Growing up in the 90s we used to hear dire warnings about a study, perhaps apocryphal, that showed the average child was watching as much as three hours of TV per day. That was considered an astronomical, unhealthy amount of screen time. Today, Americans spend up to twelve hours per day on screens, to the point that Hollywood studios have to determine whether a movie is “two-screen worthy” before agreeing to produce it. In other words, a movie concept has to be compelling enough that audiences are liable to put down their phones long enough to actually watch.

In this new environment, when people want to hurt one another, they pick up a smartphone and open a social media app. Accordingly, the demand for defamation law services is rising, and will continue to rise. Oftentimes there is no other recourse against people ruining your sanity and your livelihood from behind a touch screen. But that doesn’t mean you can ignore the rules of civil procedure and file a lawsuit just to harass somebody — even if they deserve it.

My law practice deals exclusively with defamation and the First Amendment. I’m not partial to plaintiffs or defendants — I represent both sides. The point, for me, is to know defamation law well. But when a type of legal service sees a glut of demand, you’re going to get attorneys dabbling in it without really knowing what they’re doing.

Indeed, recently I’ve noticed attorneys who don’t ordinarily practice defamation law bringing defective lawsuits on behalf of hourly paying plaintiffs. The specific defect I keep seeing? A lack of damages.

Damages are a necessary element of any claim in a civil lawsuit. You can’t demand compensation if you haven’t been “damaged.” Defamation is no different. What I see attorneys doing more and more nowadays is bringing suit just to shut someone up, by filing pro forma pleadings that say their client has been damaged, without providing any specific details.

Shutting someone up is what a cease and desist letter is for — a lawsuit needs to have a few more teeth to it. And a complaint that only vaguely asserts damages tends to violate the rules of pleading. Some states, like California, still require detailed fact allegations in a civil complaint. This is called “fact pleading.” But in most states, and all federal courts, plaintiffs are only required to perform what’s called “notice pleading,” meaning that the complaint need only provide the defendant with notice of what the plaintiff intends to prove.

That’s a low bar — but it’s not bottomless. As the U.S. Supreme Court has held,

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief…’ This pleading standard does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.

Ashcroft v. Iqbal, 556 U.S. 662, 677–79, 129 S. Ct. 1937, 1949–50 (2009).

So even under relaxed modern pleading standards, it isn’t enough to declare in stentorian, hear-ye fashion that, “as a result of defendant’s defamation as heretofore pleaded and incorporated by reference & yada & yada, the plaintiff has been damaged, AMEN.” That won’t cut it. Or… it shouldn’t. Rather, you have to indicate what the damages really are.

Now, I can already hear the peanut gallery intoning, “but WHAT ABOUT DEFAMATION PER SE?” Yes yes yes: forty-four states still recognize an archaic doctrine known as defamation per se, which does not require a showing of damages when the allegedly defamatory publication consists of one of four types of statement that the common law considers inherently damaging.

(Those are: (1) a false allegation of a crime, (2) a false allegation of misconduct in connection with one’s trade or profession, (3) a false allegation of promiscuity or impotence, and (4) a false allegation of having a communicable disease. Washington is an outlier in classifying any defamation made intentionally as per se defamatory.)

So yes, I’m aware that a showing of damages isn’t always required in a defamation case. The only problem is that the complaints I’m seeing which fail to properly plead damages are in New Mexico, which is one of six states that has abolished the doctrine of defamation per se. Smith v. Durden, 2012-NMSC-010, 276 P.3d 943.

What that indicates to me is an uptick in demand and an overeagerness to meet it. Which leads me to another reason why defamation plaintiffs should work with a dedicated defamation attorney, rather than a golf buddy or a walk-in law practitioner. All attorneys turn down cases, but an attorney whose intake calls are 100% from potential defamation clients turns down a lot of defamation cases.

That means that I have a finer-tuned sense of the risks and potential rewards in this specific type of case. For example, most states that recognize defamation per se also provide anti-SLAPP protection to defendants. But there are lots of much smaller booby traps lurking in the world of defamation law.

When drafting a complaint for a plaintiff, you don’t want to get too specific if you don’t have to. But even in states that recognize defamation per se, inherent damage is still damage, and good luck collecting a payout when you cannot even say that you’ve suffered harm.

If you have a defamation, doxxing, cyber-stalking, or First Amendment matter in Washington, New Mexico, or Texas, please visit my law practice at latenightlaw.com.

This blog post is commentary and is not legal advice for your individual situation.

All text content © Aaron Cress 2025-2026.