united-states defamation
Is it true that a suit of defamation could require &quot;very little effort&quot;?
<p>A <a href="https://meta.stackexchange.com/questions/334551/an-apology-to-our-community-and-next-steps/334605#comment1096011_334605">recent comment</a> at SE Meta stated:</p>

<blockquote>
  <p>my reading of US law is that under certain circumstances, the plaintiff need make very little effort to successfully bring a suit of defamation.</p>
</blockquote>

<p>This strikes me as absurd, because even if the plaintiff has a strong case, there is still a lot of work to be done in bringing any sort of suit.</p>

<p>What do the legal experts think?  Does the quoted comment hold water?</p>

<p>(In case this is helpful: here is a succinct outline of the context that led to this question: <a href="https://meta.stackexchange.com/questions/334399/summing-up-the-main-issues-the-story-so-far">https://meta.stackexchange.com/questions/334399/summing-up-the-main-issues-the-story-so-far</a>)</p>

<blockquote>
  <p>Is it true that a suit of defamation could require “very little effort”?</p>
</blockquote>

<p>No. Definitely not. The <a href="https://en.wikipedia.org/wiki/Defamation#Defamation_per_se" rel="nofollow noreferrer">Wikipedia article</a> (and understandably the <a href="https://meta.stackexchange.com/questions/334551/an-apology-to-our-community-and-next-steps/334605#comment1096011_334605">comment</a> on which it is premised) leaves out many details about substantive and procedural law which are essential in US jurisdictions.</p>

<p>For instance, the [Wikipedia] item of "<em>1. accusing someone of a crime</em>" is insufficient for the falsehoods to be considered <em>defamation per se</em>. The crime of which one is falsely accused needs to be considered an <em>infamous crime</em> or involve moral turpitude. Under [US] defamation law, a crime is deemed serious or infamous when it is classified as felony or its punishment could exceed one year of prison. The case law cited in <a href="https://www.leagle.com/decision/inmico20161202231" rel="nofollow noreferrer"><em>Lakin v. Rund</em>, 896 N.W.2d 76 (2016)</a> reflects how this criterion is uniform among US jurisdictions.</p>

<p>Another difficult issue in defamation lawsuits is the need to prove the defendant's mental state known as <em>actual malice</em>. Even where there is clear proof of a defamer's actual malice, a plaintiff can be denied justice because of judge's <em>arbitrary</em> choice to side with the defendant (just like with non-defamation lawsuits). For case law from various jurisdictions regarding defamation law and actual malice, you might want to see the citations in my briefs in the SCOTUS <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1560.html" rel="nofollow noreferrer">here</a> and <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1576.html" rel="nofollow noreferrer">here</a>. Most of the records in regard to the latter case are available <a href="http://www.oneclubofjusticides.com/p/viggers-v-pacha_74.html" rel="nofollow noreferrer">here</a>.</p>

<p>Defamation lawsuits are not exempt of having to comply with the procedural laws involved in judicial proceedings either, nor is the discovery, drafting, or legal research any simpler for being a lawsuit about defamation.</p>

<p>In the context of the comments that prompted your question here, the "repeated violations" that SE imputed to former moderator Monica would hardly be grounds for a viable lawsuit against SE for <em>defamation per se</em> or otherwise. Here are some reasons:</p>

<ul>
<li>Rejecting a policy of gender pronouns such as the one SE seeks to
impose is not considered an infamous crime. There is no legislation to that effect, at least yet.</li>
<li>An actual refusal to adhere to that policy hardly involves moral
turpitude. Far from involving corruption (i.e., moral turpitude), the
controversy about gender pronouns touches on some of a person's
deepest beliefs. Thus, the "offense" of opposing such a policy cannot
be said to constitute an act of moral turpitude.</li>
<li>The previous two items rule out a viable claim of defamation per se.
Thus, Monica would have to prove that SE's falsehoods about her
(whatever they are) caused her concrete losses (a typical example is <em>lost
income</em>) by prompting others to dissociate from her. I am unaware of whether Monica's situation would fit in this scenario.</li>
<li>You are right in that a claim of <a href="https://meta.stackexchange.com/questions/334551/an-apology-to-our-community-and-next-steps/334605#comment1096005_334605">mental distress</a> is not viable
either. Note from <a href="https://www.leagle.com/decision/20011407546se2d86111282" rel="nofollow noreferrer">here</a> or <a href="https://www.leagle.com/decision/infco20170331218" rel="nofollow noreferrer">here</a> that in a claim of Intentional Infliction of Emotional Distress (IIED)</li>
</ul>

<blockquote>
  <p>(1) the conduct must be intentional and reckless; (2) the conduct must
  be extreme and outrageous; (3) there must be a causal connection
  between the wrongful conduct and the emotional distress; and (4) the
  emotional distress must be severe</p>
</blockquote>

<ul>
<li>Any claims of harassment that might be available to Monica would not be
against SE, but against the specific individuals who engaged in
harassing her directly.</li>
</ul>

<p>Depending on the methods and severity of the harassment, Monica might be able to obtain injunctive relief --typically in the form of restraining orders-- against those specific individuals. It is noteworthy that not all criticism or heckling at or about Monica would be cognizable as harassment.</p>

<p>That SE Meta comment linked to an article that contained -</p>

<blockquote>
  <p>Defamation per se</p>
  
  <p>Most states recognize that some categories of statements are
  considered to be defamatory per se, such that people making a
  defamation claim for these statements do not need to prove that the
  statement was defamatory.[143]</p>
  
  <p>In an action for defamation per se, the law recognizes that certain
  false statements are so damaging that they create a presumption of
  injury to the plaintiff's reputation, allowing a defamation case to
  proceed to verdict with no actual proof of damages. Although laws vary
  by state, and not all states recognize defamation per se, there are
  four general categories of false statement that typically support a
  per se action:[137]</p>

<pre><code>accusing someone of a crime;
alleging that someone has a foul or loathsome disease;
adversely reflecting on a person's fitness to conduct their business or trade; and
imputing serious sexual misconduct.
</code></pre>
</blockquote>

<p>It seems that just proving that one of a small number of specific  things were stated could establish defamation without establishing that the statement actually caused damage.</p>

<p>Outside of these listed things, defamation has more elements to prove. From a Cornell law web site -</p>

<blockquote>
  <p>To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.</p>
</blockquote>

<p>EDIT</p>

<p>Not a news report or a case but from a Nolo Site called AllLaw -</p>

<p><strong>Defamation Per Se v. Defamation Per Quod.</strong> </p>

<blockquote>
  <p>Defamation per se means that the statement is obviously defamatory;
  the court does not have to interpret or study the defamatory statement
  to know that it would harm the plaintiff. With defamation per quod, on
  the other hand, the plaintiff needs to provide an explanation why the
  statement is defamatory. This is common where the statement is an
  inducement or innuendo. With defamation per se, presumed damages are
  available. Defamation per quod typically requires proof of actual
  damages</p>
</blockquote>

<p>My conclusion is that I think it is competently wrong that any law suit takes very little effort. And it doesn't look like the issue that brought this up on SE Meta involves one of the four special cases. See the good answer from @Iñaki Viggers</p>

<p><strong>The quoted comment is not correct.</strong></p>

<p>The First Amendment makes defamation cases very difficult to win. </p>

<p>A case of "defamation <em>per se</em>" is a bit easier than a standard defamation case, as the plaintiff does not need to prove damages, but she still otherwise prove all the elements of her case, which are:</p>

<ol>
<li><p>a false statement;</p></li>
<li><p>about the plaintiff;</p></li>
<li><p>published to a third party;</p></li>
<li><p>causing damages to the plaintiff.</p></li>
</ol>

<p>And if the plaintiff is a public figure or if the defamatory statement addressed a matter of public concern, there are all sorts of procedural hurdles that will make it very difficult for the plaintiff to overcome the defendant's First Amendment rights to speak about her or her conduct.</p>

<p>In this case, because the moderator in question is a volunteer, this isn't a case of defamation <em>per se</em>, so she would need to prove damages, which I suspect would be minimal, especially given the lopsided reaction to the post in her favor. </p>

<p>But the most problematic piece will be the second prong, as the SE statement about the case never identified the moderator in question. One of the posts did, but only because Monica herself edited it to include her name. </p>

<p>Proving that the statement is false will also be difficult, as the courts will require not just that the statement is literally false, but that in the overall context of the entire statement, it left readers with an impression of her that was more damaging than the full truth.</p>
