Torts: Defamation and Privacy is projected to appear on the Annual Meeting agenda for the first time in May 2026. We asked Lyrissa Lidsky of the University of Florida, Levin College of Law and Robert Post of Yale Law School, who serve as Reporters on Restatement of the Law Third, Torts: Defamation and Privacy, to provide an overview of the project. An excerpt of this interview appears below and has been edited for clarity and readability. While it is based on a recorded interview, it is not a verbatim transcript.
This project is part of ALI’s ongoing revision of the Restatement Second of Torts and addresses torts dealing with personal and business reputation and dignity, including defamation, business disparagement, and rights of privacy. The work will also tackle the substantial body of new issues relating to the internet.
What is “Defamation?”
Lyrissa Lidsky: “Defamation” is a tort, or civil action, that’s designed to compensate someone for harm to their reputation. The interesting thing for our purposes is that harm caused by defamation often occurs through speech, whether it is oral, published in a newspaper, published in a book or online. There has been an explosion of defamation cases in the last quarter of a century. Defamation exists to safeguard reputation, but not all speech that harms reputation is defamatory. The law has protections built in for free speech and things like opinion.
In order to be defamatory, a statement has to damage reputation. It has to be a factual statement as opposed to a matter of opinion. It has to be verifiable. It must be materially false. A true statement that harms your reputation is no longer defamatory, although once in the history of defamation it was. It has to identify the plaintiff so that the harm to reputation attaches to them. And then, traditionally, damages have been presumed once you could prove a defamatory statement was made about you that was false and factual.
Robert Post: I would just add that we also have to address the question “What is ‘Reputation’?”
What you think of yourself often depends upon what others think of you. We are in that sense vulnerable to other people. Our own sense of self-worth depends upon whether other people think that we are respect worthy. And so, when other people act toward us in ways that indicate that they do not think we are respect worthy— that we don’t count in the world—it hurts us deeply. The law, through a variety of torts collectively called the “dignitary torts”, protects you and the respect that society believes you are owed by other people.
Defamation does this in a particular way. Defamation protects you from statements that other people may make about you that contain false statements of fact, which, if they were true, would make other people think less of you so that you were owed less respect. That is the thrust of the tort of defamation.
Lidsky: It’s important to understand the difference between defamation and intentional infliction of emotional distress. If I call you up on the phone and I say I you’re a criminal and I hate you, you may be understandably quite distressed that I have called you up and said these things to you, but your reputation has not been harmed in any regard, because nobody else’s impression or opinion of you has changed as a result of my words.
The esteem in which you’re held in the eyes of other people has not been diminished by my call. And that’s one of the reasons that defamation law requires a publication to at least one third party in order to be actionable.
What is changing in this Restatement from the corresponding provisions in Restatement of the Law Second, Torts?
Lidsky: The Torts Second Restatement was finished in 1977. As you probably know, a lot of things have changed since 1977; in particular, the internet age is upon us. Now, we’re moving into the AI age. The Restatement Second doesn’t reflect any of that. Many of the changes that you’ll see in the Restatement Third are related to technology advances.
For example, members will see that we are collapsing the distinction between oral defamation, which is usually called slander, and written defamation, which is usually called libel. The reason is that those categories no longer make any theoretical sense when you’ve got things like Snapchat. Even in 1977, the Restatement Reporters said that they really wanted to get rid of the distinction between libel and slander but felt that they couldn’t quite justify it. Even then there were jurisdictions that had moved away from it, and it has been criticized since the 19th century. We think that now in the internet age, it is okay to move beyond libel and slander to a single tort of defamation.
Post: Another change that we made from the Restatement Second turns on a very technical term, which is “publication.” To be liable in a suit for defamation, you must have “published” a defamatory communication. The elements of “publication” are quite technical. But, among other things, you cannot publish a defamation unless you actually know the content of the communication that you have transmitted to another person.
It turns out that in the modern world there are many entities—like libraries, bookstores, or news vendors, and perhaps now social media platforms—whose job is to distribute communications that people make to each other. The rules defining when such entities “publish” a defamation are really quite important.
The rule which the Restatement Second set forth in 1977 is the old common law rule. It created what in modern terms we call a “notice and takedown” regime of liability. If someone said to a library that a book they were lending was defamatory, the library would have to take it off the shelf unless they were willing to defend a suit for defamation. Members will see in our drafts that we changed this rule in the Restatement Third to allow for new modes of communication.
What is the significance of New York Times Company v. Sullivan?
Post: In 1964, the United States Supreme Court, for the first time in its history, applied the First Amendment of the Constitution to defamation law. The Court announced that if a public official were suing a defendant for defamation, the public official would as a matter of constitutional law have to show that the defendant had published the defamation with what the Court called “actual malice.” The public official would have to show that the defendant published the defamation in knowing or reckless disregard of the truth.
This was a constitutional requirement imposed upon defamation. Since that time, the Court has issued a great many further decisions imposing other constitutional requirements on the common law tort of defamation. For example, plaintiffs who are public figures must also show actual malice. And, even if you’re a private figure, you must show at least negligence if the defamatory communication at issue is about a matter of public concern.
Other constitutional rules govern “presumed” and “punitive” damages. Great swaths of the law of defamation are therefore governed by constitutional law, which is imposed on all states. In the Restatement Third, however, we do not address constitutional requirements. We seek to set forth the common law, pure and simple. Yet courts often do not clearly distinguish between the application of common law and the application of constitutional law.