Can an insult be defamation per se?

Question

In my view, one can differentiate between "pure insults" such as "a-hole" (which do not claim anything about the such-named except that the speaker disapproves of them) and insulting labels that also imply a statement of fact such as "fascist", "Leninist", or "rapist". If true, that would mean that such an insult could fall under Defamation per se. Even purely opinion-based labels such as "fascist" could be classified as "injurious to another in their trade, business, or profession".

How does this interpretation hold in the light of U.S. case law?

Answer 1

As the link in the question explains:

Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:

• Allegations or imputations "injurious to another in their trade, business, or profession"

• Allegations or imputations of "loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness)

• Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)

• Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)

It is not sufficient for defamation per se to hurt someone's business, it has to be about a person or business's conduct in the course of their business.

For example, "Gibson's Bakery discriminates against black customers" would be a statement about the business that hurts the business (from the example of this case), and would thus be defamation per se. But, "The Gibson family made the money that they invested in their business from money that their ancestors made in the Georgia slave trade," or "Mr. Gibson was in the Nazi youth before he came to the U.S." would probably not be defamation per se, even though it might hurt the business.

A pure insult which does not imply any presently existing facts can't be actionable defamation in U.S. law, either per se or otherwise. It is a statement of opinion. An insult that, in context, reasonably implies a presently existing fact that is false might be actionable defamation, but whether or not it was defamation per se would depend upon which fact was implied.

Answer 2

If the insult implies something that is verifiably false, and the speaker intended to imply the false thing, that might be defamation depending on the jurisdiction. It's almost never defamation per se, though.

Defamation per se is defamation regarding certain topics that are injurious just by the implication -- accusing someone of a crime, saying they have herpes, that kind of thing. So, calling someone a rapist could definitely count. But a defendant could conceivably claim they meant the word hyperbolically -- for example, to describe acts that they find a bit rapey even if they don't fit the legal definition of rape.

Accusing someone of a particular political bent rarely meets that bar. Thoughts and party memberships aren't crimes, and don't make anyone particularly loathsome (current political climate notwithstanding)...so if you want to sue, you have to show that the accusation injured you in some way. That's defamation per quod, basically the opposite of defamation per se.

With all that said, there are jurisdictions (Florida, for sure) where accusations of things like racism and homophobia are legally defamation per se. Those laws might not survive a constitutional challenge, but for now they are the law there.