You Can’t Prove Slander Without a Witness

You can’t prove slander without a witness.

Let’s begin with some definitions. As you likely know, if one is defamed in writing, that is libel, and if the defamation is spoken, that is slander.

In the case of libel, you can show the defamation by offering the written document. This can make it easier to prove the case, since the evidence is right there in black and white. However, it is not as simple as some assume.

For example, let’s make you Sue Smith, and you live at 123 Main Street. You wake up one morning and while reading the paper over a cup of coffee (yes, there are some of us who still enjoy reading the paper), you come across an article that says, “Police report that Sue Smith, who resides at 123 Main St., was booked on suspicion of drunk driving. Officer Dave Friendly stated that this was Smith’s third drunk driving arrest, making it a felony.” None of it is true. Probably because of some snafu, the police got it wrong.

Do you have a viable defamation action? Most people who call want to sue the newspaper, but for the reasons set forth in this article, most likely that is a nonstarter.

The person who told the lie is Officer Friendly. So can you sue Officer Friendly, since the paper quoted him? Possibly, but even though the defamatory statement is right there in writing, you don’t yet have an action. How do we know Officer Friendly really said such a thing? It could be that the good officer said something completely different, and your action will be against the newspaper for getting it wrong. News outlets are protected when they accurately quote a public official, even if the official is wrong, but they’ll have to show that Officer Friendly really said what he said.

Slander is even tougher.           

To successfully sue for defamation, whether libel or slander, you must prove that false and defamatory statement was made about you. In the case of slander, since you have nothing in writing, you must depend on a witness. Someone has to put their hand on the bible (just an expression, that doesn’t happen) and swear to what the defendant said about you. How can you prove the statement was made, without someone testifying to hearing it?

And at this point it is important to note that a statement is not defamatory unless it is “published” to a third party. If the defendant tells you to your face that you are a no good, lying pony soldier, that is not defamatory. Thus, unless you have a witness to the defendant making the defamatory statement about you to someone else, you don’t have a case.

Callers make this way too complicated.

George: “I want to sue Joe. Joe is telling people that I’m a drug dealer, and I’m not.”

Me: “Do you have a witness who will testify that Joe told him you are a drug dealer?”

George: “Absolutely. Bill can testify that Sam told him that Joe said I was a drug dealer.”

Me: “Bill can’t testify to what Joe told Sam. That’s inadmissible hearsay. But Sam can testify to what Joe said. Why don’t you just get Sam to testify?”

George: “Sam and Joe are friends. Sam will never testify against Joe. Besides, no one knows where Sam lives.”

Me: “Then you don’t have a witness. You can’t file a case against Joe unless and until you have a witness who can testify to the words coming out of Joe’s mouth.”

And in anticipation of your question, no you can’t file the action before you have the evidence, hoping you will be able to get it through discovery. An ethical attorney is required to do due diligence before filing an action. Using the above fact pattern, if the attorney sues Joe, hoping that he will be able to track down Sam and convince him to testify, he and the client can be sued for malicious prosecution if the evidence never materializes.

Although not necessarily dictated by the law, I also won’t pursue a case without a willing witness. If I drag a witness into court kicking and screaming, they are not going to be a favorable witness.

Callers have this vision of a Perry Mason moment, where I will put Sam on the stand, and scream, “Isn’t it true Sam, if that’s even your real name, that on the night of June 3, 2022, at the Cue and Brew Bar, Joe said to you, ‘You should go see George, he’ll hook you up. Great drugs at low prices.’ Well isn’t it?”

“Yes, yes, it’s true. Please stop. I can’t bear your withering cross-examination a minute longer!”

It doesn’t work that way. Sam’s not at all happy that you made him come to court and testify against his friend Joe, so he’s sure not going to say anything helpful to your case. This is doubly so if you are taking his deposition prior to trial. If his deposition testimony is helpful to your case, he knows you will serve him with a subpoena to appear as a witness at trial, and he’d very much like to avoid that possibility. He doesn’t even have to tell outright lies to make his testimony worthless. The testimony will more likely go something like this:

“Isn’t it true Sam, if that’s even your real name, that on the night of June 3, 2022, at the Cue and Brew Bar, Joe said to you, ‘You should go see George, he’ll hook you up. Great drugs at low prices.’ Well isn’t it?”

“I don’t know man. I do sometimes go to the Cue and Brew, and I do remember seeing Joe there once, but I don’t remember talking to him, beyond maybe saying hi. I, like, have a drinking problem. So you can bet that if I’ve ended up at the Cue and Brew, I’m already wasted. That place is a dive.”

“I don’t remember” is the go-to testimony from an unwilling witness.

It doesn’t matter how certain you are that you know the source of the rumors.

I have to apply some tough love here, and I hope you will take it to heart if the circumstances apply to you.

Someone will call our office, convinced that there is a terrible rumor being spread about him. The pattern is almost always the same. His life is not going as well as he would like, and he concludes that there must be some external factor that is holding him back. People must be talking about him. He’s done a mental inventory of his life, and decided that some minor incident in his past was the start of the rumors.

Often, the situation arises from an encounter with the police. The caller was contacted by the police, and although he was never prosecuted, he is convinced that the police are seeking retribution, sometimes years later, because the caller got away with something.

Equally as often, the scenario arises from a job situation. Perhaps he was accused of padding his expenses at a place he worked 15 years earlier. The company looked into it and never said anything further, but he could tell they were not convinced of his innocence. He is certain that someone at the company told others, they told others, and now just about everyone thinks he is a thief. That is what is holding him back from the life he always envisioned. He offers me myriad examples that prove the existence of the rumor. When he went for his last job interview, they offered him a seat on a padded chair, and then asked if he wanted a pad of paper to take notes. He is further convinced that the rumor is spreading on social media. When I ask if he has seen the rumor on social media, the answer is always no, but he knows it must be the there since so many people know about it. (Or he sees it everywhere, but it’s coded. A reference to St. Paddy’s Day is really an acknowledgement of receipt of the rumor.)

Sometimes the two scenarios are combined. The person sat in his car during his lunch break, eating his ham sandwich. Uncharacteristically, he decided to have a couple of puffs of pot before returning to work, and a co-worker later made some joke about him being stoned. He is convinced that a police investigation was initiated regarding his pot use at work.

He is sure that if I will just agree to file a legal action and start taking depositions of people from his past, we will be able to expose the people who are spreading the rumor after all these years. Alternatively, he wants me to somehow determine if he is being investigated by the police.

In other cases, there is no specific triggering point from the past, but the person is seeing and experiencing external factors that, in his mind, are absolute proof that there is a rumor being spread. He asked a girl out and she said yes, but then she ghosted him. She must have heard the rumor. The clerk at Home Depot would not help him to find a blade for his power saw. He must have heard the rumor.

The examples given are often quite complex, and would require a legion of people working against the caller. In one case, the caller was convinced that people were getting personalized license plates that evidenced knowledge of the rumor, and were then taking turns driving in front of the caller, to make sure he knew they had heard the rumor. (All calls are confidential, and I would never provide an actual fact pattern from a caller, but this is analogous to the example given.)

Rather than recognize that such a plan is highly unlikely, given the time, cost, and number of people that would need to be in on it, the caller just sees the scenario as further evidence of just how deep the conspiracy goes.

I heard a great saying many years ago that really stuck with me.

“You’d think less about what people think about you, if you realized how seldom they do.”

But what if it is real?

With all that said, although extremely unlikely, it could be that the caller is correct. Perhaps he so offended someone in his past that they decided to devote all their time and resources to messing with the caller. But that does not change the need for a witness, and if it really is happening, a witness will surely appear.

People have their own lives to live. From my experience, while it is true that people love to gossip, there are also many good people in the world. The caller believes that the rumor is so pervasive that even prospective employers hear it, and that’s why he can’t find a good job. But isn’t it likely that at some point, a prospective employer, on hearing the false rumor, would ask him about it?

Even if it’s not done out of compassion, someone would spill the beans.

“Oh my god, you’re that guy who padded his business expenses at Acme Incorporated. I’ve heard all about you. Get out of my office. We’d never hire a thief like you.”

The response to this point of logic is always that the conspiracy runs so deep and is so powerful, that no one dares question the narrative. But then I present this hypothetical to the caller. “If a stranger came to you and told you to treat someone badly, based only on their word that the person deserved it, would you do it?” The answer is always no. Is the caller so unique in the world, that he is the only one who would refuse such a request? And isn’t it just as likely that upon encountering the downtrodden person in question, any decent person would feel compelled to let the person know what is being said?

And there are people in the world who aren’t fans of law enforcement. So if the police are talking to people about you, they would love to tell you about it, as a way to stick it to the Man.

So at least consider the possibility that people are not talking about you, and that if they were, someone would tell you about it.

If you ultimately determine that someone has decided to devote their life to ruining yours, then examine the problem from a legal standpoint. For the reasons stated above, you can’t sue unless you have a witness. Until someone steps forward, willing to reveal the name of the person from whom they heard the rumor, you can’t start a legal action. You might as well get on with your life until a witness surfaces.

Finding the thread.

When I am researching an obscure legal issue, I call it “finding the thread.” I use every search term I can think of to try to find a court decision on that point of law. I run into multiple dead ends, but eventually I find a case that is close to the point, and it refers to other cases. I can grab that thread and follow it to find the legal authority I need.

And so it is when you have people talking about you. As an example, in the case of people jumping on and spreading lies on social media, you follow the tweets and posts back to the source. In the case of slander, the task is much more challenging, but once you have that first voluntary witness, he can tell you what he was told and by who, and that person can do the same, and so on.

But until you have that first witness, you cannot pursue the action.

Another alternative.

In all cases, where the caller cannot identify a witness, I have found that the purported harm they are suffering is very non-specific. “Strangers are mean to me,” “I can’t find a job,” or “the government is out to get me.” When one caller made this latter claim, I decided to help him out with a little experiment. I invited the caller to pick a goal, and we would see if the government interfered. As it turned out, his goal was very attainable, and was perfect for the test. Changing the facts slightly to protect the caller’s privacy, he said that he wanted to start a hotdog stand. He was an older guy, and thought that would be a fun way to supplement his retirement. But he chuckled at the absurdity of the goal, since the government would never let him do such a thing, given the rumor and/or the efforts of the government to destroy him. Thankfully he had the funds necessary to start a hotdog stand, so I told him to start the process and check in with me if he encountered any impediments.

Even a simple hotdog stand requires substantial involvement with the government, including creating a business entity, licensing, health permits and inspections, collecting sales tax, etc. If the government was out to get him, there would be myriad opportunities to interfere with his plans for a hotdog stand. The beauty was that if some government official threw up a roadblock, we would have a thread. We’d damn well present ourselves at the official’s office and ask why he was interfering with the process. Was it because of something he had heard?

I anticipated devoting some time to Project Hotdog Stand; not because I thought there would be problems based on some rumor, but simply because it is always a pain to deal with the government, and the caller would no doubt blame every roadblock on the rumor. I’m happy to report that he got his hotdog stand, without ever needing my assistance.

The point here is not that you must start a business, but rather you might look for a way to expose the rumor by methodically going after a goal you are convinced is out of reach due to the rumor. In the process, you might discover that it is not holding you back, or that it doesn’t exist.