A reader asked me whether true reputation-injuring statements are categorically immune from defamation liability. (Let's set aside for now invasion of privacy and other torts.) His state statute, he noticed, provided that such statements are protected only if they are said with "good motives" and for "justifiable ends."

Historically, many state statutes indeed so limited the truth defense. Today, I expect that such limitations would be unconstitutional: Defamation liability is said to be constitutional because "there is no constitutional value in false statements of fact," a rationale that doesn't apply to true statements. As to statements on "public issues," the Court has expressly rejected the good motives/justifiable ends limitation. But my sense is that such a limitation would be rejected as to private-concern statements, too; and I know of no modern cases that continue to apply the limitation.

Except, that is, for the remarkable case of Johnson v. Johnson, 654 A.2d 1212 (R.I. 1995). The facts:

On the evening of August 29, 1986, plaintiff entered Twin Oaks Restaurant in Cranston and proceeded to walk to the podium. While at the podium, plaintiff [ex-wife] saw defendant [her ex-husband] approach and ask her how her “[epithet] lawyer Fishbein” was. The defendant then drew nearer plaintiff who was standing with her then boyfriend-now husband Philip Caliri. At a distance of about four feet, in a loud voice, defendant screamed, “Phil, you are a * * * [epithet]. You could have prevented this case.” The defendant then pointed his finger in the face of plaintiff, while talking to Philip Caliri but screaming for all to hear, “You and that [obscenity] whore are costing me a lot of money.” ...

The ex-wife sued, claiming that the ex-husband slandered her by calling her a "whore," which in context appeared to mean someone who was unfaithful, not someone who was a prostitute. The court concluded the charges were true: "The findings of fact made by the trial justice are clear and unequivocal that the plaintiff fit the definition of the defamatory term applied to her." Yet the court went on to rule that, while "[i]n this case some spite and ill will might be understandable," "the trial justice was [not] clearly wrong when he confirmed the probable finding of the jury (although no special interrogatories had been submitted) that defendant acted out of spite and ill will."

Result: The compensatory damages award was upheld, on the theory that reputation-injuring but true statements on matters of private concern could still be actionable if said out of "malicious motives." The punitive damages award, however, was rejected, because in this case "defendant was the victim of a long course of reprehensible behavior committed against him by plaintiff."

I think this is an outlier case, which is inconsistent with the Court's false statement of fact jurisprudence, and which most American courts would not follow. Yet there it is, from the Rhode Island Supreme Court in 1995.