Slander Is Defamation by Oral Communication

Defamation is a false statement about a plaintiff published to a third person without legal excuse which damages the plaintiff's reputation. Libel is defamation in written or other graphic form. Slander is orally communicated defamation.

A defamatory oral statement may be slander per se or slander per quod. If a statement is slander per quod, the plaintiff must present proof of actual damages (lost profits, decreased business traffic, lost career or employment opportunities). If the statement is slander per se, no independent proof of damage to the plaintiff's reputation or of mental anguish is required, as the slander itself gives rise to a presumption of these damages.

Slander Per Se Defined

Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse. Statements that are defamatory per se are inherently defamatory statements that are presumed to injure the plaintiff’s reputation. But if the court must resort to implication, innuendo, or extrinsic evidence to determine that the statement was defamatory, then it is slander per quod and requires proof of injury and damages. Truth is a defense to slander.

Defamatory statements are slander per se if they are within one of four categories: (1) a statement that injures a person in her office, profession, or occupation; (2) imputation of a crime; (3) imputation of a loathsome disease; or (4) imputation of sexual misconduct.

Damages For Slander Per Se

There are three types of damages that may be at issue in defamation per se proceedings: (1) nominal damages; (2) actual or compensatory damages; and (3) exemplary damages. If a statement is defamatory but not defamatory per se, only the latter two categories of damages are potentially recoverable.

Nominal damages are a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages. In defamation per se cases, nominal damages are awarded when there is no proof that serious harm has resulted from the defendant’s attack upon the plaintiff’s character and reputation—or when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff’s character by a verdict of a jury that establishes the falsity of the defamatory matter. Courts have defined nominal damages as a ‘‘trifling sum,’’ such as $1.

Actual or compensatory damages are intended to compensate a plaintiff for the injury incurred, and include general damages (which are non-economic damages such as for loss of reputation or mental anguish) and special damages (which are economic damages such as for lost income).

Historically, defamation per se claims allow the jury to presume the existence of general damages without proof of actual injury. But the First Amendment requires competent evidence to support an award of actual or compensatory damages when the speech is public or the level of fault is less than actual malice. Thus, the Constitution only allows juries to presume the existence of general damages in defamation per se cases where: (1) the speech is not public, or (2) the plaintiff proves actual malice.

If only nominal damages are awarded for defamation per se, exemplary damages are not recoverable. But if more than nominal damages are awarded, recovery of exemplary damages are appropriately within the guarantees of the First Amendment if the plaintiff proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice.

Damages For Slander Per Quod

Slander per quod generally requires proof of special damages, such as lost profits, decreased business traffic, or lost career or employment opportunities.

In Texas, slander is considered a form of defamation that is communicated orally. Slander per se occurs when the statement falls into one of four categories that are presumed to be harmful to the plaintiff's reputation, such as allegations of criminal behavior, professional incompetence, loathsome disease, or sexual misconduct. In such cases, damages for harm to reputation and mental anguish are presumed, and the plaintiff does not need to prove actual damages. However, for slander per quod, which does not fall into these categories, the plaintiff must prove actual damages, such as lost profits or opportunities. Truth is a defense against slander. Damages in slander cases can include nominal damages (a small, symbolic sum), actual or compensatory damages (for quantifiable losses and harm to reputation), and exemplary damages (punitive damages, which require proof of actual malice for recovery if only nominal damages are awarded). The First Amendment imposes certain restrictions on awards for actual damages, requiring evidence of actual injury unless the plaintiff can prove actual malice or the speech is not public.