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MEMORANDUM Powered By Docstoc
TO:              Senior Associate
FROM:            Associate
DATE:            November 19, 2005
RE:              Dot Blue; Slander per se, et al

                                     Questions Presented

          Whether a published statement implicating a person to be a drug user and an

AIDS patient constitutes one of the four types of slander per se, for which no special

damages need be pleaded: an accusation of a serious crime; an injury to one‟s business,

trade, or profession; a suggestion that someone suffers from a loathsome disease; or a

challenge to a woman‟s chastity.

                                        Brief Answer

          Probably yes. AIDS is still considered a loathsome disease. Because of this, a

published suggestion that a person is an AIDS patient is sufficient to constitute slander

per se.

                                      Statement of Facts

          Dot Blue, a physical therapist, is an employee at the Wellness Center in New

York City. Her supervisor is Dr. Dudley Higgins. Following Dr. Higgins‟ divorce from

Melinda Higgins, our client, Ms. Blue became a close friend and confidante to Dr.

Higgins. Ms. Higgins, who also knows Ms. Blue from a yoga class, learned of the

friendship on March 15, 2005 from Dr. Higgins. Dr. Higgins told Ms. Higgins of his

admiration for Ms. Blue and that she had become an asset to the clinic. In a fit of

apparent jealousy, Ms. Higgins said to Dr. Higgins (in reference to Ms. Blue) “an asset to

the Wellness Center? She‟s hardly „well.‟ She‟s a drug user who got herself AIDS. She‟d

only be an „asset‟ if your center was called the Losers‟ Center.”

        After Ms. Higgins made these comments, Dr. Higgins began to withdraw from the

friendship with Ms. Blue, and he started to actively avoid her. Ms. Blue became the

subject of rumors among her colleagues, and the scheduling receptionist began favoring

other therapists with appointments.

        Ms. Blue confronted Dr. Higgins, who informed her of our client‟s comments.

Ms. Blue then confronted our client, who confessed to having made the statements to Dr.


        Ms. Blue then filed a suit seeking damages in the amount of $500,000 for slander

per se against our client.


        Slander per se is a type of defamation. “Defamation, consisting of the twin torts of

libel and slander, is the invasion of the interest in a reputation and good name.” Albert v.

Loksen, 239 F.3d 256, 265 (2d Cir. 2001) (citing Hogan v. Herald Co., 84 A.2d 470, 474

(4 Dept. 1982)). Libel is written defamation, while slander is spoken. Id. The plaintiff‟s

claim against our client is for spoken statements, therefore slander. “The elements of a

cause of action for slander under New York law are (i) a defamatory statement of fact,

(ii) that is false, (iii) published to a third party, (iv) „of and concerning‟ the plaintiff, (v)

made with the applicable level of fault on the part of the speaker, (vi) either causing

special harm or constituting slander per se, and (vii) not protected by privilege.” Id.

        To recover for slander, a plaintiff must show that he or she has suffered special

damages as a result of the slanderous remarks, unless the remarks fall under the category

of four established exceptions. If the statement meets one of the four exceptions, the

courts assume damage, and do not require proof. “The four established exceptions

(collectively „slander per se‟) consist of statements (i) charging plaintiff with a serious

crime; (ii) that tend to injure another in his or her trade, business, or profession; (iii) that

plaintiff has a loathsome diseases; or (iv) imputing unchastity to a woman.” Liberman v.

Gelstein, 605 N.E.2d 344, 347-48 (1992). The plaintiff in this case is alleging slander per


        The first type of slander per se is statement that one is guilty of a serious crime.

The plaintiff will contend that our client was accusing her of illegal drug use. However,

while possession, distribution and creation of illicit drugs is a crime in New York state,

the use of them is not. N.Y. Penal Law § 220.00 (McKinney 2004). Even if drug use were

against the penal law, it would not be considered actionable per se. Only certain crimes

such as treason, espionage, murder, burglary, arson and rape are among those crimes.

Restatement (Second) of Torts § 571, comment g. According to the Restatement, “[t]his

is by no means a complete catalogue of offenses,” but the courts have yet to add drug use

to the list of major offenses.

        The second type of slander per se is injury to one‟s business, trade, or profession.

The plaintiff claims that her professional relationships with her colleagues have been so

tarnished as to constitute an injury to her business. But the disdain that her colleagues

have developed has in no way impeded her abilities as a physical therapist. The courts

have held that in order to be actionable, a statement must be “more than a general

reflection upon decedent‟s character or qualities. Rather the statement must reflect on her

performance or be incompatible with the proper conduct of her business.” Golub v.

Enquirer/Star Group, Inc., 681 N.E.2d 1282, 1283 (1997). It must in some way call into

question “any particular talent or ability needed to perform in decedent‟s profession . . . .”


       Our client did not suggest that the plaintiff was somehow impaired as a physical

therapist. Had our client suggested that the plaintiff suffered from a condition which

prohibited her from doing her job safely or effectively, like a neurosurgeon with

Parkinson‟s Disease, a case could be made. Id. Our client did not suggest that the plaintiff

held prejudices or unsavory opinions of a class of people with whom she would regularly

have contact. Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250 (1 Dept. 1995).

Our client also did not suggest that the plaintiff in any way was abusing her position for

illicit or unprofessional means. Had she accused the plaintiff of attempting to take sexual

advantage of her clients or her colleagues, the suggestion of unprofessional conduct

would have been actionable. Chiavarelli v. Williams, 256 A.D.2d 111 (1 Dept. 1998).

       The third type of slander per se is the suggestion that someone has a loathsome

disease. The term „loathsome‟ is one that the courts have not considered for some time.

But by the latest definition, AIDS would be considered a loathsome disease. The

Restatement (Second) of Torts lists what diseases fall under the category of loathsome.

Included in the list of loathsome diseases are leprosy, syphilis, gonorrhea, “or any other

infection ordinarily contracted only through sexual intercourse.” AIDS, or Acquired

Immune-Deficiency Syndrome, is a disease caused by HIV, or Human Immunodeficiency

Virus, which is contracted primarily through sexual contact. It is now assumed by many

to be one of the loathsome diseases. Kenneth J. Kelly, Workplace Litigation, Prac. L.

Inst. 7, 71 (1993). The Golub court found that cancer is not a loathsome disease by

stating that “[c]ancer does not fall into the category of a loathsome disease since it „is

neither contagious nor attributed in any way to socially repugnant conduct.‟” Golub v.

Enquirer/Star Group, Inc., 681 N.E.2d 1282, 1283 (citing Chuy v. Philadelphia Eagles

Football Club, 595 F.2d 1265, 1281 (3d Cir. 1979)). By inference, a loathsome disease

must meet at least one of those criteria. AIDS is not contagious, because it is not casually

transmittable. Instead it is a “sexually transmitted disease,” or “venereal disease.” It is,

however, frequently attributed to socially repugnant conduct, such as illicit drug use, or

sexual promiscuity.

       Courts have also held that a loathsome disease is one that brings with it a social

stigma from which a person would have difficulty recovering, a “special repugnance.”

Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1281. The actions of her

colleagues best exemplify the plaintiff‟s argument of this circumstance. The belief that

the plaintiff was a carrier of the HIV virus caused them to shun her en masse.

       Scholars have addressed whether or not AIDS is socially repugnant more than the

courts have. “The hysteria and general public response to the present AIDS epidemic

clearly indicates the approbation that surrounds HIV infection. Discrimination against

those with AIDS is pervasive and invades all areas of life including social, economic, and

employment activities.” The article goes on to criticize the lack of judicial response to the

question: “Instances of general discrimination against persons with AIDS are so common

that one could assume judicial notice would be taken of the fact.” 21 T. Marshall L. Rev.

1, 40-41 (2000).

        Courts and legislatures all over the country have taken great pains to ensure that

AIDS patients have high levels of privacy. The argument for this is undoubtedly that

those afflicted with HIV and AIDS deserve privacy while they contend with this fatal

disease. But if the disease didn‟t carry with it a certain social shame with it, why would it

be necessary for patients to seek more protections than those suffering from other

ailments? The privacy laws, which forbid disclosure without consent, make it a crime to

disclose one‟s AIDS status unless falling under a very strict set of exceptions. N.Y. Pub.

Health Law §§ 2780-87 (McKinney 2004). Why would AIDS patients need special

protections if they didn‟t face greater challenges in open society?

        An argument could be made, and perhaps should be made, that today‟s modern

society exemplifies more modern attitudes towards AIDS patients. Newer medications

are allowing those who have contracted HIV to live longer, fuller lives. The incident

involving the plaintiff‟s co-workers could be an isolated incident not reflective of such

attitudes, which now treat HIV and AIDS less like a plague and more like an unfortunate

condition. Such attitudes would place HIV and AIDS in a category with cancer, a

category which states that the condition is unfortunate, but is not loathsome, nor

necessarily debilitating.

        Under the traditional definition, AIDS is a loathsome disease, but the courts have

not ruled recently on whether or not HIV and AIDS are still loathsome in today‟s less

fear-driven society. If the courts choose to subscribe to the traditional definitions, then

they will find that our client did meet this criteria.

        The final type of slander per se is an imputation against the chastity of a woman.

The suggestion that the plaintiff acquired AIDS is an implication that she had engaged in

sexual promiscuity. AIDS is defined as a venereal disease, which is defined by Black‟s

Law as “a disease transmitted only or chiefly by engaging in sexual acts with an infected

person.” Black‟s Law Dictionary, “Sexually Transmitted Disease” (8th ed. 2004).

However, our client never explicitly accused the plaintiff of being neither unchaste nor



       Our client will likely be found liable for slander per se, because a successful

argument can be made that she accused the plaintiff of having a loathsome disease, which

exposed the plaintiff to the negative social stigma attached to the disease.

       Out best strategy is to argue that the inclusion of HIV and AIDS in the category of

loathsome diseases is outdated. However, the courts tend to err on the side of caution and

not overturn precedent. Cruz v. Latin News Impacto Newspaper, 627 N.Y.S.2d 388 (1

Dept. 1995). Furthermore, the behavior and actions of the plaintiff‟s co-workers will be

their best evidence to prove that AIDS is still held in special regard as a particularly

loathsome ailment.

       Absent a successful argument that AIDS is no longer a truly loathsome disease,

the court will probably find in favor of the plaintiff.