skippy the bush kangaroo: three little words

Thursday, April 12, 2007

three little words

"slander per se"

when you say something about someone that is downright nasty, like say, calling, young successful female athletes, cheaters - that's called slander. And if the young women sue you and prove that you said it, that it wasn't true and that they suffered financial loss because of what you said, you're on the hook for damages.

but somethings are so nasty to say that if you say them, the person who sues doesn't have to prove she's suffered financial loss. the law assumes that certain words are inherently injurious. and such words are called slander per se. what words? let's ask dancingwithlawyers:

"under common law, slander traditionally was actionable per se if it fell into one of four categories:
imputations of criminal conduct
allegations injurious to another in their trade, business, or profession
imputations of loathsome disease
imputations of unchastity in a woman"

well, you might ask, could calling a young successful female athlete a "nappy headed ho" constitute an "imputation of unchastity?" especially in this day and hip hop age?

"unchastity" is essentially meaningless as an accusation agains an adult woman, but probably still grounds for legal action when made against a teenage girl."

hmm. would i take this case if i were a lawyer? perhaps. now if i were a law school professor who had an academic interest in the state of defamation law, would i find this an interesting case (and heads up all you first year torts students - this will be on the final)? you betcha.

now where could the successful, young women of rutger's basketball team find a lawyer who might take an academic interest in the theoretical issues the case poses?

perhaps, here.

posted by Pudentilla at 5:42 AM |

4 Comments:

Hate to rain on the parade, but there is almost no chance of winning such a case:

Even "slander per se" requires that the speaker know the statement to be false. Even "reckless disregard" for the truth or falsity of the statement is not (usually) enough.

Plus, the statement isn't necessarily false in the sense it is extremely unlikely (although I suppose not impossible) that any of the women on the Rutgers basketball team are actually virgins.

Plus, how exactly have they been damaged? What harm can they prove other than emotional harm?

Additionally, (although this is a stretch) Imus could argue that the comments were so hyperbolic that anyone hearing them would know that he wasn't making a factual assertion. (see Jerry Falwell v. Hustler Magazine).

Imus is a major league asshole, but he hasn't committed a tort.

commented by

Anonymous, 6:24 AM PDT

Well, I disagree (obviously).

1) actual malice (i.e., knowledge that the statement is false) is required for public officials or public figures since NYT v Sullivan. But I don't think the possible plaintifffs here could possibly be defined as public officials or public figures. So the standard is not actual knowledge, but but whether the defendant is at fault for the publication. In any event, the question of knowledge or malice is a question of fact for the jury.

2) The universe of people who could speak with knowledge about the virginity of the women in question is very small and doesn't include you, me or Imus.

3)the whole point of slander per se is that the plaintiff does not have to prove actual damages

4)the statement in the Hustler case (that Falwell had sex with his mother in an outhouse) is simply not akin to calling a woman a "ho," on the hyperbolic scale. Moreover, Falwell, unlike the young women here, is a public figure.

5) the definition of chastity question (i.e., your assumption that chastity and virginity are synonymous) is what makes this case interesting from a law professor's point of view. However, the term "ho" clearly suggests prostitution which is an allegation of criminal conduct - so even if they lose on the imputation of chastity count, they have a slander per se case for "imputation of criminal conduct."

I think the question is, do they have enough to get past a motion to dismiss - I think they do. Then question is whether CBS and NBC want to have stories about this case running until the trial date. I think the answer is no. Then the question is, how much will CBS and NBC and Imus pay to compensate the young women for their conduct.

commented by

Pudentilla, 8:05 AM PDT

Imus, fired AND sued--that would be a dream come true. Now, would someone please take care of Leykis? Bill O? Limbaugh? Dr. Laura? Pleeeeeeeeeeeeease?

commented by

Anonymous, 9:54 AM PDT

Yeah, let's sue people for being assholes.

Y'know what I like most about this particular slope? Its patented no-slip surface.

commented by

RIPKurt, 6:04 AM PDT

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