Defamation

• Author: Eric E. Johnson
• Pages: 578-627

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31. Defamation

“Words are, in my not-so-humble opinion, our most

inexhaustible source of magic. Capable of both inflicting injury,

and remedying it.”

– Albus Dumbledore, Harry Potter and the Deathly Hallows, by

J.K. Rowling, 2007

Introduction

Defamation is all about reputation and falsehoods. As a cause of

action, it applies when a defendant makes false statements that are

harmful to a plaintiff’s reputation.

At first blush, defamation may seem to be something of an island,

unconnected to the rest of the doctrinal landscape of torts. But at an

instinctual level, it has something in common with the intentional

torts of battery, assault, false imprisonment and intentional infliction

of emotional distress. All these torts might be thought of as a suite of

doctrines protecting a person’s right to not be “messed with.” While

the tort of battery protects a person’s sense of bodily integrity,

defamation and the various privacy torts (covered in the next

chapter) protect a person’s non-corporeal integrity. Defamation

recognizes that we are more than our bodies. Our existence is also

defined by our relationships with others. Thus, our protectable

personal interests run to the web of interconnected impressions

about us held in the imagination of others.

Although simple in concept, American defamation is complex as a

matter of legal doctrine. There are two parts to the analysis. First is

the common law, which itself is labyrinthine. Second is the First

Amendment analysis imposed by the U.S. Supreme Court, which

changes the requirements for defamation cases where important free-

speech values are at play.

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The Basic, Unconstitutionalized Doctrine of

Defamation

To begin to explore the tort of defamation, we will start with a basic,

blackletter formulation of the tort in its unconstitutionalized form

(where the First Amendment does not come into play):

A plaintiff can establish a prima facie case for

defamation by showing: (1) A defamatory

statement (2) regarding a matter of fact (3) that

was of and concerning the plaintiff (4) was

published by the defendant, and (5) an extra

condition is satisfied, being either that (a) the

statement constitutes libel per se, (b) the

statement constitutes libel per quod, (c) the

statement constitutes slander per se, or

(d) special damages are proven.

One thing you should notice about the prima facie case for

defamation is that proving the falsity of the statement is not required.

At its heart, defamation is about falsehoods, but the prima facie case

– in its unconstitutionalized form – only requires that the plaintiff

show the reputation-harming aspect of the defendant’s statement.

The issue of falsity is not the plaintiff’s to prove. Instead, common-

law defamation sees truth as an affirmative defense.

Defamatory Statement

The essence of a defamatory statement is that it is reputation-

harming. “A communication is 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.” Nuyen v. Slater, 372 Mich. 654 (Mich. 1964).

The reference point for “reputation” is the whole community or, at

least, some substantial and morally respectable group. Calling

someone a murderer clearly qualifies as reputation-harming, for

instance, because pretty much everyone considers committing

murder to reflect poorly on someone’s character. But what about

something that is only reputation-harming in certain circles? That’s

where the substantial-and-morally-respectable-group requirement

comes in. Suppose someone is falsely said to be Jewish. That’s not

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defamatory – notwithstanding that such a statement might tend to

harm one’s reputation among the neo-Nazis. The neo-Nazis are not a

morally respectable group. So the fact that a statement harms one’s

reputation among them can’t make it defamatory.

The Per Se Categories

Under traditional defamation law, certain kinds of statements are

considered per se defamatory. (The Latin “per se” means “in itself”

and can be translated as “as such.”) In other words, there is no need

to debate the issue or ask a jury to determine whether these

statements are reputation-harming. Statements from the per se

categories are reputation-harming as such. End of discussion.

There are four categories of per se defamation: (1) making a

statement that is adverse to one’s profession or business, (2) saying

that a person has a loathsome disease, (3) imputing guilt of a crime of

moral turpitude, (4) imputing to a person a lack of chastity.

Let’s take these in turn.

The first per se category is a statement adverse to one’s profession.

An example would be calling a lawyer a liar. Since honesty is essential

in the legal profession, saying that a lawyer is dishonest is to harm the

lawyer’s professional reputation. Whether a statement is adverse to

one’s profession clearly depends on the profession. Saying that an

accountant is “bad with numbers” is to make a statement adverse to

that person’s profession. But saying that an actor or poet is bad with

numbers would not have the same effect.

The second per se category is loathsome disease. Leprosy and

sexually transmitted diseases are leading examples. (The persistence

of leprosy as a leading example – even though leprosy these days is

easily treatable – highlights the ancientness of this legal doctrine.)

There is no list of other diseases that qualify as “loathsome,” but

presumably any disease that would generally cause others to shun the

sufferer could qualify.

The third per se category is imputing guilt of a crime of moral

turpitude. Categorizing certain crimes as morally turpitudinous is not

just a defamation concept – it comes up under multiple areas of law.