Defamation Per Se in Virginia

We lawyers like to write about two types of libel and slander: defamation per se, and defamation per quod.  Using Latin terms makes us sound smart, we think.  Unfortunately, most of us don’t know what we’re talking about. The problem isn’t that the lawyers are stupid, but that the courts use the terms inconsistently (since judges don’t speak Latin any better than lawyers do).

Many lawyers will tell you that defamation per se refers to that heightened level of defamation for claims deemed particularly serious, and that defamation per quod is a fancy term for “everything else.”  This is the most common definition. The “particularly serious” form of libel and slander occurs where a statement:

  1. imputes the commission of a crime involving moral turpitude;
  2. imputes that the person is infected with a contagious disease which would exclude the party from society;
  3. imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or
  4. prejudices the party in his or her profession or trade.

These are considered (at least here in Virginia) to be the “per se” categories, and a false statement that does one of these four things is considered serious enough that harm to reputation will be presumed and need not be proven in court.

Crimes of “moral turpitude” are those that involve “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” (Parr v. Commonwealth, 198 Va. 721, 724 (1957)). Acts which fall within this definition are per se immoral and inherently evil. We’re talking rape and murder here, not jaywalking.

With respect to the latter two categories, the words must contain an imputation that is necessarily hurtful (not potentially hurtful) in its effect on the plaintiff’s business and must necessarily affect him in his particular trade or occupation. (Fleming v. Moore, 221 Va. 884, 889-90 (1981)). In other words, “there must be a nexus between the content of the defamatory statement and the skills or character required to carry out the particular occupation of the plaintiff.” (Id. at 890).

Sometimes you’ll see the phrase “defamation per se” used in another sense.  Some courts have used this terminology to refer to words whose defamatory meaning appears from the face of the publication, regardless of whether it falls into one of the four “per se” categories.  (For example, see Wilder v. Johnson Pub. Co., Inc., 551 F. Supp. 622, 623-24 (E.D. Va. 1982)).  Similarly, “per quod” defamation is a term used by some courts not to describe the catch-all “everything else” category, but rather those words whose defamatory meaning is not apparent on the face of the words, but which may arise from inference or innuendo in combination with known extrinsic facts.

As there seem to be at least two definitions of both defamation per se and defamation per quod here in Virginia, be careful when reading court opinions to ensure you understand the meaning intended by the court.

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