As defamation has received some attention in the news lately, it is worthwhile to step back and consider what, exactly, defamation is.
Defamation in New York law, encompassing both libel (written) and slander (spoken), protects individuals and entities from false statements that harm their reputation. The legal landscape of defamation in New York is significantly shaped by both state common law and federal constitutional principles, particularly those established by the U.S. Supreme Court.
As recently explained and summarized by the U.S. District Court for the Southern District of New York:
Not all (or even most) maligning remarks can be considered defamatory. Rather, defamation is defined as the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.
To allege a libel claim – a form of written defamation – under New York law, a plaintiff must show: (1) a written defamatory statement of fact regarding the plaintiff; (2) published to a third party by the defendant; (3) defendant’s fault, varying in degree depending on whether the plaintiff is a private or public party; (4) falsity of the defamatory statement; and (5) injury to the plaintiff.
At the motion to dismiss stage, the court must determine whether the challenged statements are, in the context of the entire publication, reasonably susceptible of a defamatory construction. Where the challenged statements are “susceptible of multiple meanings, some of which are not defamatory, the court may not conclude, as a matter of law, that the statements are not defamatory.
A court must also determine, as a matter of law, whether a challenged statement is a protected opinion or an actionable factual representation. Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. (citation omitted)).
In distinguishing between opinion and fact, the New York Court of Appeals has identified several considerations: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.
Whether a statement is an opinion, however, is not the end of the inquiry because New York law distinguishes between statements of pure opinion and mixed opinion. Statements of pure opinion are not actionable as defamation. A pure opinion is a statement of opinion that is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts. A mixed opinion implies a basis in facts which are not disclosed to the reader or listener, and are actionable because they signal to the reader that the writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed.
A defendant’s level of fault depends on the nature of plaintiff’s allegations. If defendant is a public figure or if the subject of the defamatory statements is a matter of public interest under New York law, the “actual malice” standard may apply. If the actual malice standard does not apply, a plaintiff need only allege negligence.
Finally, to allege injury, a plaintiff must either allege special damages or that the statement was defamation per se, in which case the harm is presumed. To plead defamation per se, a plaintiff must allege that the statements (i) charg[e] plaintiff with a serious crime; (ii) that tend to injure [plaintiff] in his or her trade, business or profession.
Fradkoff v. Winston, 24 Civ. 1830 (VM), 2025 WL 1735476 (S.D.N.Y. June 23, 2025) (cleaned up).
In sum, the law of defamation is complex and nuanced, and the viability, or not, of a particular claim requires careful analysis