Defamation

On these facts, Belli brought this diversity action [in defamation]. The district court dismissed Belli’s complaint for failure to state a claim upon which relief could be granted. The court relied on the erroneous assumption that the determination whether a statement is a libel (or slander) per se is solely for the court. We consider it a close question whether the publication is so clearly defamatory that as a matter of law the case should not be submitted to the jury. We hold, however, that the publication itself, without reference to extrinsic facts, is capable of carrying a defamatory meaning. It is for a jury to determine whether it was so understood by the ‘common mind’. We reverse and remand.

I. Historically, libel, as generally distinguishable from slander, was actionable without the necessity of pleading or proving that the plaintiff had suffered any damages as a result of it. [FN] hat is the accepted rule today in England [FN] and in many jurisdictions in the United States [FN5] both as to libel per se and libel per quod. [FN6] A libel per se is one that is defamatory on its face, including a publication that is susceptible of several meanings, one of which is defamatory; it is actionable without proof of special harm. A libel per quod is one in which the defamatory meaning, or innuendo, is not apparent on the face of the publication, but must be established by proof of extrinsic facts. Here the district court held, correctly, that the Belli claim ‘must be determined solely on the basis of whether it sufficiently alleges a publication which is libelous per se’–since, as is evident from the complaint, the plaintiff did not allege defamation by extrinsic facts or plead special damages. [FN] A. In its opinion below the court recognized that there are four categories of defamatory imputations which traditionally have been considered actionable without proof of harm. As set out in the Restatement of Torts [Draft Section 569], these are statements which impute to another ‘(1) a criminal offense, (2) a loathsome disease, (3) matter incompatible with his business, trade, profession or office, and (4) unchastity on the part of a woman plaintiff’. Such defamatory statements, whether the publication is in the form of libel or in the form of slander, are regarded as especially likely to cause harm to the reputation of the person defamed, although such harm is not and perhaps cannot be proved. [Cc] Libel per se is not limited to these four categories: Courts use a stock formula to describe a general class of per se libel (but not per se slander). The Restatement’s formula is: One who publishes defamatory matter is subject to liability without proof of special harm or loss of reputation if the defamation is (a) Libel whose defamatory innuendo is apparent from the publication itself without reference to extrinsic facts by way of inducement. [Cc] In Florida and in many states the rubric runs: a libel per se is ‘any publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy’. [Cc] For example, “A civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule, or obloquy * * * or which has a tendency to injure such person in his office, occupation, business, or employment. If the publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official, or business relations or life, wrong and injury are presumed and implied, and such publication is actionable per se.” This definition is in accord with earlier Florida cases and has been repeated with approval in many later decisions. [FN]