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Raistlin

"ShlupQuack is a whore" and other statements that will cost me money

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Raistlin
, 07-09-2012 at 02:04 AM (2668 Views)
Everyone knows what slander is, right? A defamatory statement that is spoken. Well generally to recover any damages for a slander lawsuit, a plaintiff has to show actual (or special) damages, meaning a measurable economic harm, such as being fired from a job. General, presumed damages for loss of reputation are not available except for the very worst kind of slander, that does the very most kind of harm. This is called slander per se.

What are the types of slander per se, you may ask? Well, the type of statements that do the most harm to a person, as you would expect: that directly relate to the plaintiff's professional ability in his or her trade; that assert that the plaintiff suffers from a particularly horrible disease; that assert that the plaintiff is guilty of a crime of "moral turpitude" (as in, not a traffic violation); or... wait a sec, "imputing unchaste behavior if the plaintiff is a woman"? What the smurf?

That's right. One of the very worst things you could ever possibly say, up there with accusing someone of murder or of having the plague, is saying that a woman is not the demure, innocent, ladylike person that she obviously is. We must award such a woman for the irreparable damage done to her reputation that must be protected at all cost. What dastardly person could ever do such a horrible thing to a poor, innocent woman incapable of defending herself in the public sphere full of people that might think that the woman may have -- gasp! -- slept with someone outside of marriage! The horror! I would expect a woman to faint at the mere thought.

I have no idea if slander per se has actually been followed recently in this context, but it is still the recognized law in the majority of states (it even showed up in a practice bar exam question!). The very fact that it was taken seriously enough to be put into my torts outline at all is rather worrisome.
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Comments

  1. fire_of_avalon's Avatar
    That seems really backwards and ridiculous and, above all else, unequal treatment. What if I call you a whore? You can't fight me on that? That's not fair.
  2. Jiro's Avatar
    Is this another one of those stupid little backwards laws that hasn't been removed yet? I hope to hell there hasn't been a successful case based on that in recent history.
  3. Tigmafuzz's Avatar
    If lawmakers spent ten minutes in one of today's high schools, they would rewrite a lot of things.
  4. Raistlin's Avatar
    Jiro: it's actually not like that, because there is no legislative statute like for laws passed in the 1800s that are just still on the books. This is part of the common law, which means it's court-developed doctrine that started forming in England hundreds of years ago. There's a lot of stupid things still in the common law in most states (see: my rant about real property law), but not very much in modern times that is so flagrantly sexist. Legislatures have nothing to do with it (although they can change or overturn the common law by statute), which just makes it more inexcusable.
  5. Raistlin's Avatar
    Out of curiosity, I did a quick Westlaw search for any cases applying the unchastity prong of slander per se in the past 20 years. It was referred to in over a dozen cases where courts just went over the categories, but it was actually applied in New York as recently as 2005. A New York trial court found that a woman had stated a valid claim for slander per se based on allegations of unchastity in a woman after Gene Simmons seemed to assert that a woman was there to satisfy him. Yes, that Gene Simmons. I don't see any future history for the lawsuit, so I assume it was settled.
  6. Shorty's Avatar
    I'm not sure exactly about the things you're referring to but I think that as a woman, I should be offended. After all, we're not living in Sodom and Gomorrah. Everyone knows that unmarried women don't sleep around and if they do, they deserve to be called unchaste and whorish names.
  7. Jiro's Avatar
    Sometimes common law worries me. Precedents like this are concerning. We can only hope it doesn't actually get implemented in the future.
  8. Old Manus's Avatar
    Luckily for us, we have the Public Order Act Section 5 to handily make all insults, written or spoken, illegal.
  9. Raistlin's Avatar
    Manus: I just looked up that section.

    Quote Originally Posted by Public Order Act section 5
    (1)A person is guilty of an offence if he—
    (a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
    (b)displays any writing, sign or other visible representation which is threatening, abusive or insulting,
    within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
    What. the. smurf. That is jaw-droppingly stupid.
  10. Tigmafuzz's Avatar
  11. Quindiana Jones's Avatar
    Are there any case using the Public Order Act s.5? I wonder what sort of things our system would actually bother prosecuting for.
  12. Raistlin's Avatar
    I don't have a database of UK law, so I can only do a quick Google search. It doesn't seem like many crimes under section 5 have made it into the news. That might be a good sign, but not much critical commentary has made it into the news either regarding these cases, so I doubt every case would make the internet. It looks like it's just not that big of a deal to British people unless some big names or organizations get involved. Contrast that reaction with what happens in the US when one small town no one has heard about tries to outlaw public swearing: it goes viral nationally within days.

    Anyway, here's what I found:

    Crown v. John Terry: charged for saying “f*** off, f*** off, yeah, yeah and you f***ing black c***, f****** knobhead." In other words, for being Cuch.

    John Richards: atheist was warned of possible arrest if he put up a small "religions are fairy stories" poster in his own window. But don't worry, the police explained they weren't threatening Richards to not put up the poster; after all, he could only be arrested if the poster happened to cause offense to someone.

    Denzel Harvey v. DPP: A man was charged for basically saying "smurf" to a police officer. Seriously. Not "smurf you" but stuff like "smurf this" and "you won't find smurf all."

    The Good Neighborhood Agreement: This has nothing to do with Section 5, but it showed up in my search due to the comments. A UK Homeowner's Association is getting Anti-Social Behavior Injunctions to prevent anti-social residents from even stepping on the street. And I thought US HOAs were ridiculous.
    Updated 07-13-2012 at 04:39 PM by Raistlin
  13. Raistlin's Avatar
    Oh man, now I can't stop digging.

    Don't talk too loud in public: A Christian preacher was arrested for saying that homosexuality is a "sin" to one person... but it was "in a loud voice that could be overheard by others."

    Well Scientology IS a cult: Teenager arrested for calling Scientology a "cult."

    The rainbow bridle was a dead give-away: Student arrested for calling a police horse "gay." Seriously?

    Don't upset dogs either: And here I thought the last story was the most absurd. This young kid was charged for growling at two dogs and upsetting their owner (who did not complain).

    Just... never talk to anyone. Ever.: Hotel owners have religious discussion with Muslim guest, and then are arrested after the guest claims she was offended.
    Updated 07-13-2012 at 05:07 PM by Raistlin
  14. Quindiana Jones's Avatar
    I'm not surprised that they're all met with contempt and don't get anywhere. It's a shame you can't literally laugh someone out of court, but I enjoy snarky judges well enough.
  15. Raistlin's Avatar
    True, it is a good thing that at least appeals judges have some level of common sense, but we shouldn't be dismissive about what each defendant has gone through. It's extremely unfortunate that arrests are even being made and charges are brought and in some cases trial-level judges impose penalties. I often rave about the First Amendment, but this is a significant issue in the US too, where police and incompetent state trial judges can create a substantial burden on expression. Even if the charges are eventually dismissed, merely being harassed by police and subject to prosecution is no walk in the park, and can result in a chilling effect on free speech.
  16. DK's Avatar
    i was scrolling down to look at the site leaders thing at the bottom of the page, saw "shlupquack is a whore" in the corner of my eye as a blog entry, clicked for comedy and ended up with this trout. you are a penile wart, wesley.
  17. Raistlin's Avatar
    I love you too, Dan.
  18. Quindiana Jones's Avatar
    Having a First Amendment makes the stupid, stupid process go by faster, at least.
  19. Sylvie's Avatar
    [quote]This has nothing to do with Section 5, but it showed up in my search due to the comments. A UK Homeowner's Association is getting Anti-Social Behavior Injunctions to prevent anti-social residents from even stepping on the street. And I thought US HOAs were ridiculous.[/quote]
    I don't live in the UK, but ha. Diagnosed as such, I'd probably have to worry if I did.
  20. nik0tine's Avatar
    Holy trout I am laughing so hard right now.