Do changing social norms change the definition of "defamation?"

Question

One hundred years ago, if you said that "Miss X is not a virgin," when in fact she was, that would be grounds for a defamation suit. The reason is that because 80%+ of unmarried American adult women were, in fact, such (before the advent of the "Pill" in the 1960s).

Someone made the observation, "today, you would more likely be sued for defamation if you alleged (wrongly) that Ms. X IS a virgin," implying that she is sexually inexperienced. The issue is that 90%+ of unmarried adult women are not virgins today.

One way of interpreting the above is that a statement that "Ms. X is a virgin" would not be "highly offensive to a reasonable person." That is, you are praising Ms. X for her "chastity."

But another way of looking at it is that you are alleging, in 2021, that Ms. X is deviating from the prevailing norm by being a virgin, whereas in 1921, NOT being a virgin would represent a deviation from the norm.

Would alleging that someone was "out of line" with prevailing norms in the above fashion be grounds for defamation even though these norms have changed over time?

Answer 1

The definition of defamation, itself, doesn't change. What may change is whether certain kinds of false statements are "so bad" that it is not necessary to prove that the person was actually damaged by the statement, i.e. is defamation per se. In California this is

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity;

Hence, being falsely claimed to be a virgin is not defamation per se, but if you can show that you were actually damaged by the claim then you can be compensated for those damages. This is long-standing law (Tonini v. Cevasco (1896) 114 Cal. 266), which makes it difficult to erode in lieu of a change in statutory language (as in the case of the California Civil Code, amended in 1948). Barnes-Hind v. Superior Court (1986) 181 Cal.App.3d 377 provides a loophole, that

the reader of a libel will recognize it as such. If no reasonable reader would perceive in a false and unprivileged publication a meaning which tended to injure the subject's reputation in any of the enumerated respects, then there is no libel at all. If such a reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense, then (under section 45a and the cases, such as MacLeod, which have construed it) there is a libel per se. But if the reader would be able to recognize a defamatory meaning only by virtue of his or her knowledge of specific facts and circumstances, extrinsic to the publication, which are not matters of common knowledge rationally attributable to all reasonable persons, then (under the same authorities) the libel cannot be libel per se but will be libel per quod.

A "reasonable" reader would not recognize a claim of non-virginity as having a defamatory meaning, but would likely recognize being a professional incompetent as having a defamatory meaning.

In other words, even false statements statutorily listed as being potential defamation per se will be subject to a "reasonable man" test: but proving actual damage is still an option.

Answer 2

Changing social norms don't change the definition of defamation, but they do change the definition of defamation per se. Just such a change is going on now, as courts consider whether it is necessarily defamatory to say that another person is gay.

The definition of defamation

Social norms do not change the definition of defamation. Broadly spealking, defamation is always a case in which a speaker makes (1) a false statement; (2) about the defendant; (3) to a third party; (4) causing reputational damage to the defendant.

Given that definition, neither of the suggested interpretations is the correct way to look at defamation law (in America, at least). You can say something that is "highly offensive to a reasonable person," without triggering defamation liability, and you can likewise suggest that someone is "deviating from the prevailing norm" without triggering defamation liability.

Instead, the question for defamation liability is basically always going to be whether your false statement caused reputational damage to its subject.

The definition of defamation per se

Normally, a plaintiff must prove that your statement caused him some damage, but in a narrow class of cases -- known as defamation per se -- the court will presume that the statement caused some damage.

Historically, courts have limited per se liability to cases involving allegations of:

• a criminal offense;
• a loathsome disease;
• activities incompatible with the defendant's profession; and
• serious sexual misconduct.

With proof of any of these, a court may be willing to fix liability even in the absence of proof that the defamation caused the plaintiff some monetary loss.

The shifting bases for per se liability

While the categories for per se liability haven't really changed in the last 100 years, societal norms for what falls within those categories has changed.

The category for "serious sexual misconduct" is likely the most prominent example. If the New York Times ran a headline saying "The President is Homosexual" in 1905, it would be received quite differently than if it ran that headline today. Because the stigma was so prevalent, courts treated allegations of homosexuality as allegations of "serious sexual misconduct," and permitted plaintiffs to recover damages even without proving any real monetary loss.

But today, even though there are still plenty of homophobes out there, being gay just isn't as big a deal anymore: anti-sodomy statutes are unconstitutional, same-sex marriage is legal, and so on.

So it shouldn't be surprising that courts have stopped treating homosexuality as sexual misconduct. Most recently, the New York Court of Appeals reached just that decision:

Notably, in New York, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing. Moreover, marriage between persons of the same sex was permitted in New York years before the United States Supreme Court's decision in Obergefell. The New York State Legislature enacted the Marriage Equality Act in June 2011. Based on the foregoing, we conclude that the false imputation of homosexuality does not constitute defamation per se. ... Furthermore, the additional allegation that the plaintiff viewed gay pornography on the church's computer likewise does not fit within any of the categories of defamation per se.

Laguerre v. Maurice, 2020 WL 7636435, 2020 N.Y. App. LEXIS 8011, 2020 NY Slip Op 07887 (2nd Dept., Dec. 23, 2020).

The rule is not universal -- and to your point, you can probably expect it to be adopted more slowly in more conservative areas -- but courts have begun to accept the proposition that changing social norms have changed the idea that calling someone gay is necessarily defamatory.

Answer 3

Would alleging that someone was "out of line" with prevailing norms in the above fashion be grounds for defamation even though these norms have changed over time?

It depends on the type of norms. For instance, legislation outweighs social norms. Statutory law in some/many jurisdictions makes it actionable to falsely impute a want of chastity. See MCL 600.2911(1). It would be wrong for a court to favor the defamer under pretext the statute or legislative intent is outdated.

If not addressed in the legislation, though, the matter would be decided on the basis of whether the false statement of fact tends to harm the person's reputation. Generally speaking, a woman's reputation is unlikely to be harmed by false statements that she is virgin. The change of social norms is not so much about criticizing/praising whether an unmarried woman is sexually inexperienced, but about considering the issue irrelevant for having a concept about her as person.

The falsehood "Ms. X IS a virgin" would be defamatory only in intricate contexts and usually because of what it would imply. For instance, there are two ways (besides lawful adoption) for an unmarried woman to become a single mom: either by losing her virginity or by some unlawful act(s) such as human trafficking or abduction. The false statement "Ms. X is a virgin" (and disproving the occurrence of lawful adoption) would imply that mom/Ms. X engaged in unlawful conduct.