Defamation Per Se: Defamation by Mistake?

Defamation is a complicated tort, due in part to the differing rules that govern libel and slander, the two branches of the tort. The focus of this essay is on “defamation per se,” its origins in Minnesota, and the consequences of its misapplication. The essay opens with a short statement of standard defamation principles, followed by a short statement of the prevailing United States Supreme Court decisions, imposing First Amendment limitations on common law defamation claims, and the Minnesota cases that follow them. The next part analyzes a string of Minnesota cases that establish the foundation for Minnesota defamation law, including cases where the term “defamation per se” is introduced by the Minnesota Supreme Court. It then moves to an analysis of more recent defamation cases that incorporate the defamation per se concept, although perhaps with a mistaken understanding of what the term meant in earlier cases. The last part asks whether the result is anything other than a solecism and whether the result is independently justified even if it is