A false defamation (expressed in spoken words, signs, or gestures) which injures the character or reputation of the person defamed; distinguished from libel.
The defaming a man in his reputation by speaking or writing words which affect his life, office, or trade, or which tend to his loss of preferment in marriage or service, or in his inheritance, or which occasion any other particular damage. In England, if slander be spoken of a peer, or other great man, it is called Scandalum Magnatum. Falsity and malice are ingredients of slander. Written or printed slanders are libels.
Here it is proposed to treat of verbal slander only, which may be considered with reference to, 1st. The nature of the accusation. 2d. The falsity of the charge. 3d. The mode of publication. 4th. The occasion; and 5th. The malice or motive of the slander.Actionable words are of two descriptions; first, those actionable in themselves, without proof of special damages and, secondly, those actionable only in respect of some actual consequential damages. Words of the first description must impute:
1st. The guilt of some offence for which the party, if guilty, might be indicted and punished by the criminal courts; as to call a person a "traitor," "thief," "highwayman;" or to say that he is guilty of "perjury," "forgery," "murder," and the like. And although the imputation of guilt be general, without stating the particulars of the pretended crime, it is actionable. - 2d. That the party has a disease or distemper which renders him unfit for society. An action can therefore be sustained for calling a man a leper. But charging another with having had a contagious disease is not actionable, as he will not, on that account, be excluded from society. A charge which renders a man ridiculous, and impairs the enjoyment of general society, and injures those imperfect rights of friendly intercourse and mutual benevolence which man has with respect to man, is also actionable. - 3d. Unfitness in an officer, who holds an office to which profit or emolument is attached, either in respect of morals or inability to discharge the duties of the office in such a case an action lies. - 4th. The want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade or business, in which the party is engaged, is actionable as to accuse an attorney or artist of inability, inattention, or want of integrity or a clergyman of being a drunkard;
Of the second class are words which are actionable only in respect of special damages sustained by the party slandered. Though the law will not permit in these cases the inference of damage, yet when the damage has actually been sustained, the party aggrieved may support an action for the publication of an untruth unless the assertion be made for the assertion of a supposed claim. Action upon the case for Defamation but it lies if maliciously spoken.
The charge must be false; the falsity of the accusation is to be implied till the contrary is shown. The instance of a master making an unfavorable representation of his servant, upon an application for his character, seems to be an exception, in that case there being a presumption from the occasion of the speaking, that the words were true.
The slander must, of course, be published, that is communicated to a third person; and if verbal, then in a language which he understands, otherwise the plaintiff's reputation is not impaired. A letter addressed to the party, containing libelous matter, is not sufficient to maintain a civil action, though it may subject the libeler to an indictment, as tending to a breach of the peace; the slander must be published respecting the plaintiff; a mother cannot maintain an action for calling her daughter a bastard.
To render words actionable, they must be uttered without legal occasion. On some occasions it is justifiable to utter slander of another, in others it is excusable, provided it be uttered without express malice. It is justifiable for au attorney to use scandalizing expressions in support of his client's cause and pertinent thereto. Members of congress and other legislative assemblies cannot be called to account for anything said in debate.
Malice is essential to the support of an action for slanderous words. But malice is in general to be presumed until the contrary be prove except in those cases where the occasion prima facie excuses the publication.
A calumniator, who maliciously and without reason imputes a crime or fault to another, of which he is innocent. For this offence, when the slander is merely verbal, the remedy is an action on the case for damages; when it is reduced to writing or printing, it is a libel.