Defamation Per Se: Be Prepared to Plead (and Prove!) Actual DamagesBy Andrew Bossory – June 3, 2014
Complaints for civil liability must include a demand for the relief sought, i.e., damages. For example, the Federal Rules of Civil Procedure require that a plaintiff make a “short and plain statement of the claim showing that the pleader is entitled to relief” and a “demand for the relief sought . . . .” Fed. R. Civ. P. 8(a)(2)–(3). Accordingly, the next logical step on the road to recovery is proving the damages suffered; courts hold litigants to this requirement. “Assuming plaintiff prevails in establishing defendants’ negligence and causation, he must still prove the amount of his actual damages resulting therefrom.” Alva v. Hurley, 593 N.Y.S.2d 728, 730 (N.Y. 1993). The task of proving damages is necessary even when liability is legally established, such as in the case of a default judgment. See, e.g.,Fed. R. Civ. P. 55(b)(2)(B).
However, historically, courts have recognized that certain types of false statements, whether made orally or in print, so readily cause harm that damages may be presumed without additional proof; ergo, defamation per seliability. The Restatement (Second) of Torts defines traditional defamation per se as follows:
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
1. A criminal offense . . .
2. A loathsome disease . . .
3. Matter incompatible with his business, trade, profession, or office . . .
4. Serious sexual misconduct . . . .
Restatement (Second) of Torts § 570 (2013).
Although these traditional defamation per se categories continue to survive, many jurisdictions have modified (or even eliminated) the viability of a per se action. This article seeks to address the question of whether per se liability remains tenable and to remind us that the bar examination mantra covering per se liability may no longer apply. While some states have certainly stayed true to the historical roots of per se liability, the trend continues to force plaintiffs to prove damages in all cases, including defamation.
California—A View of Traditional Defamation Law
While many jurisdictions have merged the traditionally independent torts of libel and slander into one claim for “defamation,” California has steadfastly retained the distinction. Moreover, California has retained and codified independent standards of per se liability for each tort. The standard for libel per se established by the California legislature is actually quite broad:
A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.
Cal. Civ. Code § 45a (West).
The language of the statute has permitted California courts to take an expansive view in interpreting the viability of a claim for libel per se. “A statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter.” McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 112 (Cal. Ct. App. 2007). The interpretation of the libel per se language has incorporated the traditional scope of the per se liability categories as set out in the Restatement. See, e.g., Ray v. Citizen-News Co., 14 Cal. App. 2d 6 (Cal. Ct. App. 1936) (recognizing per seliability for the false charge of a criminal act); McGarry, 154 Cal. App. 4th at 97 (recognizing liability for injuring a trade or business); Peterson v. Rasmussen, 47 Cal. App. 694 (Cal. Ct. App. 1920) (recognizing liability for the imputation of a want of chastity).
California courts have also used the broad language of section 45a to expand on the scope of libel per se. A cogent example is found in Selleck v. Globe International, 166 Cal. App. 3d 1123 (Cal. Ct. App. 1985), in which the father of well-known actor Tom Selleck filed suit against a tabloid alleging libel per sefor publishing an article with information (purportedly gleaned from the plaintiff himself) regarding his son’s romantic life. The elder Selleck alleged that he never met or spoke with an agent of the defendant company; furthermore, the plaintiff alleged that the statements told to him by his son were made in confidence.
After the trial court sustained the defendant’s demurrer that the complaint did not allege libel per seand granted the subsequent motion for dismissal, the plaintiff appealed. In reviewing the sufficiency of the libel per se claims, the appellate court disagreed with the lower court and concluded that “[o]ne reading the article in question could conclude that plaintiff violated the confidence reposed in him by his son by revealing the son’s secrets for dissemination to the public.” The court affirmed that “[f]alsely charging a person with a violation of confidence reposed in him is libel per se,” and reversed the trial court’s sustainment of the defendant’s demurrer and dismissal of the complaint.
The statutory language adopted by the California legislature when codifying the tort of slander holds much more closely to the traditional scope of per seliability. See Cal. Civ. Code § 46 (West). “Words which fall within the purview of Civil Code section 46 are deemed to constitute slander per se with the effect that the utterance of such words is actionable without proof of special damages.” Albertini v. Schaefer, 97 Cal. App. 3d 822, 829 (Cal. Ct. App. 1979).
It is interesting to note that while the California courts have used the libel statute to broaden the scope of per seliability, the courts have also reined in the reach of the slander statute. For example, in Nethercutt Collection v. Regalia, 172 Cal. App. 4th 361, 369 (Cal. Ct. App. 2009), the court held that “it is not sufficient that the words be merely injurious to one whatever his pursuit, but they must prejudice him in the special profession or business in which he is actually engaged.” On one end of the per se spectrum, California represents a very close adherence to the original principles of liability, even retaining the distinction between libel and slander. Even so, there are nuances and common-law exceptions (and expansions) that would caution the scrupulous attorney to investigate the facts and law before bringing a per se claim.
Michigan—A Hybrid Theory
Michigan defamation law has developed a more moderate approach. In 1963, the Michigan legislature codified the independent torts of libel and slander into a single tort of defamation. See Mich. Comp. Laws § 600.2911. While the codification initiated change, for a long time the law held to the traditional scope of per se liability. For example, in Heritage Optical v. Levine, 137 Mich. App. 793, 798 (1984), the Michigan Court of Appeals clearly affirmed that falsely impugning a business constituted defamation per se. However, the Heritage Optical decision was short-lived. In 1989, the Michigan legislature amended the controlling statute and significantly limited the types of publication that qualify as defamation per se. “Words imputing a lack of chastity to any female or male are actionable in themselves and subject the person who uttered or published them to a civil action for the slander in the same manner as the uttering or publishing of words imputing the commission of a criminal offense.” Mich. Comp. Laws § 600.2911(1).
Noticeably absent from the statutory scheme are the two other traditional types of defamationper se: defamation of a business reputation and imputation of a loathsome disease. This statutory language has subsequently caused Michigan courts to read those traditional per se categories out of per se actionability on the basis of “expressio unius est exclusio atlerius”—that the specification in a statute of one particular class excludes all other classes. Pittsfield Charter Twp. v. Washtenaw Cnty., 468 Mich. 702, 712 (2003).
By specifying two categories of defamation per se, the legislature has conscientiously excluded the remaining two traditional types of defamation as per se liability. This conclusion has been adopted by the Michigan appellate courts. In George v. Senate Democratic Fund, Nos. 253202, 254158 (Mich. Ct. App. May 3, 2005) (unpublished), the court concluded that “[d]efamation regarding one’s business or profession is not made specifically actionable, and is therefore governed by the rest of MCL 600.2911.” The rest of the defamation statute provides that a plaintiff may “recover only for the actual damages which he or she has suffered in respect to his or her property, business, trade, profession, occupation, or feelings.” Mich. Comp. Laws § 600.2911(2)(a). In other words, actual damages must be pled and proven.
Missouri—The Total Elimination of Per Se Liability
Missouri represents the other extreme in the per sespectrum by completely eliminating the concept of defamation per se and, consequently, requiring the proof of actual damages. In 1993, the Missouri Supreme Court addressed whether it had any reason to adhere to, what the court considered, an arbitrary distinction between per se and per quod liability. In Nazeri v. Missouri Valley College, 860 S.W.2d 303, the Missouri court found itself addressing a case containing claims for both per seand per quod defamation. The case arose from the statements made by the vice president of a private religious college to a local reporter about the plaintiff, a director of teacher education at the local department of education. The vice president, on at least two occasions, claimed the plaintiff was professionally incompetent and prejudiced against the college and religious schools, and (in a play on the plaintiff’s sexuality) asserted that the plaintiff was cohabiting with a “well known homosexual.” Id. at 307. The plaintiff filed suit and, among multiple claims, argued that the attack on her professional skills and implied homosexuality constituted defamation per se.
The Nazeri court took issue with the legal distinction between per se and per quod defamation liability:
[E]ven though libel and slander have evolved to the point where modern law combines them as the generic tort of defamation, the causes of action themselves have retained both the per se/per quod designation and many of the characteristics of the old common law tort. The consequences of this anachronism were of more than academic interest. The presumed damages/special damages distinction controlled the right of plaintiffs to bring a defamation claim, even though it bore little relationship to either the magnitude of a plaintiff’s injury or the wrongfulness of a defendant’s conduct. It also exposed some defendants to liability that might be far in excess of the actual injury caused.
Id. at 308.
Despite the initial rebuke, the Nazeri court continued to analyze whether the plaintiff’s claims constituted defamation per se. Although the court quickly recognized the attack on the plaintiff’s professional skill as per se liability, the question regarding the implication of homosexuality was cause for significantly more analysis. After considering the split between various state jurisdictions, the Missouri court concluded that because “engaging in deviant sexual intercourse with another person of the same sex is still a class A misdemeanor in this state” and consideration of then-existing public sentiment, a false statement alleging homosexuality constituted defamation per se.
It is interesting that, after going to substantial lengths to recognize the plaintiff’s claims as per se, the Missouri Supreme Court made the decision to no longer recognize defamation per se in any case:
While the attacks of respondents upon appellant’s allegations of slander per se and slander per quod have not persuaded us that appellant failed to state a claim thereunder, they do reveal the undue difficulty of use of the traditional per se and per quod requirements. Although it is clear that respondent’s remarks were defamatory, attempts to characterize them as per se or per quod appear more artificial than real. Unfortunately, the result of the classifications may have a very real impact more far-reaching than justified. In one case the jury is free to presume damages. In the other the jury is precluded from awarding actual damages unless special damages are proven. . . . We hold that in defamation cases the old rules of per se and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in [the model jury instructions]. In short, plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases.
Id. at 312–13 (emphasis added).
While bold, the Missouri court’s decision makes sense. Rather than continue to wrestle with the (admittedly) arbitrary distinction between per seand per quod liability, the court in one swift action dispensed with a continual judicial headache and brought the law of defamation more in line with tort law in general.
It will always be easier, faster, and less costly to file a claim for defamation per se and avoid the burden of developing and proving damages. However, many states no longer recognize this short-cut to recovery. In many cases, plaintiffs must be prepared to plead and prove actual damages when raising a claim of defamation—notwithstanding that such a claim may fall within a traditional category of per seliability. This article has focused on outlining the broad spectrum of possibilities, but each state is unique and may have its own peculiarities. What is clear, however, is that plaintiffs’ attorneys must educate themselves on the status of per se liability in their jurisdictions. To do otherwise may expose the client to a motion for dismissal, summary judgment/disposition, and costs and fees. If the oversight is glaring, the risk of legal malpractice is also a real possibility.
It is, and will remain, worthwhile to diligently investigate damages before advising a client and filing a claim for defamation. Although this may entail more preparation at the onset of a case, such legwork is certainly preferable to explaining a dismissal for want of damages to an unhappy client.
Keywords: litigation, business torts, defamation, libel, slander, defamation per se, defamation per quod, actual damages
Andrew Bossory is an attorney at Lorandos Joshi in Ann Arbor, Michigan.