Is Defamation a Tort? How US Law Classifies It
Yes. Defamation is a common-law tort, a civil wrong for which the harmed person can sue for money damages, not a crime, under the framework set out in the Restatement (Second) of Torts § 558.
This article addresses defamation as a category of tort law generally across the United States. Defamation is governed primarily by state common law and statute, layered with federal constitutional limits from the First Amendment, including the fault standards set in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The exact elements, per se categories, and procedural rules vary by state; for jurisdiction-by-jurisdiction detail, see the Defamation Laws by State hub. A small minority of states also keep criminal defamation statutes; that subject is covered in depth on a separate page and only touched on briefly here.
Is defamation a tort or a crime?
Defamation is a tort, a civil wrong, in the United States. The person whose reputation was harmed sues in civil court for money damages; the government is not a party to that lawsuit, and no one goes to prison merely for losing a defamation case. Cornell Law School's Wex Legal Information Institute describes "the tort of defamation," which "includes both libel (written statements) and slander (spoken statements)," and lists the elements a plaintiff must prove, tracking Restatement (Second) of Torts § 558. A minority of states, roughly 15 as of 2026, also keep a criminal defamation or criminal libel statute that can theoretically apply to the same conduct, but prosecutions are rare and constitutionally limited. That question is covered in depth in Is Defamation a Crime?; this page focuses on why and how defamation is classified as a tort.
What does it mean for defamation to be a "tort"?
A tort is a private civil wrong, other than a broken contract, for which the law lets the injured person recover damages. Cornell's Wex defines it as "an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability," and draws two distinctions that matter here. First, "torts are distinguishable from crimes, which are wrongs against the state or society at large;" tort law compensates the victim rather than punishing the wrongdoer, and criminal cases require proof beyond a reasonable doubt while civil cases use the lower preponderance-of-the-evidence standard. Second, tort law "is also distinct from contract law," because a tort claim does not depend on any agreement between the parties. Defamation fits this definition directly: Restatement (Second) of Torts § 558 sets out the elements a plaintiff must prove (a false and defamatory statement, unprivileged publication to a third party, fault, and damages), and a plaintiff who proves those elements by a preponderance of the evidence wins the case regardless of whether the parties ever had a contract or whether a prosecutor ever files charges.
| Feature | Tort (defamation) | Crime | Contract claim |
|---|---|---|---|
| Who brings the case | The injured person (plaintiff) | The government (prosecutor) | A party to the agreement |
| Standard of proof | Preponderance of the evidence | Beyond a reasonable doubt | Preponderance of the evidence |
| Typical remedy | Money damages, sometimes an injunction | Fine, probation, or jail | Money damages or specific performance |
| Does it require an agreement between the parties? | No | No | Yes |
| Applies to defamation? | Yes, in nearly every US jurisdiction | Only in the minority of states with a criminal defamation statute | No; ordinary defamation claims do not depend on a contract |
Watch out: A single false statement can, in theory, expose the speaker to both a civil lawsuit and, in a handful of states, criminal charges. The two tracks use different standards of proof and different parties bring them, so winning or losing one does not automatically decide the other.
What kind of tort is defamation? The "dignitary tort" classification
Legal scholars and courts do not treat defamation as a perfect fit for any single traditional tort category, but it is commonly grouped among the "dignitary torts," civil wrongs organized around protecting reputation and personal dignity rather than physical safety or property. A 2019 Cornell Law Review article by Kenneth S. Abraham and G. Edward White places "defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonment" in that category. That grouping cuts across the more familiar intentional-tort category: Cornell's Wex lists "battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress" as the common intentional torts, and does not include defamation, because defamation liability does not require proof the defendant intended to harm the plaintiff's reputation. Since Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), a state may not impose defamation liability without at least some showing of fault, generally negligence for private-figure plaintiffs, and "actual malice" (knowledge of falsity or reckless disregard for the truth) for public officials and public figures under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Before Gertz, some states allowed defamation claims to succeed without any showing of fault at all, closer to strict liability than to a classic intentional tort, which is part of why defamation resists tidy categorization even today.
Pro tip: The Restatement (Second) of Torts, which supplies the § 558 elements and the dignitary-tort framework discussed here, was completed in 1977. The American Law Institute has since initiated Restatement of the Law Third, Torts: Defamation and Privacy, addressing "torts dealing with personal and business reputation and dignity, including defamation, business disparagement, and rights of privacy," with Reporters Lyrissa Lidsky (University of Florida Levin College of Law) and Robert C. Post (Yale Law School). Until that project is finalized and adopted by courts, the Restatement (Second) framework remains the standard reference for how US courts classify the defamation tort.
Libel and slander: the tort's two sub-types
Whatever label it carries within the broader law of torts, defamation itself splits into two forms based on the medium of the statement. Libel is defamation in a fixed or permanent form, such as writing, print, or a social media post; Cornell's Wex notes that "traditionally, libel was a tort governed by state law." Slander is spoken or otherwise transitory defamation. Both forms are defined together in Restatement (Second) of Torts § 568, and both remain the same underlying civil tort; the libel/slander split affects how a plaintiff proves damages, not whether the claim is fundamentally civil rather than criminal. A statement that is defamatory on its face can be actionable per se, meaning damages to reputation are presumed, while a statement whose defamatory meaning depends on outside context is defamatory per quod and generally requires the plaintiff to prove actual damages. For a full comparison of the two forms, including how courts treat tweets, broadcasts, and other modern media, see Libel vs. Slander; for the complete list of what a plaintiff must prove, see Elements of Defamation.
Do any states still treat defamation as a crime?
Yes, but only in a minority of jurisdictions, and it does not change the underlying tort analysis. As of 2026, roughly 15 states keep a criminal defamation or criminal libel statute in force alongside the civil tort described above. The same false statement can support a civil lawsuit under the Restatement § 558 elements, and, separately, expose the speaker to criminal charges only in a state with such a statute, which remains uncommon and is subject to First Amendment limits. The existence of a criminal statute in a state does not change the civil analysis: a plaintiff still must prove the tort elements (a false statement of fact, publication, fault, and damages) to recover money damages, regardless of whether a prosecutor ever brings charges. For the full state-by-state list and why criminal prosecutions are rare, see Is Defamation a Crime?
This article provides general information about how US law classifies defamation as a type of civil tort. It is not legal advice, does not create an attorney-client relationship, and does not cover every state's specific defamation rules or every criminal defamation statute. Defamation law varies by state, and the facts of a specific situation can change the analysis. Consult a lawyer licensed in your state for advice about a specific case. Information current as of July 2026.
Related articles
- Defamation Laws by State: the hub for state-by-state statutes of limitations, anti-SLAPP laws, and defamation per se rules
- Is Defamation a Crime?: which states still have criminal defamation statutes and why prosecutions are rare
- Elements of Defamation: the five things a plaintiff must prove to win a defamation claim
- Libel vs. Slander: how the two forms of the defamation tort differ and why it matters for damages
Frequently Asked Questions
Is defamation a tort?
Yes. Defamation is a common-law tort in the United States, a civil wrong for which the injured person sues for money damages. The elements a plaintiff must prove trace to the Restatement (Second) of Torts section 558. Defamation is governed primarily by state law, subject to First Amendment limits.
What type of tort is defamation?
Defamation is commonly classified among the 'dignitary torts,' civil wrongs organized around protecting reputation and personal dignity, alongside invasion of privacy and intentional infliction of emotional distress. It does not fit neatly among the classic intentional torts because liability can rest on negligence rather than intent to harm reputation.
Is defamation a tort or a crime?
In the ordinary case, defamation is a tort, not a crime. The injured person sues in civil court for damages, and the government is not a party. A minority of states, roughly 15 as of 2026, also have criminal defamation statutes, but prosecutions under them are rare.
Is defamation an intentional tort?
Not in the classic sense. Cornell Law School's Wex Legal Information Institute lists battery, assault, false imprisonment, trespass, and intentional infliction of emotional distress as the common intentional torts, and does not include defamation. Since Gertz v. Robert Welch, Inc. (1974), private-figure plaintiffs generally need to show only negligence, not intent to harm reputation.
Is defamation a strict liability tort?
No, not anymore. Before Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), some states allowed defamation liability without any showing of fault. Gertz held that states may not impose defamation liability without at least some fault, generally negligence for private figures and actual malice for public officials and public figures.
How is a tort different from a crime in defamation cases?
In a tort case, the harmed person sues and must prove the elements by a preponderance of the evidence to recover money damages. In a criminal case, the government prosecutes and must prove guilt beyond a reasonable doubt, with penalties such as a fine or jail. Ordinary defamation claims proceed as torts, not crimes, in nearly every US jurisdiction.
Can defamation be a contract claim instead of a tort?
No. A contract claim requires an agreement between the parties that one side allegedly broke. Defamation does not depend on any agreement; it arises from a false statement of fact that harms someone's reputation. That is why defamation is analyzed as a tort rather than a breach of contract.
What are the two types of the defamation tort?
Libel and slander. Libel is defamation in a fixed or permanent form, such as writing or an online post. Slander is spoken or transitory defamation. Both are defined together in Restatement (Second) of Torts section 568 and are two forms of the same underlying tort.
Sources and References
- Defamation, Wex Legal Information Institute (Cornell Law School): the tort of defamation, libel and slander, and the Restatement (Second) of Torts section 558 elements(law.cornell.edu).gov
- Tort, Wex Legal Information Institute (Cornell Law School): definition of a tort and its distinction from crime and breach of contract(law.cornell.edu).gov
- Intentional tort, Wex Legal Information Institute (Cornell Law School): common intentional torts (battery, assault, false imprisonment, trespass, intentional infliction of emotional distress)(law.cornell.edu).gov
- Civil liability, Wex Legal Information Institute (Cornell Law School): civil vs. criminal liability and burdens of proof(law.cornell.edu).gov
- Libel, Wex Legal Information Institute (Cornell Law School): libel as a tort governed by state law(law.cornell.edu).gov
- Libel per se, Wex Legal Information Institute (Cornell Law School): per se vs. per quod distinction(law.cornell.edu).gov
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (no liability without fault; negligence for private figures)(law.cornell.edu).gov
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (actual malice standard for public officials)(law.cornell.edu).gov
- Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell Law Review (2019) (classifying defamation among the dignitary torts, alongside invasion of privacy, intentional infliction of emotional distress, and false imprisonment)(scholarship.law.cornell.edu)
- Torts: Defamation and Privacy, The American Law Institute (Restatement of the Law Third project, initiated January 2019; Reporters Lyrissa Lidsky and Robert C. Post)(ali.org)