## Facts

- Kathleen Hayes, a high school teacher, lecturer, and writer, and Samantha Smith worked together in a conservative Christian community and co-formed a corporation tied to shared religious views.
- The relationship between Hayes and Roger and Samantha Smith deteriorated, with mutual allegations of harassment and verbal accusations.
- In May 1986, Roger and Samantha Smith met with the superintendent of Hayes’s school, purportedly seeking help to stop Hayes from harassing them.
- Hayes alleged the Smiths made false statements to the superintendent that Hayes (1) tried to establish a homosexual relationship with Samantha, (2) proposed marriage to Samantha, and (3) previously had been discharged from a teaching job.
- Hayes sued for defamation; a jury awarded $1,000 in actual damages and $26,000 in special damages.
- Without objection, the trial court treated Hayes as a public figure and instructed the jury that the accusations of homosexual conduct constituted slander per se.

## Issues

1. Whether false statements accusing a person of homosexual conduct constitute slander per se under Colorado law.
2. Whether, given the plaintiff’s public-figure status, the case was submitted under instructions consistent with the requirements of actual malice and actual injury.
3. Whether the slander per se classification and related damages instructions were prejudicial error requiring reversal.

## Decision

- The Colorado Court of Appeals reversed the judgment and remanded.
- The court held that accusations of homosexuality or homosexual conduct were not slander per se under Colorado law.
- Because Hayes was treated as a public figure, instructions allowing presumed damages through a per se theory conflicted with the need to prove actual malice and actual injury.
- The erroneous per se and damages instructions were not harmless because they could have affected the jury’s liability and damages determinations.

## Legal Principles

- Slander per se is limited to categories of statements so naturally harmful to reputation that general damages may be recovered without proof of special harm.
- Under Colorado law at the time, allegations that a person is homosexual or engaged in homosexual conduct do not fall within slander per se categories.
- A public-figure defamation plaintiff must prove actual malice (knowledge of falsity or reckless disregard for truth) and actual injury; common-law presumptions of damages cannot substitute for this showing.
- Misclassifying statements as slander per se, and instructing the jury in a way that permits presumed damages inconsistent with constitutional standards, is reversible error when it may have influenced the verdict.

## Conclusion

The appellate court reversed and remanded because the trial court improperly treated accusations of homosexual conduct as slander per se and gave damages instructions that risked allowing presumed damages despite the plaintiff’s public-figure burden to prove actual malice and actual injury.


Hayes v. Smith, 832 P.2d 1022 (Colo. App. 1991)