BCC Wk 5 I Learned About the Use of Profanity Vulgar Language & Gestures Discussion


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After you finish the readings for Week 5, post a message (here) in the conference in which you complete the following: “Explain what you have learned after reading the text about the use of: profanity; Vulgar Language and Gestures? “


Basic Concepts of Criminal Law”Read Chapters 9 and 10Week # 5 LecturePlease know that all quiz and/or exam questions are obtained from the readings within the textbook. The information below or in other lectures posted “contained” herein this course is not testable or required reading, as it is intended only to supplement the readings contained within the textbook. It is here for those that may wish to read it as it may further one’s insight concerning various topics presented in the chapters of the assigned readings.In other words, do not let the amount of information presented in this or other lectures posted overwhelm you, as no quiz or exam questions have been taken from the lecture materials.However, duplicate or similar information located in the textbook is testable. JurisdictionChapters 9 and 20 Super Matter Jurisdiction[1] DefinedSubject matter jurisdiction refers to a court’s authority to decide a particular kind of controversy.  Subject matter jurisdiction can be concurrent — shared between several different kinds of courts — or exclusive, restricted to a particular kind of court.[2] Scope of Federal Subject Matter JurisdictionThe United States Constitution sets out the permissible scope of the judicial power of federal courts in Article III, § 2. It lists the following types of federal subject matter jurisdiction:cases “arising under” this Constitution, laws of the United States, and treaties (federal question jurisdiction);cases affecting ambassadors and other official representatives of foreign sovereigns;admiralty and maritime cases;controversies to which the United States is a party;controversies between states and between a state and citizens of another state;cases between citizens of different states (diversity jurisdiction);cases between citizens of the same state claiming lands under grants of different states;cases between a state or its citizens and foreign states and their citizens or subjects (alienage jurisdiction).Article III vests the Supreme Court with original jurisdiction of cases affecting ambassadors and other foreign officials and those to which a state is a party, and such appellate jurisdiction as Congress may create.  Article III vests no jurisdiction directly in lower federal courts but authorizes Congress to create and endow them with subject matter jurisdiction.  Congress has never vested lower federal courts with as much subject matter jurisdiction as Article III permits.  Today, the main sources of federal jurisdiction are federal question jurisdiction and diversity jurisdiction, usually concurrent with state court jurisdiction.Federal Question JurisdictionIn order to establish federal question jurisdiction, a “right or immunity created by the Constitution or the law of the United States must be an element, and an essential one, of the plaintiff’s cause of action” [Gully v. First National Bank, 299 U.S 109, 112 (1936)].  Even where a cause of action arises under state law, a federal court may have jurisdiction if it appears that the right to relief rests on the construction or application of a federal law [Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921)].  However, the mere presence of a federal issue in a state-created cause of action does not automatically confer federal question jurisdiction. Its availability depends in part on “an evaluation of the nature of the federal interest at stake”: whether it is sufficiently important to require a federal trial forum [Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 806 (1986)].A plaintiff cannot invoke the original jurisdiction of the federal courts either by anticipating a federal defense or otherwise importing a federal question into his complaint that is not essential to his case.Diversity Jurisdiction[1] General RuleUnder the federal diversity jurisdiction statute, 29 U.S.C. § 1332, a federal court has subject matter jurisdiction over a matter where:(1) there is complete diversity among the parties such that no plaintiff shares citizenship with any defendant; and(2) the amount in controversy exceeds $75,000.Limited exceptions to the complete diversity requirement apply where specifically created by Congress, e.g., in interpleader actions, only two adverse claimants need be of diverse citizenship. [28 U.S.C. § 1335(a)(1)][2] Limitations on Diversity JurisdictionDeferring to state courts, federal courts have traditionally declined to exercise jurisdiction in the following types of cases, even when the parties satisfy the requirements for diversity jurisdiction:certain in rem cases.probate cases.domestic relations cases.Additionally, courts are obliged by statute to deny jurisdiction which has been “improperly or collusively made.”[3] CitizenshipCitizenship for diversity purposes requires a party to be a citizen of both the United States and of a state.Individuals – The courts have equated the state citizenship of natural persons with domicile in a state.  Domicile is created by the concurrent establishment of physical residence in a state and an intent to remain there indefinitely. Although a person can have more than one residence at one time, he can have only one domicile at a time.Corporations – The diversity statute deems a corporation to be the citizen of “any State by which it has been incorporated and of the state where it has its principal place of business.”Unincorporated associations – Unincorporated associations, such as partnerships and labor unions, take the citizenship of each member.[4] Amount in Controversy[a] “Legal Certainty Test” The present amount in controversy is $75,000, exclusive of interest and costs. Jurisdictional amount is ordinarily computed from the plaintiff’s viewpoint without regard to possible defenses, and plaintiff’s good faith pleading controls unless the court concludes to “a legal certainty” that he cannot recover the pleaded amount.[b] Aggregating Multiple ClaimsIndividual claims that do not alone satisfy the jurisdictional amount may be aggregated in the following circumstances:plaintiff asserts multiple claims against a single defendant, whether or not they are transactionally related.plaintiff joins several defendants to the same claim pursuant to FRCP 20 if the several defendants have a common undivided interest or title in the claim.several plaintiffs join in the same claim against one or more defendants pursuant to FRCP 20 when the several plaintiffs have a common undivided interest or title in the claim.Removal JurisdictionA defendant may, pursuant to 28 U.S.C. § 1441, remove a civil action pending in a state court to a federal court if the federal would have had original jurisdiction over the plaintiff’s claim.  The assertion of a defense or counter-claim based on federal law does not convert a non-federal case into a federal one.Diversity cases are removable only if none of the defendants is a citizen of the state in which the action is pending. [28 U.S.C. § 1441(b)]When a federal court already has jurisdiction over a claim based on a federal question, it has discretion to remove separate and independent state-law claims in order adjudicate the entire case if the state law claim is part of the same constitutional case or controversy as the federal question claim. [28 U.S.C. § 1441(c)]  If such test is met, the state law claim falls within the supplemental jurisdiction of the federal court and can thus be removed.Supplemental Jurisdiction[1] General Rule and its AntecedentsWhen a federal court possesses subject matter jurisdiction over a matter, it may exercise supplemental jurisdiction over one or more related claims that would not independently satisfy subject matter jurisdictional requirements. Supplemental jurisdiction, a legislative creation since 1990 [28 U.S.C. § 1367], supplants two related judicial doctrines – pendent and ancillary jurisdiction. [2] Pendent JurisdictionPendent jurisdiction refers to the courts’ extension of jurisdiction from a freestanding (usually federal question) claim to an otherwise jurisdictionally insufficient pendent (usually state law) claim by a plaintiff or plaintiffs.[a] Pendent Claim JurisdictionIn United Mine Workers v. Gibbs [383 U.S. 715 (1966)] Supreme Court was presented the question whether the federal courts had jurisdiction over the state claim in the absence of diversity. The Court held that constitutional power exists to decide the nonfederal claim whenever it is so related to the federal claim that they comprise “but one constitutional ‘case.’ ”  It suggested a three-part test for constitutional case:(1) plaintiff must assert a federal claim that has “substance sufficient to confer subject matter jurisdiction on the court.”(2) freestanding and pendent claims “must derive from a common nucleus of operative fact.”(3) the federal and nonfederal claims must be such that the plaintiff “would ordinarily be expected to try them all in one judicial proceeding.”[b] Pendent Party JurisdictionPendent party jurisdiction was also relied upon to assert claims against new parties over whom independent federal subject matter jurisdiction was unavailable.  In Zahn v. International Paper Co., 414 U.S. 291 (1973), pendent party jurisdiction was invoked in a diversity action to add a defendant against whom the value of the claim was less than the jurisdictional amount.  The Court found the exercise of pendent party jurisdiction to be improper, suggesting that pendent party jurisdiction could not be used to avoid the rule against aggregation.Pendent party jurisdiction was also invoked in federal question cases to add non-diverse parties to state law claims.  In Finley v. United State, 490 U.S. 45 (1989), the plaintiff asserted a freestanding claim within the exclusive jurisdiction of the federal courts and sought to join transactionally-related state law claims against non-diverse defendants. Absent pendent party jurisdiction, plaintiff would have had to forego her state law claims against the non-diverse parties or to bring separate actions in federal and state court. The Court acknowledged the inefficiency and inconvenience of this result, yet denied pendent party jurisdiction, because the underlying jurisdictional statute contained no “affirmative grant of pendent-party jurisdiction.” [3] Ancillary JurisdictionAncillary jurisdiction extended jurisdiction from the freestanding (often diversity) claim to an otherwise jurisdictionally insufficient claim by the defendant(s) or similarly situated parties such as intervenors as of right.  E.g., in a diversity action, ancillary jurisdiction supported a compulsory counterclaim or cross-claim for less than the jurisdictional amount or impleader of a non-diverse party.Ancillary jurisdiction originally developed independently of pendent jurisdiction.  The Supreme Court recognized ancillary jurisdiction of claims:“ancillary and dependent, supplementary merely to the original suit, out of which it had arisen.” [Freeman v. Howe, 65 U.S. 45 (1860)]transactionally-related state law counter-claims. [Moore v. New York Cotton Exchange, 270 U.S. 593 (1926)]in diversity cases where there existed constitutional power to hear the jurisdictionally insufficient claims and where Congress had neither expressly nor impliedly negated the exercise of jurisdiction. [Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978)]Nevertheless, following Finley (regarding pendent party jurisdiction), some lower federal courts extended to ancillary jurisdiction Finley’s insistence on affirmative evidence of Congressional approval for such exercise of jurisdiction by federal courts.[4] Supplemental JurisdictionIn 1990, Congress responded to Finley by enacting the supplemental jurisdiction statute, essentially over-ruling the case. [28 U.S.C. § 1367][a] Qualifying Under Section 1367(a)Subsection 1367[a] expressly extends federal jurisdiction from freestanding claims within the original jurisdiction of the federal court to supplemental claims that are “so related [to the freestanding claims . . . that they form part of the same case or controversy under Article III of the United States Constitution.”Subsection 1367(a) overrules Finley by expressly providing that “supplemental jurisdiction shall include claims that involve joinder or intervention of parties,” thereby authorizing jurisdiction over what wereformerly called pendent party claims.  Most courts have found that claims which satisfy the same transaction or occurrence standard for joinder under FRCP 13(a) (compulsory counterclaim), 13(g) (crossclaim), or 20 (joinder of parties) also qualify for supplemental jurisdiction.[b] Disqualifying Under § 1367(b)Subsection 1367(b) provides that in diversity-only cases the courts do not have supplemental jurisdiction over claims by plaintiffs against persons made parties by FRCP 14 (impleader), 19 (compulsory joinder of parties), 20 (permissive joinder of parties) or 24 (intervention), when exercising such jurisdiction would be inconsistent with the jurisdictional requirements of the diversity statute.  Thus, a plaintiff may not assert claims against parties in a diversity action if supplemental jurisdiction would negate complete diversity.[c] Discretion Under § 1367(c)Subsection 1367(c) gives courts discretion to refuse jurisdiction when it believes, in the interests of judicial economy, convenience, fairness, and comity, that the supplemental claims would more appropriately be decided by state courts.[d] 100-mile Bulge RuleWhen supplemental jurisdiction is asserted over third-party defendants and indispensable parties, service may be effectuated by the 100-mile bulge rule, if such parties cannot be served within the state in which the federal court sits.  The rule allows service on such added parties anywhere within 100 miles of the federal courthouse in which the action is pending.  [FRCP 4(K)(1)(B)]  The Limits of Free SpeechSPECIAL DOCTRINES IN THE SYSTEM OF FREEDOM OF EXPRESSIONIntroduction [467]In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Court sketched a two-tiered approach to protection for freedom of expression, dividing speech into two categories: that which received constitutional protection and that which did not. New York Times v. Sullivan, 376 U.S. 254 (1964), invited a transition from a comparatively narrow scope of First Amendment protection to a more diffuse and creative application of guarantees for freedom of expression. Citizens sought constitutional protection for such diverse areas as symbolic expression, funding of political campaigns, unconstitutional conditions on government funding, commercial advertising, and obscenity. The Supreme Court of the United States has addressed these issues using the paradigm fashioned in New York Times v. Sullivan. Rather than classify these areas as protected or unprotected speech, the Court has fashioned tests, tailored to each of these areas, that have protected a considerable amount of expressive behavior.Expressive Conduct [468-472]In simple terms, “expressive conduct,” often used interchangeably with the term “symbolic speech,” refers to the communication of ideas through one’s conduct. Expressive conduct raises some interesting constitutional questions because it combines expression, which typically receives First Amendment protection, and conduct, which typically does not. This dualistic nature may account for the Court’s posture of affording expressive conduct some constitutional protection but substantially less protection than pure speech.A government regulation of expressive conduct is justified:(1) if it is within the constitutional power of the Government;(2) if it furthers an important or substantial government interest;(3) if the governmental interest is unrelated to the suppression of free expression;(4) and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.Expenditures of Money in the Political Arena [472-479]In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court decided the constitutionality of certain provisions of the Federal Election Campaign Act of 1971, amended in 1974 in the wake of the Watergate scandal. The Court upheld the Act’s limitation on contributions to political campaigns. However, the Court struck down the Act’s provisions limiting a candidate’s total campaign expenditures, and limiting the candidate’s personal contribution to her own campaign. The Court also invalidated the limits on expenditures by others that advanced a particular candidate but were not made directly to the campaign.Government Spending on Speech Related Activities [479-482]Another series of questions involves whether the First Amendment might restrict government spending to advance particular ideas or viewpoints. To this point, the Court has taken a relatively hands off approach.Commercial Speech [482-494][1] Protection for Commercial Speech: General PrinciplesIn Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council, Inc., 425 U.S. 748 (1976), the Court extended constitutional protection to commercial speech, or commercial advertising. Writing for the majority, Justice Blackmun concluded that commercial speech simply proposes a commercial transaction. The pharmacist did not wish to express an opinion, relate some newsworthy fact, or even make general comments about commercial matters. He simply wished to communicate the idea that, “I will sell you the X prescription drug at the Y price.”[2] Lawyer AdvertisingThe Supreme Court extended First Amendment protection under the commercial speech doctrine to advertising by lawyers in Bates v. State Bar, 433 U.S. 350 (1977). Relying heavily on Virginia Pharmacy, the Court in Bates struck down a state disciplinary rule prohibiting lawyer advertising.Obscenity [494-503][1] The Constitutional StandardThe current test for obscenity was delineated in Miller v. California, 413 U.S. 15 (1973). The Court set out the following test:(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest;(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and(c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Id. at 24.[2] Procedural Issues in Obscenity Cases: “Prior Restraints” and Seizure of MaterialsPrior restraints on expressive conduct are serious intrusions on First Amendment rights, but they have sometimes been sustained in the case of obscene materials, provided there is an opportunity for prompt judicial determination of the obscenity allegations. In Freedom v. Maryland, 380 U.S. 51 (1965), the Supreme Court established that prior restraints must comply with the following requirements:(1) the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor;(2) any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo;(3) a prompt final judicial determination on the merits must be assured. Id. at 58-59. SPEECH IN PUBLIC PLACES Introduction [431]First Amendment jurisprudence has long extended a right to speak on certain government property that qualifies as a public forum. This right to speak in the public forum permits everyone to introduce their views for free. The public forum is particularly important for those who would otherwise lack adequate resources to access the marketplace of ideas. Without such free access, the right to free speech for many would be illusory.This right of access is not absolute, however. An unlimited right of access to the public forum would jeopardize the First Amendment rights of everyone. If everyone spoke at the same time in the same public forum, the resulting chaos would prevent all speakers from communicating their respective messages. The Constitution permits the government to place limited time, place, and manner restrictions on the right to speak in a public forum to ensure that those who wish to speak can be heard. These restrictions must be content neutral because by arbitrarily dictating where, when, or under what circumstances people can speak, the government could effectively suppress speech. For example, government could advise a speaker whom it disfavored that she could speak only at 4 a.m. in a deserted area. On the other hand, it could allow a preferred speaker access to the town square at noon. Such abuses of time, place, and manner restrictions could result in the suppression of speech just as effectively as more direct methods of censorship.Offensive Speech in Public Places [431-441][1] General PrinciplesIn Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Court rejected constitutional protection for what it referred to as “fighting words.”[2] Hate SpeechIn R.A.V. v. St. Paul, 505 U.S. 377 (1992), several teenagers were convicted under an ordinance that prohibited placing symbols on public or private property so as to arouse anger based on race, religion, or gender. The R.A.V. Court found the ordinance invalid on its face because it prohibited speech solely on the basis of content. Although the Minnesota Supreme Court construed the ordinance at issue to prohibit only fighting words, the ordinance only applied to fighting words that insulted or provoked violence based on race, religion, or gender.[3] Sexually Offensive SpeechSexually obscene speech is not protected by the First Amendment. What about speech that does not meet the Court’s definition of obscenity but is arguable still offensive?In Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976), the Court upheld a Detroit zoning ordinance that forbade adult motion picture theaters from locating within 1,000 feet of any two other regulated uses or within 500 feet of residential areas. Regulated uses referred to 10 different kinds of establishments in addition to adult theaters.Speech in Traditional Public Forums: Streets, Sidewalks, Parks [441-445]Certain public property–such as streets, sidewalks, and parks–are so historically associated with the exercise of free speech rights that denial of access to anyone is constitutionally forbidden. However, unlimited access to such public forums would likely lead to chaos and thereby decrease First Amendment protection. Consequently, the Constitution permits the state to place reasonable time, place, and manner restrictions on access to public forums.The Civil Rights Movement, Mass Demonstrations, and New Rules for New Public Forums [445-446]Cases involving mass demonstrations brought new pressures on public forum analysis, more severe than the single-speaker or small-group forms of expression. For example, in Brown v. Louisiana, 383 U.S. 131 (1966), the Court protected a right to conduct a peaceful, quiet sit-in a public library.The Modern Approach: Limiting Speech According to the Characters of the Property [446-461][1] Public PropertyThe modern Court’s public forum analysis is confined to public or government property. Even within the category of government property, there are public forums and non-public forums. Among public forums, there are different types affording different speech rights. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983), separated public property into various categories of public fora. Traditional public forums included streets, sidewalks, and parks. The government could not close these forums off to the public. Content-based exclusions based on the speaker’s viewpoint or based on the subject matter of the speech must be “necessary to serve a compelling state interest and narrowly drawn to achieve that end.” Id. at 45. Finally, “regulations of the time, place, and manner must be content-neutral and narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id.The state opened up public forum by designation for expressive activity. There were two categories of public forums by designation, general and limited. General public forums by designation were those that the state had opened up for all types of expressive activity. The state could close off public forums by designation at any time. However, as long as it kept them open, the same constitutional restriction on regulations of speech that pertained to traditional public forums also pertained to public forums by designation. Limited public forums by designation were places that government had opened for speech by certain groups or for certain subjects.[2] Private Property as a Public Forum: Shopping Centers and Company TownsFor private property open to the public to be considered a public forum, state action must be present. First Amendment guarantees applied to a company town. Hudgens v. NLRB, 424 U.S. 507 (1976), concluded that shopping centers were not public forums because no state action existed.Speech in Public Schools [461-463]The extent of protection granted to speech in the public school setting varies. Greater protection has been extended to student expression that is not related to curricular or extracurricular activities. Thus, students may express their own opinions as long as they do not “materially and substantially interfere with” the operation or requirements of the school or impinge on the rights of others. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).Religious Speech in Public Places [463-466]The additional concerns and issues raised by the Establishment Clause make religious speech in public places more complicated than other speech. In two school cases, the Court reasoned that allowing religious speech on public property did not violate the Establishment Clause.DEFAMATION Overview [432]The law of defamation is particularly intricate due to its unique blend of common law and First Amendment principles. The tort of defamation permits recovery for reputational harm, which was considered a grave injury in socially stratified England. Over time, a number of common law privileges have been recognized, making a plaintiff’s defamation case more challenging, however.Common Law Defamation [432-442]At common law, defamation was a strict liability tort. As such, a plaintiff could recover without proving any fault on the part of the defendant. Furthermore, the falsity of the allegedly defamatory statement was presumed. Finally, in most instances, damages were presumed. Thus, in most common law defamation actions the plaintiff only had to prove (1) a defamatory statement (2) about the plaintiff (3) that was “published.” The defendant then had the opportunity to try to assert a defense, such as the truth of the statement. Thus, at common law, a defendant could quite unwittingly defame another and be responsible for significant damages.[A] Defamatory StatementTo be defamatory under the general common law rule, a statement must hold the plaintiff up to scorn, ridicule, or contempt. The Restatement provides that a communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” [Restatement § 559]. A defamatory statement, is one that harms reputation by injuring a person’s general character or causing personal disgrace. A court determines as a matter of law whether any interpretation of the communication could be construed as defamatory, while it is for a jury to decide whether the statement in the case before it is actually defamatory.[1] Defamatory to Whom?The plaintiff must show that a “substantial and respectable minority” or a “right-thinking minority” would comprehend the defamatory nature of the communication. This group can be quite small. If the group that could interpret the communication in a way that injures the plaintiff’s reputation is of a blatantly anti-social nature, courts may deny the plaintiff a defamation action.[2] Statements Not Facially Defamatory: Inducement and InnuendoSome statements are facially defamatory; nothing needs to be added for a reader to fully understand the defamatory nature of the statement. Other times the defamatory impact can only be understood by the addition of extrinsic information. In such situations the plaintiff is obligated to plead the extra facts needed to make the statement defamatory (“inducement”) or to explain the defamatory impact (“innuendo”) if it is not obvious.[B] Of and Concerning the PlaintiffThe plaintiff must show that the defamatory communication was understood as referring to her. If the plaintiff can show this, it is irrelevant that the defendant did not intend for the statement to refer to the plaintiff. Similarly, even if the defendant intended to create a fictional character, a defamation action will lie where recipients of the communication reasonably believe that the character is really the plaintiff. Where the plaintiff is not expressly named in the communication, the plaintiff must plead “colloquium” to connect herself to the defamatory statement.[1] Group DefamationSometimes defamatory communications do not specifically name individuals but ascribe discrediting behavior to unnamed members of a group. If the group is small and the defamatory sting may attach to each group member, each member of the group may bring a defamation action. The larger the group, the less likely it is that a court will permit a defamation action by all the affected group members.[2] Corporate PlaintiffsCorporations and other business entities may be defamation plaintiffs where the communication tends to cast aspersions on their business character, such as trustworthiness, or deters third parties from dealing with them. Where the attack is on a product, the action is typically for product disparagement.[C] Publication and RepublicationA plaintiff must establish that the defamatory communication was published, meaning that it reached one person other than the defamation plaintiff. The plaintiff must show that either the defendant intended to publish the information or was negligent in so doing. Any repetition of a defamation is considered publication, even if the republisher attributes the statement to the initial source.[D] DamagesIn most defamation cases, a plaintiff’s reputational injury may be presumed, permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the communication. In the defamation context, such damages are called “general damages.” General damages provide compensation for the emotional trauma and harm suffered by the plaintiff whose reputation was besmirched. There are situations, however, where the plaintiff must plead and prove a specific type of loss, called “special damages,” in order to prevail. Special damages are specific economic losses flowing from the defamation. If the plaintiff proves these special damages, she may then recover general damages. The damages recoverableto a defamation plaintiff depend on whether the defamatory communication is considered libel or slander and, if slander, whether the defamation falls into a category denominated “slander per se.”[1] The Libel/Slander DistinctionSlander is an oral utterance while libel is a more permanent expression.[2] Slander and Slander Per SeWhere the defamation is characterized as slander, the plaintiff generally must meet the substantial burden of pleading and proving special damages. Since early common law, however, certain slanderous statements were deemed so horrible that reputational injury to plaintiffs could be presumed even without any proof of special damages. The four traditional slander per se categories that permit presumed reputational damages absent special damage are: (1) communications that directly call into question the plaintiff’s competence to perform adequately in her trade or profession; (2) statements claiming the plaintiff has a current, loathsome disease; (3) allegations of serious criminal misbehavior by the plaintiff; (4) and, suggestions of a lack of chastity in a woman.[3] Libel and Libel

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