Youtube and minors

[tranquility]

Defamation per se does mean words that are defamatory in and of themselves, or "on their face". Such words do not need to be explained as defamatory, such as liar, thief, drunkard, adulterer, abuser, hypocrite, rapist, and so on. If someone defames someone else using a word or phrase that is defamatory on its face, injury to the reputation is assumed, so there is no need to prove it to be granted damages.

No, that's not correct. I will agree with you the literal meaning of defamation per se is on their face in that the words do not need to be explained to be defamatory. It is *not* the case that such things presumes injury. The categories of slander per se I previously listed. Liar, drunkard, adulterer (unless talking about a woman), abuser, hypocrite would not fall into those categories and would not be slander per se. General damages (such as assumed injury to reputation) are not allowed until special damages are proven. Since libel does not have the same limitation, generally explained because of the more permanent nature of writings, the plaintiff does not need to prove specials before getting to general damages. While the distinction used to be made between libel per se and libel per quod, I don't think it is much used modernly.

If I tell people you are a rapist, I have "injured" your reputation automatically just by using that word, so you can be awarded compensatory or general damages.

I agree. This is because being a rapist is a crime. Accusing someone of being a criminal is one of the special "per se" categories.

Now, if the defamation affects you in the workplace, you can also collect special damages for your actual loss.

*Any* defamation is compensible if there are special damages. For slander, it is a requirement to have specials unless the slander is per se. (Like of and concerning your profession, business, etc.)

Punitive damages can also be awarded if the defamation was malicious or extremely careless.

Punitives for extremely careless defamation? Do you have a cite?

Another good defense, and the one that Sequence should probably use, is opinion. He said what he said as a comment about the video of the nine year old boy. It was an opinion of the video. Not a nice comment, true, but also not something the mother of the boy could successfully sue him for defamation over - more than likely.

Again, I disagree. The OP called the video person a pejoritive for homosexual. This is not his opinion of the video. If he were making such a statement about the person, even if it were only his opinion (and was considered defamatory), it would still be defamation. "Opinion" would not protect him.

However, since the more reasonable meaning was that it *was* a comment on the person, but that the OP did not actually mean he was accusing the person of being a homosexual, Gertz tells us that when there are two meanings we must accept the non-defamatory one unless it can be proven differently. I think the OP was simply calling the person a name and was not trying to express the literal meaning of the slang term. This would be opinion as it's clear the OP was simply expressing his opinion of the person and not making a factual claim.

 

[quincy]

tranquility -

I am not sure where you are getting this "special per se category" bit. Adulterer is "defamation per se" as is adulteress and, unless the person you are calling an adulterer or adulteress is in fact an adulterer or adulteress, it assumes injury. You are confused about damages - special damages, for loss of income, can be awarded but, even if there are no special damages, general damages can be awarded. A person merely needs to demonstrate a loss - it can be a monetary loss but it can also be reputational loss only, for both slander and libel. Per se and per quod are still used. Opinion can cover defamatory comments - in fact, most criticism is defamatory to a certain extent. In debates, angry defamatory words are often spoken, but it is covered by opinion - fair comment and criticism. As for the word "fag**t", there is no second meaning - it is defamatory slang. But it was used as a rhetorical hyperbole and covered by opinion.

At any rate, Sequence has already apologized to the mom and kid, and all is now right with the world.

 

[tranquility]

I am not sure where you are getting this "special per se category" bit.

Uh..in law school. There we talked about what makes slander per se. I memorized those categories and had to study the rules as to how to distinguish them. Find a hornbook or torts casebook somewhere to find out about this "bit".

Adulterer is "defamation per se" as is adulteress and, unless the person you are calling an adulterer or adulteress is in fact an adulterer or adulteress, it assumes injury.

Nope. Not true. What is your basis for that? While literally true as a defamation per se when we are combining the word defamation and the phrase per se, it is not true as related to the assumption of injury for general damages. To do that (Modernly, in slander, but also in the past with libel.), the special categories I mentioned are where the case law is. Those are the decisions which determined the assumption of general damages if the defamation fell into the description of per se. I remember well the class debate about the unfairness of distinguishing between an unchaste female and an unchaste male.

You are confused about damages - special damages, for loss of income, can be awarded but, even if there are no special damages, general damages can be awarded.

I was mistaken when I combined special and general and damages as I was not referring to the terms in the normal way. Thank you for correcting me. When I say special in the context of defamation (I looked in the hornbook to see why "special" was in my mind.), "All other slanderous words, no matter how grossly defamatory or insulting they may be, which cannot be fitted into the arbitrary categories listed above, are actionable only upon proof of "special" damage--special in the sense that it must be supported by specific proof, as distinct from the damage assumed to follow in the case of libel or the kinds of slander already already considered. This is true, for example, of the accusation that the plaintiff is a *******, or the related imputation of canine ancestry, or that he is a crook, a damn liar, or a Communist where none of the exceptional rules is applicable, or that he does not pay his debts, or is dirty, or wets the bed.

This was in all conscience bad enough; but since 'temporal' damage was necessary, the courts made matters worse by requiring that the special damage be pecuniary in its nature."...

..."On the other hand, once the cause of action is established, either by the character of the defamation itself or by the proof of pecuniary loss, the bars are lowered, and 'general' damages may be recovered for the injury to the plaintiff's reputation, his wounded feelings and humiliation, and resulting physical illness and pain, as well as estimated future damages of the same kind. {bold added by me} In other words, such damages are insufficient in themselves to make the slander actionable, but once the cause of action is made out without them, they may be tacked on as 'parasitic' to it."

 

[quincy]

Huh????

I have no idea what you are saying here. I think your law book gives, perhaps, broad categories, but these broad "arbitrary" categories have so many sub-categories that you are not seeing here. I think you are saying that, because certain words are not listed in the categories you memorized that they cannot be slander or libel per se. But here you are wrong.

And calling someone a "Communist" today probably would not warrant a "defamation per se" whereas calling someone a "Bush Republican" might.

 

[tranquility]

I have no idea what you are saying here. I think your law book gives, perhaps, broad categories, but these broad "arbitrary" categories have so many sub-categories that you are not seeing here.

I agree this is black letter law and there are many aspects to each of the categories. That does not mean your examples fit into one of the sub-categories. An example might be the Supreme court case of Lawrence v. Texas regarding sodomy. Before that case, calling someone a homosexual in Texas may very well have been slander per se as it imputed a crime. Today, I'd say no.

I think you are saying that, because certain words are not listed in the categories you memorized that they cannot be slander or libel per se. But here you are wrong.

I don't much like the libel per se statement as I've tried to stay away from that. I think most anything written which affects a person's reputation could be considered libel per se. (With "written" being a broad category and adhering to all the other requirements of defamation.) And "special" damages (as used in my previous post) would not be needed to be proved. Slander per se is what the categories relate to and there is not a list of words as any description is based on old common and current case law. The categories are descriptive and not perscriptive in that they describe the particular forms the types of defamation must take.

But here you are wrong.

Please provide some source for this libel. Unless it is just your opinion.

In addition to the dissent in GERTZ v. ROBERT WELCH, 94 S. Ct. 2997, 418 U.S. 323 (U.S. 06/25/1974),

Black's Law dictionary:
Slander per se: Slander for which special damages need not be proved because it imputes to the plaintiff any one of the following: 1) a crime involving moral turpitude, 2)a loathsome disease (such as a sexually transmitted disease), 3)conduct that would adversely affect one's business or profession, or 4) unchasity (esp. of a woman).

Prosser and Keeton on Torts:
The reluctance whith which the common law courts at first received the action of slander, and their fear of invading the province of ecclesiastical law, led them to hold that the action would not lie without proof of "temporal" damage. From this there developed the rule that slander, in general, is not actionable unless actual damage is proved. To this the courts very early established certain specific exceptions: the imputation of crime, of a loathsome disease, and those affecting the plaintiff in his business, trade, profession, office or calling--which required no proof of damage. The exact origin of these exceptions is in some doubt, but probably it was nothing more unusual than a recognition that by their nature such words were especially likely to cause pecuniary, or "temporal," rather than "spiritual" loss. Modern statutes and decisions have added a fourth category, the imputation of unchasity to a woman. For thest four kinds of slander, no proof of any actual harm ot reputation or any other damage is required for the recovery of either nominal or substantial damages.

In Lawrence v. Texas 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (U.S. 06/26/2003) which made the Texas sodomy laws unconstitutional, the court used as part of its decision:
"Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" "impute the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause " `neither knows nor tolerates classes among citizens.' " Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J. dissenting))."

OLLMAN v. EVANS ET AL., 105 S. Ct. 2662, 471 U.S. 1127 (U.S. 05/28/1985)
"At the heart of the common law of defamation were a few areas of expression which even when spoken rather than written were regarded as so damaging as to be classified as "slander per se" and therefore not to require the proof of any special damages in order to allow recovery. One of these categories consists of statements which defame the plaintiff in connection with his business or occupation. See, e.g., November v. Time, Inc., 13 N.Y. 2d 175, 194 N.E. 2d 126 (1963); Stevens v. Morse, 185 Wis. 500, 201 N.W. 815 (1924)."

From Carey v. Piphus, 435 U.S. 247 (U.S. 03/21/1978)
"We agree with petitioners in this respect. As we have observed in another context, the doctrine of presumed damages in the common law of defamation per se "is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss." Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974). The doctrine has been defended on the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and that this kind of injury is extremely difficult to prove. See id., at 373, 376 (WHITE, J., dissenting). *fn18 Moreover, statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation, so there arguably is little reason to require proof of this kind of injury either. *fn19 [435 U.S. 247, 263]"

fn19"The essence of libel per se is the publication in writing of false statements that tend to injure a person's reputation. The essence of slander per se is the publication by spoken words of false statements imputing to a person a criminal offense; a loathsome disease; matter affecting adversely a person's fitness for trade, business, or profession; or serious sexual misconduct. 1 F. Harper & F. James, Law of Torts 5.9-5.13 (1956); [435 U.S. 247, 263] Restatement (Second) of Torts 558, 559, 569-574 (1977); W. Prosser, Law of Torts 112 (4th ed. 1971)."

 

[quincy]

tranquility - A question - Are you in law school now??

 

[tranquility]

No. I went to a cheap night school some years ago as a way, way adult. Same books as those used at the fancy schools although our professors were....not that helpful. Still, I briefed every case and passed the bar and do taxes. So I must admit I've never sued or defended anyone in a defamation suit. Have you?

Disclaimer
Oh wait...I don't claim to be an attorney and no one who reads anything should consider themselves my client even if what I claim and reality are different. No person should ever rely on anyting I write and should expect no more from me than what the website disclaimer says. Heck, everything I write should be considered for entertainment purposes only. Nothing should ever be used as advice in regards to penalties from the IRS. I am tranquility and not the person who actually writes to the forum.

 

[quincy]

I've never had to sue or defend anyone in a defamation case. I am an editor. I take money away from lawyers by making sure libelous material never reaches the eyes of the public.

 

[Quaere]

No, that's not correct. I will agree with you the literal meaning of defamation per se is on their face in that the words do not need to be explained to be defamatory. It is *not* the case that such things presumes injury.

Most states have presumed damages for “per se” defamation. Those that don’t, require very little proof of damages in a “per se” case.

Punitives for extremely careless defamation? Do you have a cite?

You shouldn’t need a cite for this. Punitive damages always depend on negligence or intent.

Again, I disagree. The OP called the video person a pejoritive for homosexual. This is not his opinion of the video.

The comment was opinion based upon the contents of the video. That is the only thing the comment could have been based on, unless OP also claimed to have some additional knowledge of the plaintiff.

Gertz tells us that when there are two meanings we must accept the non-defamatory one unless it can be proven differently.

It is a question of law for the court to decide as to whether an innocent interpretation is reasonable. A court is not required to construe the words in their best possible sense where the defamatory meaning is far more reasonable, nor does a Court need to “espouse a naivete unwarranted under the circumstances.” Gardner, 314 Ill. App.3d at 119-120, 731 N.E.2d at 355, quoting Bryson, 174 Ill.2d at 94, 672 N.E.2d at 1217.

(Modernly, in slander, but also in the past with libel.),

WHAT are you talking about? The per se elements are the same whether it’s libel or slander.

I remember well the class debate about the unfairness of distinguishing between an unchaste female and an unchaste male.

I am not aware of any state that mentions gender in the “sexual conduct” element of defamation per se. Naturally, our idea of what constitutes a harmful allegation related to sexual conduct, continues to evolve.

Whether sodomy is illegal in Texas or not, the allegation of homosexuality is still covered under the “sexual conduct” element of defamation per se.

Tranquility, Quincy hit the nail on the head by pointing out the need to narrow your application of the law for the purpose of this discussion. You have unnecessarily muddied the water by trying to discuss the differences between slander and libel. In addition, you are talking about issues related to proof and damages and those aspects of the common law are state specific. Hence, the confusion!

 

[tranquility]

Most states have presumed damages for “per se” defamation. Those that don’t, require very little proof of damages in a “per se” case.

When you use the term "per se" in regards to defamation and the damages required, it has a specific meaning and not the general on it's face. That's what I've been writing about. When the defamation is slander, we have certain categories of per se. With libel, although some states are different and still distinguish per se and per quod, generally anything which damages a person's reputation will have a presumption of damages.

I have written about this many times in this thread. Which part are you disagreeing with?

You shouldn’t need a cite for this. Punitive damages always depend on negligence or intent.

My understanding is that punitives in defamation require malice.

The comment was opinion based upon the contents of the video. That is the only thing the comment could have been based on, unless OP also claimed to have some additional knowledge of the plaintiff.

If I'm watching TV with you and a person comes on and I say, "that person is a homosexual" did I base that upon our shared information? It does not require a claim that I based my comment on other information for that presumption. In fact, the reverse is true. Unless I limit my statement I would think most people would assume I knew more.

It is a question of law for the court to decide as to whether an innocent interpretation is reasonable. A court is not required to construe the words in their best possible sense where the defamatory meaning is far more reasonable, nor does a Court need to “espouse a naivete unwarranted under the circumstances.” Gardner, 314 Ill. App.3d at 119-120, 731 N.E.2d at 355, quoting Bryson, 174 Ill.2d at 94, 672 N.E.2d at 1217.

I agree. I did not mean to imply Gertz said that any possible non-defamatory explination must be the one presumed. Because of the lack of a state, both because of the OPs lack and because of the internet issue, I chose a Supreme Court case. Those tend to espouse broad themes and require more then a sentence to describe.

WHAT are you talking about? The per se elements are the same whether it’s libel or slander.

First, what are the per se elements? Second, today libel is different from slander. One of the basic differences gets to the damages issue I've mentioned throughout my postings. Including citable mentions. Sorry you don't seem to like this difference, but I'm not sure we're going anywhere when you continue to just make declaritive statements without support.

I am not aware of any state that mentions gender in the “sexual conduct” element of defamation per se. Naturally, our idea of what constitutes a harmful allegation related to sexual conduct, continues to evolve.

When I get to the office I'll provide at least one citation.

Info edit: From Prosser and Keeton on Torts:
"Most courts, however, have now rebelled at the reporach to the law involved in such a result, and have held that an oral imputation of unchasity to a woman is actionable without proof of damage without regard to whether it charges a crime.(4) Such a rule never has been applied to a man. Even so, the American Law Institute chose to expand the rule to make actionable an oral imputation of serious sexual misconduct to anyone(5)--without proof of special harm--in part on the notion that constitutional requirements as to equality of treatment between the sexes might be held to require it. There have been some indications that imputation of deviate sexual behavior would be actionable on the part of either a man or a woman."

It would seem like the law is shifting towards equality of the sexes. Goes to show what happens when an old guy starts trying to remember things. Note, however, the category shift from unchasity in a woman to deviate sexual behavior. Would a homosexual fall under that category?

Whether sodomy is illegal in Texas or not, the allegation of homosexuality is still covered under the “sexual conduct” element of defamation per se.

I disagree as "sexual conduct" is too broad of a description of the category. Merely calling someone a homosexual is not discriminatory on it's face. It is a descriptive term for people who engage in sex with people of their same sex.

Tranquility, Quincy hit the nail on the head by pointing out the need to narrow your application of the law for the purpose of this discussion. You have unnecessarily muddied the water by trying to discuss the differences between slander and libel. In addition, you are talking about issues related to proof and damages and those aspects of the common law are state specific. Hence, the confusion!

The confusion began when I said that merely accusing someone of being a homosexual is not defamation. There was some response regarding how a judge could decide it was defamation per se. The discussion roiled on from there as I pointed out the reason we have the "per se" designation in defamation law. It has to do with damages. I needed to make a distinction between slander and libel, because that is where the distinction lies today. Modernly, the mere fact that the defamation is written down tends to make anything which affects a person's reputation compensible--even if specific money damages can't be proven. The confusion came from others use of the term "per se" in regards to defamation incorrectly to make a point. I tried to point out why that was not useful. Sorry if that's confusing as I tried to make myself clear. To be fair, I think some of the confusion is the result of disagreement with what I've written without a providing a basis for that disagreement so clarity can be had by all.

 

[Quaere]

I will agree with you the literal meaning of defamation per se is on their face in that the words do not need to be explained to be defamatory. It is *not* the case that such things presumes injury.

In all but six states, damages are presumed in a case of defamation per se.

Also, as of 2004, adultery was still a criminal offense in 20 states so such an allegation would be defamatory per se in those states. It could also be worked into the professional or sexual conduct categories in some circumstances.

For a public figure case, a plaintiff must prove malice in order to win punitive damages.
For a private citizen case, most states require only a showing that the defendant was negligent in his duty to the plaintiff.

First, what are the per se elements?

Sorry, I think I referred to per se elements when I meant to say per se categories!

The confusion began when I said that merely accusing someone of being a homosexual is not defamation. There was some response regarding how a judge could decide it was defamation per se.

Not every lie told to a third party is defamation. Something is defamatory if it will cause a person to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, etc.

The term defamation per se means that the falsehood plaintiff is complaining of, obviously meets the legal definition of defamatory language. This designation is not about damages. It’s about defining the claim and thereby narrowing the issues to be tried.

Under the law, four categories of lies are considered so serious as to be obviously defamatory. Whether a statement fits into one of these categories, is a question of law and is decided by a judge.

If a judge does not find that the statement qualifies as defamatory per se, the fact finder (usually a jury) will have to decide if the statement is in fact defamatory.

I needed to make a distinction between slander and libel, because that is where the distinction lies today.

But, there is no such distinction. There is no reason to believe one form of communication will cause more or less damage than the other. Separating defamation into the categories of libel and slander simply allows for the types of proof necessary for each claim.

To be fair, I think some of the confusion is the result of disagreement with what I've written without a providing a basis for that disagreement so clarity can be had by all.

I think some of the confusion stems from the fact that you asked several times how we were using the term “defamation per se” and no one gave you a clear answer. I apologize for overlooking the question.

I did some research on the original question in this thread and learned a few things about whether an allegation of homosexuality qualifies as defamation “per se”.

It seems that, as with so much of defamation law, the courts have been inconsistent in deciding whether allegations of homosexuality qualify as defamation per se. Many of the courts that have found the allegation to be defamatory per se, HAVE done so because the allegation imputes criminal activity in the forum state. An interesting list of some more recent decisions can be found here: http://slog.thestranger.com/2005/12/tom_cruises_leg-c.xml

Where criminal law does not apply, the allegation would in many cases fit into the “business” category (as in the case of the Boy Scout Leader, U.S. Senator, or a Priest).

Absent the ability to fit the allegation into the criminal or business category, in some circumstances one could make a good case for fitting it into the “sexual conduct” category but it would be a close call. In any event, I believe all of the courts agree that a false allegation of homosexuality is defamatory; it just may not qualify as defamatory per se.

Your thoughts?

 

[tranquility]

In all but six states, damages are presumed in a case of defamation per se.

Most states differentiate between libel and slander. If by "per se" you are talking about the categories, I agree. (I have no idea of the number but accept yours.) Libel often does not need to be "per se" to have damages presumed in that "per se" fits the categories. It could be otherwise defamatory on its face if it otherwise defames a person's reputation.

Also, as of 2004, adultery was still a criminal offense in 20 states so such an allegation would be defamatory per se in those states. It could also be worked into the professional or sexual conduct categories in some circumstances.

Lawrence v. Texas may have invalidated those laws. It's an argument--the first valid one I've seen. For the others, it would be an innuendo which would requre more facts.

For a public figure case, a plaintiff must prove malice in order to win punitive damages.
For a private citizen case, most states require only a showing that the defendant was negligent in his duty to the plaintiff.

For a public figure, a plaintiff must prove malice to win *any* damages per New York Times v. Sullivan. My understanding is that there is a requirement of malice for punitives in a private citizen case of defamation per Gertz.

It seems that, as with so much of defamation law, the courts have been inconsistent in deciding whether allegations of homosexuality qualify as defamation per se. Many of the courts that have found the allegation to be defamatory per se, HAVE done so because the allegation imputes criminal activity in the forum state. An interesting list of some more recent decisions can be found here: http://slog.thestranger.com/2005/12/tom_cruises_leg-c.xml

Where criminal law does not apply, the allegation would in many cases fit into the “business” category (as in the case of the Boy Scout Leader, U.S. Senator, or a Priest).

I agree with the comment in that thread that Lawrence invalidates the previous decisions unless one imputes sodomy along with the homosexuality. I don't believe it would affect the business category unless it directly relates to the performance of the business. U.S. Senator would not directly relate although a Priest may. A boy scout leader would clearly be removed if true and would suffer problems if not, so I guess it would affect his fitness for office. For a good case on the business category, see: Sunward Corp. v. Dun & Bradstreet Inc., 811 F.2d 511 (10th Cir. 02/04/1987)

But, there is no such distinction. There is no reason to believe one form of communication will cause more or less damage than the other. Separating defamation into the categories of libel and slander simply allows for the types of proof necessary for each claim.

Some states, like Illinois have eliminated the distinction. Others, like:
Holtzscheiter v. Thomson Newspapers Inc., 332 S.C. 502, 506 S.E.2d 497, 26 Media L. Rep. 2537 (S.C. 09/22/1998) "Further, in assessing the question of actionable per se or not, an important distinction is drawn between defamation in the form of libel and that in the form of slander. Libel is actionable per se if it involves "written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous . . . ." Lesesne v. Willingham, 83 F. Supp. 918, 921 (E.D.S.C. 1949). In other words, if the trial Judge can legally presume, because of the nature of the statement, that the plaintiff s reputation was hurt as a consequence of its publication, then the libel is actionable per se. Capps v. Watts, supra. Essentially, all libel is actionable per se. The statement at issue here is in the form of libel and, accordingly, Holtzscheiter I held it was actionable per se,*fn5 that is, without pleading or proof of special damages.*fn6
In contrast to libel, slander is actionable per se only if it charges the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession. Lesesne, supra, Galloway v. Cox, 172 S.C. 101, 172 S.E. 761 (1934). While some states limit actionable per se libel to the same categories of slander which are actionable per se, this is not the law in South Carolina. See, e.g., Hubbard and Felix The South Carolina Law of Torts 402 (1990). To the extent Holtzscheiter I may be read to impose this limitation on actionable per se libel, it is overruled."

The bottom line claim I'm making in regards to the difference between libel and slander is that, although some states have started to eliminate the difference, most states still require slander to fall under one of the categories to be "per se" and libel requires any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community to be actionable per se.

 

[Quaere]

The bottom line claim I'm making in regards to the difference between libel and slander is that, although some states have started to eliminate the difference

I’m not aware of any state that has eliminated the distinction between libel and slander.

most states still require slander to fall under one of the categories to be "per se"

Of course they do. Just as a libel must fall under one of the categories to be “per se”. However, words that do not fall into a per se category, can still be slanderous or libelous.

I don’t know why you are so convinced that the manner of communication has anything to do with whether the words themselves are defamatory per se.

and libel requires any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community to be actionable per se.

No, libel can meet the above definition without being libelous per se. The per se designation simply means there is no need for the plaintiff to prove the words used will expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community.

If the words used don’t fit into one of the four categories, the plaintiff will have to PROVE that the words were sufficient to expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community.

Here is an example of slander or libel, that is NOT slander or libel per se:

Someone in your church tells other members that they visited your home and saw animal feces all over the floor and kitchen counters, the house was infested with flies and roaches, there were pornographic magazines everywhere, and there was evidence that you are a Satan worshipper.

As obviously harmful as the above speech is, it will not qualify as defamatory (slander or libel) per se because it does not fall into one of the four categories. The jury will actually have to decide that such speech meets the definition of defamatory.

If the speech had fit into one of the four “per se” categories, the jury would not be asked to decide if the language used was defamatory. The defamatory nature of the language would be a given.

 

[Quaere]

The common law term "malice" applies to punitive damage proofs but it is confusing and potentially misleading in light of constitutional developments in the defamation area, Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 150-51 (1986). Actual malice in defamation suits to prove actual compensatory damages is defined, In Pitts v. Newark Bd. of Educ., supra, as “actual knowledge that the statement he is making is false or when he entertains serious doubts as to its truth.”

This is pretty much the standard. Proof that the defendant knew or should have known that the statement was or could be false, will usually suffice as grounds for punitive damages in a private figure case.

Evidence that the defendant deliberately “buried his head” to avoid discovery of the truth, will infer malice as well.

The bottom line is that the defendant has a duty to take care in what he says about others and if he made a defamatory statement about someone else, he better be able to prove his statement was based upon a reasonable belief that the statement was true.

It’s hard to make a defamatory per se statement about someone without doing so knowingly or with extreme negligence.

 

[tranquility]

"I’m not aware of any state that has eliminated the distinction between libel and slander."

As I've already mentioned, Illinois. There may be others, but I haven't done a search. From Sangston v. Ridge Country Club, 35 F.3d 568 (7th Cir. 09/06/1994):"Illinois has abolished all distinctions between slander and libel and now applies the same rules to each. Mitchell v. Peoria Journal-Star, Inc., 76 Ill. App. 2d 154, 221 N.E.2d 516, 518-19 (Ill. App. 1966). Under Illinois law there are two categories of libel: libel per se, where the statements are so obviously defamatory that special damages need not be alleged or proved; and libel per quod, where special damages must be alleged and proved. Rosner v. Field Enterprises, Inc., 151 Ill. Dec. 154, 564 N.E.2d 131, 143 (Ill. App. 1990)."

"Of course they do. Just as a libel must fall under one of the categories to be “per se”."

That's not true in most places. The key is it requires any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community to be actionable per se. It is unlike slander in that regard, except in the states which have eliminated the distinction. Even then, I bet that would be the black letter law and not the categorical distinction.

"I don’t know why you are so convinced that the manner of communication has anything to do with whether the words themselves are defamatory per se."

I'm unsure why you believe they don't. Generally, libel per se requres the black letter law of the previous paragraph and slander per se is the categories we've been talking about. Some states have removed the distinction.

"No, libel can meet the above definition without being libelous per se. The per se designation simply means there is no need for the plaintiff to prove the words used will expose him to public hatred, contempt, or ridicule, degrade him in society, lessen him in public esteem, or lower him in the confidence of the community."

The key portion was a direct quote from more than one case. I believe it is black letter law as a definition for most libel per se. If it is true, *damages* are presumed. I now understand your contention regarding proof and agree that if a libel fits into a category is is libel per se. However, I believe that is a subset of what libel per se encompases. Libel per se is larger than written defamatory statements which fall into certain categories. That's why *damages* is a better deliniator of what it is because the size of those pies are equal.

I understand "malice" is not the same as malice as used in the criminal law. I remember a movie "Absence of Malice" I saw many, many years ago which described things for me long before law school. When I first read New York Times v. Sullivan, I knew where they got the concept of the movie. I don't disagree with your cite, although I don't quite agree with the summation in the last to sentance/paragraphs of the post. Careless does not equal known or should have known, nor does reasonable belief. While similar, I bet we can brainstorm some differences.