In Pro Per
Slander & Libel

Slander per se: In slander cases, per se refers to that type of slanderous words that are slanderous in and of themselves, because of their very slanderous meaning. Damages are assumed in such cases. Thus, in a slander per se case the plaintiff need not go forward with evidence of special damages.

See Slander

Some statements, such as an untrue accusation of having committed a crime, having a loathsome disease or being unable to perform one's occupation, are treated as slander per se since the harm and malice are obvious and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.

Definition

Cases in various jurisdictions have reached different conclusions in deciding whether statements which falsely accuse a person of being a homosexual or engaging in homosexual activity constitute slander per se.

Compare Moricoli v. Schwartz, 46 Ill.App.3d 481 (1977) (statements referring to a singer as a "fag" held to be slander per quod, and not slander per se) and Boehm v. American Bankers Insurance Group, 557 So.2d 91 (Fla.Dist.Ct.App.1990) ("The modern view considering the issue, has not found statements regarding sexual preference to constitute slander per se let alone intrinsic evidence of express malice.") with Manale v. New Orleans, 673 F.2d 122 (5th Cir.1982) (Police role call statement referring to plaintiff as "ya little fruit" held to be slanderous per se) and Mazart v. State, 109 Misc.2d 1092, 441 N.Y.S.2d 600 (1981) (inasmuch as certain homosexual activity was still a crime in New York, reference to plaintiffs as being "members of a gay community" was slanderous per se).

Our analysis of the present state of the law leads us to conclude that the per se classification is inappropriate for the statements at issue here.

Analysis

Historically, defamation was actionable per se only if the defamatory remark imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. See Restatement (First) of Torts Section 569 (1938) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). However, the Restatement (Second) of Torts reflects a trend toward limiting the per se category of slander to those instances in which the defamatory remark is apparent from the publication itself without reference to extrinsic facts. See Restatement (Second) of Torts Sections 571-574 (1977); Gertz, supra (White, J., dissenting). As to the specific matter at issue here, the Restatement (Second) of Torts expressly left open the issue whether an accusation of homosexuality fell into the per se category. Torts

The primary advantage to a plaintiff claiming slander per se is that certain damages are presumed if the statement is so categorized, e.g., loss of reputation, and therefore, need not be proved.

This presumption has been considered desirable because injuries such as loss of reputation can be difficult to prove since the recipients of the information may be reluctant to testify that the publication affected their relationship with the plaintiff and because the words may affect the recipients' view of the relationship in subtle ways of which the recipient is not necessarily aware. See Gertz, supra (White, J., dissenting)

Injury (damages) is presumed if the defamatory statement falls within a category of slander per se (statements "charging plaintiff with a serious crime" are slander per se)). An oral statement that "charges a person with the commission of a crime” is slander per se.

A plaintiff does not need to plead special damages to make out a claim for slander per se. See Saha v. Record, 177 AD2d 763, 766 (3d Dep't 1991).

In some extreme instances, the law presumes that a plaintiff was damaged by defamation without proof. These cases are called "libel per se" or "slander per se. For example, if someone were falsely accused of committing a heinous crime it would be assumed that they would be damaged by the false allegations.

Libel

Libel is written defamation and in libel, damages are presumed.

http://www.cyberlibel.com/defences.html

In the Harbinger, vol. 1830, page 555 [sic], Mr. Campbell says of education:

Government having for its object the prevention rather than the punishment of crime; the preservation of life, liberty, reputation, and property, rather than the punishment of infractions upon these, ought, if it act wisely, to devote its energies to the erection and maintenance of the safeguards of life, liberty, reputation, and property, which, it is agreed on all hands, are Intelligence and virtue.

Constitution of Delaware:

Through Divine goodness, all people have by nature the rights of worshipping and serving their Creator according to the dictates of their consciences, of enjoying and defending life and liberty, of acquiring and protecting reputation and property, and in general of obtaining objects suitable to their condition, without injury by one to another; and as these rights are essential to their welfare, for due exercise thereof, power is inherent in them; and therefore all just authority in the institutions of political society is derived from the people, and established with their consent, to advance their happiness; and they may for this end, as circumstances require, from time to time, alter their Constitution of government.

Sharing Strategies

Got a strategy that worked for you and you want to share with other victims of fraud? Submit your suggestions to In Pro Per. Put in the subject box the words: Self Help submission.

WJFA nor anyone representing it interprets law or provides legal advice. All information on these pages were provided by victims of fraud denied justice and this section is only meant as an insight for other victims having to undo a crime in civil court.

Copyright 2006 by Where's the Justice For All?. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. See WJFA's Disclaimer and Privacy Policy.