Defamation is a statement that harms another person's reputation. The tort of defamation includes both libel, which generally involves written or otherwise recorded statements, and slander, which generally involves spoken statements. Defamation is primarily governed by state common law and statutes, and the elements, defenses, privileges, and available damages vary among jurisdictions. Defamation also implicates the First Amendment as the law must balance an individual's interest in protecting their reputation against the constitutional protections afforded to freedom of speech and the press. One recurring issue is distinguishing actionable statements of fact from constitutionally protected expressions of opinion. The Supreme Court has recognized that statements that cannot reasonably be interpreted as asserting actual facts receive First Amendment protection, while statements that imply or assert provably false facts may be actionable. See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
Elements
Although the precise elements vary by jurisdiction, a prima facie defamation claim generally requires the plaintiff to establish:
- A false statement purporting to be a fact;
- Publication or communication of that statement to a third party;
- The requisite level of fault by the defendant; and
- Reputational harm or other legally cognizable damage.
The required level of fault depends on the circumstances, including the plaintiff's status and whether the speech involves a matter of public concern. States may impose different requirements concerning damages, defamatory meaning, and other elements of the claim.
The statement must generally be one that is capable of being proven true or false. Statements of pure opinion are generally protected because they cannot be proven objectively true or false. However, merely characterizing a statement as an “opinion” does not automatically protect it from a defamation claim. In the case Milkovich v. Lorain Journal Co., the U.S. Supreme Court rejected a broad constitutional rule that all statements of opinion are categorically protected. Instead, the relevant inquiry includes whether the statement can be reasonably understood as asserting an actual, objectively verifiable fact. Thus, a statement presented as an opinion may still be actionable if it implies or asserts undisclosed defamatory facts that are capable of being proven false.
State-Specific Elements
Defamation law varies substantially from state to state. Courts in different jurisdictions may apply different pleading standards, definitions of defamatory statements, privileges, statutes of limitation, and rules governing damages. For example, in Davis v. Boeheim, 24 N.Y.3d 262 (2014), the New York Court of Appeals held that, when evaluating the sufficiency of a defamation claim at the pleading stage, a court must determine whether the challenged statements are “reasonably susceptible of a defamatory connotation.” The Court explained that a complaint should not be dismissed at the outset when, under any reasonable interpretation of the alleged facts, the plaintiff could be entitled to recover for defamation. The Court also considered whether the statements were actionable statements of fact rather than protected expressions of pure opinion.
States also differ in their treatment of defamation per se, under which certain categories of defamatory statements may be considered sufficiently harmful that the plaintiff may recover presumed damages without proving specific economic injury, subject to applicable constitutional limitations. Traditionally, categories of defamation per se have included false statements accusing a person of committing a serious crime, having certain stigmatized diseases, engaging in serious sexual misconduct, or being professionally incompetent or unfit to conduct a particular occupation. The precise categories and consequences also vary by jurisdiction. States also differ in their treatment of retractions and corrections. Some jurisdictions have statutes that allow a publisher to reduce or limit potential damages by promptly publishing a correction or retraction that satisfies these statutory requirements.
Burden of Proof to Show Fault
The plaintiff's required showing of fault depends on the circumstances. For private plaintiffs, states generally may impose a negligence-based standard, although the applicable standard may also vary depending on whether the statement involves a matter of public concern. In Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997), the First Circuit applied a Maine statute and held that negligence was the minimum level of fault required for a defamation claim. Thus, under Maine law, a plaintiff could not prevail merely by establishing that the defendant published a false and defamatory statement; the plaintiff also had to establish the requisite level of fault. The constitutional requirements are more demanding when the plaintiff is a public official or public figure or when the speech involves matters of public concern. In those circumstances, the First Amendment may require the plaintiff to establish actual malice rather than mere negligence.
Actual Malice Standard
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court considered a defamation claim brought by a public official concerning statements about the official's conduct. The Court held that the First Amendment prohibits a public official from recovering damages for a defamatory falsehood relating to official conduct unless the official proves that the statement was made with “actual malice.” The Court defined actual malice as publication “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court imposed this heightened standard because allowing public officials to recover based merely on a presumption of falsity or malice could substantially burden the constitutionally protected criticism of government officials and public affairs. The plaintiff must establish actual malice by clear and convincing evidence. The Court in Sullivan described the required showing as the “convincing clarity” demanded by the constitutional standard.
The actual-malice requirement is not limited to public officials. In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the Supreme Court extended the actual-malice requirement to public figures, and in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court distinguished public figures from private individuals and held that private plaintiffs generally need not satisfy the Sullivan actual-malice standard in order to recover for defamation. For private plaintiffs, states may generally impose a negligence standard, although the First Amendment limits the availability of presumed or punitive damages when the speech involves a matter of public concern. Accordingly, the plaintiff's status and the nature of the speech are important in determining the applicable constitutional standard. Public officials and public figures generally must prove actual malice, while private plaintiffs may generally recover actual damages upon a showing of the level of fault required by applicable state law.
Privileges and Defenses
Truth is generally a complete defense to a defamation claim because a plaintiff cannot establish the falsity required for defamation by proving that the challenged statement is true. In jurisdictions following the traditional allocation of proof, the defendant bears the burden of establishing truth as an affirmative defense.
An absolute privilege can also provide a complete defense to a defamation claim. Absolute privilege protects certain statements even when they would otherwise be defamatory. The privilege generally applies because the law considers the need for uninhibited communication in particular settings to outweigh an individual's interest in protecting reputation. Statements made in judicial proceedings are a common example, including statements made by judges, lawyers, witnesses and parties when the applicable requirements for the privilege are satisfied. Statements made during legislative proceedings may also receive absolute privilege under applicable law. The scope of absolute privilege varies by jurisdiction, and courts generally require some connection between the challenged statement and the proceeding in which it was made. Accordingly, the mere fact that a statement occurs in or around a judicial or legislative proceeding does not necessarily establish an absolute privilege in every circumstance.
A qualified privilege protects certain otherwise actionable statements when particular circumstances justify the communication. Unlike an absolute privilege, a qualified privilege can generally be defeated if the plaintiff establishes the type of malice recognized by the applicable jurisdiction. Qualified privileges commonly arise when the speaker has a legal, moral, or social duty or interest in communicating the information and the recipient has a corresponding interest in receiving it. For example, a qualified privilege may protect certain employment-related communications, statements made to protect another person's interests, or communications concerning matters in which both the speaker and recipient have a legitimate interest. The precise scope of qualified privilege also varies by jurisdiction. Additionally, “malice” in the context of defeating a qualified privilege claim is not necessarily the same as the constitutional concept of “actual malice” established in New York Times Co. v. Sullivan. Courts may use the term “malice” in the context of common-law privilege in reference to an improper motive, spite, ill will, or other circumstances depending on the jurisdiction; thus, the applicable state law must always be consulted to determine whether and how qualified privilege applies.
Defamation involves both state law and constitutional requirements. Although a basic claim generally requires a false statement of fact, publication to a third party, the requisite level of fault, and legally cognizable harm, the precise requirements vary among jurisdictions. The First Amendment imposes additional limitations, particularly when the plaintiff is a public official or public figure or when the speech concerns matters of public concern. New York Times Co. v. Sullivan, Curtis Publishing Co. v. Butts, and Gertz v. Robert Welch, Inc. all establish different constitutional standards based on the status of the plaintiff and the nature of the speech, while Milkovich v. Lorain Journal Co. addresses the distinction between actionable factual assertions and protected opinion. While privileges such as the truth, absolute privilege, and qualified privilege may prevent liability even when a statement would otherwise satisfy the elements of a defamation claim. Because these rules vary significantly by jurisdiction, determining whether a particular statement is actionable ultimately requires consideration of the context, the applicable state law, and the constitutional protections governing the speech.
See also: U.S. Constitution Annotated Amendment 1.7.5.7 Defamation.
[Last reviewed in August of 2026 by the Wex Definitions Team]