OPINION OF THE COURT
In this defamation action, plaintiffs Robert W. Matherson and Carolyn E. Matherson appeal from an order of the Supreme Court, Suffolk County, which, upon a motion made pursuant to CPLR 3211 (subd [a], par 7), in effect dismissed their complaint for failure to state a cause of action. Plaintiffs were granted leave to replead, setting forth allegations of special damages. We hold that the statements complained of constitute libel, actionable without proof of special damages, and reverse.
On October 28, 1980, radio station WBAB conducted an interview with the members of a singing group called “The Good Rats”. Following a commercial which advertised a
“Good Rat #1:
Well, you know, we had that law suit with Mr. Matherson.
“A Good Rat:
And we used to fool around with his wife.
“Good Rat #1: “A Good Rat:
And we won.
One of us used to fool around with his wife. He wasn’t into that too much.
“D.J.:
Oh yea.
“Good Rat #1: (interrupted and joined by another Good Rat)
We used to start off our gigs over there with the National Anthem, and he was very upset about that, now all of a sudden he’s very patriotic and he’s using it in his commercials.
“A Good Rat:
I don’t think it was his wife that he got so upset about, I think it was when somebody started messing around with his boyfriend that he really freaked out. Really. (Laughter)
That did it man.”
Plaintiffs, who are husband and wife, subsequently commenced this action against “The Good Rats” (as individuals and against their record company), alleging that the words “we used to fool around with his wife” and “I don’t think it was his wife that he got upset about, I think it was when somebody started messing around with his boyfriend that he really freaked out”, were defamatory. They seek compensatory and punitive damages for humiliation, mental anguish, loss of reputation and injury to their marital relationship as well as for the loss of customers, business opportunities and good will allegedly suffered by Mr. Matherson. Special Term granted defendants’ motion to dismiss, finding that the complaint failed to adequately
Preliminarily, we observe that if special damages are a necessary ingredient of plaintiffs’ cause of action, Special Term properly found the allegations of the complaint to be deficient.
Special damages consist of “the loss of something having economic or pecuniary value” (Restatement, Torts 2d, § 575, Comment b) which “must flow directly from the injury to reputation caused by the defamation; not from the effects of defamation” (Sack, Libel, Slander, and Related Problems, § VII.2.2, 345-346; see, also, 1 Harper and James, The Law of Torts, § 5.14) and it is settled law that they must be fully and accurately identified “with sufficient particularity to identify actual losses” (Lincoln First Bank v Siegel,
We must, therefore, determine whether an allegation of special damages is necessary. In large measure, this turns on which branch of the law of defamation is involved. As a result of historical accident, which, though not sensibly defensible today, is so well settled as to be beyond our ability to uproot it (Ostrowe v Lee,
On the other hand, a plaintiff suing in libel need not plead or prove special damages if the defamatory statement “‘tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society’ ” (Rinaldi v Holt, Rinehart & Winston,
To be sure, the common-law rule has been tempered by several decisions of the Supreme Court of the United States which preclude recovery of punitive damages absent a showing of malice in the constitutional sense, i.e., knowledge of the falsity of the statement or reckless disregard of the truth, and require a plaintiff to prove actual damages, interdicting recovery of presumed damages (see, e.g., Wolston v Reader’s Digest Assn.,
In Hogan v Herald Co. (
The pleadings in the case before us mirror those in Hogan and Blumenstein (supra). Because there is no requirement that the plaintiff establish an evidentiary basis
Traditionally, the demarcation between libel and slander rested upon whether the words were written or spoken (1 Harper and James, The Law of Torts, § 5.9, p 375; Prosser, Torts [4th ed], § 112, p 752). Written defamations were considered far more serious because, at the time the distinction arose, few persons could read or write and, therefore, anything which was written would carry a louder ring of purported truth (Franklin, Cases and Materials on Tort Law and Alternatives [2d ed], p 898). In addition, a written defamation could be disseminated more widely and carried a degree of permanence.
With the advent of mass communication, the differential was blurred. Motion pictures were held to be libel (Brown v Paramount Publix Corp.,
We today hold that defamation which is broadcast by means of radio or television should be classified as libel. As we have noted, one of the primary reasons assigned to justify the imposition of broader liability for libel than for
On the question of whether the allegedly defamatory statements are actionable, our scope of review is limited. “If the contested statements are reasonably susceptible of a defamatory connotation, then ‘it becomes the jury’s function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader’ ” (James v Gannett Co.,
Taken in the context of a rock and roll station’s interview with musicians, and taking note of contemporary usage, we have no difficulty in concluding that the words “fooling around with his wife” could have been interpreted by listeners to mean that Mrs. Matherson was having an affair with one of the defendants. Such charges are clearly libelous on their face, thus obviating any need to allege
The second comment — “I don’t think it was his wife that he got upset about, I think it was when somebody started messing around with his boyfriend that he really freaked out” — presents a far more subtle and difficult question (see Imputation of Homosexuality as Defamation, Ann., 3 ALR4th 752). It is plaintiffs’ contention that this statement constitutes an imputation of homosexuality which should be recognized as defamatory. Defendants, on the other hand, basically do not deny that such reading is plausible. Rather, they claim that many public officials have acknowledged their homosexuality and, therefore, no social stigma may be attached to such an allegation. We are constrained to reject defendants’ position at this point in time.
It cannot be said that social opprobrium of homosexuality does not remain with us today. Rightly or wrongly, many individuals still view homosexuality as immoral (see Newsweek, Aug. 8, 1983, p 33, containing the results of a Gallup poll; cf. People v Onofre,
In short, despite the fact that an increasing number of homosexuals are publicly expressing satisfaction and even pride in their status, the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored. Thus, on the facts of this case, where the plaintiffs are husband and wife, we find, given the narrow scope of review, that the imputation of homosexuality is “reasonably susceptible of a defamatory connotation” (James v Gannett Co.,
For these reasons, the order should be reversed insofar as appealed from, with costs, the defendants’ motion to dismiss should be denied and the complaint should be reinstated.
Thompson, Bracken, and Rubin, JJ., concur.
Order of the Supreme Court, Suffolk County, dated April 8, 1982, reversed insofar as appealed from, with costs, defendants’ motion to dismiss the complaint denied, and complaint reinstated. Defendants’ time to answer is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry.
Notes
. The historical development is traced in Franklin, Cases and Materials on Tort Law and Alternatives (pp 884-886), and Veeder, The History and Theory of the Law of Defamation (3 Col L Rev 546; 4 Col L Rev 33). The distinction has, moreover, not gone
. The first three categories were established relatively early. The fourth is of more recent vintage, having first been put into effect in England by the Slander of Women Act of 1891 (54 & 55 Vict, ch 51); similar statutory additions to the common law were made in this country (e.g., Civil Rights Law, § 77, derived from L 1871, ch 219, § 1; see, generally, 1 Harper and James, The Law of Torts, §§ 5.10-5.13; Prosser, Torts [4th ed], pp 754-760). We do not view these categories as fixed or rigid and, in appropriate circumstances, a new category may be judicially established (see, e.g., Privitera v Town of Phelps,
. We have avoided the use of the terms libel per se and libel per quod because, as explained in this footnote, the cases and commentators are divided on the question of whether any meaningful distinction exists between the two.
It is clear that when the defamatory import is apparent from the face of the publication itself without resort to any other source, the libel, often referred to as libel per se, is
In the view of some writers, libel per quod does not exist in New York. Under their reasoning, special harm is a necessary component only under the so-called “single instance” rule, i.e., where the statement charges the plaintiff with a single dereliction in connection with his or her trade or profession (see Lyons v New Amer. Lib.,
Other commentators decline to interpret Hinsdale (supra) as obliterating the special harm requirements in extrinsic fact cases, viewing the pleading and proof of special damages as necessary both under the “single instance” rule and in extrinsic fact cases unless, with respect to extrinsic fact cases, it is “reasonably likely” that the plaintiff’s reputation will be impaired among readers who are aware of the extrinsic facts (2 NY PJI 95-96 [1983 Supp]; see, e.g., Samore, New York Libel Per Quod: Enigma Still?, 31 Albany L Rev 250).
The cases simply state that if a libel is not per se, a plaintiff must plead and prove special damages as part of the prima facie case, without drawing a line of demarcation between them (see, e.g., James v Gannett Co.,
. Defendants’ contention that section 77 of the Civil Rights Law is unconstitutional because it confers a defamation per se cause of action upon a female but not a male is not properly before us. Constitutional issues not raised at Special Term may not be considered on appeal (see Melahn v Hearn,