Definition
Actionable per se describes a legal wrong for which the law presumes damage without requiring the plaintiff to prove actual injury as a condition of recovery. The phrase means, literally, "actionable by itself" — the conduct or words at issue are treated as inherently injurious, and a cause of action is complete upon proof of the act alone.
The term appears most frequently in two contexts:
1. Defamation per se. Certain categories of false statements are actionable per se, meaning a plaintiff may recover without pleading or proving special damages. The statement's membership in a recognized category is itself sufficient to establish the injury element. Historically, the recognized categories at common law included: imputation of a crime involving moral turpitude or punishment by imprisonment; imputation of a loathsome or communicable disease; words that injure a person in their trade, business, or profession; and, in some jurisdictions, imputation of sexual immorality. If a statement falls within one of these categories, general damages — including harm to reputation and mental suffering — may be presumed.
2. Other torts and wrongs. Beyond defamation, the phrase is used more broadly to describe any cause of action that does not require proof of actual, particularized damage to be legally cognizable. Battery, trespass to land, and certain statutory violations are sometimes described as actionable per se because the violation of the legal right itself, without more, entitles the plaintiff to at least nominal damages.
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Common Language
The Latin phrase per se is in wide general use, meaning "by itself," "in itself," or "intrinsically." Wiktionary records the modern common usage as: "of, in, or by itself; inherently." Webster's 1913 defines per se as "by itself; in itself; intrinsically; — used chiefly in philosophical discourse."
The common usage is not misleading, but it is incomplete in a legal context. When a lawyer or court says something is actionable per se, the phrase carries a specific procedural consequence — the presumption of damages — that goes well beyond the philosophical sense of "intrinsically." Understanding the phrase only in its ordinary sense would cause a researcher to miss its functional significance as a rule about proof and recovery.
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Common Confusion
ACTIONABLE PER SE vs. NEGLIGENCE PER SE. These are related but distinct concepts. Negligence per se is a doctrine by which violation of a statute or regulation establishes the breach element of a negligence claim — it collapses the standard-of-care inquiry, but the plaintiff must still prove causation and damages. Actionable per se, by contrast, eliminates or presumes the damages element. A researcher should not assume that a source using one phrase is interchangeable with the other.
ACTIONABLE PER SE vs. DAMAGES PER SE. Some courts and commentators use "damages per se" to refer specifically to the presumed-damages consequence, while reserving "actionable per se" for the threshold question of whether a cause of action exists without proof of harm. In practice, older sources often use the two interchangeably. When reading historical materials, check which element the author is actually addressing.
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Why It Matters in Research
The doctrine of actionable per se is primarily a defamation research problem, and it has a complicated modern history that will mislead researchers who rely on older sources without accounting for constitutional developments. Bouvier's reflects the pre-constitutional common law position cleanly: at common law, words imputing a felony were actionable per se, and many statutes extended the categories further. That framework governed American courts without significant federal overlay for most of the nineteenth and early twentieth centuries.
The modern landscape changed substantially after the Supreme Court's First Amendment defamation decisions beginning in the 1960s. Those decisions imposed constitutional requirements — including the actual malice standard for public figures and, in some applications, requirements of actual proof of injury — that interact with and in some cases displace the common law presumed-damages rule. A researcher using Bouvier's or other pre-constitutional sources to understand when a defamation claim requires proof of damages will find those sources incomplete and potentially wrong as applied to modern litigation.
For non-defamation uses of the phrase, the term remains relatively stable, but its appearance in historical sources often signals an underlying common law rule about nominal damages and legal presumptions that may have been codified, modified, or abandoned in a specific jurisdiction.
Pay attention to whether a source is describing the per se category (which statements qualify) or the per se consequence (what the plaintiff gets without proof). Historical sources sometimes address only one and assume the other.
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Historical Dictionary Support
Bouvier's Law Dictionary offers a foundational treatment, defining actionable words as falling into two classes: those actionable in themselves (per se), and those actionable only upon proof of special damage. Bouvier's confirms that at common law, the original per se category was narrow — imputation of a felony — but that statutory expansion progressively broadened it. This framing is accurate as a description of the classical common law baseline and remains useful for understanding the historical structure of the doctrine.
What Bouvier's does not address, by reason of its era, is the constitutional overlay that now conditions how courts apply presumed-damages rules in defamation cases. Researchers should treat Bouvier's as authoritative on the common law architecture and then consult modern secondary sources for the constitutional modifications.
No other historical dictionary in the current Law Mind shelf covers this term with comparable specificity.
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Jurisdictional Note
The categories of statements that qualify as defamation per se vary by state, and some jurisdictions have expanded or contracted the traditional common law categories by statute or decision. Whether the per se rule survives in a given jurisdiction without constitutional modification — particularly for private-figure plaintiffs — depends on how that state has received or adapted the Supreme Court's First Amendment framework.
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Encyclopedia Cross-Reference
Defamation Per Se Categories — The Law Mind Torts & Personal Injury Encyclopedia (torts_123)
Negligence Per Se (Violation of Statute as Negligence) — The Law Mind Torts & Personal Injury Encyclopedia (torts_8)
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