Defamation per se is an archaic legal doctrine, whereby a defamation plaintiff need not prove damages. Under this doctrine, four types of defamation are considered inherently damaging, such that the plaintiff need not prove traditional forms of damage such as economic losses or mental anguish, because the damage is simply presumed.
These four types of 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.
Many states still recognize the doctrine of defamation per se, but 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, plaintiffs must prove damages such as lost income, 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. Here at Late Night Law, we strongly believe that the New Mexico Supreme Court was mistaken, and shortsighted, in abolishing defamation per se. Just like many constitutional amendments and historical forms of tort claims have withstood the test of time, defamation per se is actually profoundly suited to life in the 21st century.
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 tramp, or a conman, would have a more visceral impact on your reputation.
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.
Defamation is a relatively uncommon type of tort claim, 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 quality, defamation per se is especially needed in the 21st century.
Consider the following scenario: a business competitor hires a shady content farm to spam your business’s Google reviews using realistic-looking anonymous accounts, which say that your business is a scam (at Late Night Law, we have seen this happen to more than one of our clients).
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 another scenario: you have a loud and disrespectful neighbor. You respectfully ask her to keep the noise down but she reacts badly, and screams in your face. A week later, it is brought to your attention by a friend on Facebook that your neighbor is posting unflattering pictures of you taking your trash to the curb in your bathrobe, accompanied by text claiming that you are an alcoholic and a child abuser (at Late Night Law, we have seen very similar things happen to more than one of our clients). You flag the defamatory post and Facebook removes it.
You don’t lose your job. Child Protective Services never comes to your house. And yet…. Neighbors are suddenly cold with you. You start getting passive aggressive little citations from the HOA. Other parents at your child’s school won’t talk to you, won’t send their kids to your house for play dates. It seems obvious that damage was done—and will continue. Why should this incredibly malicious type of defamation not incur presumed liability?
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, it 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. 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 remarkable 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. Or, feel free to contact us for a free consultation with a New Mexico defamation attorney.