San Diego Law Review

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To combat the reputational harm associated with defamatory comments, forty states allow plaintiffs to recover presumed damages for reputational harm for defamatory statements considered “per se” defamation without having to prove the exact dollar figure associated with their reputational damages. While damages are presumed to a plaintiff’s reputation in a successful defamation per se lawsuit, the spectrum of presumed damages is so wide that there is almost no practical way for a plaintiff to reliably know the size of a presumed damages award, especially a lower-income plaintiff. Plaintiffs cannot evaluate the financial merit of a defamation lawsuit, which removes the primary benefit of presumed damages. This is especially problematic for plaintiffs relying on presumed damages to their reputations to justify the costs of litigation for defamation per se cases, which are the most egregious types of defamation, and why reputational damages are presumed. Without some assurance that a defamed plaintiff will be awarded damages to compensate them for the harm to their reputation, presumed damages have insufficient practical value—lower income plaintiffs who are defamed and later struggle to find employment or who live with tarnished reputations will not pursue litigation while their defamers face no repercussions and no fear of repeating that behavior. Instead of abolishing the doctrine of presumed damages, which some states have done because presumed damages are difficult to quantify, a better approach is to set a guaranteed minimum damages floor associated with presumed damages for plaintiffs who are successful in a per se defamation claim.

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