Libel proof plaintiff defense wins some, loses some
Defamation laws allow people to sue for statements that damage their reputations and expose them to hatred, ridicule or contempt.1 However, some courts have ruled people can have such poor reputations they cannot sue for libel. Courts have contended that because the best result these “libel-proof plaintiffs” could obtain would be nominal-damage judgments, it would be unfair to require media outlets to go through trials. Consequently, Hemphill, Stevens and Youm noted that the libel-proof-plaintiff doctrine rests on the common-law principle that without damage to reputation, there is no defamation.2 Nearly all people classified by courts as libel-proof plaintiffs were convicted of multiple felonies. In Jackson v. Longcope, a convicted murderer sued the Boston Globe for reporting he had raped and strangled all his victims, and a shoot-out with police occurred during a stolen-car chase.3 Jackson contended he had raped and strangled only some victims, and the car was not stolen. The Supreme Judicial Court of Massachusetts, Suffolk, dismissed the case.4However, most courts won’t apply the doctrine to people with minor convictions. Frank J. Marcone sued Penthouse for calling him “an attorney criminal” and narcotics dealer.5 Penthouse argued Marcone was libel-proof because he was fined $200 for assault and battery on an officer and was indicted on drug and tax-evasion charges. The drug charges were dropped, and there was a hung jury on the tax-evasion charge. Thus, the court did not consider him libel proof.6 In addition, most efforts to apply the doctrine to noncriminals have failed. Time used this defense when Ariel Sharon sued over a report he anticipated-but did not prevent- of a Palestinian camp massacre. The court said Sharon’s reputation was damaged by the article’s unchallenged facts. Nevertheless, it said he was not libel-proof.7
This paper reviews how courts have ruled on the libel-proof-plaintiff doctrine. The paper also analyzes the doctrine’s viability following the U.S. Supreme Court’s ruling in Masson v. New Yorker Magazine, which repudiated part of it.8
Literature Review
The libel-proof-plaintiff doctrine has generated considerable controversy since the U.S. Court of Appeals, Second Circuit, adopted it in June 1975.9 In particular, judges have struggled to define who is libel-proof. One author contends the doctrine should apply when plaintiffs were convicted for behavior similar to that described. For instance, a convicted bank robber who was called a thief would not be libeled. In contrast, a bank robber who was called a murderer would be.10 Peyton counters that court rulings have been arbitrary and contradictory on who is libel-proof.11 In particular, the U.S. Court of Appeals, Sixth Circuit, ruled James Earl Ray was libel-proof but found William Brooks, who had been convicted of breaking and entering, grand larceny, firstdegree manslaughter and carrying a concealed weapon, was not.12
Furthermore, authors disagree on whether plaintiffs without convictions are libel-proof. One author argues repeated, uncontested publicity should prevent plaintiffs from pursuing libel cases. For example, widely reported civil judgments would make plaintiffs libel proof on similar matters.13 Weaver counters the doctrine should not apply if the allegations were not substantiated. In Ronald A. Schiavone v. Time, the U.S. Court of Appeals, Third Circuit, ruled a businessman linked to organized crime in hundreds of stories-but never convicted-was not libel-proof.
Most research on the libel-proof-plaintiff doctrine was completed before the Supreme Court’s ruling in 1991 in Masson v. New Yorker Magazine, which repudiated part of the doctrine.14 Consequently, it is important to examine how courts have ruled on the doctrine since then.
Research Question, Method and Limitations
RQ1:
What is the current state of the libel-proof-plaintiff doctrine?
State and federal cases involving the doctrine were examined. Cases were identified by searching legal and communication databases, cross referencing rulings, reviewing the Media Law Reporter and using the West key number system.
This paper only addresses the First Amendment issues associated with the doctrine. There were two data limitations. There is not extensive case law, and some cases were resolved at trial court, and decisions weren’t published.
Results
Judges divide libel-proof cases into two categories: issue-specific and incremental-harm cases. With issue-specific cases, a court examines whether a plaintiff’s reputation is so damaged with regard to an issue that he or she is libel– proof concerning it. For example, a U.S. district court ruled James Earl Ray’s reputation was so damaged by his assassination of Dr. Martin Luther King, Jr., he could not be libeled by books recounting his life before it.15 In contrast, with incremental-harm cases, a court examines the entire story to measure the harm caused by the alleged libel. As Peyton and Daly noted, if the court finds the challenged statements cause the plaintiff no more harm than the unchallenged statements, the case may be dismissed because there has been no reputational damage.