Can You Go to Jail for Defamation of Character?

In the United States, defamation of character is overwhelmingly a civil matter, not a crime: in almost every case you sue the person who lied about you for money damages, and you do not go to jail for being sued. A minority of states still keep criminal defamation statutes on the books, but those laws are rarely prosecuted and are tightly limited by the First Amendment under Garrison v. Louisiana, 379 U.S. 64 (1964).

Is defamation a crime or a civil matter?

For practical purposes, defamation in the United States is a civil matter. It is a tort, meaning a private wrong: the person whose reputation was harmed files a lawsuit and asks a court to award money damages, and sometimes an order to stop repeating the statement. Courts have generally held that to win, a plaintiff must show a false statement of fact, communicated to at least one other person, that is not privileged and that injures the plaintiff's reputation, consistent with the framework in the Restatement (Second) of Torts and Supreme Court decisions such as Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Losing a civil defamation case means paying damages, not going to prison. That is the core answer most people are looking for when they ask whether they can go to jail for defamation of character: in the ordinary case, no.

When can defamation be a crime?

Defamation can be a crime only in the minority of states that still have a criminal defamation or criminal libel statute, and only when the facts fit that statute. Most states have either repealed these laws or seen them struck down as unconstitutional. Where a criminal statute survives, it is typically a misdemeanor, so any jail exposure is limited, and prosecutions are uncommon. Even then, the First Amendment applies in full. Under Garrison v. Louisiana, 379 U.S. 64 (1964), the Supreme Court extended the actual-malice rule from New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to criminal cases, holding that a state cannot criminally punish criticism of a public official's official conduct unless the statement was false and made with actual malice. The Court also held that truth is a defense, writing that "truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned."

Which states still have criminal defamation laws?

The roughly 16 states below still have a criminal defamation or criminal libel provision on the books, according to current statute compilations and the Middle Tennessee State University First Amendment Encyclopedia. The existence of a statute does not mean charges are common; many of these laws sit unused, and several have been narrowed by courts. The list is a snapshot, because states amend, repeal, and litigate these statutes over time. The interactive map on the Defamation Laws by State hub shows at a glance which states criminalize defamation.

Watch out: A statute being on the books is not the same as it being enforceable or enforced. Courts in several states have struck down criminal-libel laws as unconstitutional, and prosecutors rarely bring charges. Minnesota is the clearest example in the table above: its criminal defamation statute is still printed in the code, but the Minnesota Court of Appeals held in State v. Turner (No. A14-1408, filed May 26, 2015) that the statute "is unconstitutionally overbroad and not susceptible to a narrowing construction," and reversed the conviction. To understand how a specific state actually treats defamation, including its civil rules, see state guides such as California, Florida, Michigan, Texas, and New York.

Why is criminal defamation so rare?

Criminal defamation is rare for several overlapping reasons. First, the constitutional bar is high: Garrison v. Louisiana requires actual malice for statements about public officials, truth is a complete defense, and pure opinion is protected under Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Second, the trend has run strongly toward repeal; the influential Model Penal Code declined to include criminal defamation, and the large majority of states no longer have such a law. Third, prosecutors generally treat reputation disputes as private matters better handled in civil court, where the injured person can seek damages directly. The result is that even residents of states with a statute usually pursue defamation as a civil claim. To do that, people typically look at how to sue for defamation and how much you can sue for, and defendants look at the available defenses to defamation.

Civil vs. criminal defamation at a glance

The two paths differ in who brings the case, what is at stake, and what must be proven. In a civil case, the person harmed is the plaintiff, the goal is money damages (and sometimes an injunction), and the standard of proof is the lower civil preponderance-of-the-evidence standard. In a criminal case, the government is the prosecutor, the potential penalty is a fine or jail (usually as a misdemeanor), and the prosecution must prove guilt beyond a reasonable doubt. Both paths require a false statement of fact rather than opinion, and both are subject to First Amendment limits, including the actual-malice rule for public officials and public figures established in New York Times Co. v. Sullivan. Because the same words can be a routine civil dispute in one state and a theoretical misdemeanor in another, the state where the statement was made and read matters.