An Open Letter to Erica Podgorni

Dear Erica,

When I was in law school, we learned about two types of wrongdoing.

There is the type where someone is accused of violating a criminal law, and the matter is adjudicated in criminal court. All criminal matters are prosecuted by the state and begin with an arraignment or an indictment. To be convicted of a crime, the state must show guilt beyond all reasonable doubt. This legal standard is as close as you can get to 100% in a world that contains uncertainties. Since a defendant’s liberty interests are often in play in a criminal adjudication, i.e., there exists the potential of incarceration, in a nation of laws, we apply this almost-100% standard in recognition of what’s at stake.

Another type of wrongdoing is where someone’s conduct has caused damages to another person, and the matter is adjudicated in civil court. Civil matters begin when a plaintiff files a complaint alleging harmful misconduct by an identifiable defendant. To prevail in civil court, the plaintiff needs to show, by a preponderance of the evidence, that the defendant caused harm to the plaintiff. The “preponderance of the evidence” standard is anything over 50%. In civil matters, when a defendant is found responsible for a wrongdoing, also known as a “tort,” that defendant generally is ordered by the court to pay money to the plaintiff.

In cases of negligence, the plaintiff must show that the “defendant owed the plaintiff the duty of care,” and that the defendant failed to meet that duty, causing the plaintiff damages. In cases of negligent torts, sometimes the defendant’s conduct resulted in an identifiable cost for which the defendant is held responsible, e.g., the plaintiff’s medical bills. Sometimes, there are damages that are estimated, e.g., the plaintiff’s pain and suffering.

An example of a negligent tort is medical malpractice, where tort law deems a doctor owing a patient a duty of care and where that patient claims that the doctor neglected that duty, thereby causing the plaintiff damages.

Another way people can be held civilly responsible for their acts doesn’t require any “duty of care.” These “intentional torts” deem the defendant’s conduct as purposefully hurtful, as opposed to negligently hurtful.

An example of an intentional tort is punching someone in the face.

I will note that punching someone in the face is also a crime. It is the crime of battery. So, in addition to the state bringing criminal charges against the defendant for breaking the criminal code, the punched person may also bring the defendant into civil court and sue for damages, e.g., medical bills, pain and suffering, etc. Like with negligence, the plaintiff will need to spell out how the defendant’s punch caused them damages. The punch alone is not sufficient proof for a defendant to be held civilly responsible for the punch. The requirement to show damages exists because one can imagine a world where Sally, let’s say is a 95-pound, 95-year-old woman, punches Bob, a 350-pound, 30-year-old tough guy, causing Bob no harm. No harm, no tort.

(Side note: The state could choose to hold Sally accountable criminally on the punch alone, That evidence is sufficient to prove a violation of the criminal code. The state is not required to show damages in a criminal case because the case isn’t about the pecuniary (money) harm Sally caused/didn’t cause Bob. The case is about the state punishing Sally for violating the criminal code. This could result in Sally’s incarceration, a serious restriction on her liberty which, for a period of time, keeps Sally from punching free, i.e., not jailed, people in the face.)

There exists in tort law a few torts where the plaintiff doesn’t need to prove damages because tort law recognizes that there are some things that people do to each other that are so egregious and so harmful that the damages are presumed.

All the plaintiff has to do in these sorts of “presumed-damages” lawsuits is to provide evidence of the defendant’s harm-causing conduct. That’s pretty much the entire case-in-chief.

An example of a tort where damages are presumed is defamation per se. I’m going to focus my analysis on written defamation per se (libel) rather than spoken defamation per se (slander), though my analysis can be applied to both.

There are four types of statements that are considered so harmful that by just writing (or saying) them, the plaintiff is presumed as having suffered actionable harm:

  1. A statement that the plaintiff had a “loathsome,” contagious, or infectious disease. E.g., Sally posts on her Facebook page, “Bob has genital warts.” If this statement is not true, then Bob may sue Sally, and all Bob would have to show is that Sally posted it on her Facebook page. Damages are presumed.
  2. A statement that the plaintiff was unchaste or engaged in sexual misconduct. E.g., Sally posts in a Moms’ group on Facebook, “Bob committed adultery.” If this statement is not true, then Bob may sue Sally, and all Bob would have to show is that Sally posted it in a Facebook group. Damages are presumed.
  3. A statement that the plaintiff was involved in behavior incompatible with the proper conduct of his business, trade, or profession. E.g., Sally posts on her friend’s Facebook page, “Policeman Bob drives around drunk when off-duty.” If this statement is not true, then Bob may sue Sally, and all Bob would have to show is that Sally posted it on her friend’s Facebook page. Damages are presumed.
  4. A statement that the plaintiff was involved in criminal activity. E.g., Sally posts in a community Facebook group, “Bob raped his 9-year-old nephew.” If this statement is not true, then Bob may sue Sally, and all Bob would have to show is that Sally posted it in a community Facebook group. Here too, the damages are presumed.

These above four statements are not a matter of opinion. They are all offered as, and readily presumed to be, factual statements.

Sally can write lots of things about Bob on Facebook that are not at all actionable, even if Sally’s words are unkind or hateful or malicious. E.g., Bob’s the sort of guy whose personality would improve if he got a good ol’ case of genital warts; Bob isn’t trustworthy; Bob doesn’t deserve to be promoted to Sergeant; Bob’s a real asshole.

The foregoing four statements are each a matter of opinion. Expressions of opinion, generally, are not actionable.

The best way for Sally to avoid being brought to court on a claim of defamation per se is to limit her commentary strictly to her unkind, hateful, and/or malicious opinions about Bob.

But if Sally opts to write (say) something about someone, she ought to avoid making untruthful factual statements about Bob, especially in the defamation per se category, because that could result in a lawsuit.

Well, that’s what I remember about tort law. It’s been over two decades since I sat in my torts class; it’s been eighteen since I passed the bar; and I never practiced tort law. Given those three facts about me, anyone who might read this open letter should not for even a moment construe anything I’ve shared here as legal advice or legal guidance.

Instead, feel free to construe the foregoing as a crash course in how not to harm others with words.



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