Slander, in law, defamatory words falsely and maliciously spoken, and injurious either in fact or in legal presumption. It is actionable slander: 1, to speak of one thus falsely and maliciously words importing his guiltiness of an offence involving moral turpitude or punishable by law; 2, to charge him with having such an infectious, or perhaps disgusting disease as, if known, would probably cause his exclusion from society; 3, to use in regard to one in office, or of a person in reference to his profession, trade, or business, such language as has a natural tendency to cause him damage or loss, either because the language implies the lack of some requisite qualification for the occupation or profession, or because it implies insolvency or some positive misconduct or dishonest practice in the business or calling; 4, to speak words which, though not naturally or presumptively productive of loss, have nevertheless caused actual damage to the person slandered. Of these four classes of slanderous words, the first, second, and third include those that are actionable per se, or of themselves; that is to say, if the plaintiff proves that the words were spoken, he recovers damages without proving any particular loss.
An action lies for words of the fourth class only when the plaintiff can prove express and special damage. - Of the form of slander which imputes guiltiness of crime, it is to be observed that the immediate ground on which the law founds the action is that injury to the party's reputation and his consequent degradation in society which is the natural and immediate incident of criminal guilt.
The words must therefore suggest an offence which subjects the party to a criminal prosecution and to infamous punishment. If the penalty for an offence is merely pecuniary, it does not appear that an action will lie for charging it, even though in default of payment imprisonment should be prescribed by the statute, the imprisonment not being the primary and immediate punishment of the offence. But the words will be actionable in themselves in case the charge, if true, will make the party charged liable to an indictment for a crime involving moral turpitude or subjecting him to an infamous punishment. Thus, to charge forgery or counterfeiting, keeping a bawdy house, Bribery at an election, and the soliciting one to commit murder, are all actionable slanders per se, for they suggest both moral turpitude and an indictable offence. For the same reason it is actionable per se not only to say that one has done enough to send him to the penitentiary, but to say that ho has already been there. But to allege that one lives by imposture imputes indeed moral turpitude, but not an indictable offence, and is consequently not slanderous per se, or without proof of actual damage. Words alleging perjury are actionable of themselves.
The language must of course either express or imply all that is essential to constitute the crime, to wit, a judicial proceeding, material testimony, and the other essential elements of perjury. A charge of false swearing which does not expressly or impliedly comprehend all these points is not slanderous. Theft is an indictable and infamous offence, and the false and malicious imputation of it is actionable without proof of damage. One may sometimes call another a thief, just as he calls him scoundrel, liar, or cheat, by way of general abuse, and without any intention of charging the crime of larceny to him. If the defendant can show this clearly, he may defeat the presumption which the law always makes of a slanderous quality and intent in the word. Where fornication is made punishable by statute, as in most of the states, it is slanderous per se to charge unchastity. It was not so at the common law, but the hardship, and indeed the absurdity of this rule, when the consequences to a woman are considered, are so manifest that it has quite generally been changed by statutes in the several states.
Words charging disease are actionable only when they imply that the disease now exists. - The third class of slanderous words includes those imputations which affect one's official, professional, or business character. To be actionable of themselves, the words must immediately contemplate and touch these relations; for it is invariably held that where the words complained of, though calculated in every respect to cause the forfeiture of an office or the loss of the income of a profession or business, are nevertheless not in fact applied to the conduct of the plaintiff in his office or business, the action for slander fails. But words which necessarily, even if not in terms, refer to and affect one's business relations, may be held slanderous; as to say, for example, in reply to an inquiry about failures, " I understand there is trouble with the Smiths," or "B owes more money than he is worth, and is broken." So it is slanderous per se to say that a trader is insolvent, that X keeps none but rotten goods, that Y uses filthy water in making his beer, or that Z keeps false books, where keeping books is a necessary incident to the business.
It is slander to charge an attorney or physician with general ignorance or un-skilfulness in his profession; and words which of themselves allege ignorance or unskilfulness in a particular case may be actionable if they fairly imply general disqualification in these respects. - The fourth class includes those words for which an action lies if special damage be proved. Thus, to say of another that he is a knave, a blackleg, a liar, a cheat, or a scoundrel, is generally not actionable. If, however, the speaking of these or the like defamatory words has wrought the plaintiff particular pecuniary loss, he can recover damages. - In all cases in which an action for slander lies, an essential principle on which the action rests is that the speaking of words false in fact and injurious to the reputation of another is malicious. By malice in this place is to be understood, not that disposition of ill will, spite, or revenge which in common parlance the word implies, but that legal malice which is the presumption and conclusion of the law from the fact of the deliberate 'and unqualified statement of false and defamatory matter, without cause or justification. Where these elements coincide, the law implies the malice, and the slander is complete.
It is the corollary of this conception of slander that a defendant cannot justify the speaking of the slanderous words by the plea that he merely repeated the language of another. Formerly, indeed, it was held, on the authority of an old case in Coke, that if the defendant, at the time of uttering the words complained of, named his informant and gave his precise language, so as to furnish the plaintiff with a good cause of action against him, these facts might be pleaded as presumptive proof that the defendant did not utter the slanderous words maliciously. But the latest English cases hold that the defendant's plea must go further, and must show in addition to the facts just mentioned that he believed the charge to be true, and repeated it with a justifiable intent and on a justifiable occasion. The American rule is at least equally strict, and until the legal presumption of malice is rebutted by showing a justifiable intent and justifiable occasion, the uttering or repeating of slanderous words is actionable. To refrain altogether from the repetition of such words is the only way to be entirely safe. The presumption of legal malice is defeated when the otherwise slanderous language is employed upon a just occasion, in the discharge of a duty or in the protection of an interest.
Such communications as these are said to be privileged, and the burden of showing express malice is thrown upon the plaintiff. In a leading case upon this subject in the supreme court of the United States, privileged communications Were divided into four classes, viz.: 1, publications duly made in the ordinary mode of parliamentary proceedings; 2, words used in the course of legal or judicial proceedings; 3, anything said or written by a master in giving the character of a servant who has been in his employment; 4, words used by any one in good faith in the discharge of any public or private duty, legal or moral, or in the prosecution of his own rights or interests. With reference to the first of these classes, the exemption from liability for any words spoken in debate is expressly provided by the constitution of the United States, and is probably repeated in the declaration of rights in the constitution of every state in the Union. The exemption extends to everything said or done by a representative in the discharge of his office, whether in debate in open session of the house, or more privately out of the house in committee, or even during the ordinary adjournment of the sessions.
On the same principle, namely, the public interest in the prompt, unembarrassed, and efficient administration of the laws, all language spoken in good faith in the course of legal proceedings before a competent jurisdiction, pertinent in any wise to the matter in question, enjoys perfect immunity. The benefit of the privilege is secured alike to the parties, the counsel, the witnesses, the judges, and the jury. As to statements made by masters in reference to the character of their servants, good faith will be presumed, and it is for the servant to negative the presumption. Malice will be implied if he shows the falsehood of the charge; and there may be a prima facie presumption of malice if a master volunteered the unfavorable statement respecting his discarded servant. - In a civil action for slander, the truth of the facts imputed may be pleaded by the defendant in justification. If the plea is maintained by proof, the action is defeated; for the principle is, that if the plaintiff is guilty of the whole matter charged to him, he has sustained no injury and has therefore no valid claim for damages. • The amount of the damages lies almost entirely within the discretion of the jury.
They may give punitory or vindictive damages in cases of wanton and unqualified malice; and even though the amount may seem excessive, yet the court will not generally set the verdict aside, unless it shall be plain that the jury was influenced by improper motives or was misled by some gross error.