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Vanderbilt Law Review

First Page

730

Abstract

Toward the end of the last century a few of the American courts began to express the view that allegation and proof of special damages is necessary in libel actions unless the defamatory meaning of the words is apparent on their face.' Although none of these courts appeared to realize it, this notion was entirely of their own invention. Under the orthodox theory, which went virtually unquestioned in the century preceding these decisions, all written defamation is actionable without proof of special damages, whether it is designated libel per se or libel per quod. Words which are defamatory on their face are libelous per se; words which are prima facie innocent, but defamatory in light of the circumstances of their publication, are libelous per quod. In order to state a cause of action in libel per quod, it is necessary to allege the extrinsic circumstances imparting a defamatory meaning to the language, but, under the orthodox theory, special damages are never an essential allegation. In slander the rule is otherwise. Unless the language is slanderous per se--that is, unless it charges that the plaintiff has committed an indictable offense, or imputes that he has a loathsome disease or that he is unfit to perform his office, business or profession-proof of special damages is necessary. This rule is not based upon logic; it is the accidental product of a jurisdictional contest between the common law and ecclesiastical courts of England, which the tort of libel was fortunate enough to escape. Commentators have generally denounced the special damages requirement in slander on the basis that the emphasis in defamation actions should be upon injury to reputation, rather than upon pecuniary loss. Although the courts lacked the initiative to dispose of this anachronistic requirement, they showed no inclination, prior to the appearance of the above-mentioned decisions, to compound the error by introducing special damages into the law of libel. In spite of its lack of historical foundation, however, and in spite of the severe criticism it has received from writers, the notion that special damages are necessary in actions of libel per quod has become increasingly popular with the courts, and probably represents the prevailing view among those which have considered the question.

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