Defamation is a form of speech that is not protected by the First Amendment. It is defined as “malicious or groundless harm to the reputation or good name of another by the making of a false statement to a third person.” (Black’s Law Dictionary, 11th ed.)
Defamation per se is a longstanding common law doctrine. Under this doctrine, four types of defamation are considered inherently damaging, such that the plaintiff need not prove damages such as economic losses or mental anguish in order to show liability. This is because courts traditionally recognized that damage to reputation can be difficult to quantify.
These four types of per se defamation are: (1) false accusation of a crime, (2) false accusation of professional misconduct, (3) false assertion that the plaintiff has a communicable disease, and (4) false assertion regarding sexual matters, particularly “falsely imputing unchastity to a woman,” or falsely imputing impotence to a man.
Keep in mind that liability and damages are two separate things. Liability refers, essentially, to the guilt or innocence of the defendant, whereas damages refers to the actual amount of compensation owed. A plaintiff who successfully proves defamation per se would still need to prove his or her damages in order for a judge or jury to award them. But under the doctrine of defamation per se, damages are not an element of liability. In other words, you don’t have to show damages to show liability, but you still have to show damages in order to collect compensation.
Most states still recognize the doctrine of defamation per se. However, the New Mexico Supreme Court abolished the doctrine in 2012, in a case called Smith v. Durden. This means that in New Mexico, in order to prevail on a defamation claim (i.e., in order to prove liability) plaintiffs must prove damages such as lost income, lost relationships, lost economic opportunities, or mental anguish and suffering.
The doctrine of defamation per se is indeed archaic, a product of the 19th century—but ironically, it is also perfectly suited to the vicious, take-no-prisoners world of social media, where defamation, harassment, and even stalking are routine.
Defamation per se intuitively strikes modern sensibilities as archaic for a number of reasons.
First, it signals a very high valuation of reputation, one that harkens to a bygone era when communities were more tightly-knit, and people’s lives were more stationary. If you lived your entire life in a town of 20,000 people, being called a cad, a tramp, or a conman, would have a more visceral impact on your reputation than analogous accusations might have today.
Second, people today are simply desensitized to scurrilous accusations and vulgar insults. Generational shifts in social mores, and the advent of social media, tend to normalize defamatory speech. Indeed, people “falsely impute unchastity to women” all the time. Defamation per se harkens to a time when people were more easily scandalized.
Perhaps with these reasons in mind, the Smith v. Durden court described defamation per se as an “illogical distinction,” a “relic from centuries past,” and “essentially obsolete in light of modern defamation jurisprudence.” Yet as of 2012, only six other states had abolished the doctrine. Forty-four states still recognize it.
The impulse to limit tort claims by heightening pleading and proof requirements is a noble one, and jurisprudential inertia may have a lot to do with the survival of defamation per se in so many states outside New Mexico. But we would urge the New Mexico Supreme Court to reconsider its holding in Smith v. Durden. We also urge other states to not be so cavalier with the doctrine as New Mexico has been. Why? Because despite its archaic qualities, defamation per se is especially needed in the 21st century.
Consider the following scenario: a business competitor hires a shady content farm to review-bomb your business’s Google Business profile or Facebook account, using realistic-looking accounts, which say that your business is a scam (we have seen this happen).
This is obviously malicious, anti-social behavior that unfairly threatens your livelihood. Should you have to wait until your economic losses start mounting before you can sue this person? Until you can’t afford your mortgage payments? Until you file next year’s 1040 where the losses are set forth in black and white? What about loss of goodwill? How do you even measure that? How will you know exactly which potential customers or business partners have been poisoned?
Or consider the following scenario: an influencer goes after you for criticizing him, reveals your workplace to hundreds of thousands of followers on TikTok, and says that you are a pervert or a criminal or a fraudster (we have seen this happen). Is that not inherently damaging? How much damage needs to mount before you can hold this person accountable?
Defamation is not like other civil torts. It doesn’t inherently involve bodily injury or readily ascertainable dollar amounts. It is uniquely insidious—it can be incredibly damaging in ways that are remote from direct proof. In other words, defamation is easy to get away with. When a wrongful act is easier to get away with, it is naturally incentivized—and with the advent of social media, defamation is easier than ever to get away with.
Defamation is also uniquely deleterious to public discourse and the body politic, because it is a form of disinformation. Free access to large platforms, easy anonymity, physical distance from the victim, imbalance between the parties’ respective reach and number of followers… All of these factors incentivize rash and vindictive defamation. This was already apparent in 2012, when New Mexico abolished defamation per se. It is even more true, and more obvious, today.
The doctrine of defamation per se exists (or, existed, in New Mexico) to punish and deter these kinds of obvious social wrongs that the internet has made it so easy to commit, and so easy to get away with. Presumed damages provide balance in these scenarios, and much-needed deterance. Ironically, this archaic doctrine is remarkably well-suited for the 21st century, and we would urge state appellate courts to think twice before abolishing it.
Learn more about New Mexico defamation law here, and learn more about Washington state defamation law here. Or, feel free to contact us for a free consultation with a defamation attorney.
This article is not intended as legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.