2

Usually, the difference between ordinary insults/name-calling and actionable slander is taken to be that non-actionable insults are either subjective statements that can't unambiguously be determined to be true or false (for instance, "Ronald is an asshole") or else statements that, while objectively false, are obviously hyperbolic or sarcastic (for instance, "Donald is a brain-dead puppy-eating lizard from Cygnus X-1"), whereas actionable slander consists of objectively-false statements that can plausibly be taken literally, due to not being obviously hyperbolic or sarcastic (for instance, "Donald is a convicted child molester").

However, a number of common, run-of-the-mill insults appear, going by the above rule of thumb, like they would be slanderous, due to (seemingly) making plausible, objective claims about the target:

  • For instance, if Ronald calls Donald a "retarded bastard son of a senile crackwhore", he's (going by the literal meaning of the individual members of this string of insults) claiming that Donald is intellectually-disabled and was born out of wedlock to a crack-cocaine-addicted prostitute suffering from dementia, all of which are things that could potentially be true, even if taken literally.
  • If Donald then retaliates by calling Ronald a "pigfucking cretin cocksucker", and we take this string of insults literally, he's making the claim that Ronald suffers from congenital hypothyroidism, has sex with pigs, and practices fellatio, all of which, again, could plausibly be true.

When insulting someone else using one or more insults that could appear to be making plausible, objective claims (such as the examples above), when does run-of-the-mill name-calling cross the line into actionable slander?

Looking specifically for answers here, due to the unusual characteristics of U.S. defamation law (and also because I live in the States).

1 Answer 1

5

An insult can be slanderous when it is reasonably understood to constitute a statement of an actual, presently existing fact about a person, as opposed to being purely figurative or clearly hyperbole in the context in which it is used.

A purely literal reading isn't sufficient, even when it would be remotely possible that the literal sense of the word could be true. And, the same string of words in an insult could be slanderous when directed at one person in one setting, and not when directed at another person in another setting. The intended meaning, as the audience when it is uttered would understand it, is what matters.

In close calls, we let the trier of fact decide if the statement was or implied a literal statement of a presently existing fact, or if it was not meant in that sense, following a trial if necessary.

For instance, if Ronald calls Donald a "retarded bastard son of a senile crackwhore", he's (going by the literal meaning of the individual members of this string of insults) claiming that Donald is intellectually-disabled and was born out of wedlock to a crack-cocaine-addicted prostitute suffering from dementia, all of which are things that could potentially be true, even if taken literally.

If Donald is a U.S. Senator or a school teacher, this probably isn't going to be taken literally by a reasonable person hearing it. If Ronald is a guidance counselor at a school who would have reason to know the real facts and Donald is a janitor who was a former student at the school and these things aren't true, it might be slanderous.

The retaliatory insults would almost surely not be slanderous no matter who said them and if the retaliation were stated in that way it would also tend to make the original statement less likely to be taken as a genuine statement of fact as opposed to a generalized insult, because Donald is not treating the insult as if it was true or might be true.

Unlike the U.S., in Germany, insults of these sorts would often be actionable because under German law, gross rudeness, in and of itself, is actionable even in the absence of the fraud element required in U.S. law. This was historically the case in some circumstances in the U.S. but that basis for imposing liability, at least under the label of slander or defamation, is pretty much dead in U.S. law.

4
  • 2
    In addition, to be defamatory they have to damage the person’s reputation to a reasonable listener. So, the insults have to be overheard (call anyone whatever you like face-to-face with no eavesdroppers) and they have to be such as would damage the reputation of the person. In the modern world most of those words even if literally true (or intended to be taken literally) are not reputationally damaging.
    – Dale M
    Mar 28, 2023 at 4:21
  • 2
    @DaleM Yup, and also the reputation of the speaker is taken into account, so if the speaker is known to be a liar of no reputation, that may reduce the damage of the insult. Further, you can't damage the reputation of a person who has none, so if they've already destroyed their public reputation there are no damages. Mar 28, 2023 at 4:37
  • 2
    "you can't damage the reputation of a person who has none" - this reminds me of the following correction published by The Mirror, a UK newspaper, after Ms. Hopkins complained to the independent press regulator: “A previous version of this article suggested that Katie Hopkins was stopped from leaving South Africa because of the consumption of ketamine. We are happy to clarify that Ms Hopkins was detained for spreading racial hatred, which took place after the ketamine incident.”
    – kaya3
    Mar 28, 2023 at 12:29
  • @kaya3: Out of the frying pan...
    – Vikki
    Mar 28, 2023 at 20:23

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .