General Motors Corp. v. Piskor

Orth, C. J., delivered the opinion of the Court. On 30 April 1974 a jury in the Superior Court of Baltimore City decided that General Motors Corporation had violated the personal security of Roy J Piskor by the commission of three tortious acts. It found that General Motors had slandered Piskor, had assaulted him, and had falsely imprisoned him. It awarded Piskor compensatory damages of $1000 for the slander, $300 for the assault, and $200 for the false imprisonment.

It assessed punitive damages of $25,000. From judgment on verdict absolute entered on 8 May, General Motors appealed. 1 ⁹⁹ DEFAMATION AND CONSTITUTIONAL PRIVILEGE When the appeal was originally briefed and argued no reference was made to recent decisions of the Supreme Court of the United States which brought defamation within the scope of the First Amendment guarantee of freedom of speech and press, applicable to the states through the Fourteenth Amendment. 2 **S.Because we were concerned with the impact of those decisions on the prevailing law of defamation in Maryland, we ordered the appeal and the appeal in the case of Sindorf v. Jacron Sales Co., Inc., which had also been briefed and argued with no reference to the Supreme Court defamation’ cases, reargued in the light of those decisions. The case which was the prime reason for our action was Gertz v. Welch, Inc., 418 U. S. 323 , decided 25 June 1974. Gertz was one of the progeny of New York Times Co. v. Sullivan, 376 U. S. 254 , decided 9 March 1964.

It was New York Times and its numerous offspring decided before Gertz which measured state law, both civil and criminal, with respect to libel, slander and privacy, by constitutional standards, impressing on it the First Amendment guarantees of free speech and press. They did so in such a way as to grant immunity from punishment by way of damages, imprisonment, fine or otherwise to publishers of statements concerning the official conduct of public officials and concerning matters of public interest related to public figures. See A. S. Abell Co. v. Barnes, supra, at 59-60. Gertz dealt with the defamation of a private individual as ¹⁰⁰ distinguished from a public official or public figure, and apparently its holdings drastically affected state law in that area.

We decided Sindorf, using it to analyze Gertz. Sindorf v. Jacron Sales Co., Inc., 27 Md. App. 53 . In our reading of Gertz we saw three paths which could be followed in applying its holdings: (1) they applied to all defamations; (2) they applied only to defamations involving matters of public or general interest, thus excluding purely private defamations; and (3) they applied only to defamations in which the media were the means of the defamatory injury. We avoided the first path because we believed that it was not constitutionally required that we follow it.

Its route led to a scuttling of much of the prevailing defamation law of Maryland as to matters which were of no concern to the First Amendment freedoms of speech and press. We chose the second path and rejected the third for reasons fully set out in Sindorf. Following the second path, we were led to these conclusions: (1) The New York Times standard defining the level of constitutional protection appropriate to the context of a public person was reaffirmed. Public officials and public figures may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with “actual malice”, that is, with knowledge of its falsity or with reckless disregard for the truth.

(2) When a defamatory statement, whether published by the media or not, concerns a matter of public or general interest: a) except for imposing liability without fault, a State may define the appropriate standard of liability for injury to a private individual by a defamatory falsehood, or in other words, short of strict liability, the New York Times standard is not constitutionally required with respect to defamatory falsehood injurious to a private individual; ¹⁰¹ b) a State may not permit recovery of presumed or punitive damages when liability is not based on proof of knowledge of falsity or reckless disregard for the truth, that is, presumed or punitive damages may be recovered only upon a showing of “actual malice” in the constitutional sense. (3) A purely private defamation — when a private individual is injured by a defamatory falsehood which is not a matter of public or general interest — is not within the ambit of the First Amendment and the relevant State law prevails, the Gertz holdings not being impressed thereon. FACTS What happened between Piskor and General Motors which led to the action reviewed by us is gleaned from the evidence adduced at the trial. We give a compendium of it.

At the General Motors automobile assembly plant in Baltimore, members of its security detail manned a checkpoint at the change of a shift to assure that only authorized personnel entered the plant and that employees leaving the plant were not stealing their employer’s goods. There were stairs leading from the work floor to a landing or “platform” and stairs from the landing to the ingress and egress doors of the plant. The checkpoint was on the landing, which was immediately adjacent to the security detail’s office, referred to as the “guard office.” The stairs leading from the work floor to the landing were near the Hard Trim assembly line, and also close by the clocks which were “punched” by employees to register the time they arrived for and departed from work. The Console Assembly line was located at a point more distant from the stairs than the Hard Trim line.

It was on the Console line that vehicle components generally described as the “dashboard” were stored and assembled. These components included relatively small but ¹⁰² valuable parts such as radios, tape players and tachometers. Security was a constant problem on this line, and there had been a number of thefts of such items. Piskor, 19 years of age and unmarried, had been employed by General Motors for about a year and a half.

He worked on the Hard Trim line on the shift which ended at 4:00 p.m. William Bullock worked the same shift on the Console line. He installed radios and had a number of them stacked at his job site. On 30 December 1969, about 3:40 p.m., Piskor went from the Hard Trim line to the Console line and talked for a few minutes with Bullock about a ride home.

About 5 minutes before the shift ended Piskor returned to the Console line and again conversed with Bullock for a short time. When the whistle blew for the shift change, Piskor undertook to leave the plant. Colby West was the foreman of the Console line. West did not know Piskor personally, but had seen him with Bullock several times in the past.

West saw Piskor talk to Bullock each time on 30 December. The first time Piskor was dressed in “regular work clothes”, but the second time he had on an “Army fatigue jacket”, a loose fitting outer garment with a zipper closure from bottom to the collar. It had two large “kangaroo pockets” in front. The jacket was zipped up to the neck.

Piskor talked to Bullock for a few minutes and left the area. When he left he had his hands in the front pockets of the jacket and he “seemed to be in a stooped or hunched fashion with his hands pushed forward in the front of his jacket.” This aroused West’s suspicion. 3 He telephoned the security guard’s office and talked to Claude L. Nicely, the sergeant in charge of the detail at the checkpoint. He told ¹⁰³ Nicely what he had observed and described Piskor. Nicely stationed his detail on the landing as he usually did at the end of a shift.

To leave the plant, Piskor had to go back through the Hard Trim line area and then to the time clock for his card. He punched out and started up the stairs to the landing by the guard office. Nicely saw a man answering Piskor’s description approach the time clock. “His jacket was still buttoned up. He was still carrying himself in a hunched position and had both hands in the pockets.

He removed his right hand and got the time card, punched it out, and put it on the outside of the rack and put his hand back in his field jacket. His posture was more or less hunched over like. A field jacket is a rather bulky garment. . . .” On some points, the evidence as to what followed is conflicting. According to Piskor, as he approached the landing he “heard this guy yelling and pointing.” The man he heard was West.

He was standing by the guard office. There was a guard at each railing at the top of the first flight of stairs. Piskor continued up the stairs to the landing. 4 He was “grabbed” by a guard. “I just pulled my arm away from him and I shook him off and when I did that the other guard grabbed my other arm and I just, you know, twisted around and started running away. And then I hear them yelling behind me . . . .You are walking pretty fast because there’s people everywhere. . . .

The fastest walk you can think.” Neither the guards nor Piskor said anything when the guards grabbed him. Piskor started up the second flight of stairs leading from the landing to the exit. “Then I got a couple steps up and I hear all these people yelling a lot of commotion going on behind me and then there was guards standing at the top of them steps. . . . Approximately three or four. There was a lot of them. . . .

Then they more or less sealed off that part of the stairway where I could go up, and ¹⁰⁴ once you start up you just can’t walk bodily across. You have to jump over the railing, then I stopped and turned around and I wanted to see what everybody was yelling at and all, so then this guy [a guard] calls me down and says he wants to talk to me.” Piskor went down — “I had no other choice” — and screamed, “Are you calling me a thief, you mother fucker? ” 5 The guard did not explain why he wanted to talk to Piskor. “[H]e just told me he wanted me to go into that room in the guard shack.” Piskor “did a lot of things” in response — “Yelled, screamed .... Why do you want to talk to me, what are you holding me here for, I’m supposed to be going home like everybody else, and why, you know, what do you want from me, things like — of that nature.” He was told they wanted his name and badge number. He tried not to go into the room.

He asked if he was “going to get paid for all this” but the guard “wasn’t saying anything.” Piskor said, “[W]ell, I'm leaving.” He tried to walk away. “[A]s soon as I turned around there was about, a number — three or four guards around, just had the whole area blocked like a football huddle and I was in the middle.” He was assisted into the room, “more or less,” by a number of guards “and, you know, like nudging me through the door or shoving me, I guess what you call nudging or shoving.” In the office he was asked to open his coat. He refused “Because they wanted me to do it. They demanded all these things.” He would not give his name or his badge number. He asked for his committeeman who represented employees in labor-management matters.

Because of the shift change the first shift committeeman had left. It took about 15 minutes to get the second shift committeeman. He and Piskor conversed. After further discussion, “I opened my coat, I unbuckled my pants and I showed them everything they wanted to see.” He had nothing in his possession belonging to General Motors.

He left. The entire incident consumed 25 to 30 minutes. General Motors’ version wa.s given primarily through the ¹⁰⁵ testimony of Nicely. According to Nicely, when Piskor reached the landing, Nicely said to him, “[S]tep into the office a minute, I want to see you.” Nicely explained: “I wanted to see the identification card to see who he was, and primarily find out if he was this individual that was loitering in the console area prior to the quitting whistle.

As soon as I asked him, I said I’d like to see you in the office a minute. He said with a great deal of profanity, are you calling me a thief. I said I want you to come in the office a minute, I want to talk to you. And there is nothing unusual about approaching an employee as he is leaving the plant.

We do it dozens of times daily on all shifts. A lot of times we have a message for an employee to call his wife or tell John Brown to pick his mother up at his wife’s, or pick his wife up at her mother’s on his way home. Out of about three or four thousand employees, we don’t know every John Brown, so we get a description of who he looks like. I may ask three or four people to step into the office a minute and what is your name.

If it is the right one, I give him the message. Sometimes a foreman wants an individual back on the job to work overtime. I get the message and stop people to give them the message, but this man immediately accused me of calling him a thief, which I in no way eluded to him being a thief. I wanted to see the identification card and get his name. ...

I said no. I still want to see you in the office. I’m not calling you a thief. Give me your name and clock number.

Who do you work for? And he said I’m on my own time, I don’t have to go in the office. I said just come in and let me find out who you are. At this time I didn’t know the gentleman was Piskor, and he said well, I’m on my own time.

I better get paid for this. I said you certainly will be paid for every minute you’re here. With that assurance, he came into the office.” 6 When Piskor was assured he would get paid for his time, he voluntarily went into the office. Neither Nicely nor any other employee accused Piskor of doing anything wrong. ¹⁰⁶ Nicely asserted that none of the guards ever touched Piskor. “We have no reason to put our hands on him.

In fact, we are not allowed to place our hands in a restraining manner on any employee. That is just not allowed by General Motors.” Nicely said that Piskor did not take his hands out of his pockets “the whole time” until just before he opened his jacket. Nicely denied that Piskor started up the second flight of stairs and that there were guards at the top of those stairs. “The normal position is where you have them down on the platform. We don’t have any guards up there.” There were four guards in all to check “packages and things.” At a shift change about 2500 people leave and about 2500 come in.

It was stipulated that the guards involved in the incident were employees of General Motors and were acting within the scope of their employment. It was agreed that what authority they enjoyed derived only from their employment. There was no evidence that anyone concerned was motivated by any interest other than the performance of his duties as he understood them. Bullock testified that while the incident involving Piskor and the guards was going on, the movement of departing employees “started to slow down for the simple reason anytime they usually have a man in the guard house they figure, well, they got him for stealing something or assume that he stolen something.” APPLICATION OF THE GERTZ HOLDINGS It is obvious that Piskor was not a public official.

It is patent that he was not a public figure on the basis that he had achieved such pervasive fame or notoriety that he became a public figure for all purposes and in all contexts. It is clear that he did not assume special prominence in the resolution of a public question and did not become a public figure on the basis that he voluntarily injected himself or was drawn into a particular public controversy. The nature and extent of his participation in the incident giving rise to the defamation here do no;: serve to fit him into the public ¹⁰⁷ figure classification. See Gertz, 418 U. S. at 351-352 .

He was, in the contemplation of the law of defamation, a private individual. Therefore, the Gertz holdings would apply to the defamation of Piskor only if it involved a matter of public or general interest or concern. 7 It seems that the term “public or general interest” is from Warren and Brandéis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890), characterized by Mr. Justice White in Cox Broadcasting Corporation v. Cohn, 95 S. Ct. 1029, 1042 , as the “root article” on privacy. See Rosenbloom v. Metromedia, Inc., supra, at 32, n. 2. Warren and Brandéis used it, at 214, in spelling out the first limitation on the right to privacy: “The right to privacy does not prohibit any publication of matter which is of public or general interest.” They explained the term, at 214-216: “In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.

There are of course difficulties in applying such a rule; but they are inherent in the subject matter, and are certainly no greater than those which exist in many other branches of the law, — for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, ¹⁰⁸ so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental.

There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend, concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow-citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office.

Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety. The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man’s life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn. Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications.

Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case, — a necessity which unfortunately renders such a ¹⁰⁹ doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn. In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to.

Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private beause the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.” (footnotes omitted) The Supreme Court has not attempted to give a precise definition to “public or general interest.” Even in Rosenbloom when a plurality of the Court thought the time had come “forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern”, it expressly left “the delineation of the reach of that term to ¹¹⁰ future cases.” 8 403 U. S. at 44-45. It observed, however, at 42, that constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government and quoted from Curtis Publishing Co. v. Butts, 288 U. S. 130 , 147 (opinion of Harlan, J.): “[T]he Founders . . . felt that a free press would advance ‘truth, science, morality, and arts in general’ as well as responsible government.” It noted that comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. Id. It gave examples of what was of public or general interest — the opening of a new play linked to an actual incident (Time, Inc. v. Hill, 385 U. S. 374, 388 ); an alleged fix of a college football game (Curtis Publishing Co. v. Butts, supra); federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University oí' Mississippi (Associated Press v. Walker, 388 U. S. 130 ).

Under Cox Broadcasting Corp. v. Cohn, 95 S. Ct. 1029 , information appearing on a public record is a matter of public interest. Rosenbloom declared the public interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. 403 U. S. at 43. It made plain that public or general interest was not dependent upon the status of the participant. “If a matter is a subject of general or public interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant’s prior anonymity or notoriety.” Id.

Although the Rosenbloom plurality refused to delineate the precise reach of public concern, it obviously envisioned a broad scope, albeit not an all encompassing ¹¹¹ one. “We are not to be understood as implying that no area of a person’s activities falls outside the area of public or general interest. . . We also intimate no view on the extent of constitutional protection, if any, for purely commercial communications made in the course of business.” Id., at 44, n. 12. 9 Like the Supreme Court we shall not attempt to delineate with specificity the reach of public or general interest, leaving it to be determined on a case by case basis. We are in accord with Warren and Brandéis that no fixed formula can be used to prohibit obnoxious publications; there must be an elasticity which will take account of the varying circumstances of each case. We also share their view that what is of public or general interest must be broadly considered, and we shall liberally construe the term short of simply equating it with newsworthiness.

The end result will be that it is purely private defamation, having no legitimate connection with public or general interest, which is not encompassed by the constitutional privilege of the First Amendment. By so broadly considering what is public or general interest or concern, 10 and excepting, in practical application, only what is purely private, self-censorship on the part of the media is substantially alleviated and a vigorous and uninhibited press effectively preserved. Mr. Justice Goldberg, concurring in New York Times, opined that in most cases there would be little difficulty in distinguishing defamatory speech relating to private conduct from that relating to official conduct. 376 U. S. 301 , n. 4. Recognizing that there would be a gray area, he explained, id.: ¹¹² “The difficulties of applying a public-private standard are, however, certainly of a different genre from those attending the differentiation between a malicious and nonmalicious state of mind.

If the constitutional standard is to be shaped by a concept of malice, the speaker takes the risk not only that the jury will inaccurately determine his state of mind but also that the jury will fail properly to apply the constitutional standard set by the elusive concept of malice.” See Restatement (Second) of Torts, § 581B (Tent. Draft No. 20,1974), comment e. Here, as in Sindorf, the defamation is by an employer imputing that an employee was a thief. We thought it so plain in Sindorf that the defamation was purely private as not to warrant extended discussion.

We likewise think that the imputation that Piskor was a thief was not a matter of public or general interest in the constitutional sense. It is true that the Court in Cox Broadcasting Corp. v. Cohn, 95 S. Ct. 1029, 1045 , said: “The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions, however, are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government.” But this was said in the frame of reference of public law enforcement and not with respect to a bald accusation of an isolated criminal act made by one private person against another private person. See Rosenbloom, 403 U.S. at 43. On our independent constitutional appraisal, we find that the defamation of Piskor by General Motors was purely private. 11 ¹¹³ THE MARYLAND LAW OF SLANDER As the alleged defamation of Piskor by General Motors was purely private, it is not within the ambit of the First Amendment and the Maryland law prevails.

Defamation by Act Defamation, made up of the twin torts of libel and slander, is an invasion of the right of personal security in reputation and good name. W. Prosser, Law of Torts § 111, at 737, (4th ed., 1971). 12 To create liability for defamation there must be an unprivileged publication of false and defamatory matter of another which is actionable irrespective of special harm, or, if not so actionable, is the legal cause of special harm to the other. Restatement of Torts § 558 (1938). In general, if the matter published is written, the tort is libel, and if it is oral, the tort is slander.

The tort alleged by Piskor, however, does not even move along the course, uncertain as it may be, usually followed by defamation. It departs from that tortious path because the defamatory matter is neither written nor oral. It consisted of actions or conduct. The Court of Appeals of Maryland has recognized that conduct may defame the reputation and good name of a person.

In M & S Furniture v. DeBartolo Corp., 249 Md. 540 , pointing out that in American Stores Co. v. Byrd, 229 Md. 5 , spoken words combined with conduct were held to be actionable, it said, at 544: “It would seem therefor that actions or conduct as well as spoken or printed words could be actionable per se or per quod.” In Montgomery Ward & ¹¹⁴ Co. v. Cliser, 267 Md. 406, 418 , the Court said: “Publication may be conveyed by way of gestures as well [as the overhearing by others of spoken accusations].” The few foreign cases in point are in accord. See Annot., 71 A.L.R.2d 808 . Libel or Slander Left unresolved in this jurisdiction is whether defamation by actions or conduct, unaccompanied by words, constitutes libel or slander. M & S Furniture notes, at 544: “There may be some question as to whether conduct should be classified as libel or slander but as it makes no difference in this case we will assume, as the parties seem to have done, that it constitutes libel if it was defamatory at all.” In American Stores, the defamation was accepted as slander.

Other states are divided on the point, and some have determined the issue by legislative enactment. Annot., 71 A.L.R.2d 808 . As it took form in the seventeenth century the distinction between libel and slander was one between written and oral words. But methods of communication unknown at the old common law, such as talking pictures, television, and radio, have compounded the problem, leaving the court struggling with the distinction.

See W. Prosser, Law of Torts § 112, at 752-754 (4th ed., 1971). The second amended declaration, under which the cause here went to trial, alleged in the third count that General Motors by its conduct implied that Piskor had committed a crime and that “this slander 1 by implication” had been observed by third persons. The tort, having been so declared by Piskor to be slander, was so accepted by the court and the parties below, who proceeded on that assumption. It was on the basis that the tort was slander that Piskor presented his case, General Motors defended the action, and the court charged the jury. 13 In arguing on appeal, both Piskor and General Motors accept that the questioned conduct, if defamatory at all, was slander. ¹¹⁵ It was patent that if the tort alleged to have been committed by General Motors was libel and not slander, Piskor could not prevail under the third count declaring it was slander.

Therefore, we must determine whether the conduct of General Motors, assuming it was defamatory, constituted libel or slander. Restatement of Torts § 568 (1938) distinguishes between libel and slander: “(1) Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words. (2) Slander consists of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in Subsection (1). (3) The area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamatory conduct are factors to be considered in determining whether a publication is a libel rather than a slander.” 14 Comment d to the section at 163 discusses when a publication is libel and when it is slander: “The publication of defamatory matter by written or printed words constitutes a libel.

Common methods of publishing a libel are by newspapers, books, magazines, letters, circulars and petitions. The writing or printing may be made upon paper, parchment, metal, wood, stone or any other substance and may be accomplished by the use of pencil, pen, chalk, or a mechanical device ¹¹⁶ such as the printing press, typewriter, or mimeographing machine. Defamatory pictures, caricatures, statues and effigies are libels because the defamatory publication is embodied in physical form. There are, however, other methods of publishing a libel.

The wide area of dissemination, the fact that a record of the publication is made with some substantial degree of permanence, and the deliberation and premeditation of the defamer are important factors for the court to consider in determining whether a particular communication is to be treated as a libel rather than a slander. The publication of defamatory matter may be made by conduct which by reason of its persistence it may be more appropriate to treat as a libel than a slander. On the other hand, the use of a mere transitory gesture commonly understood as a substitute for spoken words such as a nod of the head, a wave of the hand, or a sign of the fingers is a slander rather than a libel.” Illustrations are given. A has libeled B when he procures two men to “shadow” B and they follow him from one public place to another until the “shadowing” becomes notorious in the community.

A has slandered C when he makes a gesture with his fingers in the presence of B which indicates that C has the “evil eye”, a characterization which is highly disparaging in the community. The conclusion manifest in comment g to the section at 164-165 is that whether the defamatory matter is libel or slander will depend upon the circumstances of each particular case. The factors in subsection (3) do not have to concur in order that a publication of a defamatory communication be regarded as libel rather than slander. On the other hand, the existence of all of such factors does not necessarily mean that the communication is to be deemed a libel.

Considering the relatively narrow area of dissemination of the conduct of General Motors, the circumstances of its publication, its lack of a substantial degree of permanence, ¹¹⁷ and the degree of deliberation and premeditation of the guards in the actions they took, we believe that the conduct, if defamatory, was slander, not libel. That is, the actions here were not an analogue of libel, but were analogous to slander. The Per Se —- Per Quod Confusion A publication, whether it be spoken or written words, or conduct or actions, may be defamatory upon its face or it may carry a defamatory meaning only by reason of extrinsic circumstances. 15 This distinction is not the same as that between defamation which is damaging of itself, that is, actionable per se, and defamation which requires proof of special damage, that is, actionable per quod. There is sound authority that a libel, whether it be libelous on its face or libelous only upon proof of extrinsic circumstances, requires no proof of special damage.

Once it is established that the libelous publication is defamatory, damage is “presumed” as a matter of substantive law. 16 On the other hand, slander, in general, is not actionable unless actual damage is proved. There were three specific exceptions early grafted upon this general rule — imputations (1) of crime, (2) of a loathsome disease, and (3) affecting the defamed in his business, trade, profession, office, or calling. A fourth was added by statutes and ¹¹⁸ decisions — the imputation of unchastity to a woman. Courts Art. §§ 3-501 and 3-502.

For these four kinds of slander, no proof of any actual harm to reputation or any other damage is required for the recovery of either nominal or substantial damages. That is, proof of the defamation itself is considered to establish the existence of some damages, and the jury are permitted, without other evidence, to estimate their amount. Prosser § 112, at 754; Harper and James § 5.9, at 374:, Restatement of Torts § 570 (1938); Restatement (Second) of Torts § 570 (Tent. Draft No. 20,1974).

The origin of the terms per se and per quod is discussed in Murnaghan, From Figment to Fiction to Philosophy — the Requirement of Proof of Damages in Libel Actions, 22 Cath. U. L. Rev. 1 , 13 (1972): “In common law pleading, the right to recover general damages meant that the portion of the writ employed for institution of the suit devoted to specification of damage, and introduced by the words ‘per quod,’ became inapplicable whenever damages were presumed. To fill the void, and to signify that something had not been overlooked, the draftsmen in such cases would simply insert ‘per se’ where the allegations of carnages, headed by the phrase ‘per quod’ otherwise would be expected. Since allegations of special damages were still required for those instances of oral defamation which did not fall in one of the four categories, such slander was referred to as slander ‘per quod’; slander in any of the four categories was expectably then called slander ‘per se’. 1 ’ As courts began to distinguish between written defamation which was libelous on its face and that which was libelous only upon proof of extrinsic circumstances, some referred to the former as libel per se and to the latter as libel per quod.

Thus, in the context of libel, per quod came to mean defamation requiring proof of extrinsic circumstances. See ¹¹⁹ Prosser § 112 at 762-763. As a result, per quod acquired two meanings in the law of defamation: (1) when used in the frame of reference of slander it meant proof of special damages was required; (2) when used in the frame of reference of libel it meant that proof of extrinsic circumstances was required. With respect to libel the former meaning has been engrafted on the latter with the result that libel per quod requires proof of both extrinsic circumstances and special damages.

This is not so with regard to slander. When the terms per se or per quod were used to describe a slanderous publication, “there was no connection whatever with the question of whether the insulting words were clearly defamatory. If words had an innocent or ambiguous meaning, and so required allegations of extrinsic facts to show that a defamatory connotation was intended and understood, once sufficient allegations of that nature were made the slander was ‘per se’ if within one of the four categories, ‘per quod’ if it was not. On the slander side of the fence, this has remained established, and reasonably free from confusion up to the present.” Murnaghan, supra, at 14.

With regard to proof of special damages, it is immaterial whether the publication is slanderous on its face or requires proof of extrinsic circumstances. The special meaning which has evolved from the use of the term per quod in the context of libel has no validity in the context of slander. Therefore, where the defamatory matter is slanderous, and is within one of the four special categories, it is actionable without proof of special damage even if proof of extrinsic circumstances is required. 17 Dean Prosser commented caustically on the ¹²⁰ courts giving two meanings of libel or slander per se in an article in 46 Virginia Law Review 839 (1960), entitled Libel Per Quod. He said, at 848-849: “These words have been used more or less indiscriminately to signify both publications which in themselves convey a defamatory meaning, without resort to any extraneous facts, and those which in themselves are necessarily damaging, or are conclusively presumed to be so, as in the case of the fourth exceptional kinds of slander.

When the one meaning becomes entangled with the other, the result is that libel which is not defamatory upon its face is held to be not damaging in itself, and so is treated like slander. Such confusion there undoubtedly has been, and no doubt occasional imcompetence too, since our revered courts of ultimate conjecture have no gift of infallibility, and in this maze anyone may be forgiven for losing his way. But it will not do to say that this is the sole explanation of the avalanche of decisions in so many jurisdictions. It might have been expected that somewhere along the line even the most bewildered and incompetent court would have found able counsel to set it right.” He, however, added to the confusion.

It appeared to him that the Restatement of Torts was out of date. He argued that the large majority of states had accepted the doctrine of libel per quod that required proof of special damages when the defamatory meaning of the libel was not apparent on its face. He thought, at 849-850, that if § 569 of the Restatement were revised in accordance with the “present prevailing American law”, it might read: “(1) One who publishes defamatory matter is subject to liability without proof of special harm or loss of reputation if the defamation is (a) Libel whose defamatory meaning is apparent from the publication itself without reference to extrinsic facts, or ¹²¹ (b) Libel or slander which imputes to another (i) A criminal offense, as stated in § 571 (ii) A loathsome disease, as stated in § 572 (iii) Matter incompatible with his business, trade, profession or office, as stated in § 573, or (iv) Unchastity on the part of a woman, as stated in § 574 (2) One who publishes any other libel or slander is subject to liability only upon proof of special harm, as stated in § 575.” Prosser counted Maryland 18 as among those who followed “the present prevailing American Law”, accepted, according to him, “by the overwhelming majority of our courts.” Id., at 844. Prosser’s view was adopted in the Restatement (Second) of Torts § 569 (Tent.

Draft No. 11, 1965) and so appeared also in Tent. Draft No. 12 (1966). Laurance H. Eldredge, Adviser and former Revising Reporter on Torts for the American Law Institute, took issue with Prosser in The Spurious Rule of Libel Per Quod, 79 Harv.L.R. 733 (1966). 19 He opined that this time “Homer nodded”. He claimed that § 569 of the Restatement of Torts which declared that all libel claims are actionable without proof of special damages, represented the prevailing view of courts in the United States and should not be altered.

He made an analysis of the cases in the 24 jurisdictions cited by Prosser and classified them. As for the Maryland cases, he classified Stannard v. Wilcox & Gibbs Sewing Mach. Co., 118 Md. 151 ¹²² and Heath v. Hughes, 233 Md. 458 , as “Cases Not Involving Extrinsic Facts, in "Which Plaintiff Pleaded a Nondefamatory (Construed to be Non-defamatory) Malicious Falsehood Without Alleging Special Damages, and Court Dismissed Action With Statement That Where Words Are ‘Not Libelous Per Se', ‘Special Damages’ Must be Averred.” He classified Bowie v. Evening News, 148 Md. 569 , Foley v. Hoffman, 188 Md. 273 , and Walker v. D’Alesandro, 212 Md. 163 , as “Cases Not Involving Extrinsic Facts, in Which Plaintiff Pleaded a Defamatory-on-Its-Face (Construed To Be Such) Malicious Falsehood, Without Specifically Alleging Special: Damages, and the Court Held Complaint Sufficient With Dictum That Where the Words Are Not ‘Libelous Per Se’, Special Damages Must Be Averred.” Prosser answered in More Libel Per Quod, 79 Harv.L.R. 1629 (1966). Tent.

Draft No. 20 (1974) of the Restatement (Second) of Torts went full circle. 20 Its § 569 returned to the position as it enunciated in § 569 of the Restatement of Torts (1938). Comment c, at 56, of Tent. Draft No. 20 adds: “Some courts have taken the position that a libellous publication is not actionable per se if its defamatory meaning is not apparent without reference to extrinsic facts. This minority rule, which would require proof of special harm if the libel is not found to be actionable per se, is not approved.

One reason offered for its acceptance was that the defendant might not himself have known of the extrinsic facts and would therefore be held liable although innocent. This argument will be eliminated if the Supreme Court holds that liability for innocent defamation is unconstitutional.” 21 ¹²³ The Judgment on the Tort of Slander Sufficiency of the Evidence We have discussed the confusion arising with reference to per se and per quod because General Motors falls into the trap. It makes a two-pronged attack on the sufficiency of the evidence, contending (1) that Piskor failed to prove a defamatory meaning and (2) that even if the actions of the guards were defamatory, Piskor failed to prove an “innuendo” and failed to plead or prove special damages. 22 It is a question of law for the court to determine whether a publication is capable of bearing a defamatory meaning and a question of fact for the jury to determine whether it was in fact defamatory, that is, whether it was so understood. 1 F. Harper and F. James, The Law of Torts § 5.29 at 463 (1954). We do not believe the court was wrong in determining that the actions of the