Speech and Privacy

Legal Issue: Should a person of documented bad reputation be able to sue for defamation, or libel for mistatement of facts?

Introduction
Did you know that a person’s reputation can become so tarnished that their reputations can no longer be harmed by further defamation?

In 1985, Anthony Jackson, a person who was convicted of murder, rape and robbery brought a defamation lawsuit against the Boston Globe. It seems that in a news story about Jackson’s crimes there were several mistatements of fact–at least according to Anthony Jackson.

On May 24, 1977, Jackson wrote a letter to the defendant Longcope demanding a correction of the statement that the shootout with the Cambridge police occurred during a stolen car chase and the statement that all the victims of “the hitch-hike murders” were raped and strangled. He asserted that the car was not stolen, that not all the hitch-hike murder victims were raped, and that not all were strangled. Jackson brought his action in May, 1979. (Jackson v. Longcope)

Jackson’s Lawsuit was set aside on the basis that he was a libel proof client.

Definition 
Basically, a libel proof plaintiff is a defense used by defendants of a libel suit which states that a person’s general reputation is already so bad as to be impossible to defame further. Here is a more formal definition provided by Wikipedia

A claimant is incapable of further defamation–e.g., the claimant’s position in the community is so poor that defamation could not do further damage to the plaintiff. Such a claimant could be said to be “libel-proof”, since in most jurisdictions, actual damage is an essential element for a libel claim. Essentially, the defense is that the person had such a bad reputation before the libel, that no further damage could possibly have been caused by the making of the statement. 

Cardillo v. Doubleday was one of the first cases of its kind to demonstrate the libel proof plaintiff defense.  In the case, a convicted mobster is seeking to sue Doubleday Books about a biography that was written that contains disparaging remarks about Cardillo.  The courts found that Cardillo was libel proof because,

for purposes of this case, libel-proof, i. e., so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of the case, involving as it does First Amendment considerations. (Cardillo v. Doubleday)

In 1986, Robert Guccione,publisher of Penthouse Magazine, brought a suit against Larry Flynt of Hustler Magazine.  Flynt stated that Guccione was married to Muriel Guccione while being involved with Kathy Keeton his live-in girlfriend.  Flynt’s story was inaccurate in several details.  At the time of publication, Guccione was no longer married to Muriel. Guccione prevailed at the trial court level. However, at the appellate level, the courts reversed the judgement stating that:

…We conclude, for reasons that follow, that Guccione’s claim fails as a matter of law, both because the statement at issue was substantially true and because Guccione was “libel-proof” with respect to an accusation of adultery. (Guccione v Hustler)

Discussion
While not all states allow a defense based upon the libel proof plaintiff, most will allow only nominal damages to be collected when a person’s reputation, by virtue of his past character, is so bad as to become libel proof.

Free Speech Exception
If your reputation is sufficiently bad, you will be limited in your ability to recover defamation or other false statements of fact that may be about you.

For More Information

• Cardillo v. Doubleday & Co., Inc., 518 F. 2d 638 - Court of Appeals
• Guccione v. Hustler Magazine, Inc., 800 F. 2d 298 - Court of Appeals, 2nd Circuit 1986
• Jackson v. Longcope, 476 NE 2d 617 - Mass: Supreme Judicial Court 
• Misbegotten Libel-Proof Plaintiff Doctrine and the Gordian Knot Syndrome Hofstra Law Review