The “Defamation-Proof” Plaintiff Doctrine

The fundamental purpose of defamation law is to compensate for harm done to one’s reputation. What happens though when a plaintiff’s reputation is already so sullied that it would be impossible to inflict further harm? Such a person is referred to in libel law as a libel-proof plaintiff (also referred to by some courts as being defamation-proof or slander-proof).

The libel-proof plaintiff doctrine traces its roots back to the Second Circuit’s 1975 opinion in Cardillo v. Doubleday & Co., Inc., which involved the question of whether the plaintiff, a lifelong criminal who at the time of the lawsuit was serving 21 years in a federal penitentiary, could sustain a defamation claim concerning statements in a book entitled My Life in the Mafia accusing him of committing various crimes. The book, written by a purported mobster, contained several claims that the plaintiff participated in specific crimes. The plaintiff denied having participated in those specific crimes, though admitted to and was convicted of participating in numerous other crimes. The Second Circuit affirmed the dismissal of the case because it “consider[ed] as a matter of law that appellant is, for purposes of this case, libel-proof.” Given the plaintiff’s unquestionable reputation for being a criminal, the Second Circuit reasoned that false statements accusing him of committing crimes could not further injure his reputation.

As we have discussed elsewhere on this website, a defamation claim requires (1) a false statement; (2) about the plaintiff; (3) that is published to a third party; and (4) that harms a plaintiff by lowering that person in the eyes of the community. If the plaintiff is a public official or public figure, an additional “actual malice” element is required to state a claim. Being libel-proof means, quite simply, that the plaintiff’s reputation is so bad that any false statement could not lower that person in the eyes of the community any further. The thought is that such a plaintiff’s claim must fail because that plaintiff has suffered no harm as a result of the false statement. Courts that have applied the doctrine often limit the finding that a plaintiff is libel-proof to a particular topic or set of topics.

The libel-proof plaintiff doctrine is itself the outgrowth of another defamation law doctrine known as the “incremental harm” doctrine. The incremental harm doctrine holds that if the defamatory statement does no more harm than the true statements about the plaintiff, then there is no actionable claim for defamation. The incremental harm doctrine has been has been discussed and embraced by the Seventh Circuit in cases such as Haynes v. Alfred A. Knopf, Inc. where the court famously wrote that “falsehoods which do no incremental damage to the plaintiff's reputation do not injure the only interest that the law of defamation protects.”

Whether you are being accused of harming someone’s reputation or you believe someone else has harmed your reputation by making defamatory statements, it is important to find an experienced slander law and cyber-smear law attorney who will be familiar with defamation claims and defenses. Our DuPage County defamation attorneys defend our client’s freedom of speech in posting on Facebook, Yelp and other websites comments critical of a company or professional or which deal with issues of public interest. You can look here to review a case where successfully raised the defense that our client’s alleged defamatory statements must be construed innocently. Here is an arbitrator’s ruling that our client’s 20 youtube video posts were not libelous. We recently forced a defendant who falsely accused our client of international diamond fraud to issue a full retraction and apology or face a $16 million libel suit.

Our Cook County defamation attorneys also bring claims on behalf of businesses, attorneys, dentists, doctors and other professionals throughout the Northern Illinois area including in Wilmette and Evanston. We do this when that face false online reviews. We have successfully represented companies who are victims of false review sites and fake consumer posts. In addition to slander and libel law, our Chicago business, commercial, class-action, and consumer litigation lawyers represent closely held family business owners, shareholders, LLC members and companies of all sizes in many types of lawsuits between businesses. In each lawsuit or disputed matter, we seek to resolve the case efficiently to insure that our business clients’ investments are protected and they can return to profitable enterprises. You can contact us online here or telephone us on our toll-free number at 630-333-0333.