Defamation: Libel and Slander Per Se
vs. Per Quod

Nicholas Carroll
June 17, 2012

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.

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 effective lawsuits – ones that stop defamation and/or win monetary judgments – please see our report Fighting Slander, applicable in all 50 states.