Pete Kusdel was walking his dog through his neighborhood one morning when he saw papers strewn all over one of the streets—it looked like a recycling truck had lost its load! Mad as heck and ready to call the local garbage company, he soon realized that each piece of paper had a picture of his neighbor, Sally McFly, on it. Pete picked up one of the pieces of paper and was shocked by what he read: “Sally McFly, 4001 Polka Drive. You’re no Christian! Leave my husband alone!” He picked up another piece of paper and it was exactly the same. Pete thought to himself, “Man, I can’t wait for my wife to share more details on the neighborhood gossip. This is the biggest scandal in years!” Sure enough, rumors began spreading that Cynthia Senhan made the flyers because she thought Sally was sleeping with her husband. Now, Sally is furious because the rumor is false. Does she have a good defamation claim against Cynthia?
We’ve written a number of articles on defamation over the years. Basically, defamation involves a false statement of fact about a person that is published to a third party and tends to injure the person’s reputation. Assuming Sally is telling the truth, it’s pretty obvious that Cynthia’s fliers are defamatory.
But does Sally really have a good lawsuit? Maybe. The law divides defamatory statements into two groups: (1) statements that are defamatory per se; and (2) statements that are defamatory per quod. Defamatory per se statements are typically statements that unambiguously charge someone with committing a crime, being dishonest, engaging in fraud, rascality or general depravity. All other statements are defamatory per quod. Some courts have recognized that statements claiming a person engaged in an extramarital affair are defamatory per se.
What’s the effect of a defamatory per se statement? The law presumes a plaintiff, such as Sally, suffered loss of reputation damages without proof of actual injury. If the defamatory statement is not per se, the plaintiff must present proof that the statement caused a loss of reputation, and how those damages are calculated, to recover.
Are Cynthia’s fliers protected “free speech” communications? Highly doubtful. We’ve written about free speech and defamation on a couple of occasions, but it’s worth revisiting. If Sally sues Cynthia, the Texas Citizens Participation Act probably won’t protect her fliers because they were not a matter of public concern—that is, until Cynthia decided to make it known to the public. Had Sally been a public official, it might be a different story.
Tilting the Scales in Your Favor.
Remember the Golden Rule: if you don’t have something nice to say about someone, don’t say it. But if that doesn’t stop you, (we’ve talked about this before) you better have evidence to back up your statement if you’re going to accuse someone of engaging in reprehensible conduct. Otherwise, it’s probably best to not make the statement, especially in today’s age where everything posted online is forever memorialized. If you’re sued for defamation, one of the first things you should do is contact your homeowner’s insurance company because you probably have coverage for those statements.