Sticks and stones may break my bones but words will never hurt me.
Whoever coined that phrase didn't know anything about the law of slander, which allows you to be sued for what you say. This body of law recognizes that words can sometimes hurt and that somebody should pay for the pain.
Slander is a subset of the law of defamation, false statements that injure your reputation in the community--or, in the words of our lawmakers, expose you to "hatred, contempt, ridicule or obloquy" or cause you to be "shunned or avoided."
In general, libel is the written form of defamation and slander is the spoken form, but in California, unlike many other states, it is called slander when the words are broadcast on radio or television.
In California and most states, there are four traditional categories of statements called "slander per se." These are the kinds of things that are supposed to really hurt. If you accuse anyone of a crime, suggest they have a contagious or "loathsome" disease, question their competence in their occupation or imply they are impotent or have a "want of chastity"--and if your accusation is false, watch out, you're probably in big trouble.
You can be sued and the courts will presume that the statements caused financial damage.
So if you're going to say something nasty about someone, try and stay away from these four categories. If you say something nasty about someone and it does not fall into one of these four categories, that person cannot win a slander suit unless he can show that he actually suffered financial injury as a result of your statement.
So, if you falsely label the local military commander a coward, it's slander per se because you've questioned his occupational abilities. But if you call your real estate agent a coward, presumably you haven't questioned his professional integrity, so it's not slander per se, and he'll have to prove loss of profits before he can win the suit.
If you're angry at a used-car salesman because you think you've been bilked, and you march into his office and call him every name in the book, can he win a slander suit against you because he felt bad for days, especially if he had to consult a psychiatrist because he lost his self-esteem and couldn't sleep at night?
It doesn't matter. If he's the only person who heard what you said about him, then he doesn't have a valid slander suit. Even if you said he was an impotent, fraudulent, slimy, dishonest wife beater who had venereal disease. That's because the law requires that the false statement be communicated to a third party.
Must Be False
In order to be actionable, the statement must be false, made to a third person and also must be "unprivileged." The courts and the state Legislature have established certain privileges to encourage freedom of expression.
For instance, senators and assemblymen are "privileged" to say whatever they want during a legislative session, without fear of slandering someone. And statements made during a judicial proceeding are privileged in a similar way. Newspapers and broadcasters also have a privilege to report what went on in governmental proceedings, without worrying that what was said may turn out to be false and defamatory.
Courts have also concluded that, generally speaking, a person's stated opinion, or mere "name calling" should not form the basis for a successful slander action. In fact, the Supreme Court has said, "however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."
Insults, epithets and hyperbole demonstrate the speaker's anger, but they are usually not damaging to a person's reputation or are not understood by listeners as statements of fact, provable true or false in a court of law.
For example, courts have said calling a stockbroker a "silly, stupid, senile bum" was not slanderous. Nor was calling a lawyer "nuts" or a restaurateur named Block a "blockhead." These were not statements of fact, but protected opinions.
Courts look to the context in which the words are used to decide whether the audience would interpret them as protected opinion or a potentially damaging statement of fact about a person.
So if you're about to call your neighbor a litigious jerk, and you're worried about whether you'll be sued, make sure you can support what you say and choose your words carefully.
Or just say it to his face, and make sure no one is listening.
Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.