Hayes v. Smith
1991 WL 272809, 832 P.2d 1022 (1992)
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Rule of Law:
Accusations of homosexuality are not slander per se in Colorado, meaning a plaintiff must prove actual damages and that the statements were defamatory in context, even if made about a public official or in an employment setting, due to the modern judicial trend to limit per se categories and the availability of actual damages under Gertz.
Facts:
- Kathleen Hayes, a high school teacher, lecturer, and writer, and Samantha Smith were active participants in a conservative Christian community and jointly created a corporation.
- Over time, the relationship between Kathleen Hayes and defendants Roger Smith and Samantha Smith deteriorated, leading to harassment and verbal accusations.
- In May 1986, Roger Smith and Samantha Smith met with Kathleen Hayes's school superintendent.
- During the meeting, the Smiths stated that Kathleen Hayes had tried to establish a homosexual relationship with Samantha Smith, had 'proposed marriage' to Samantha Smith, and had in the past been discharged from a teaching position.
Procedural Posture:
- Kathleen Hayes filed a defamation action against Roger Smith and Samantha Smith in a trial court (court of first instance) based primarily on the statements made to her superintendent.
- The jury returned a verdict in favor of Kathleen Hayes, awarding $1,000 in actual damages and $26,000 in special damages.
- Roger Smith and Samantha Smith (defendants/appellants) appealed the judgment entered on the jury verdict to the Colorado Court of Appeals.
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Issue:
Does a false accusation of homosexual conduct constitute slander per se, especially when made about a public official in an employment context?
Opinions:
Majority - Judge Dubofsky
No, a false accusation of homosexual conduct does not constitute slander per se, even when made about a public official in an employment context. The court noted that historically, defamation per se was limited to imputing a criminal offense, a loathsome disease, improper business conduct, or unchastity to a woman. However, the Restatement (Second) of Torts and U.S. Supreme Court precedent, particularly Gertz v. Robert Welch, Inc., reflect a trend to limit, not expand, per se classifications and presumed damages. Gertz disfavored presumed damages for public officials and figures without proof of malice or recklessness, a standard applicable here since Hayes was a public official. The court emphasized that plaintiffs can still recover for actual injuries, including non-economic damages like humiliation and mental anguish, which are often easier to prove than reputation or economic loss. Furthermore, several factors militate against per se classification for accusations of homosexuality: sexual activities between consenting adults of the same sex are no longer illegal in Colorado; courts should not categorize homosexuals with 'miscreants' deserving reprobation; and there is no empirical evidence that homosexuals are held in such poor esteem as to unequivocally expose a plaintiff to public hatred or contempt. The court concluded that despite the malicious or reckless conduct by defendants, expanding the scope of per se defamation in this instance is unwarranted given Gertz's hostility to such expansion and the evolving societal view of homosexuality. Thus, even statements made in an employment context and affecting business reputation are not slander per se if they concern homosexuality. The court reversed the trial court's judgment and remanded for a new trial, requiring the plaintiff to prove the statements were defamatory in context and caused actual injury.
Concurring - Justice Smith
Concurring with the majority opinion.
Concurring - Justice Rothenberg
Concurring with the majority opinion.
Analysis:
This case significantly limits the scope of defamation per se by refusing to include accusations of homosexuality, even when made in a professional context about a public official. It underscores the post-Gertz shift towards requiring proof of actual damages rather than relying on presumed harm, thereby aligning defamation claims more closely with other tort actions. The decision reflects evolving societal norms and legal frameworks that no longer categorize homosexuality as inherently shameful or criminal, pushing courts to critically re-evaluate historical per se categories. This ruling encourages plaintiffs to meticulously document and prove the tangible and intangible harms caused by defamatory statements, rather than relying on automatic legal presumptions of injury.
