Defamation law has a bad reputation, probably well-deserved, for tenacious adherence to ancient rules which frequently reflect nothing more than “centuries of haphazard, Byzantine and often baffling evolution developed according to no particular aim or plan.”1 The historical categories of libel and slander, that is, defamation by written and spoken words, typify such evolution. When the political crime of libel and the ecclesiastically-based offense of slander were joined under the jurisdiction of the common law courts, they came to function not only as two definitions of defamation, but also as strict boundaries limiting the types of human activity that can be, as a matter of law, defamatory. In other words, for centuries, if it wasn’t spoken or written, it wasn’t actionable. Although this limitation derives from historical accident, in many states it is still the law.
Myriad wordless injuries to reputation, including reputational harm caused by physical actions, have by and large fallen through the cracks of defamation law. In 1729, Jonathan Swift implicitly identified this lacuna when he wrote:
“Nor do they trust their tongue alone, But speak a language of their own; Can read a nod, a shrug, a look, Far better than a printed book; Convey a libel in a frown, And wink a reputation down.”
In the modern context, the regular interaction of individuals with large institutions, particularly their employers, occurs not only through written and spoken words, but also through wordless physical activity on factory floors and in mazes of cubicles. Can and should such conduct, if it harms another person’s reputation, be the subject of a defamation suit? In a recent opinion addressing workplace defamation, the Massachusetts Supreme Judicial Court answered in the affirmative and took a step towards bridging this centuries-old gap left by libel and slander.