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Defamation is a statement that injures a third party's reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements). State common law and statutory law governs defamation actions, and each state varies in their standards for defamation and potential damages. Defamation is a tricky area of law as the lines between stating an opinion versus a fact can be vague, and defamation tests the limits of the first amendment freedoms of speech and press. 


To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.

State-Specific Elements

Different states vary in their anti-defamation statutes. As such, courts in different states will interpret defamation laws differently, and defamation statutes will vary somewhat from state to state. In Davis v. Boeheim, 110 A.D.3d 1431 (N.Y. 2014), which is a New York state court case, the court held that in determining whether a defamation claim is sufficient, a court must look at whether the "contested statements are reasonably susceptible of a defamatory connotation." However, as the Davis court held, because the courts recognize the plaintiff's right to seek redress as well, many courts have declined from dismissing the case for failure to state a claim, as long as the pleading meets the "minimum standard necessary to resist dismissal of the complaint." Many states treat certain types of claims as defamatory outright if false such as accusing someone of committing a crime or accusing someone of a corrupt act. States also have very different treatment of damages for defamation with some mostly limiting awards to actual damages inflicted by the statements to others that allow criminal liability for some statements. For publishers, damages may be reduced in some states by publishing a redaction of the defamatory statements. 

Burden Of Proof To Show Fault

Most states assume that a speaker who defames another necessarily has the requisite guilty state of mind. In Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997), the court held that in Maine, all defamation claims need showing of fault, which requires the plaintiff to prove that the defendant was at least negligent.

Actual Malice Standard

In The New York Times Co. v. Sullivan, 376 U.S. 254 (1964) where a police chief brought a defamation claim regarding a newspaper, the Supreme Court held that for a public official to succeed on a defamation claim, the public official plaintiff must show that the false, defaming statements were said with "actual malice." The Sullivan court noted the threat relaxed defamatory statements could pose to first amendment freedom of speech, and given the especial importance of being able to question government officials, the court found the state’s libelous per se standard to not satisfy first amendment protections as it relates to public officials. The Sullivan court stated that "actual malice" means that the defendant said the defamatory statement "with knowledge that it was false or with reckless disregard of whether it was false or not." The Sullivan court also held that when the standard is actual malice, the plaintiff must prove actual malice by "clear and convincing" evidence, rather than the usual burden of proof in a civil case, which is the preponderance of the evidence standard. On this point, the precise language the Sullivan court uses is that the plaintiff must show "the convincing clarity which the constitutional standard demands."

Privileges and Defense

Complete Defenses

Truth is widely accepted as a complete defense to all defamation claims.

An absolute privilege is also a complete defense to a defamation claim. Among other examples, this includes statements made by witnesses during a judicial proceedings.

Qualified Privilege

In the defamation context, a qualified privilege permits someone to make a statement that would typically be considered defamatory, but because of particular circumstances, a particular statement made would not be considered to be defamatory. However, if the statement is made with actual malice, then the speaker will no longer be entitled to the qualified privilege.

Among other examples, this includes statements made during legislative proceedings.

For more on defamation, see this Florida State University Law Review article, this Syracuse Law Review article and this Harvard Law Article

[Last updated in June of 2023 by the Wex Definitions Team]