False statements communicated about you can be not only embarrassing and disruptive to your daily life; they can also be incredibly harmful to your personal and financial well-being. If you are the target of defamatory speech, your first question may be can I sue for slander?
To successfully sue for slander, you must:
- Determine that you have a valid slander claim;
- Identify the best court to file the slander lawsuit;
- Gather and preserve the evidence;
- Comply with all pre-suit filing requirements;
- Consider alternative dispute or pre-suit resolution tactics; and
- Draft, file, and serve the legal complaint on the defaming party.
At Minc Law, we have filed hundreds of defamation lawsuits in 26 states and three countries. We know the ins and outs of defamation law—and we have also authored more than 22 state-by-state defamation law guides.
In this article, we put our experience to your benefit by explaining the differences between the two types of defamation claims: slander and libel. We then discuss when and how to sue for slander, and how to find an experienced defamation attorney to help maximize your chances of success.
What Are the Differences Between Slander & Libel?
Defamation is a false statement published or communicated to a third party that causes damage to a third party’s reputation. Depending on the medium, defamation can be considered either slander or libel.
When filing a defamation lawsuit, it is important to understand how slander and libel claims are different. If you do not, you risk asserting the wrong legal claim—and having your case thrown out before it even begins.
What is Libel?
Traditionally, libel was defined as defamation in written form. The word libel comes from the Latin “libellus,” which translates to “booklet” or “small book.
Today, libel encompasses written statements (both on paper and online), pictures, or videos that are”published” to third parties. Due to technological advances and the increasing reliance on technology to communicate, most cases involving defamatory speech arise from instances of libel.
What is Slander?
While libel is recorded or written defamation, slander is spoken defamation. When you encounter a false statement that is communicated by word of mouth, slander is often at play.
A good way to remember the difference between libel and slander is that “slander” and “spoken” both begin with the letter “S.”
Traditionally, courts drew a distinction between spoken (or oral) defamatory speech and written or recorded defamatory speech because the spoken word is considered more transitory, easily forgotten, and less likely to result in permanent injury.
Thus, courts required proof of special damages as a necessary element to recover (damages) in slander cases unless the type of slanderous statement was so injurious that harm could be presumed – i.e. the statement fell within the doctrine of slander per se.
The nature of the “speech” involved and the necessity of proving damages, at least under some circumstances, are generally what has distinguished slander and libel claims.
What is Slander Per Se?
Slander per se is a legal doctrine dictating that a plaintiff can recover general damages without first submitting evidence of actual, pecuniary loss.
The doctrine was created based upon a recognition that certain types of defamatory statements are so inherently harmful but that the injury is so difficult to prove, damage can and should be presumed.
The four most commonly recognized types of statements that constitute slander per se are:
- Crime: A statement asserting that the plaintiff committed a crime or a crime of moral turpitude;
- Loathsome Disease: A statement alleging that the plaintiff suffers from a loathsome disease (usually, STDs or leprosy);
- Chastity/Sexual Misconduct: A statement imputing the plaintiff is unchaste or has engaged in serious sexual misconduct; and
- Profession: A statement alleging that the plaintiff committed misconduct in regards to their occupation or business.
These categories can vary from state to state and they have evolved over time.
For example, the “chastity and/or sexual misconduct” category was traditionally applied only to statements alleging that a woman was “unchaste”. In 2008, a federal court recognized that the chastity category of slander per se applies to both genders equally.
Additionally, the Restatement of Torts has converted the “chastity” category of slander per se to “serious sexual misconduct”, broadening the category to include aberrant behavior unrelated to “chastity” and without reference to the gender of the defamed party.
There have also been occasions where courts have recognized additional categories, only to later dismiss them because they were found to be based upon outdated and inappropriate assumptions about what type of behavior would expose one to public disgrace.
For example, for several decades, courts in New York recognized statements falsely imputing homosexuality as a fifth category of defamation or slander per se. This relatively short-lived fifth category was effectively abolished by the Yonaty court when it found recognition of the category was wholly inconsistent with public policy.
What Are Some Examples of Slander?
It is becoming increasingly rare for defamation lawsuits to fall within the category of slander. Because a large proportion of modern communication takes place through digital media and is written or recorded in some form, most defamation suits are filed as claims of libel.
Slander commonly happens when an individual vocalizes a false and damaging statement to a group of people about a third party.
One high-profile example of slander occurred in 2006 when actor David Schwimmer (of “Friends” fame) won a slander lawsuit against former celebrity fundraiser Aaron Tonken. Tonken admitted to falsely accusing Schwimmer of demanding Rolex watches in exchange for appearing at a charity fundraiser.
Other incidences of slander might look like:
- Telling destructive lies to a prospective employer about a job candidate who used to work for you over the phone;
- Spreading rumors at a block party that a neighbor is cheating on his spouse with a high school student, which could lead to marriage problems and reputational damage; or
- Falsely claiming during an interview with a potential client that a competing catering business has been frequently cited for health code violations and caused clients to become sick to induce the potential client to hire the company of the person making the false statements.
With the advent of modern technology, it has become more difficult to rely solely upon the traditional distinction between slander and libel – i.e. the “spoken” word versus the written (or recorded) word – to categorize a claim. For example, while defamatory statements made during a live television interview are “spoken” (and not necessarily committed to paper beforehand), such statements are generally considered libel.
The creation of new forms of digital communication, such as Snapchat, that combine the ephemeral nature of the spoken word with the ability for widespread dissemination further blur the line between slander and libel.
Is a Text Slander or Libel?
Text messaging has revolutionized modern communication and now frequently replaces face-to-face conversations. Everyone has had the experience of sending a text to a family member in the same house, a co-worker a few offices away, or a classmate across the room. With texts often acting as a substitute for the casual one-on-one conversations we used to have in person, it is logical to wonder: is a defamatory statement conveyed via text message slander or libel?
This question arose in the wake of a lengthy and contentious legal battle between pop star Kesha and her former producer, “Dr. Luke”. In 2020, Dr. Luke prevailed on a defamation claim against Kesha, which was based upon a single text sent by Kesha in 2016 to one other person. Notably, the text containing the defamatory statement was only discovered through a subpoena issued to the text recipient.
In its reporting on the ruling, Wired magazine discussed why the case was unique and the lingering question of whether text messages should be considered slander or libel.
While the court in Luke’s case did not ultimately decide on whether the text should be considered slander or libel – simply, finding the text was actionable as defamatory speech – it did drive home an important point: texting a single defamatory statement to one other person can give rise to a defamation claim.
When to Sue For Slander
Just because a perpetrator communicates a false statement about you or your business, does not always mean you should automatically file a defamation lawsuit. Knowing when to file a slander lawsuit comes down to how much damage your (or your business’s) reputation has sustained, and whether a lawsuit will be worth the cost.
What Are the Damaging Effects of Being Slandered?
Slander can cause extensive damage to its victim, whether they are an individual or a business. We examine both scenarios below.
Damaging Effects of Being Slandered on Individuals
Slander can cause significant damage to both your personal and professional reputation. If a slanderous statement about you makes its way to your employer or coworkers, you may face a loss of professional opportunities, and possibly even unemployment.
In your personal life, slander can cause embarrassment, loss of personal relationships, shame, and even physical symptoms like depression and anxiety.
Damaging Effects of Being Slandered on Businesses
Businesses can suffer reputational harm from slander just as individuals can. That loss of reputation in the public eye can spiral into other, more concrete effects, such as:
- Decreased customers and foot traffic,
- Loss of advertising and sponsorships,
- Reviewers feeling more comfortable leaving negative reviews of your business,
- Lower employee morale,
- Difficulty retaining quality employees and talent,
- Damaged CEO reputation,
- Decreased bottom line, and
- Having to shut your business’s doors for good.
How Can You Determine Whether It is Worth it to Sue For Slander?
Deciding whether to sue for defamation depends on the circumstances of your unique situation—which is why it is a good idea to consult an experienced defamation attorney. They can discuss any applicable costs, benefits, and risks, and help you determine whether a lawsuit is right for your situation.
The most important thing to remember is that the key reason for choosing to sue for defamation should not be about the money. You may be concerned with the cost of the lawsuit, or intrigued by the potential awarded damages if you win.
But the main deciding factor should be whether pursuing litigation will effectively end the pain and harassment the defamation is causing in your life.
How to Prove Slander
Before we examine how you prove your slander case, it is necessary to establish what you must prove to prevail in your claim.
To assert your claim for slander, you will need to plead the following four elements in your complaint and then prove the same at trial:
1. Defendant Communicated a False Statement About the Plaintiff
In order to be considered a false statement, it must be an untrue statement of fact (i.e., not an opinion) that is both unprotected and unsubstantiated under the law. A reasonable person should also understand that the false statement refers to the plaintiff specifically.
2. Defendant Communicated the False Statement to a Third Party
The false statement must have been communicated to another person. An untrue and harmful statement made by the defendant privately to the plaintiff would not qualify as an actionable defamation claim.
3. Defendant Acted with at Least a Negligent Level of Intent
The slanderer must also have made the false statements negligently. A negligent level of intent means that the speaker did not take the reasonable steps or precautions an ordinary person would take in a similar situation before communicating the statement.
Public figures and officials, on the other hand, must prove that the defendant acted with actual malice or reckless disregard when communicating the slanderous statement(s). A defendant will be found to have acted with actual malice if they knew that the statement was (a) false at the time of communication, or (b) acted with reckless disregard as the statement’s veracity.
4. Defendant’s False Statement & Communication to a Third Party Caused Damage to the Plaintiff
Finally, the defamatory speech must cause actual damage to the plaintiff’s reputation. Again, actual damage will be presumed if the defamatory statement falls within a slander per se category.
However, if your claim does not fall within one of these categories, or you simply wish to strengthen your defamation case and increase your ability to recover for the harm caused, damages must be established.
Damages can take the form of:
- Physical symptoms and/or mental distress, such as high blood pressure, anxiety attacks, or depression;
- Financial loss, such as lost employment, clients, revenue, and future losses of your business; and
- Expenses incurred to mitigate the harm caused by the slander, such as attorney and PR fees or content removal services.
What Can Serve as Evidence of Slander?
In a slander lawsuit, you will rely on the traditional types of evidence to support each element of your claim, including:
- Fact witness testimony,
- Documentary evidence,
- Expert witness Testimony.
The first two elements of a slander claim are, by their nature, more difficult to prove than in a libel claim. Libel is written, recorded, or preserved in a tangible form which means that there is likely a paper – or digital – trail of some form that will easily support these first two elements. Slander, being spoken, is harder to preserve or pin down.
The best forms of evidence to support these first two elements are (1) fact witness testimony and, (2) if any, documentation corroborating the content of the speech and fact that the speech was communicated to a third party, and (3) expert witness testimony.
Fact Witness Testimony
Witness testimony can be helpful to prove or support every element of a slander claim, but this type of evidence is particularly important for establishing the first and second elements – that the defendant made a false and defamatory statement about the plaintiff to third parties.
Since slander is spoken defamation, it is extremely helpful to enlist the help of anyone who was present to hear the defamatory speech. These witnesses can testify as to what was said and to the fact that the harmful statement was communicated to a third party.
You can and should also provide testimony as your own fact witness in your slander case. Your testimony can help prove that the statements made about you were, in fact, false and establish the harm you suffered.
Since slander is spoken, it is less likely that there will be a preserved record of the speech itself. However, if there is any documentation reflecting slanderous words spoken and heard by a third party, it is essential to obtain a copy. An example of such documentary evidence could be notes taken during a meeting where a defamatory statement was made.
Documentary evidence is also helpful to establish actual harm or damage. You should collect any evidence that you experienced harm as a result of the defamatory speech. For example, you might use bank statements or pay stubs to show that the defamatory speech led to a loss of income. Similarly, if your business experienced harm, you may need to provide financial statements, accounting records, and any other proof that your business was tangibly damaged as a result of the slander.
Or, if you experienced emotional distress as a result of the defendant’s actions – and/or that emotional distress manifested itself in physical symptoms requiring you to seek treatment – you can use medical records and medical bills to demonstrate that harm and the expenses you incurred as a result of the same.
Expert Witness Testimony
Expert witnesses are highly qualified, knowledgeable third parties who can produce context and information for your case.
For example, an expert witness might generate a comprehensive financial damage model to prove your legal claim for damages and explain that model to the jury to help understand the clear connection between the harmful speech and your financial losses.
Or, they may provide expert medical testimony to establish that the defamation caused you to experience emotional or physical problems and, as a result, required you to seek psychiatric treatment or other medical treatment and incur expenses.
For further reading on damages, we recommend reading our comprehensive article by attorney Dorrian Horsey ‘How to Prove Damages in a Defamation Lawsuit’.
How Can You Strengthen Your Case When Suing for Slander?
Reputational damage is highly subjective and can be quite difficult to quantify. Proving defamation damages in a slander lawsuit can be tough; it is best to gather as much tangible evidence as possible.
Many defamation victims want to provide personal testimony as to the harm they suffered. While testimony can be cathartic and assist in proving your case, it may not be enough.
Personal testimony should be supplemented by as much of the other forms of evidence listed above as possible, such as:
- Relevant receipts and bills,
- Pay stubs,
- Medical and psychiatric records, and
- Testimony from expert witnesses.
Steps to Filing a Slander Lawsuit
Generally, the six steps plaintiffs should take when filing a slander lawsuit are:
- Determine that you have a valid slander claim;
- Identify the best court to file the slander lawsuit;
- Gather and preserve the evidence;
- Comply with all pre-suit filing requirements;
- Consider alternative dispute or pre-suit resolution tactics; and
- Draft, file, and serve the legal complaint on the slanderer.
We discuss each step in greater detail below.
What Steps Should You Take When You Find You Are Being Slandered?
1. Determine That You Have a Valid Slander Claim
First, ascertain whether your claim of slander is a valid one. As mentioned above, the four elements that must be present to prove slander are:
- The defendant communicated a false statement about the plaintiff;
- The defendant communicated the unprivileged false statement to a third party;
- The defendant acted with at least a negligent level of intent; and
- The defendant’s false statement and communication to a third party caused injury to the plaintiff.
Second, consider all practical (and possible) defamation defenses or consequences that a defendant may rely on in response to your slander suit. These include:
For further reading on the potential defamation defenses a defendant may invoke, please see our article by paralegal Darcy Buxton ‘The Most Common Defenses to Defamation’.
2. Identify the Best Court to File the Slander Lawsuit
You should next determine (1) where—which state(s) or court(s)— you can file your defamation claim and, (2) if you have several choices, where you should file your claim.
Generally, where you can file your claim will depend upon which state(s) and/or court(s) have jurisdiction over the claim and the defendant. A jurisdictional analysis will take into account where you live and/or operate your business, where the defendant lives, where the intended recipients of the slanderous statements are located, and where you have experienced harm due to the slander.
Sometimes, identifying the appropriate jurisdiction to file your lawsuit will be simple. For example, if both you and the defendant live in Ohio, the defendant made the defamatory statements in Ohio, and you felt the brunt of the harm of those statements in Ohio, you would need to bring your claim in an Ohio state court and Ohio law will apply.
Jurisdictional issues can also be more complex. For example, if the defendant, a resident of State A, makes a defamatory statement about your company, a nationwide business headquartered in State B, to a group of your potential investors in State C, your attorney would need to determine which of those state courts would have jurisdiction and which state’s slander or libel law would apply.
It is also important to note that some courts within a particular jurisdiction do not have the authority to hear defamation claims. For example, in Ohio, you cannot file a defamation claim in small claims court and municipal court. You would need to bring your case before one of the county courts of common pleas.
If you have the option of filing in several different jurisdictions or courts, you will want to decide which jurisdiction or court will be most beneficial for your case. As discussed below, some states have more favorable laws for plaintiffs in defamation cases, while others impose more procedural hurdles on plaintiffs, which can make a case more time-consuming and expensive.
So if you have the choice between a few jurisdictions, it is best to understand all of your options so that you can make the best decision possible.
3. Gather & Preserve the Evidence
If there is any tangible documentation of the slander, save it as quickly as possible. Gather witnesses, expert testimony, and as much proof of the damage suffered by you or your business as you can.
The more evidence you can demonstrate, the stronger your case will be.
4. Comply with All Pre-Suit Filing Requirements
Before filing a slander lawsuit, it is crucial to consult your state and local laws to understand any pre-suit filing requirements.
For example, many states require plaintiffs to provide notice to the defendant before filing a claim in order to give them a chance to retract their defamatory statement first. The notice requirement (or retraction requirement) exists to give the defendant a chance to remedy the situation so as to avoid litigation altogether or to limit the damages that can be collected against them.
Failing to meet pre-suit filing requirements could result in your case being dismissed or preclude you from recovering punitive damages.
5. Consider Alternative Dispute or Pre-Suit Resolution Tactics
Filing a lawsuit can be extremely costly, time-consuming, and draining. Before proceeding with filing a claim, consider all of your alternatives to litigation, such as:
Minc Law Tip: For further reading on ORM, make sure to check out our comprehensive blog post ‘How Much Does Online Reputation Management Cost?’.
6. Draft, File, & Serve the Legal Complaint on the Defaming Party
Once you have made all of the above preparations and decisions, it is time to prepare a legal complaint that will begin the litigation proceedings.
A legal complaint contains all of the important information necessary to start a lawsuit, including outlining the parties to the suit, the jurisdiction, the factual allegations of the case, and the claims for any type of relief requested.
It is important to make sure that your complaint complies with all legal requirements for pleading a valid slander claim in the jurisdiction where you file. These requirements vary from state to state. This is another reason why it is important to secure an attorney with experience handling defamation claims to ensure that your complaint.
Where Should You File a Slander Suit?
At first glance, the question of where you should file your lawsuit, assuming you have options, may seem clear-cut. But unfortunately, filing a slander suit takes more consideration than simply filing it at the nearest courthouse.
And as mentioned above, you may have a few options as to the location you can bring your defamation suit depending upon the particular facts of the case and factors such as where you live, where the defendant lives, the intended audience for the slanderous speech, and where you experienced damages – as an individual or business – as a result of the defendant’s actions.
In some cases, the plaintiff only has one possible place to file their suit. In others, the plaintiff has multiple jurisdictions or courts from which to choose. In the latter situation, it is a good idea to know which courts offer you the best advantage.
For example, if. you and the defendant reside in different states, you may have the option of bringing your action in a state court or a federal court. However, you will want to consider that state courts are typically more plaintiff-friendly than federal courts.
And some states may have no Anti-SLAPP laws or a longer defamation statute of limitations. And of course, the final decision may come down to personal convenience.
Keep in mind that some states may have different statutes of limitations for slander and libel. Tennessee, for example, has a six-month statute of limitations for slander, but the statute of limitations for libel is one year. A victim of slander in Tennessee would need to move much more quickly to file a lawsuit than if they were a victim of libel.
Video: What is the Statute of limitations in the U.S.?
How Can You Hire an Attorney For a Slander Lawsuit?
If you are considering filing a defamation lawsuit, you need the help of an experienced defamation attorney. There are several ways to find an exemplary lawyer in your area.
First, ask your friends and family for referrals. Personal recommendations from people you trust—who have been in a similar situation—are often the best resource.
There are also several reputable websites with directories that you can consult to find experienced attorneys in your state, such as:
- SuperLawyers.com: SuperLawyers allows you to search for defamation lawyers by both location and legal issue.
- Avvo.com: The attorney directory at Avvo lets you conduct a refined search by legal topic, practice area, and city and state. Avvo also includes a rating component to let you check previous clients’ reviews of some attorneys.
- FindLaw.com: FindLaw is also a directory that lets you search for attorneys by county, metro area, or state. You can also use FindLaw to find lawyers who offer free consultations.
Finally, you can check with your local bar association to find a vetted attorney in your area.
Questions to Ask a Slander Attorney Before Hiring Them
Once you have narrowed down your options, you should consult with each defamation attorney and make sure they are the right fit for you. Ask questions like:
- How will you update and communicate with me about my legal matter?
- How will billing work and when will I be charged?
- How many similar cases have you handled—and what were their results?
- What will this process look like, and what will you need from me?
- Are my goals achievable?
- Do you recommend alternatives to solve my defamation issue?
Minc Law Lawyer Search Tip: For more question ideas, download our free 33-question checklist of comprehensive questions to ask a defamation lawyer.
Minc Law Can Help You Sue For Slander
Slander can be an extremely harmful, disruptive, and taxing experience for individuals and businesses. If you are a victim of slander, it can be difficult to know what steps to take to remedy the situation.
At Minc Law, we know what it takes to effectively combat defamation—and we understand not just the legal nuances of a slander case, but also the personal nature of your situation. We pride ourselves on resolving defamation situations efficiently without drawing unnecessary attention to them.
“Christina Williams was great to work with and was very professional in helping us a deal with a very difficult situation that my son got himself into. I hope we never have to call on her again, but I’m glad we have her number just in case. Thank you!”
MT, Aug 31, 2021
Reach out to us today to schedule your free initial no-obligation internet defamation consultation by contacting a chat representative, filling out our contact form, or calling us at (216) 373-7706.