What is Slander Per Se?
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Slander per se is a legal doctrine, and a type of defamation, that involves an unprivileged publication of a false assertion of fact, that is considered so damaging, it is presumed to cause harm to the plaintiff and does not require them to prove actual damages.
In most U.S. states, slander per se involves a false statement pertaining to one of these four categories:
- Statements that allege a crime has been committed,
- Derogatory statements imputing improper conduct in one’s profession, trade, or business,
- Statements imputing unchastity or sexual misconduct, or
- Statements that allege a person suffers from a contagious or loathsome disease (typically, sexually transmitted diseases).
At Minc Law, we know the ins and outs of analyzing defamation claims in the U.S. and have authored over 22 guides on state defamation laws to empower our clients and potential clients. We have extensive experience representing private and public figures in highly contentious litigations, uncovering anonymous defamers, and resolving defamation matters both quickly and discreetly.
In this article, we will thoroughly review the legal doctrine of slander per se, providing several examples. We will also outline the differences between defamation, slander, and slander per se.
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Slander vs. Slander Per Se
Defamation is the publication of a false statement made to a third party that causes harm to another person or entity’s reputation. There are two categories of defamation: libel, which refers to written defamation, and slander, which refers to spoken defamation.
Throughout this article, we will be using the terms “defamation per se” and “slander per se” interchangeably, as slander per se is a category of defamation per se.
What is Slander?
Slander and libel are both forms of defamation. Slander is oral defamation, while libel is published, recorded, or preserved in a physical or digital form. The key difference between the two is that slander is transitory – it disappears as soon as it is spoken – while libel is permanent because it is written down or otherwise recorded in a tangible medium.
Because a large portion of modern communication takes place through digital media, most defamation falls under the category of libel. This is an important distinction because if a plaintiff files a defamation lawsuit alleging the wrong claim, they may have their case dismissed or be barred from bringing the correct claim.
That said, there are some situations in which slander may still be appropriate, such as when someone makes a defamatory oral statement to a small group of people.
What Are Common Examples of Slander?
An example of slander could be a person communicating destructive, factually false statements to a prospective employer about a job candidate who used to work for you over the phone. Or, perhaps someone starts spreading untrue rumors at a neighborhood party that a neighbor is cheating on their spouse with a high school student.
High-profile cases of slander often make headlines, as was the case in 2006 when actor David Schwimmer prevailed in a defamation lawsuit against former celebrity fundraiser Aaron Tonken. Tonken admitted to falsely accusing Schwimmer of demanding Rolex watches in exchange for appearing at a fundraiser. While damages in slander cases may be difficult to prove, Schwimmer was able to successfully show that the false accusations had harmed his reputation.
The traditional distinction between slander and libel is increasingly difficult to rely upon in the modern age, owing to new forms of technology that have emerged.
For example, defamatory statements made during a live television interview are generally considered libel, even though they are technically “spoken.” With the advent of Snapchat and other similar digital communication platforms, it has become even easier to disseminate spoken words to a wide audience, further blurring the distinction between slander and libel.
What is Slander Per Se?
Slander per se is a legal doctrine that allows a plaintiff to recover general damages without having to submit proof of any specific losses. The doctrine is based on the recognition that certain types of defamatory statements are so inherently harmful that damage should be presumed.
There are four categories of statements that are typically considered to be slanderous per se:
- Statements that impute the commission of a crime,
- Statements that suggest one has an infectious or contagious disease,
- Statements that infer an unfitness to perform one’s profession, and
- Statements that accuse another of adultery or sexual promiscuity.
If a statement falls into one of these categories, then the plaintiff will not need to prove that they actually suffered any damages as a result of the statement to recover damages from the defendant.
What Are Examples of Slander Per Se?
Slander per se is determined by state law and may vary among jurisdictions. The concept of slander per se has also evolved over time. For instance, statements accusing one of sexual promiscuity were traditionally applied in situations where a woman was accused of being unchaste. However, federal courts have now recognized that the chastity category of slander per se may apply to both genders equally.
Moreover, the chastity category is now presumed to imply “serious sexual misconduct” more so than chastity.
While the four traditional categories of defamation per se are still universally recognized, there have been occasions where courts have recognized additional categories, only to later dismiss them because they were based on outdated assumptions.
For example, New York courts used to recognize statements imputing homosexuality as a fifth category of defamation per se. However, this fifth category has been abolished as such an accusation is no longer perceived to be inherently harmful.
What Distinctions Make Slander & Slander Per Se Different?
In the landmark defamation case of New York Times v. Sullivan, the Court explained, “Where the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tend to bring the individual into public contempt,” they are “libelous per se”; that “the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff”; and that it was actionable without “proof of pecuniary injury…such injury being implied.” Id., at 673, 676, 144 So. 2d, at 37, 41.
To break this idea down, it helps to know that there are two types of defamation claims: (1) defamation per se and (2) defamation per quod. In a defamation per se case, the plaintiff does not need to prove how the statement in question harmed them because the damages are presumed. In a defamation per quod case, on the other hand, the plaintiff will need to allege how they were damaged by the statement in question at the start of the lawsuit.
It is worth noting that plaintiffs should still provide some evidence of how they were harmed by a defamatory statement, even if it was defamatory per se. Although statements considered defamatory per se are presumed to be damaging to one’s reputation, it does not automatically entitle the plaintiff to anything more than nominal damages.
To recover more than nominal damages, plaintiffs should provide evidence of the harm they suffered, including actual damages, compensatory losses, and emotional distress.
Categories of Slander Per Se
Not all jurisdictions recognize defamation per se and those that do may have varying laws. However, there are some general statements that most states consider slander per se.
What Are the Types of Statements That Constitute Slander Per Se?
The four main types of statements that are generally considered to be defamation per se:
- Allegations that the plaintiff has committed a crime,
- Allegations that the plaintiff has a loathsome disease,
- Allegations that the plaintiff has engaged in serious sexual misconduct, or
- Allegations that the plaintiff committed professional misconduct.
Yet, some states recognize more than just these four types of slander per se. For instance, California recognizes nines types of statements as defamatory per se:
- Statements charging a plaintiff with a crime.
- Statements that a plaintiff is a “communist.”
- Statements that a plaintiff has an infectious, contagious, or loathsome disease.
- Statements that subject a person to public hatred, ridicule, or contempt.
- Statements that a plaintiff is impotent or unchaste.
- Statements that injure a plaintiff in their office, profession, trade, or business.
- Statements charging a plaintiff with a violation of the confidence reposed in him.
- Statements that tend to cause a person to be avoided or shunned.
- Statements charging a plaintiff with treachery against his associates.
Accusing Someone of a Crime
The more specific the allegation, the stronger the defamation claim. For instance, if I say, “John D. robbed my house,” he would likely have a stronger claim than if I merely said, “John D. committed a crime.”
In many states, this category of defamation per se requires alleging that someone committed a crime of “moral turpitude.” A crime of moral turpitude is an act that is considered to be contrary to community standards of justice, honesty, or good morals. In general, crimes of moral turpitude are those that shock the conscience or are considered to be inherently evil.
Accusing Someone of Having a Loathsome Disease
In the past, alleging that someone had leprosy would fall under the category of having a loathsome disease. Now, more often than not, this category applies to allegations that someone has a sexually transmitted disease.
Accusing Someone of Sexual Misconduct or Being Unchaste
This type of statement often comes from exes or scorned lovers who allege that someone is a cheater, homewrecker, or engages in some form of sexual misconduct.
Damaging Statements to an Individual’s Profession or Business
This may be a challenging claim to pursue because some statements may be considered an opinion (a defense to defamation). For example, if someone leaves a negative review saying, “the staff was really rude and slow to answer calls,” the statement could be injurious to one’s business or profession, but it is protected speech, as it is an opinion.
However, if someone alleges serious professional misconduct that tends to cause hatred in the community, that could cross the line into defamation per se territory. For instance, if someone falsely claims that a daycare provider is committing child abuse, that might be enough to cross the line.
How is Defamation Per Se Different From Defamation Per Quod?
Defamation per quod occurs when a false and damaging statement is made about a person, and that person suffers special damages as a result.
To prove defamation per quod, a plaintiff must provide evidence and facts to show that the statement in question was false and damaging. Additionally, the plaintiff must allege special damages with particularity in their pleading.
Which Types of Slander Per Se Are Most Common?
When it comes to slander, there are a few different types that are more common than others. For example, YouTube, Instagram, and Twitch livestreams are all popular ways for people to spread false information about others.
However, it is important to note that defamation on YouTube, Instagram, and Twitch may also be classified as libel if the false information is published as opposed to simply spoken during a livestream. This is because the false information may be preserved in a digital form if published, making it libel and not slander.
Common Defenses to Slander Per Se
Slander is an actionable tort, meaning that if someone slanders you, you may sue them for damages in civil court. However, there are some defamation defenses to a claim of slander per se that a defendant may raise to avoid liability.
What Are the Best Ways to Avoid Being Sued For Slander Per Se?
One of the best ways to avoid being sued for slander per se is to be mindful of what you say. Choose your words carefully and do your best to control the meaning. Be clear and concise with your language, and do not leave statements open to interpretation.
It is also important to be as accurate as possible. Only make statements that you can absolutely prove. If you are unsure about something, it is always better to err on the side of caution and not say anything at all.
Finally, you cannot avoid liability by making a statement of fact and couching it as an opinion. In other words, you should not make defamatory statements and try to call them an opinion. For example, if you said, “In my opinion, John Doe is a child abuser.” you cannot escape liability by simply uttering the words, “in my opinion.”
What Are the Most Common Defenses to Slander Per Se?
In general, defamation damages are going to look different for slander per se as opposed to libel due to the fleeting nature of the spoken word. For instance, if someone makes a 3-second defamatory statement during a 3-hour livestream, damages are likely to be more nominal than if the defamatory statement was published and left online for a year.
If you are considering filing a slander lawsuit, it is important to be aware of the various defenses that may be raised by the defendant. These include truth, opinion, privilege, consent, the statute of limitations, and Anti-SLAPP motions. Each of these defenses has different requirements and may result in a dismissal of your case.
Truth as a Defense to Slander Per Se
Truth is an absolute defense to a defamation claim. If the challenged statements are accurate, or at least substantially true, no liability will attach, no matter how offensive the statements might be.
The next possible defense is opinion. Courts recognize that opinions are subjective and not able to be proven true or false. As such, courts will protect expressions of opinion.
The Defense of Privilege
Another common defense to a defamation claim is the defense of privilege. Statements made in certain forums, like in a courtroom or during a governmental meeting, enjoy privilege protection and cannot give rise to a defamation claim, no matter how false or malicious.
Consent as a Defense
Consent is also a defense to defamation. If the plaintiff gave permission for the publication of the allegedly defamatory statements, they cannot later sue for defamation.
Statute of Limitations, Anti-Slapp, & Other Strategic Considerations
Additionally, every jurisdiction has enacted statutes of limitations for defamation claims, meaning that if too much time passes between the date of publication and the date the lawsuit is filed, the plaintiff’s claim will be barred regardless of its merit.
Many states have also enacted laws intended to discourage frivolous defamation lawsuits, called Anti-SLAPP laws.
Another lesser-known defense, the libel-proof plaintiff doctrine, is used infrequently today but may still be available as a defense depending on the circumstances of the case.
Finally, while not a defense, the Streisand Effect is a strategic consideration to keep in mind that may also discourage the filing of a slander lawsuit. This is a phenomenon wherein attempts to censor content backfire, making the content even more popular.
What to Expect When Filing Suit Over Slander Per Se
When someone makes a false statement about you or your business, it may be tempting to immediately file a defamation lawsuit. However, before taking legal action, it is important to consider the severity of the false statement and the potential cost of a defamation lawsuit. If the false statement has caused little harm to your reputation, it may not be worth the time and money to pursue a legal case.
On the other hand, if the false statement has caused significant damage, a defamation lawsuit may be your best option for protecting your good name. Ultimately, the decision of whether to file a defamation lawsuit comes down to weighing the costs and benefits of legal action.
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What Steps Should You Take to Initiate a Slander Per Se Lawsuit?
If you have been the victim of slander, you may be wondering what steps you need to take to initiate a defamation lawsuit. Specifically, to sue for slander, you should:
- Determine that you have a valid slander claim. You will need to be able to prove that the defendant made a false statement about you that caused you harm.
- Identify the best court to file your lawsuit. You may have more than one jurisdiction where you can file a lawsuit.
- Gather and preserve evidence. This may include audio recordings, written communication, or eyewitness testimony.
- Comply with pre-suit filing requirements. Some jurisdictions may require that you serve the defendant with a cease and desist letter or retraction demand first.
- Consider alternative dispute or pre-suit resolution tactics. In some cases litigation may be avoided, saving you time and money.
- Draft, file, and serve the legal complaint on the slanderer. It is wise to work with a defamation lawyer when filing the lawsuit, as improper pleadings could result in your case being dismissed.
What Should the Plaintiff Expect During a Slander Per Se Lawsuit?
If you are considering filing a slander per se lawsuit, it is important to understand the unique challenges involved in slander cases. Unlike libel, which can be preserved in a physical form, slander is spoken and, therefore, more difficult to prove.
However, there are still steps you can take to collect evidence of the defamation. For example, if the slander occurred on a livestream, you will need to create an affidavit detailing the exact words used.
You may also need to gather receipts and bills, pay stubs, medical records, and expert witness testimony to support your case. While collecting this evidence may be challenging and even time-consuming, it is essential to build a strong case.
What Are Potential Damages Associated With Slander Per Se?
There are a variety of different types of damages you may recover in a defamation lawsuit. These include:
- General damages,
- Special damages (compensatory damages),
- Nominal damages, and
- Punitive damages.
General damages are intended to compensate a plaintiff for intangible losses, such as pain and suffering, emotional distress, or loss of enjoyment.
Special damages are meant to compensate a plaintiff for a specific, quantifiable loss. In other words, they are damages that can be measured in monetary terms. Common examples include medical expenses and lost wages.
Nominal damages are a small sum of money awarded to a plaintiff who has suffered some type of harm but has not suffered any actual loss. The purpose of awarding nominal damages is to recognize that the plaintiff has been wronged but does not warrant a larger award.
Punitive damages are a type of damage award that is intended to punish the defendant for particularly egregious misconduct and to deter similar misconduct in the future. Unlike special damages, which are designed to make the plaintiff whole by providing compensation for actual losses, punitive damages are awarded over and above any actual damages suffered by the plaintiff.
While statements considered slander per se are presumed to be damaging, that does not entitle a plaintiff to anything more than a nominal award. By proving how much one has been harmed by the slander, a plaintiff may be awarded more than mere nominal damages.
What Should a Defendant Expect During a Slander Per Se Lawsuit?
Defamation lawsuits are plaintiff-driven, meaning that the strategies employed by the plaintiff will have a substantial effect on the outcome and costs of the lawsuit. There are many costs associated with defending a slander lawsuit, including attorney’s fees, court costs, and damages if the plaintiff prevails.
The more you contest the plaintiff’s claims, the longer the lawsuit will last, and the more expensive your case will be. However, if your slanderous statement was very brief or not very damaging, the plaintiffs may not be able to recover as much in damages.
Ultimately, the amount of damages recovered by the plaintiff will depend on many factors, including the severity of the defamation and how many people were exposed to the statement.
If you are facing a defamation lawsuit, it is important to consult with an experienced attorney to discuss your best course of action.
We Can Help You Explore Legal Options to Address Slander Per Se
At Minc Law, we understand how serious statements alleging professional misconduct, criminal conduct, or sexual impropriety can be and the potential damage they may cause to you or your business’s reputation. While filing suit over slander per se may be appropriate in some situations, it is not always appropriate or necessary.
We can help you explore your legal options to address slander per se (and internet defamation) head-on, including litigation alternatives that may be most appropriate. In cases where litigation is necessary, we can help you or your business file a slander per se suit, identify anonymous defamers, and recover damages for harm suffered as a result of defamatory statements.
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