories of communications in which harm could be presumed: libel or slander per se. If a plaintiff could make out a claim for libel or slander per se, the plaintiff benefited from being able to presume harm rather than proving it up. By contrast, when claiming only slander (a broader category than slander per se), the plaintiff needed to prove special damages (that is, economic losses caused by the alleged defamation). This was (and is) a notoriously difficult burden to meet, which is why the presumption was traditionally allowed. Permission to presume such harm has been sharply limited in our era due to rulings by the Supreme Court’s holding that constitutional obligations to protect free speech take precedence over reputational interests in a number of scenarios.

Another way of putting this is that there is a special category of statements treated as so presumptively harmful that they are considered defamation per se, and they permit a party to presume damages under certain conditions. Conceptually, this may remind you of some of the intentional torts, such as battery, trespass and conversion. Recall that with those three torts, merely proving the elements permits the plaintiff not to have to prove they have suffered harm. Showing that a protected interest has been invaded effectively allows the plaintiff to presume the harm. Damages awarded in connection with those earlier intentional torts may be low or nominal in such cases, depending on the facts at hand. But the cases won’t fail for lack of ability to prove harm. Defamation features a similar potential benefit, at least in per se cases, when other conditions are met.

 

Federal Credit, Inc. v. Greg Fuller, Supreme Court of Alabama (2011)
(72 So.3d 5)

[***] On September 14, 2001, Federal Credit and Fuller entered into a “Deferred Presentment Service Agreement” (“the contract”), under which Fuller borrowed $1,000 from Federal Credit. Pursuant to the contract, Fuller provided Federal Credit with two checks in the amount of *7 $500 each, plus one check in the amount of $300 for a “service fee”; under the terms of the contract, Federal Credit agreed to hold Fuller’s checks until the “presentment date,” i.e., the date payment was due under the contract, October 5, 2001. Fuller, however, failed to pay the amount due under the contract on or before the presentment date. Shortly thereafter, Federal Credit presented Fuller’s checks to the bank on which the checks were drawn; the bank returned each of Fuller’s checks to Federal Credit stamped “account closed” and “payment stopped.”

On October 8, 2001, Federal Credit mailed Fuller a document styled as a “10 Day Legal Notice” (“the notice”); Federal Credit addressed the envelope containing the notice to Fuller’s employer, Charter Communications (“Charter”), with “Mr. Fuller” handwritten in significantly smaller letters immediately below “Charter Communications.”^[1] When the notice arrived at Charter, three or four other employees of Charter, including Fuller’s boss, Tom Salters, viewed the notice before Fuller was called into Salters’s office and presented with the notice.^[2] The notice stated:

“This statutory notice is provided pursuant to Section 13A–9–13[.]2 of the Code of Alabama. [fn] You are hereby notified that a check, apparently issued by you, has been dishonored. Pursuant to Alabama Law, you have ten (10) days from receipt of this notice to render payment of the full amount of such check or instrument plus service charges, the total amount due being $1573.00. Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that you delivered the instrument with intent of [sic] defraud and may turn over the dishonored check and all other available *8 information relating to this incident to the proper authorities for criminal and/or civil prosecution. A photocopy of your bad check which will be part of the evidence presented against you should this matter be transferred to the proper authorities, is attached for your review. This company utilizes the services of the District Attorney Worthless Check Unit and District Court System.”

(Boldface type and emphasis in original.) Copies of Fuller’s two checks for $500 and one check for $300 appeared at the bottom of the notice. Federal Credit had “stamped” the notice numerous times, including as follows: “DISTRICT COURT FILE EVIDENCE DATA BASE FILE # 8802 ds” next to each check; and “APPROVED OCT 8 2001 FOR PICKUP TO ALABAMA DISTRICT COURT AUTHORIZATION CODE: 8805–d.s.” (Capitalization in original.)

On October 10, 2001, Federal Credit filed a statement of claim in the small-claims division of the Marshall District Court, seeking a judgment in the amount of $1,573, plus court costs. On December 17, 2001, the district court entered the following notation on the case-action-summary sheet: “[Fuller] enters consent judgment for $1500.00 plus cost[s] for the purpose of appeal to circuit court to file counter-claim in excess of jurisdictional amount of small claims court.” On the same day, Fuller appealed to the Marshall Circuit Court.

In August 2002, Fuller filed in the circuit court a counterclaim against Federal Credit, seeking compensatory damages in the amount of $50,000 and punitive damages in the amount of $5,000,000 on claims alleging defamation and “violation of the [Alabama] Small Loan[ ] Act and usury.” The case was tried before a jury beginning on April 12, 2006. At the close of Fuller’s case-in-chief, Federal Credit orally moved the circuit court for a “directed verdict,” [fn] arguing, in sum, that Fuller had failed to prove the elements of either defamation or usury; the circuit court partially granted Federal Credit’s motion, dismissing Fuller’s usury claim.

On April 13, 2006, the jury returned a verdict in favor of Fuller on Fuller’s defamation claim, awarding Fuller compensatory damages in the amount of $25,000 and punitive damages in the amount of $35,000.^[3] On May 12, 2006, Federal Credit filed a motion for a new trial; a motion for remittitur; and a “renewal motion for a judgment as a matter of law.” In the last of those motions, Federal Credit argued that it was entitled to a judgment as a matter of law because, it said:

“Greg Fuller alleges that a letter being sent to him via his employer seeking repayment of a debt defamed him. Although indebtedness may be defamatory, the fact that he owed Federal Credit … was absolutely true. Truth is an absolute defense to defamation. [c]

“All statements in the communication were true. The letter states that Federal Credit … utilized the services of the District Court System to collect on unpaid accounts. This statement is true and is not defamatory. In fact, Federal Credit … did just that by initiating this *9 cause of action. The letter states that Federal Credit … utilizes the services of the District Attorney Worthless Check Unit. This also is true. This statement recites company policy and does not defame Greg Fuller. Pursuant to Alabama law, a District Attorney can be utilized to collect on deferred presentments wherein the account has been closed or no account is in existence. [***] These statements do not defame Greg Fuller.” [***]

“To establish a prima facie case of defamation, a plaintiff must show:

“ ‘[1] that the defendant was at least negligent [2] in publishing [3] a false and defamatory statement to another [4] concerning the plaintiff, [5] which is either actionable without having to prove special harm (actionable per se) *10 or actionable upon allegations and proof of special harm (actionable per quod).’ ” [cc]

Truth is a “complete and absolute defense” to defamation. [cc] Truthful statements cannot, as a matter of law, have a defamatory meaning. [***]

In his counterclaim, Fuller contended that the following statements set forth in the notice were false: (1) “[T]hat [Fuller] delivered the instrument with intent of [sic] defraud.” (emphasis in original); (2) that “[t]his company [Federal Credit] utilizes the services of the District Attorney Worthless Check Unit and District Court System.” (Boldface type and emphasis in original.)

There was a paucity of evidence presented at trial regarding Federal Credit’s allegedly defamatory statements. Regarding Fuller’s allegation that Federal Credit defamed him by stating in the notice that Fuller had “delivered the instrument with intent of [sic] defraud,” the only evidence Fuller presented at trial was his testimony that he did not “write those checks with the intent to defraud anyone.”

The notice does not specifically state that Fuller delivered the checks to Federal Credit with the intent to defraud Federal Credit; rather, the notice states, in relevant part: “Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that [Fuller] delivered the instrument with intent of [sic] defraud and may *11 turn over the dishonored check … to the proper authorities for criminal and/or civil prosecution.” (Original emphasis omitted.) Considering the above-quoted statement in its entirety (rather than, as Fuller has done, considering only a selective part of the statement), it is clear that the statement was not an allegation that Fuller intended to defraud Federal Credit when he wrote the checks, but was instead simply a notification to Fuller of the potential consequences if he failed to pay the amount due under the contract. Although Fuller and the other employees of Charter who saw the notice might have mistakenly construed the statement as accusing Fuller of intentionally defrauding Federal Credit, the statement was not false and, therefore, is not actionable.^[4][***]

In view of the evidence in the record, we conclude that Fuller failed to meet his burden of making a prima facie showing that false information was reported in the notice seen by other employees of Charter; thus, Federal Credit was entitled to a judgment as a matter of law on Fuller’s defamation claim. See Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 49 (Ala.1982) (reversing the trial court’s judgment in favor of the plaintiff and directing the entry of a judgment for the defendant, concluding, in part, that a truthful statement indicating that the plaintiff owed a debt to the defendant and had refused to *12 pay the debt was not defamatory). Accordingly, the circuit court’s judgment in favor of Fuller is due to be reversed and a judgment rendered for Federal Credit on Fuller’s claim against it. [***] For the reasons discussed above, we reverse the circuit court’s judgment and render a judgment for Federal Credit.

Note 1. What was Fuller claiming were the defamatory communications about him? Why did the court reject his theory?

Note 2. What had Fuller done, regarding the payments towards the debt he owed?

Note 3. Does the court find that the “publication” requirement had been met?

Heightened Pleading Requirements at Common Law. Defamation possessed that same “checklist” quality of the early intentional torts reflecting their common origin in the writ system. In fact, defamation was historically subject to extremely strict pleading requirements, perhaps even to a greater extent than the other intentional torts you learned about in Module 2. It was a benefit to the plaintiff to forgo having to plead any fault (because recall that defamation was historically a strict liability tort). Yet if the plaintiff erred or omitted any of the arcane and technical requirements in their pleading, the claim would fail. Truth was a defense at common law although in many jurisdictions, even a minor, trivial mistake could defeat the defense of truth. Indeed, the default rule regarding defamation suits tended to protect reputational interests over those of speakers and publishers. Put another way, the burdens were heavier for defendants than for plaintiffs, and this was so by design.

Lower Substantive Requirements for Plaintiffs at Common Law. Whether the communications were true was, at common law before 1964, less important in the first instance than the fact that they had been uttered: if the plaintiff could prove this, and the defamatory meaning was clear, then the plaintiff won unless the defendant could prove the statements were true. In the contemporary era, plaintiffs usually bear the burden of proving falsity, in addition to making clear the defamatory aspects of the communication. The plaintiff usually loses if they cannot prove falsity. This shift in the burden from defendant (proving truth) to plaintiff (proving falsity) reflected profound changes in the view of the tort of defamation. Can you see why it mattered?

In addition, although at common law defamation was a strict liability tort, contemporary defamation law now requires proof of culpability in nearly all instances. This is either because of constitutional constraints that the Supreme Court articulated and expanded on or because state courts and legislatures have opted to include a minimum fault level, “at least negligence,” which can vary according to multiple factors you will learn about over the course of this Module.

Defamation’s variable culpability standard is likely the most difficult aspect to understand for those learning contemporary defamation law. The culpability the plaintiff will need to prove is largely determined by the identity of the plaintiff, but it may also be affected to some extent by the general topic of the communication as well as the identity of the speaker (since in at least a few jurisdictions, media defendants are held to slightly different rules, and may avail themselves of slightly different defenses). Understanding the variety that constitutes the culpability requirement necessitates familiarity with case law you have yet to learn, but it is impossible to summarize contemporary defamation law responsibly without addressing the variable culpability standard. This variability is due to the sweeping changes made to state tort law by the Supreme Court as you read about supra under the Introduction to Defamation’s Elements at Common Law.

Be patient as you learn the common law rules and be ready to layer on further complexity when learning about the constitutional limits of state defamation law. The interplay between state and constitutional rules provides a valuable introduction to dynamics you will explore in depth when you take a class in constitutional law. It will also represent a significant departure from the kind of cases and the reasoning with which you have become familiar in tort law thus far. The main takeaways at this point are that common law imposed arcane, technical and rigid pleading requirements on plaintiffs and those have relaxed to some extent. However, it afforded plaintiffs significant leeway in not requiring that they prove falsity or fault and in permitting them to presume rather than prove damages in a much broader category of cases than now available.

In sum, historically the law protected reputational interests more liberally and safeguarded speech intents correspondingly less. That balance has changed in the modern era.

Categories of Defamation: Diverse Forms of Libel and Slander

Libel Per Se versus Liber Per Quod. In Fuller, the court refers to a statement’s being “actionable per quod.” If an action is not “per se defamatory,” it may be treated as “per quod defamatory,” meaning that the communications do not clearly indicate how or why they are defamatory. The general rule is that per quod defamatory communications require proof, perhaps via extrinsic evidence, of the defamatory nature of the communications; per se defamatory communications are thought to speak for themselves.

Libel versus Slander (and Slander Per Se). There are two main types of defamation: libel and slander. Historically, libel referred to defamation that occurred in print and slander referred to oral communications (of which slander per se represents a special subset). In everyday conversation, many people use the terms “libel law” and “defamation law” interchangeably but lawyers do need to know that libel, technically, is just one kind of defamation.

Libel was historically a stronger tort and allowed plaintiffs to presume damages. The rationales for this distinction were somewhat haphazard yet the distinction has proven persistent nonetheless. (“As a result of historical accident, which, though not sensibly defensible today, is so well settled as to be beyond our ability to uproot it [c], there is a schism between the law governing slander and the law governing libel (see Restatement, Torts 2d, § 568, comment b).” Matherson v. Marchello, 100 A.D.2d 233, 235 (1984)). One oft-cited rationale for distinguishing libel from slander is that defamatory statements made in print may be more robust in their duration and reach, and thus likelier than oral communications to cause enduring harm. Some commenters have categorized libel as defamation that is “visual” (whether communications are made in printed text or images). However, libel has been broadened beyond the merely visual to include dissemination by audio broadcasting and now includes also audiovisual broadcasts. It is a matter of state law whether statements and images disseminated over the internet (or via Twitter and other such platforms) constitutes libel or slander, but the majority trend is to treat such communications as libel.

Slander, by contrast, required proof of special damages (pecuniary loss), in addition to proving that someone had said something defamatory about the plaintiff, which could be difficult given that oral communications are often not recorded and may not have been made in front of the plaintiff. Various states have adopted different formulations of the elements though there is considerable overlap. In New York, which provides a representative example, the elements of slander are:

(1) a defamatory statement of fact
(2) that is false
(3) published to a third party
(4) of and concerning the plaintiff
(5) made with the applicable level of fault on the speaker’s part
(6) either causing special damages or constituting slander per se
(7) and not privileged.

Germain v. M & T Bank Corp., 111 F. Supp.3d 506, 534 (S.D.N.Y.2015). These elements are sometimes collapsed into four inquiries: a “false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.” Salvatore v. Kumar, 45 A.D.3d 560, 563 (2007)

Either way, both recitations of elements make clear that the culpability level can vary, as does the need to prove special harm. This is because a subset of slanderous communications, however, were categorized as “per se”—following the reasoning provided supra regarding “per se” versus “per quod” communications discussed above.

Slander Per Se. Many jurisdictions follow the common law rule of treating “slander per se” as though it were libel, meaning that damages may be presumed rather than needing to be proven. However, in the modern era, the availability of presumed damages has been restricted, as you will learn later in this module. Slander per se communications fall into one of four categories at common law.

Restatement Second of Torts § 570 (1977) Liability Without Proof of Special Harm—Slander

One who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other

(a) a criminal offense, as stated in § 571, or
(b) a loathsome disease, as stated in § 572, or
(c) matter incompatible with his business, trade, profession, or office, as stated in § 573, or
(d) serious sexual misconduct, as stated in § 574.

To qualify as slander per se, communications falsely suggesting someone was involved with or had committed a “criminal offense” required the imputation of a serious or “major” crime. Hinting at minor criminality did not suffice to convert an allegedly defamatory oral statement into slander per se. Similarly, a loathsome disease had to be bad enough that it was likely to cause social exclusion or to make pecuniary loss foreseeable. Modern examples include herpes and AIDS (and one might imagine Monkeypox could be added to the list). The imputation of professional misconduct is often glossed as incompetence, negligence or misdealing. “Serious sexual misconduct” was very much a product of its times. In the earliest cases, it was used to permit recovery without proof of special harm in cases in which a woman was called unchaste, or for false allegations of adultery or homosexuality.

These default categorizations presume that a person might find it so intolerable to be falsely characterized as something other than straight that it is legally actionable without any proof of financial losses caused by the alleged defamation. Let’s be clear: for purposes of defamation law, courts treated being gay as functionally equivalent to being infectious, criminal or incompetent. This equivalence provides an example of how tort law can signal its values by protecting one set of interests at the expense of another set; tort law’s slander per se categories effectively endorse a form of deep homophobia in their solicitude for reputational interests. Some earlier courts had recognized the harmful message conveyed by judicial approbation of a doctrine that categorized homosexuality as functionally equivalent to offensive disease, major criminality and professional wrongdoing or incompetence. Yet unfortunately sometimes changes in the common law proceed slowly and may produce a jarring misalignment with cultural practice or values. Thus the slander (and defamation) per se rules in many jurisdictions still treat homosexuality under the older, homophobic approach. As the next case reveals, it was only in 2020 that socially progressive New York state formally stopped categorizing misstatements regarding sexual orientation as slander per se.

Laguerre v. Maurice, Supreme Court, Appellate Division, Second Dept., New York (2020)
(192 A.D.3d 44)

*46 In this action, inter alia, to recover damages for defamation per se, the plaintiff alleges that he was defamed by the pastor of the defendant church when the pastor told members of the congregation that the plaintiff was a homosexual who viewed gay pornography on the church’s computer. [***] [At issue is] whether the false imputation that a person is a homosexual constitutes defamation per se. For the reasons that follow, we answer both of these questions in the negative.

The plaintiff is a former elder in the Gethsemane SDA Church (hereinafter the church). The defendant Pastor Jean Renald Maurice is the pastor in charge of the church, which allegedly is operated by the defendant The Greater New York Corporation of Seventh Day Adventist. In September 2017, the plaintiff commenced this action against the defendants, inter alia, to recover damages for defamation per se. As set forth in the complaint, Pastor Maurice stated before approximately 300 members of the church that “the [p]laintiff was a homosexual,” and that “the [p]laintiff disrespected the church by viewing gay pornography on the church’s computer.” The complaint alleged that these statements constituted defamation per se, inasmuch as they falsely portrayed the plaintiff “as a homosexual man with no self-control who uses the church’s computer to view gay porn.” The complaint further alleged that Pastor Maurice used these statements to influence the church to vote to relieve the plaintiff of his responsibilities at the church and to terminate his membership.

*47 The [***] defendants argued that the complaint failed to state a cause of action to recover damages for defamation per se, since falsely ascribing homosexuality to a person no longer constituted defamation per se, and the plaintiff had failed to allege that he sustained any special damages. [***] [T]he court determined that the plaintiff had sufficiently stated a claim to recover damages for defamation per se. The defendants appeal.

[T]he Supreme Court erred in determining that the complaint sufficiently stated a cause of action to recover damages for defamation per se. [***] Here, the plaintiff, citing Matherson v. Marchello, 100 A.D.2d 233, and Klepetko v. Reisman, 41 A.D.3d 551, contends that the Second Department has previously recognized that the false imputation of homosexuality constitutes defamation per se.

In 1984, this Court decided Matherson v. Marchello, 100 A.D.2d 233. In Matherson, the plaintiffs, husband and wife, commenced an action to recover damages for defamation based upon certain statements made during a radio interview by the defendants, members of a singing group. The plaintiffs alleged, in pertinent part, that the statement directed at the plaintiff husband—“I think it was when somebody started messing around with his boyfriend that he really freaked out”— constituted an imputation of homosexuality which should be recognized as defamatory (id. at 241). This Court noted that “[i]t cannot be said that social opprobrium of homosexuality does not remain with us today,” and that “[r]ightly or wrongly, many individuals still view homosexuality as immoral” (id.). Additionally, we observed that “[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service [had] recently been reaffirmed” (id. [citations omitted]). Thus, we concluded that “the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored,” and “that the imputation of homosexuality is reasonably susceptible of a defamatory connotation … and is actionable without proof of special damages” (id. at 242 [internal quotation marks and citation omitted]).

In Klepetko v. Reisman, 41 A.D.3d 551, which was decided in 2007, the plaintiff commenced an action to recover damages for allegedly defamatory statements made in a column in a daily newspaper. The plaintiff challenged, among other remarks, the statement that he “lived with another middle-aged man,” which the plaintiff alleged was “an insinuation that he is a homosexual” (id. at 551). This Court, quoting Matherson, stated that “[t]he false imputation of homosexuality is ‘reasonably susceptible of a defamatory connotation’ ” (id. at 552, quoting Matherson v. Marchello, 100 A.D.2d at 242). Ultimately, however, this Court held that “the statement that *52 the plaintiff lived together with another middle-aged man [did] not readily connote a sexual relationship, particularly when viewed in the context of a column concerning irresponsible dog owners” (Klepetko v. Reisman, 41 A.D.3d at 552).

As noted by the Third Department, the Appellate Division in all four Departments had recognized statements falsely imputing homosexuality as a category of defamation per se (see Yonaty v. Mincolla, 97 A.D.3d 141, 144, citing Klepetko v. Reisman, 41 A.D.3d at 552, [c], [c], Matherson v. Marchello, 100 A.D.2d at 241–242, and [c].

In Yonaty, which was decided in 2012, the Third Department held that these Appellate Division decisions were “inconsistent with current public policy and should no longer be followed” (Yonaty v. Mincolla, 97 A.D.3d at 144). The court determined that “the prior cases categorizing statements that falsely impute homosexuality as defamatory per se [were] based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual,” and that “such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a ‘serious crime’—one of the four established per se categories.” The Third Department rejected this Court’s holding in Matherson. The court reasoned that “[i]n light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease” (id. at 146, 945 N.Y.S.2d 774).

We agree with our colleagues in the Third Department that the earlier cases, including this Court’s decision in Matherson, which held that the false imputation of homosexuality constitutes a category of defamation per se, are inconsistent with current public policy. This profound and notable transformation of cultural attitudes and governmental protective laws impacts our own consideration of stare decisis. Indeed, as *53 recognized by the United States District Court for the Southern District of New York in 2009, the decades since Matherson “have seen a veritable sea change in social attitudes about homosexuality,” including the decision of the United States Supreme Court in 2003, in which the Court invalidated laws criminalizing intimate homosexual conduct as violative of the Fourteenth Amendment’s Due Process Clause (Stern v. Cosby, 645 F. Supp. 2d 258, 273–274 [S.D. N.Y.], citing Lawrence v. Texas, 539 U.S. 558, 578). More recently, in 2015, the United States Supreme Court recognized the fundamental right of same-sex couples to marry in all states (see Obergefell v. Hodges, 576 U.S. 644, 675).

Notably, in New York, “the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing” (Yonaty v. Mincolla, 97 A.D.3d at 145, citing Executive Law § 296). Moreover, marriage between persons of the same sex was permitted in New York years before the United States Supreme Court’s decision in Obergefell (see Matter of Kelly S. v. Farah M., 139 A.D.3d 90, 97; Yonaty v. Mincolla, 97 A.D.3d at 145). The New York Legislature enacted the Marriage Equality Act in June 2011 (L 2011, ch 95 [eff July 24, 2011]).

Based on the foregoing, we conclude that the false imputation of homosexuality does not constitute defamation per se. Matherson’s holding to the contrary should no longer be followed. Furthermore, the additional allegation that the plaintiff viewed gay pornography on the church’s computer likewise does not fit within any of the categories of defamation per se. Therefore, the plaintiff was required to allege special damages. He failed to do so, and, consequently, his cause of action alleging defamation per se must be dismissed (see Yonaty v. Mincolla, 97 A.D.3d at 146).

Note 1. The category of “slander per se” constituted a clear mechanism to assist plaintiffs’ recovery by allowing them to forgo proving that the defamatory statement had harmed them financially. It also reflected the legal system’s judgment about the sorts of values, attributes, identity markers and lifestyle choices that were intolerable as comments about an individual. The court refers to Yonaty v. Mincolla, a 2011 New York case in which the court upheld the use of homosexuality as one of the defamation per se categories. Yonaty was decided only a few days before the state adopted legislation protecting same-sex marriage, suggesting the misalignment of the judicial and legislative branches of New York at the time. In 2012, Yonaty was overturned on appeal but the underlying categorization of homosexuality as per se defamatory remained good law in the state until the ruling in Laguerre. Does it surprise you that despite the legislative legalization of same-sex marriage in 2011, New York state had not yet abandoned this outdated categorization almost a full decade later? What are the competing interests that courts were likely balancing?

In California, the law was not much further ahead of New York in doing away with outdated defamation rules that conveyed these homophobic implications. In 2017, one court did expressly rule that being incorrectly described as transgender was not grounds for defamation per se. Richard Simmons, a former fitness star, had sued a tabloid and other defendants for claiming that his retreat from the media had been due to his plan to undergo transition. The court stated that “being misidentified as transgender is not libelous per se because such an identification does not expose ‘any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’ While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them.” Simmons v. American Media, Inc., No. BC660633, 2017 WL 5325381, at *7 (Cal.Super. Sep. 01, 2017). The ruling was heralded as a victory for transgender law; even though the court acknowledged existing biases, it refused to validate them by integrating them into the law of defamation.

Note 2. Judge versus Jury. Whether a communication is susceptible to defamatory interpretation is a question of law to be determined by the judge. See e.g. Bongino v. Daily Beast Co., LLC, 477 F. Supp. 3d 1310, 1317 (S.D. Fla. 2020); Smith v. Maldonado, 72 Cal. App. 4th 637, 647, 85 Cal. Rptr. 2d 397, 403 (1999), as modified (June 23, 1999). However, the jury is tasked with determining whether the potentially defamatory communication was indeed understood in the way the plaintiff alleges. The defamatory nature of the communication often involves questions of fact such as involve context-sensitive assessment of where and when the communications were perceived and by whom. In addition, the allegedly defamatory communication should not be read in isolation but must be considered holistically, as it was conveyed along with other communications, acts or gestures. Do you think judges or juries are better suited for the work of determining whether a communication is defamatory? Who would you want to determine the claim if you were a plaintiff? Would it differ if you were the defendant?

Note 3. Practical Impact of Per Se Categorizations. In some jurisdictions, the various forms of “per se” actions that permit a presumption of damages are dealt with as “defamation per se.” For example, in Sleem v. Yale University, the plaintiff, Dimitri Sleem, was a Yale alumnus who sued the university for defamation (and NIED) over a publication made in relation to his upcoming fifteenth-year reunion. The Alumni Office had sent most alumni a questionnaire about their collegiate experiences but they sent Sleem’s questionnaire to the address he had had on file during college (which was in Kingston, Jamaica). The Alumni Office possessed his updated address, which was in North Carolina, as well as his phone number, so it’s unclear why they sent the questionnaire to the wrong address. In any event, he never received his invitation and someone else unidentified filled it out pretending to be Sleem. The entry was never corrected or edited, and included the following lines: “I have come to terms with my homosexuality and the reality of AIDS in my life. I am at peace.” Yale had the questionnaire for five months before copies of the questionnaires were made into books and sent to other members of the Class of 1975. No attempt was made to verify the statements made about Plaintiff in the personal statement bearing his name even though there were people and resources that could have helped confirm the statements. In addition, two staff members spent a total of 146 hours proofreading the “Yale 1975—Fifteen Years Out” reunion book. They confirmed by deposition that they were aware that AIDS is an infectious disease and that no other entry in the “Yale 1975—Fifteen Years Out” book alleged that the individual has a sexually transmitted disease. Sleem v. Yale Univ., 843 F. Supp. 57, 59, 59-60 (M.D.N.C. 1993) Sleem had no way of proving special damages, so his case would have failed had the statements not qualified as some form of defamation per se. (A quirk of North Carolina libel law permitted the case to survive a motion for summary judgment without deciding the issue of defamation per se, and the parties appear to have settled. The court’s criticism of Yale’s conduct with respect to the defamatory publication telegraphed likely success on at least some issues on the merits of Sleem’s case.)

Do you think it is likely that an alumni publication will cause pecuniary losses? If it seems unlikely to do so, should there be another way of recognizing the harms someone like Sleem would suffer as a result of Yale’s conduct? Is pecuniary loss the right threshold for defamation claims, in other words? Do you think the context of the publication ought to make special damages unnecessary irrespective of the nature of the defamatory content? Does permitting a presumption of damages with some form of defamation per se get the balance right between protecting reputational interests and also not overly burdening speech?

Note 4. To what extent does liability for defamation require that a claim be reasonably credible? If a student posted on social media that their law professor was not just incompetent but the worst professor in the world, the statement would be inactionable because it can be discounted as pure opinion. (You’ll learn more about the status of opinions when covering defenses, infra.) Consider the following examples.

Student One posts on social media that their law professor was incompetent. Without more, this is merely an opinion and lacks any verifiable (whether true or false) statements of fact.

Student Two posts the same but also provides details explaining their assessment of the professor’s incompetence and wondering whether this incompetence could cause law students to fail their future bar exams. This communication remains primarily opinion even if it also contains a professionally negative implication that the alleged incompetence could translate into concrete and negative outcomes (students failing the bar).

Student Three posts that her law professor was incompetent and that her entire section felt they never learned the topic well enough to pass the bar. Moreover, she shares a graph of recent bar exam results showing a sharp decrease in bar passage, along with the caption, “See what I mean??” Now there is a statement of fact: fewer students passed the bar (fact) and a communication (“See what I mean??””) which intentionally attributes the decreased passage to the professor’s alleged incompetence. While the incompetence is still the student’s opinion and not actionable by itself, attaching it to verifiable facts that prove to be false will make the communication actionable. Of course if the statements are verifiably true, the defamation action will fail. But the point is the extent to which a statement is a credible statement of fact versus purely an expression of opinion or even a fictitious or fantastic invention, as in the final example.

Student Four posted that their law professor was an evil villain in charge of a giant weather machine which was responsible for causing bad weather during every exam week. Here the claim is not defamatory because there is no reasonable way to believe it as a potential statement of fact that happens to be false. Mere fantasy is not usually enough to cause a claim to be cognizably defamatory. Often tabloids benefit from this presumption, falling back on the notion that nobody believes the stories they report. Consider as you read the next case where the line falls between fact and opinion as well as fact and fiction, and tort law’s role in assessing that.

Peoples Bank & Trust Co. v. Globe Int’l, Inc., U.S. Dis. Ct. W.D. Arkansas (1992)
(786 F. Supp. 791)

The plaintiff, Peoples Bank and Trust Company of Mountain Home, conservator of the estate of Nellie Mitchell, an aged person, by amended complaint filed September 24, 1991, brought defamation [***] and intentional infliction of emotional distress claims against the defendant, Globe International, Inc. d/b/a “Sun”. Mrs. Mitchell is a 96–year–old resident of Mountain Home, Arkansas. She has operated a newsstand on the town square since 1963. Prior to that she delivered newspapers on a paper route, and according to the evidence, still makes deliveries to certain “downtown” business establishments and select customers.

It appears that Nellie, as she is known to almost everyone in this small Ozark Mountain town, is a town “landmark” or “treasure”. She has cared for herself and raised a family as a single parent for all of these years on what must have been the meager earnings of a “paper girl.” According to the evidence, the newspaper stand which she operates was once a short, dead end alley between two commercial buildings on the town square. She apparently gained permission to put a roof over the alley and this became her newsstand and sole source of livelihood, apparently providing life’s necessities for her and her family to this day. When one of the lawyers asked Nellie during the course of her testimony *793 whether she lived with her adult daughter, Betty, she quickly replied, “No, Betty lives with me.”

The basis of the plaintiff’s claims is an article and picture that appeared in the October 2, 1990, edition of the Sun. The October 2 edition published a photograph of the plaintiff in conjunction with a story entitled:

SPECIAL DELIVERY

World’s oldest newspaper carrier, 101, quits because she’s pregnant!

I guess walking all those miles kept me young

The “story” purports to be about a “papergal Audrey Wiles” in Stirling, Australia, who had been delivering papers for 94 years. Readers are told that Ms. Wiles became pregnant by “Will” a “reclusive millionaire” she met on her newspaper route. “I used to put Will’s paper in the door when it rained, and one thing just kind of led to another.”

In words that could certainly have described Nellie Mitchell, the article, which was in the form and style of a factual newspaper account, said:

[S]he’s become like a city landmark because nearly everyone at one time or another has seen her trudging down the road with a large stack of papers under her arm.

A photograph of Nellie, apparently “trudging down the road with a large stack of papers under her arm” is used in conjunction with the story. The picture used in the October 2 edition of the Sun had been used by the defendant in a reasonably factual and accurate article about Mrs. Mitchell published in another of the defendant’s publications, the Examiner, in 1980. [***]

Testimony at trial indicated that most of the defendant’s articles are created “TOH” or “top of the head”, in the words of John Vadar, editor of the Sun. That is, the authors, none of whom use their real name, are given a headline and a picture and then “make up” the accompanying stories. In fact, according to the evidence, the editor and perhaps others “make up” a series of headlines for stories to appear in each issue, and they are placed on a table. The “reporters” or perhaps, according to defendant’s contentions at the trial, their “authors of fiction” select from this list the stories they wish to write.^[5]

*795 John Vadar, indicated that, when the picture of Mrs. Mitchell was selected, it was assumed she was dead. The Sun’s stated policy was to illustrate its articles with pictures of individuals from other countries who would not be damaged by the publication being circulated in the United States. The use of Mrs. Mitchell’s picture was merely a “mistake.”

Although defendant’s contention during the trial was that Nellie Mitchell could not have been defamed because the publication contained only fiction readily recognized as such by reasonable readers, some of its “authors” testified that some of the articles were factual or at least based on fact, and it became obvious that even they could not tell the difference. Some of defendant’s own witnesses could not agree which articles were purely fantasy and which were true or at least had some factual basis. For example, at trial Mr. Silver testified that an article about a farmer becoming a millionaire by making whips for wife beaters was a true story while Mr. Levy, also a witness for the defendant, stated the story was false. [***]

The jury heard the evidence and studied the exhibits which included the very issue of the Sun in which Nellie’s heretofore unsullied photograph, and thus her very “being”, were literally buried in what reasonable jurors might find is muck, mire and slime spewed forth by defendant, some of which is described as follows:

A front page containing Nellie’s picture surrounded by headlines promising stories about:

HUSBAND & WIFE LIVE TOGETHER WITHOUT SPEAKING FOR 56 YEARS

WOMAN CLAIMS: I’M MOM OF JIM BAKKER’S LOVE CHILD

BROTHER & SISTER MARRIAGE SHOCKER—

After 30 yrs of forbidden love, they would rather go to jail than divorce

PARALYZED WOMAN WALKS AFTER BEING HIT BY LIGHTNING

WORLD’S MOST HONEST COP ARRESTS OWN MOTHER—We later learn it is for picking flowers in the park.

*796 And inside pages again with Nellie’s photograph buried in what appear to be news stories about:

HIGHWAY TO HELL—Wicked witch casts her deadly curse on intersection mangling 21—accompanied by graphic photographs of mangled automobiles sitting at an intersection where the “witch” had caused a serious accident.

DRUG DEALERS’ DEVIL DOGS REPLACE PIT BULLS

BOY, 12, GETS OWN LAWYER TO DIVORCE DAD IN CUSTODY FIGHT

Revealed for first time: CHURCHILL’S CLOSE ENCOUNTERS WITH UFO ALIENS—the articles discloses that, although Winston Churchill implored them to do so, they declined to help the world defeat Hitler.

Mothers describe night of terror during … 20–MILE RIDE WITH A HEADLESS GHOST

‘DEAD MAN’ REVIVES AS DOCS TAKE ORGANS

ROAD KILL CANNIBAL—He eats accident victims—a news story, accompanied by a photograph of a black man whom, the story says, had applied to the government of the “African country of Swaziland” to be allowed to pick up from along roadsides and eat bodies of persons killed on the roadway. He describes the taste of human flesh, saying that he prefers adult meat because it is “firm, succulent and salty and doesn’t require seasonings”, while, on the other hand, “children’s meat is revolting because it tastes sweet and sticks to the teeth.”

FARMER BECOMES A MILLIONAIRE MAKING WHIPS FOR WIFE BEATERS—the story which at least one of defendant’s “authors” thought to be true.

HELL SCHOOL … Where students are chained to learn and whipped if they don’t read properly

STUDENTS KILL TEACHER WITH VOODOO DOLL

FARMER KILLS SELF BY BREATHING COW GAS—He dies with his beloved animals

It may be, as defendant in essence argues, that Mrs. Mitchell does not show a great deal of obvious injury, but a reasonable juror might conclude, after hearing the evidence and viewing the Sun issue in question, that Nellie Mitchell’s experience could be likened to that of a person who had been dragged slowly through a pile of untreated sewage. After that person had showered and a few weeks have passed, there would be little remaining visible evidence of the ordeal which the person had endured and the resulting damages incurred, but few would doubt that substantial damage had been inflicted by the one doing the dragging. This court is certainly in no better position to determine what that is “worth” than 8 [fn] jurors picked from the citizenry of the Harrison Division of the Western District of Arkansas to hear and decide this case. The court concludes that reasonable jurors could find that it is “worth” a great deal to suddenly find your likeness buried in the slime of which this publication was made, directly in front of an article describing the relative tastiness of adult human flesh compared to that of children.

Defendant undoubtedly has the Constitutional right^[6] to publish “newspaper stories,” “literature,” “fiction,” or whatever the articles described above and others in this issue are, but when it does and damages others by doing so, our system literally demands that the injured person be adequately compensated in an attempt to make them whole, or as whole as money can *797 make them. A properly picked jury made that determination after hearing ample evidence to create a jury question, and our system does not permit this judge to substitute his judgment for that of the jury.

[***] Plaintiff argues that the defendant’s method of publishing—not distinguishing between truth or fiction, off the top of their head, out of whole cloth—demonstrates at the very least reckless disregard. In fact, the defendant’s method of publishing was one of the major considerations resulting in the earlier denial of defendant’s summary judgment motion. See Mitchell v. Globe International Publishing, Inc., 773 F. Supp. 1235, 1240 (W.D.Ark.1991). In that opinion we stated:

The court cannot say as a matter of law that the article is incapable of being interpreted as portraying actual events or facts regarding the plaintiff. The “facts” conveyed are not so inherently impossible or fantastic that they could not be understood to convey actual facts. Nor can we say that no person could take them seriously. Moreover, even if the headline and certain facts contained in the article could not be reasonably believed other facts e.g., the implication of sexual promiscuity, could reasonably be believed.

In making this determination we ‘consider the surrounding circumstances in which the statements were made, the medium by which they were published and the audience for which they were intended.’ Dworkin [v. Hustler Magazine, Inc.], 668 F. Supp. [1408] at 1416. The articles are written in a purportedly *799 factual manner. No distinction is made between those articles that are wholly fictional and the articles that are intended to be factual. Fictional articles are not denoted as such. The Sun apparently intends for the readers to determine which articles are fact and which are fiction or what percentage of a given article is fact or fiction.

The layout, captions, and style of writing contained in the article is similar in format to news articles. There are no cautionary statements appearing in this article or to the court’s knowledge in the entire edition of the Sun. Id.

After hearing the testimony in this case, the court believes the jury could have, and apparently did, find that the defendant intended their readers to construe the article in question as conveying actual facts or events concerning Mrs. Mitchell or at the very least that the defendant recklessly failed to anticipate that the article would be so construed. [***] The defendant could very easily indicate to its readers in some fashion that the material conveyed in the Sun is fiction if it really intended that its readers recognize that the articles are false and made up fantasy. The court believes that it could be inferred from the manner of publication that the defendant intends its readers to believe its articles are conveying actual facts or at the very least leave the reader in doubt as to what portions are factual and what portions are pure fantasy.^[7][***]

Defendant argues there is no evidence to support the [jury’s] award of $650,000 in compensatory damages. We are informed that this is the highest award in Boone county history and it is also the highest jury award for compensatory damages in a defamation, invasion of privacy, or outrage case in the history of the State of Arkansas. Defendant provides the court with a comparison of awards made in other cases. (Defendant’s brief at 4). Without intending to be flippant, the court’s response is, “so what?” As far as those same records show, there has never before been a case like this in Boone County or the State of Arkansas. [***]

In general awards for mental anguish or pain and suffering are left to the discretion of the jury since these are highly subjective elements of damage and are extremely hard to quantify. *802 [***] The jury in this case was required to quantify damages for mental distress. We believe there is no basis on which to determine what portion, if any, of the damages awarded should be remitted. To do so would merely be a substitution of this judge’s judgment for that of the jury. [***] [M]ental anguish is an element of damage that is not easily susceptible to measurement in economic terms. [***]

Defendant also argues that the award of $850,000 punitive damages reflects passion and prejudice. At trial after the jury returned its verdict on the liability and compensatory damage aspects of the case, it was given a separate instruction listing various considerations that could be utilized in determining the amount of punitive damages to be awarded. [***] In this case the jury found that the defendant committed intentional torts, one of them requiring a finding of actual malice. Additionally, the ratio of punitive to compensatory damages does not suggest excessiveness.

Even if this court would, if it had been the trier of fact, have awarded less damages, that is not sufficient for the court to substitute its judgment for that of the jury. The court would only be speculating as to what is “right” if it were to reduce the verdicts. The court cannot say that the verdicts “shock the conscience of the court.” [***]

The court believes and finds that there was ample evidence to support the jury’s verdict in this case. Certainly, reasonable minds may differ, and the verdict was not against the “clear weight”, “overwhelming weight”, or “great weight” of the evidence.

Note 1. If authors of various communications are unclear on the truth or fiction of their writing, should that fact be used against them to create a presumption of falsity? Why or why not? What facts struck you as most important to the legal determination in this fact pattern, and why?

Note 2. Could Nellie have proven special damages in this case? Were you convinced by the court’s analysis of her damages? Why or why not?

Note 3. How significant do you think it was that the victim of the defamation in this case was a vulnerable elderly woman, a beloved community figure now subject to a legal conservatorship? Would this have come out the same way had it been a case about an unpopular or little-known community recluse? How about if the plaintiff had been a muscular young man?

Note 4. What was the impact of the jury’s role in this case, do you think?

Note 5. Viewpoints and Values. In its insistence on the plaintiff’s right to their reputation—even among a small or countercultural group—defamation seeks to avoid playing favorites. In that sense, it reflects some reasoning found in First Amendment jurisprudence, which requires viewpoint neutrality. Yet defamation law is hardly neutral. All throughout a defamation action, if a plaintiff claims that a communication has injured their reputation, a court must determine whether that communication is capable of carrying defamatory meaning and whether it was in fact understood in the way the plaintiff alleges. Hence questions of meaning and intention frequently present themselves, and value judgments about whom the law protects and against what are omnipresent. In what ways do you imagine this might affect the kinds of claims that succeed and the kinds of parties willing to (or able to) bring defamation actions?

Note 6. Audience for the Defamation.
Recall that the tort of defamation protects a person’s reputation. The Restatement (Second) of Torts § 559 defines a communication as defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Key to this definition is that the interest the tort protects would be meaningless if it protected only reputational interests with a community that did not matter to the plaintiff.

It is well-settled that defamation does not protect only the kind of reputation that everyone must agree is socially valuable; put another way, defamation does not only protect reputational interests as those are conceived of in the minds of “right-thinking people.” Grant v. Reader’s Digest Ass’n, 151 F.2d 733, 734-735 (2d Cir. 1945). Judge Learned Hand’s opinion in Grant states: “A man may value his reputation even among those who do not embrace the prevailing moral standards; and it would seem that the jury should be allowed to appraise how far he should be indemnified for the disesteem of such persons … We do not believe, therefore, that we need say whether ‘right-thinking’ people would harbor similar feelings… It is enough if there be some… who would feel so, even though they would be ‘wrong-thinking’ people if they did.”

There is an outer limit to this flexibility, however. One court describes the problem aptly, framing it in terms of the cultural diversity in its jurisdiction:

Whether an utterance is defamatory depends on the values of the listener. Even in an ethnically homogeneous culture these values will not be uniform, and it is not always easy to predict what will be taken as defamatory. [fn] The confusion is compounded in Alaska, because among the several ethnic groups which reside here there may be divergent views on what is, and what is not, disreputable. Gottschalk v. State, 575 P.2d 289, 293 (Alaska 1978)

In a footnote, the court expands on the challenges of determining defamatory meaning:

Establishing a standard against which potentially defamatory statements may be measured generates considerable difficulty in a democratic society which prides itself on pluralism. [***] American courts generally recognize that a person may suffer real damage by statements which tend to tarnish his reputation within a particular group or class even though the measuring group may be a small minority. Examples collected by Prosser include publication of a person’s picture in connection with a whiskey advertisement, a statement that a person is about to be divorced, and the insinuation that a white man is a black man, that a businessman is a price cutter, or a Kosher meat dealer sells bacon. See, W. Prosser, Handbook on the Law of Torts s 111, at 743-44 (4th Ed. 1971). Taken to an extreme, this policy finds its limit in cases where the minority group is either insignificantly small or its values clearly anti-social. An example would be a thief attempting to recover damages against a person who charged him with being an informer.

A parallel problem is that what is defamatory changes over time. One commentator illustrates this as follows: An interesting example . . . is the line of British cases in which the alleged defamation consisted in calling a man a “Papist.” Such a charge was held not actionable when James I was on the throne, but a contrary result was reached during the rule of Charles II, and it was also libelous during the period between the abdication of James II and the accession of William and Mary, when to call a man a Papist would subject him to danger. (citations omitted) 1 Harper & James, The Law of Torts s 5.1, at 353 (1956).

A more contemporary example might be labeling someone a “communist” or a “marxist”, which within the past 50 years has been considered first defamatory, then non-defamatory, and next defamatory again, depending largely on United States foreign policy changes. W. Prosser, supra at 744 nn. 3, 4. Id.

How should tort law manage the historical fluctuation regarding various allegedly defamatory terms? What is the relationship between proving defamatory meaning and being able to prove damages given the dynamic nature of language and identity?

The next case provides historical perspective on the way that social values infuse the law of defamation.

Malone v. Stewart, Supreme Court of Ohio, In Bank (1846)
(15 Ohio 319)

*319 This is a writ of error, directed to the court of common pleas of Jefferson county.

The action below was case for slander. The words charged in the declaration were, that Olive Stewart, the wife of said James Stewart, had said of the plaintiff below that she was a hermaphrodite. To the declaration the defendants interposed *320 a general demurrer, and the court of common pleas sustained the demurrer, and gave judgment for the defendants. [***]

It is contended that the words charged in the declaration are not actionable. The court of common pleas took this view, and sustained the demurrer. It is said that the charge imports neither crime, guilt, nor moral turpitude. It is a well-established principle of law, that words which impute a charge necessarily tending to injure a man, or his trade, or occupation, or profession, or to exclude him from society, are actionable in themselves.

A more gross or indelicate slander could not well have been uttered against a female-especially a young girl-or one more calculated to wound her feelings and do her mischief. It unsexes her; makes her a thing to be stared at; converts her into a monster, whose very existence is shocking to nature; and would be certain, among the young or thoughtless, to bring her into ridicule and contempt; and excludes her from social intercourse and all hopes of marriage. It is infinitely worse than a charge of incontinence, as to its injurious results, to the feelings and prospects of the female.

To hold that there was no remedy for a case of this sort, would be an utter disgrace to the law and ourselves. It is said that, if the plaintiff would inquire around, and if she could ascertain that she had been especially injured to a certain amount, in dollars and cents, the law would assist her to recover it; in other words, that it is a case where the action must be sustained upon the ground of special damage. It is said the common law has not gone further; that the English courts have not gone further. It is sufficient to reply, that this court will not permit so gross a wrong to pass without a remedy. We shall apply the spirit of the law to embrace every case property falling within it.

It is precisely that sort of charge calculated to do infinite mischief, and of that vague and indefinite kind which can neither be met nor answered.

The case falls clearly within the oldest and soundest principles of the law, when properly understood and rightly applied. It is admitted that, if words are spoken to injure a man, to the value of a few dollars and cents, in his trade, it is actionable; but contended that, to speak words of a young girl, which necessarily inflict the deepest wound upon her feelings; break up her hopes, and exclude her from society, is not actionable. Such a conclusion cannot be tolerated. This court, in protecting reputation—a remedy for an injury to which is guaranteed by the constitution—will be careful that the judicial decisions of the land shall reflect that same delicate and profound respect for female character and feeling, which constitutes the proudest and dearest characteristic of our people. We hold it a sound principle of law, that words spoken of a female, which have a tendency to wound her feelings, bring her into contempt, and prevent her from occupying such position in society as is her right, as a woman, are actionable in themselves.

Judgment reversed, and remanded for further proceedings.

Note 1. When the court refers to words “actionable in themselves,” it is referring to slander per se. What is the rule here, in your own words? How far does it appear to go (descriptively)? You can certainly query how far it should go normatively but the descriptive question offers a valuable opportunity to formulate a rule and test what might allow recovery or fail to do so under the given rule. You can also formulate a pair of rules or a rule and sub-rule; the important thing is to practice stating the reasoning in terms of a principle that a subsequent court could apply.

Note 2. The court appears to ground its holding in the notion that the injury to a man’s trade ought not to be more actionable than the injury to a woman’s feelings: “if words are spoken to injure a man, to the value of a few dollars and cents, in his trade, it is actionable; but contended that, to speak words of a young girl, which necessarily inflict the deepest wound upon her feelings; break up her hopes, and exclude her from society, is not actionable. Such a conclusion cannot be tolerated.” Given what you know about the reluctance of courts to recognize claims for emotional distress, especially in the late 19^th century when this case was decided, how might you explain what is different about this case? Do note that the wounded feelings themselves are not the cognizable injury; the alleged loss of reputation is the injury but it causes the emotional suffering. Always recall that the primary injury to seek and measure is reputational, not emotional. The damages may take that suffering into account, but they are not proof that the defamation occurred.

Note 3. The court’s rhetoric and substance both display a commitment to a particular, stable version of gender (and sexual identity) that the allegedly defamatory communications threatens. If the plaintiff is bothered by the communication, and the court permits recovery, should it be problematic if this is the way the court reasons its way to this outcome? Does your answer depend on whether the special damage requirement is usually ignored or treated as a genuine hurdle?

Scholars have noted that the rigid construction of gender and sexual identity in judicial opinions can create harm apart from the merits of the case, as well as in the substantive issues before the court. One writes:

[I]n tort litigation, courts do not take a neutral approach toward considering and weighing the credibility of competing narratives [about gender and sexual identity]. Instead, courts privilege narratives which treat sexual identity as if it were naturally binary, even as the cases in front of them suggest the opposite. In this respect, courts treat sexual identity quite differently than gender identity. While gender identity is understood as a cultural phenomenon, which may have elements of artificial construction, … when it comes to sexual identity,” courts fall back on binary notions and cast those as the only “natural” possibilities. … [P]rivileging …one narrative of sexual identity above others in tort litigation has political implications that go well beyond the denial of the benefits of tort litigation to particular classes of people. The most important of these political effects is the impact of the litigation on our political consciousness and our perceptions of what is possible. When legal narratives, such as those produced in tort litigation, echo those that are expressed outside the courtroom, the law provides political and cultural legitimacy for dominant sexual identity narratives and delegitimizes others. Anne Bloom, To Be Real: Sexual Identity Politics in Tort Litigation, 88 N.C. L. Rev. 357, 366 (2010)

What role should tort law play, if any, in creating or challenging the cultural legitimacy of narratives about sexual identity? What alternatives exist? In the next case, Judge Learned Hand (originator of the “Negligence Calculus” case among other well-regarded opinions) reflects the many biases of his era. The case illustrates that recovery for defamation was available in order to “protect” the plaintiff’s reputation against the suggestions of racial impurity, sexual difference or impurity, and many kinds of disability or disease. It also exemplifies the way that judicial reasoning encoded particular values about social identity without being deliberate or transparent about the constructed nature of its value system.

Burton v. Crowell Pub. Co., Circuit Court of Appeals, Second Circuit (1936)
(82 F.2d 154)

This appeal arises upon a judgment dismissing a complaint for libel upon the pleadings. The complaint alleged that the defendant had published an advertisement — annexed and incorporated by reference — made up of text and photographs; that one of the photographs was “susceptible of being regarded as representing plaintiff as guilty of indecent exposure and as being a person physically deformed and mentally perverted”; that some of the text, read with the offending photograph, was “susceptible of being regarded as falsely representing plaintiff as an utterer of salacious and obscene language”; and finally that “by reason of the premises plaintiff has been subjected to frequent and conspicuous ridicule, scandal, reproach, scorn, and indignity.”

The advertisement was of “Camel” cigarettes; the plaintiff was a widely known gentleman steeple-chaser, and the text quoted him as declaring that “Camel” cigarettes “restored” him after “a crowded business day.” Two photographs were inserted; the larger, a picture of the plaintiff in riding shirt and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, “Get a lift with a Camel”; neither it, nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle a white girth falls loosely in such a way that it seems to be attached to the plaintiff and not to the saddle. So regarded, the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel.

The answer alleged that the plaintiff had posed for the photographs and been paid for their use as an advertisement; a reply, that they had never been shown to the plaintiff after they were taken. On this showing the judge held that the advertisement did not hold the plaintiff up to the hatred, ridicule, or contempt of fair-minded people, *155 and that in any event he consented to its use and might not complain.

We dismiss at once so much of the complaint as alleged that the advertisement might be read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes by means of the legends. Nobody could be fatuous enough to believe any of these things; everybody would at once see that it was the camera, and the camera alone, that had made the unfortunate mistake. If the advertisement is a libel, it is such in spite of the fact that it asserts nothing whatever about the plaintiff, even by the remotest implications. It does not profess to depict him as he is; it does not exaggerate any part of his person so as to suggest that he is deformed; it is patently an optical illusion, and carries its correction on its face as much as though it were a verbal utterance which expressly declared that it was false.

It would be hard for words so guarded to carry any sting, but the same is not true of caricatures, and this is an example; for, notwithstanding all we have just said, it exposed the plaintiff to overwhelming ridicule. The contrast between the drawn and serious face and the accompanying fantastic and lewd deformity was so extravagant that, though utterly unfair, it in fact made of the plaintiff a preposterously ridiculous spectacle; and the obvious mistake only added to the amusement. Had such a picture been deliberately produced, surely every right-minded person would agree that he would have had a genuine grievance; and the effect is the same whether it is deliberate or not. Such a caricature affects a man’s reputation, if by that is meant his position in the minds of others; the association so established may be beyond repair; he may become known indefinitely as the absurd victim of this unhappy mischance. Literally, therefore, the injury falls within the accepted rubric; it exposes the sufferer to “ridicule” and “contempt.” Nevertheless, we have not been able to find very much in the books that is in point [sic], for although it has long been recognized that pictures may be libels, and in some cases they have been caricatures, in nearly all they have impugned the plaintiff at least by implication, directly or indirectly uttering some falsehood about him. [***]

The defendant answers that every libel must affect the plaintiff’s character; but if by “character” is meant those moral qualities which the word ordinarily includes, the statement is certainly untrue, for there are many libels which do not affect the reputation of the victim in any such way. Thus, it is a libel to say that a man is insane [cc] or that he has negro blood if he professes to be white (Stultz v. Cousins [C.C.A.6] 242 F. 794); or is too educated to earn his living (Martin v. Press Pub. Co., 93 App.Div. 531); or is desperately poor (Moffatt v. Cauldwell, 3 Hun [N.Y.] 26); or that he is a eunuch (Eckert v. Van Pelt, 69 Kan. 357); or that he has an infectious disease, even though not venereal (Villers v. Monsley, 2 Wils. 403; Simpson v. Press Pub. Co., 33 Misc. 228); or that he is illegitimate (Shelby v. Sun P. & P. Ass’n, 38 Hun [N.Y.] 474, affirmed on opinion below, 109 N.Y. 611); or that his near relatives have committed a crime (Van Wiginton v. Pulitzer Pub. Co., 218 F. 795 [C.C.A.8]; Merrill v. Post Pub. Co., 197 Mass. 185); or that he was mistaken for Jack Ketch (Cook v. Ward, 6 Bing. 409); or that a woman was served with process in her bathtub (Snyder v. New York Press Co., 137 App.Div. 291). It is indeed not true that all ridicule (Lamberti v. Sun P. & P. Ass’n), or all disagreeable comment (Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99; Cohen v. New York Times Co., 153 App.Div. 242), is actionable; a man must not be too thinskinned or a self-important prig; but this advertisement was more than what only a morbid person would not laugh off; the mortification, however ill-deserved, was a very substantial grievance.

*156 A more plausible challenge is that a libel must be something that can be true or false, since truth is always a defense. It would follow that if, as we agree, the picture was a mistake on its face and declared nothing about the plaintiff, it was not a libel. We have been able to find very little on the point. In Dunlop v. Dunlop Rubber Co. (1920) 1 Irish Ch.&Ld.Com. 280, 290-292, the picture represented the plaintiff in foppish clothes, and the opinion seems to rely merely upon the contempt which that alone might have aroused, but those who saw it might have taken it to imply that the plaintiff was in fact a fop. [***] The gravamen of the wrong in defamation is not so much the injury to reputation, measured by the opinions of others, as the feelings, that is, the repulsion or the light esteem, which those opinions engender. We are sensitive to the charge of murder only because our fellows deprecate it in most forms; but a head-hunter, or an aboriginal American Indian, or a gangster, would regard such an accusation as a distinction, and during the Great War an “ace,” a man who had killed five others, was held in high regard.

Usually it is difficult to arouse feelings without expressing an opinion, or asserting a fact; and the common law has so much regard for truth that it excuses the utterance of anything that is true. But it is a non sequitur to argue that whenever truth is not a defense, there can be no libel; that would invert the proper approach to the whole subject. In all wrongs we must first ascertain whether the interest invaded is one which the law will protect at all; that is indeed especially important in defamation, for the common law did not recognize all injuries to reputation, especially when the utterance was oral. But the interest here is by hypothesis one which the law does protect; the plaintiff has been substantially enough ridiculed to be in a position to complain. The defendant must therefore find some excuse, and truth would be an excuse if it could be pleaded. The only reason why the law makes truth a defense is not because a libel must be false, but because the utterance of truth is in all circumstances an interest paramount to reputation; it is like a privileged communication, which is privileged only because the law prefers it conditionally to reputation. When there is no such countervailing interest, there is no excuse; and that is the situation here. In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable; that the fact that it did not assume to state a fact or an opinion is irrelevant; and that in consequence the publication is actionable.

Finally, the plaintiff’s consent to the use of the photographs for which he posed as an advertisement was not a consent to the use of the offending photograph; he had no reason to anticipate that the lens would so distort his appearance. If the defendant wished to fix him with responsibility for whatever the camera might turn out, the result should have been shown him before publication. Possibly anyone who chooses to stir such a controversy in a court cannot have been very sensitive originally, but that is a consideration for the jury, which, if ever justified, is justified in actions for defamation.

Judgment reversed; cause remanded for trial.

Note 1. What is the defamatory statement or communication here?

Note 2. Proving Defamatory Meaning: Innuendo, Colloquium, and Inducement.
As mentioned above, defamation featured heightened pleading requirements at common law and it retains many archaic terms, at least in some jurisdictions. The Restatement describes a few of these.

Under common law pleading, in framing a declaration for defamation, when the defamatory meaning of the communication or its applicability to the plaintiff depended upon extrinsic circumstances, the pleader averred their existence in a prefatory statement called the “inducement.” In what was ordinarily called the “colloquium,” he alleged that the publication was made of and concerning the plaintiff and of and concerning the extrinsic circumstances. The communication he set forth verbatim and in the “innuendo” explained the meaning of the words. The function of the innuendo was explanation; it could not change or enlarge the sense or meaning of the words. It could only explain or apply them in the light of the other averments in the declaration…. Restatement (Second) of Torts § 563 (1977), Comment f.

If the communication is not obviously defamatory about the plaintiff, the plaintiff must prove the way in which the communication may be understood as defamatory. This is known as the innuendo. The plaintiff will also need to make clear that it refers to them. As noted above, this is also known as the colloquium or “of and concerning” requirement. In addition, the plaintiff may need to provide extrinsic evidence that offers context or proof of their claims about the innuendo and colloquium. This third element is known as the inducement. Be careful to keep the term as defined here narrowly tied to defamation since the word “inducement” has distinct and very different meanings in other legal contexts (such as criminal law and in intellectual property, for instance).

Note 3. Recall that whether a statement can be read as defamatory is a question for the judge. But whether it was actually understood in that way is a question for the jury. How would you explain this allocation of authority and do you think it makes sense, normatively, to divide and allocate the questions of defamatory meaning in this way?

Note 4. Why does Judge Learned Hand talk at length about the “defense” of truth?

Note 5. What do you observe about the constructed nature of what is or isn’t defamatory? Whom and what does the tort protect?

Note 6. Revisiting the Legacy (and Biases) of Renowned Jurists Like Learned Hand. Judge Learned Hand is held in extraordinarily high esteem as measured by his influence in tort law’s scholarship and case law. This case is rarely cited in full partly—I suspect—due to the offensive language and racist analogies. Yet this opinion, authored by one of the greatest American jurists, makes clear that at one time being a person of color was considered so negative a fact in terms of legal status that it was defamatory to falsely state that someone was a person of color if they were not (Stultz v. Cousins, cited above). Even more pointedly, Judge Learned Hand’s own analogizing leads him casually to equate Native Americans with gangsters and to assume without evidence that accusing them of murder would not be defamatory but rather celebratory. Ironically and unfortunately, an opinion vindicating the interests protected by the tort of defamation is, itself, false and defamatory towards Native Americans as a group.

How should the legacy of influential jurists be evaluated, and reevaluated, as our ideas about race, gender and other socially constructed categories evolve? Tort law’s fact-sensitivity and “reasonableness” standards are valuable in part because they can be tailored to the time and place of adjudication. The flip side of this jurisprudential benefit, however, is that tort law necessarily will be shaped by the various constructs and biases of its time. How should legal principles from earlier eras be considered and amended when applied in our (aspirationally) more progressive era? If we seek to overcome biases and make the law more just, how should we deal with the markers of racism, structural discrimination, and other implicit biases that infect the cases and scholarship of those the profession still holds in high esteem?

As you likely recall from Module 3 or your prior study of negligence, Judge Hand’s negligence calculus was formative in capturing how tort law might seek to balance deterrence and efficiency, and his many other opinions have remained crucial touchstones in many areas of the common law. It may be tempting to try to remove harmful speech or to minimize the work of people whose ideas are now plainly visible as biased and harmful. However, in a precedent-based system like ours, it could be significantly destabilizing to remove or ignore the work of a particular jurist, especially one with so powerful an imprint on the common law. Should the legal system try, in any event? How should the legacy of influential jurists be evaluated, and reevaluated, as our ideas about race, gender and other socially constructed categories evolve? Casebook editors often make the decision to edit ugly language so as to sanitize earlier opinions. That choice is a harder one to defend in the context of defamation in which constructions of identity and value are central to allegations of defamatory meaning.

To what extent did Judge Learned Hand’s peers do better on these points? Is the entire era tainted or just the work of a few? Does any potential solution require determining the scope of the problem? And if we retain the opinions and work of jurists like Learned Hand, should we remove offensive segments in cases like this one because they can be viscerally upsetting (or for other reasons), or should they remain a part of the record so that students and professors alike can highlight and learn from them, studying the forms of structural discrimination that were not even at issue or discussed in the case in chief? What are the risks, as well as the benefits, of adopting either the removal or highlighting approach? What other approaches can you imagine or would you recommend?

Should the legacy of racism and other discrimination be made more visible even when the subject matter doesn’t seem to require it? In a system that bases progress on precedent, what duties does tort law have to revisit its historical foundations and revisit the voices and presumptions that shaped it?