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May 19, 2005

This is a list of states which recognize "defamation per se", or if you want to stretch
legalese a bit, are "defamation per se states." (It's not correct to say that a state which
doesn't "is a defamation per quod state.") There are states which recognize defamation
per se, and six which do not make a distinction.

There is a deeper description below the list of states, which explains the historic
distinction between defamation per se and per quod, and why it matters (or used to
matter). It also provides the common law categories that current slander law is based
on.

Alabama (AL) – Yes

Alaska (AK) – Yes
Arizona (AR) – No
Arkansas (AR) – No
California (CA) – Yes
Colorado (CO) – Yes
Connecticut (CT) – Yes
Delaware (DE) – Yes
Florida (FL) – Yes
Georgia (GA) – Yes
Hawaii (HI) – Yes
Idaho (ID) – Yes
Illinois (IL) – Yes
Indiana (IN) – Yes
Iowa (IA) – Yes
Kansas (KS) – Yes
Kentucky (KY) – Yes
Louisiana (LA) – Yes
Maine (ME) – Yes
Maryland (MD) – Yes
Massachusetts (MA) Yes
Michigan (MI) – Yes
Minnesota (MN) – Yes
Mississippi (MS) – No
Missouri (MO) – No
Montana (MT) – Yes
Nebraska (NB) – Yes
Nevada (NV) – Yes
New Hampshire (NH) – Yes
New Jersey (NJ) – Yes
New Mexico (NM) – Yes
New York (NY) – Yes
North Carolina (NC) – Yes
North Dakota (ND) – Yes
Ohio (OH) – Yes
Oklahoma (OK) – Yes
Oregon (OR) – No
Pennsylvania (PA) – Yes
Rhode Island (RI) – Yes
South Carolina (SC) – Yes
South Dakota (SD) – Yes
Tennessee (TN) – No
Texas (TX) – Yes
Utah (UT) – Yes
Vermont (VT) – Yes
Virginia (VA) – Yes
Washington (WA) – Yes
Washington, D.C. (DC) – Yes
Wisconsin (WI) – Yes
Wyoming (WY) – Yes

Generally, per se indicates that a statement is defamatory on its face (from Latin, "for
itself" or "of itself"). For example, a former employer wrongly tells someone that you
extorted money from the company.

Defamation per quod depends on context and the interpretation of the listener. It
means that a person would have to have what's called extrinsic knowledge to
understand the statement as defamatory. For example, a former employer wrongly
says he saw you drinking whiskey in a bar, a statement that could be problematic if
the person the employer is talking to knows you were court-ordered last year to stay
sober.

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
The wording may have changed as society has changed, but the four basic common-
law categories still underpin the law. (Some lawyers feel that "unfit for work" is now
a fifth category, but that's still hazy.) "Unchastity" is essentially meaningless as an
accusation against an adult woman, but probably still grounds for legal action when
made against a teenage girl. (The "growth industry" we see from readers' emails is
accusations of child molesting, almost always made against men. "Predatory"
behavior claims are growing, and we have started to see "inappropriate touching.")

The distinction between defamation per se and per quod used to be relevant mainly
when it came to pleading for damages. Historically, someone who was judged the
victim of slander per se would not have to prove that it had resulted in "special harm"
– that is, the loss of something with an economic value – while someone who was the
object of slander per quod would have to prove specific harm. But times were simpler.
Claim that a 1870's cattle rancher had not paid you, and you could destroy his credit
rating forever – in such a situation it wouldn't matter much whether it had been
slander per se or slander per quod.

Courts in most states still technically distinguish between defamation per se and
defamation per quod. However, the effect of the distinction has been hugely diluted
by federal rulings (such as the landmark libel case Gertz v. Robert Welch Inc.) that
have declared that damages "may not be presumed" – a way of saying, "mebbe yes,
mebbe no."

Even in the states where the per se distinction continues to be a factor, it isn't a
guarantee of big awards. If you can't show you were damaged by a statement that was
defamatory per se, it's possible a trial could result in a finding for you – but only $1 or
some other token amount in damages.

It's important to understand that lawyers and judges can't always make a clear
distinction either. "This ostensibly simple classification system," writes Rodney
Smolla, dean of the University of Richmond School of Law, "has gone through so
many bizarre twists and turns over the last two centuries that the entire area is now a
baffling maze of terms with double meanings, variations upon variations, and multiple
lines of precedent."

In short, defamation of character law is a mess. The difference between defamation of

character per se and per quod is also a mess – a mess that doesn't make much
difference to your plans, unless you're just trying to win a moral victory in court.

###

For a more complete description of lawsuits that do win monetary damages – such as
"financial harms" or "emotional distress" – please see our report Fighting Slander,
sold with a full money-back guarantee.