From Marcus v. Swanson, decided today by the Kansas Court of Appeals, in an opinion by Judge Gordon Atcheson, joined by Presiding Judge Stephen Hill:
In this case, we must apply defamation law crafted 40 years ago to a decidedly 21st century set of facts. A plastic surgeon [Swanson] asserted that a "review" a disgruntled former patient [Marcus] posted on an internet site falsely impugned his professional reputation. A jury sitting in Johnson County District Court agreed and entered a $15,000 verdict for the physician. The district court set aside the verdict because the physician, who continued to maintain a full schedule of patients, did not prove any actual harm to his reputation as a result of the post—a necessary component for a successful defamation claim under Kansas law.
Under the First Amendment, a state may allow prevailing plaintiffs to recover "presumed damages" even in the absence of specific proof of harm to reputation, especially when it comes to speech on matters of private concern. Generally speaking, this happens under the "libel per se" doctrine, which in most states allows plaintiffs to recover such presumed damages if the statements fall within some specific categories that are seen as especially harmful, including allegations of incompetence or misconduct in one's profession. (Note that the parties in this case agreed that this speech was on a matter of private concern, though the defendant could have argued that public consumer complaints are on matters of public concern, as many courts have indeed held.)
