As a final installment of reviewing some older “injury in fact” cases, I’d like to look at a few older state libel cases, because the distinction emerges especially clearly in them. A North Carolina case, for example, noted that “he who publishes slanderous words even as those of a third person with the intent, (to be collected from the mode, extent and circumstances of the publication,) that the charges should be believed, does an injury in fact to the person slandered and ought to answer for it” (Hampton v. Wilson, 15 N.C. 468, 470 (1834). Here’s a few cases in more detail. The 19c gender politics is really helpful in seeing how their minds worked on defamation per se.
(a) Chastity in Iowa
A pair of Iowa cases are particularly clear. In Abrams v. Foshee, the Court was asked to rule whether accusing a woman of having an abortion was actionable as slander. The Court lays out its reasoning particularly clearly:
“To maintain an action of slander, the consequence of the words spoken, must be to occasion some injury or loss to the plaintiff, either in law or fact. As the declaration in this case, claims no special damages, or a loss or injury, in fact, we are left to inquire whether the charges referred to in the instructions refused, was of such a character as to amount to an injury in law. To determine this, it becomes material to ascertain in what cases this action may be maintained, without proof of special damages. Starkie, in his work on Slander, page 9, lays down the rule, that such action may be maintained "when a person is charged with the commission of a crime; when an infectious disorder is imputed; and when the imputation affects the plaintiff in his office, profession, or business." In this case, we only need examine the rule so far as it relates to the charge of a crime. And what is that rule? In Cox and wife v. Bunker and wife, Morris, 269, the Supreme Court of this territory, recognized the rule laid down in Miller v. Parish, 25 Mass. 384, 8 Pick. 384, as the proper one. And in that case it is said, that " whenever an offense is charged, which if proved, may subject the party to a punishment, though not ignominious, but which brings disgrace upon the party falsely accused, such an accusation is actionable. And this is, perhaps, as correct, and at the same time as brief a statement of the general rule, as has been given. For while the rule is variously stated, by different authors and judges, yet in all of them, it is laid down as necessary that the charge shall impute a punishable offense.” (Abrams v. Foshee, 3 Iowa 274, 277-8 (1856)).
That is, if the false statement would have subjected the victim to legal punishment if true, it was considered libel per se – actionable as an act, independent of any damages sustained. In 1843, “willful killing of an unborn quick child, by an injury, etc., was made manslaughter” (278). This statute was repealed in 1851. So abortion was not a crime. Plaintiffs urged that the fetus was a “human being” and thus subject to murder. The Court, at length, disagreed, citing both statute and common law precedents (including Coke and Blackstone) to the effect that abortion was not “murder” even if it were a misdemeanor or otherwise bad.
At one point, the original plaintiffs suggested that accusing a woman of abortion was analogously bad to accusing her of not being chaste, citing a case upholding the chastity accusation as libel per se. The Court had the following to say (file this under “you can’t make up 19c law”):
“To say of her that she was a common tattler, or liar, or that she indulged in the use of profane and vulgar language; that she was a drunkard, or the like, would reasonably, if believed, have a tendency to bring her into disrepute, but such words would not be actionable per se. But to impute to her a want of chastity, is to charge her with the want of that, without which the female is necessarily and certainly driven beyond the circle of virtuous friends and acquaintances. Such a case is an exception to the general rule, is sustained by reasons that apply to it alone, because of the peculiar character of the charge, and beyond it, we are not willing to go at present” (281).
An injury in law, then, requires something the mere utterance of which can be presumed to cause injury, and is thus actionable without showing of material harm. Accusing someone of murder meets the standard, because murder is a punishable felony. Accusing a woman of a want of chastity is so, because it could lead to her social death; it’s the exception that proves the rule. Alcoholism, vulgarity, and abortion? Not so much. For that, you have to show material harm.
The Iowa Court ruled again in 1857 that “words imputing to the female a want of chastity, are actionable without any proof of special damage” (Truman v. Taylor, 4 Iowa 424, 427 (1857)). There, the court ruled on a case where the defendant’s wife publicly said that “Rebecca Truman had a child in Illinois, and it was buried, and the tale was buried with it. It is not the first one she has had (alluding to a child of said Rebecca born after marriage); she had one in Illinois, and it was buried, and the tale was buried with it. You (meaning the persons in hearing) would believe it, if you were to hear Sarelda Rawlins tell it.” (425). There, the court argued that the speaker was responsible what an ordinary person would take the words to mean, viz. that they imputed a want of chastity, “especially so when we consider that they were spoken, as alleged in the petition, to persons who were acquainted with the fact, that said plaintiff was single and remained unmarried during her residence in Illinois.” (426).
For a final Iowa case, consider a case from 1927 where the defendant allegedly said of plaintiff that “He is a dope fiend. He takes so much dope that he is not right in his mind, and you cannot believe a thing he says." (Kluender v. Semann, 203 Iowa 68, 69 (1927). The Court then cites Foshee and argues that nothing in the remark alleged a specific violation of law (which would be libel per se); for that reason, the plaintiff needed to show injury in fact – actual damage.
(b) Not a bitch!
The concern over chastity wasn’t limited to Iowa, and didn’t confine itself to the nineteenth century. In a 1928 Mississippi case, the paintiff worked for a hotel and “was at that time a minor of the age of eighteen years, and was a young girl of refinement, chastity, and virtue, and was always reputed, esteemed, and considered by and amongst her neighbors, and by all worthy citizens to whom she was known, as a person of good name, fame, and reputation, pursuing her humble employment as a waitress without charge or suspicion of misconduct against her” (Interstate Co. v. Garnett, 154 Miss. 325 (1928)). The hotel manager:
“concerning the plaintiff and another, in the presence, hearing and understanding of others, [said] the following: "G d you, you G d bitches; what the H l you doing in here? Get out, and that G d quick, and don't let me catch you in here any more"--meaning such language, as then and there spoken, to imply, and falsely implying thereby, that the plaintiff was a girl of unchaste character, loose virtue, and of immoral, lewd, and lascivious practices; that the said term "bitch," so applied to plaintiff, was used at a time and place when and where the term was understood to mean an imputation of lewdness, unchastity, and prostitution; that, in applying the said language to the plaintiff, the defendants acted willfully and wantonly, and out of a spirit of actual malice, and in reckless disregard of the rights, good name, and reputation of the plaintiff, whereby she had been injured in her good name and reputation, and brought into disrepute, infamy, and disgrace, and had been caused mental and physical suffering and greatly injured in her employment, and otherwise damaged, to the great damage of the plaintiff, actual and punitive, in the sum of twenty-five thousand dollars.” (327-8, The “G d” etc. language is in the original; I preserve it here because, really, you have to read these cases as they are)
The case is about jury instructions – about which more in a moment. Along the way, the court favorably’ quotes the Supreme Court of Kansas in “a very able and exhaustive opinion” (345) as arguing that:
“The world is censorious, and a woman's or a maiden's reputation for modesty and chastity is an asset of inestimable value. Its loss renders her poor indeed. Injury in fact is the necessary result of such a deprivation, whether or not the sufferer can point specific damage in a few paltry dollars or to liability to a trifling fine if the charge were true. Therefore the pleading of special damages as a basis for relief ought to be treated as a useless fiction” (346)
After citing a couple of more opinions to that effect, the court piles on:
“We can add nothing to the force of the above-quoted language of the courts, and distinguished jurists who have condemned the rule which, in the absence of allegation and proof of special damages, denied to a woman a right of action for a charge against her character which, by common consent, is everywhere considered the deepest insult, and the vilest and most damaging charge that can be given or inflicted upon her. Unchastity will not only drive a woman beyond the pale of respectable society, but will practically close to her the doors of every legitimate, gainful occupation or trade, and any rule or doctrine that denies a recovery for a false charge, which is so damaging in its effect, is so unsuited to our system of organized society, so repugnant to the true spirit and purpose of our laws and institutions, and so out of accord with reason and justice, that it will not be adopted or followed in this state” (346-7).
They did eventually reduce the damage award, but the exception to the need to prove harm in accusations of unchastity is clear enough. The court proceeds inexorably: given that “words imputing a want of chastity to a woman are actionable per se, there remains to be considered the question of whether or not the word "bitch," when applied to a woman, does or may impute unchastity.”
The hotel argued that it did not, and wanted the jury so instructed. The court disagreed:
“The weight of authority in the United States seems to be that the word "bitch" of itself, when applied to a woman, is merely a word of opprobrium, and does not import unchastity; but we think this is too narrow a view of the popular meaning and use of the word, and for the court below to have peremptorily instructed the jury that the words complained of, as used, were not slanderous per se, would not have been in accord with prior decisions of this court. In the declaration the words were charged with an innuendo that the language as then and there spoken implied that the plaintiff was of unchaste character, loose virtue, immoral, and lascivious practices, and was used and so applied to the plaintiff at a time and place when and where the term was understood to mean, and did mean, an imputation of lewdness and unchastity” (348).
Whether the case was libel per se, then, turned on the jury’s determination of whether “bitch” implied a lack of chastity. To have instructed the jury otherwise would have been an error. Hence the hotel lost.
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