TBA Law Blog

Posted by: David Hudson on Jul 1, 2016

Journal Issue Date: Jul 2016

Journal Name: July 2016 - Vol. 52, No. 7

Examining the Libel-Proof Plaintiff Doctrine

Defamation law seeks to protect a person’s reputation from harm caused by false statements. As Justice Potter Stewart wrote 50 years ago: “The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.”[1]

But, what if a person has no good reputation to protect? If a person does not have a good reputation, some courts hold that the person cannot recover for defamation. These courts apply what is known as the “libel-proof plaintiff doctrine.”

The essence of the libel proof plaintiff doctrine is that the plaintiff has no good reputation to protect and, thus, has no valid claim. It is related to the incremental harm doctrine — that where many true statements accompany a false statement, the incremental harm done by the false statement is negligible.[2] Others refer to two branches of the libel-proof doctrine: the issue-specific approach and the incremental harm approach.[3] But, the essence of the libel-proof plaintiff doctrine is that a plaintiff’s defamations must fail because the person has no reputational interests to protect.

History of the Libel-Proof Doctrine

The Second U.S. Circuit Court of Appeals created the libel-proof plaintiff doctrine in a case involving a convicted criminal named Robert Cardillo.[4] Mr. Cardillo sued Doubleday for a book, My Life in the Mafia, it published by another organized crime figure who was in protective custody and who had testified at Cardillo’s criminal trial. The book alleged that Cardillo committed numerous crimes, such as fixing a horse race and a robbery, which Cardillo said he did not commit.[5]

The appeals court declared that Cardillo was “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.”[6] Thus was born the libel-proof plaintiff doctrine.

Tennessee State and Federal Court Decisions

The Tennessee Supreme Court has not yet addressed the libel-proof plaintiff doctrine, but other courts in Tennessee have. For example, the Tennessee Court of Appeals applied the doctrine to an inmate-plaintiff serving a 99-year sentence for aiding and abetting a murder during the robbery of a tavern.[7] Ronald L. Davis sued The Tennessean after the newspaper published an Associated Press story that identified Davis as the gunman. The article misidentified Davis as the triggerman, as his co-defendant was the person who actually shot the tavern owner.[8]

The Court of Appeals reasoned that to suffer reputational harm, “one must possess good standing and reputation for good character to begin with.”[9] The Court of Appeals concluded that Davis was libel-proof because he was serving a 99-year sentence for aiding and abetting the murder and “participated in the crime which resulted in the murder.”[10]

The Court of Appeals also applied the doctrine in an unpublished decision to a convicted murderer who filed a libel claim before the Tennessee Claims Commission against then-Gov. Don Sundquist.[11] Rocky Lee Coker objected to a statement Gov. Sundquist made in a radio interview in which he referred to Coker and other members of death row who had objected when the governor had removed a satellite dish from death row. Sundquist said: “If they think I’m mean-spirited, I would question the origin of that statement. How can someone who’s committed the most grievious crimes imaginable — who is slated to be executed — expect to have television access that most people in Tennessee don’t have.”[12] The Court of Appeals determined that “the State is not liable to a convicted murderer, for his character is judicially declared to be evil, and, as a result, his reputation is that of a murderer.”[13]

A federal district court in Tennessee also applied the libel-proof plaintiff doctrine against defamation plaintiff James Earl Ray, the convicted assassin of Dr. Martin Luther King Jr.[14] Ray sued Time magazine, claiming that the article discussing his conviction prevented him from a fair appeal in his habeas proceedings. He also objected to being called a “narcotics addict and peddler” and as a “robber.”[15] The federal district court easily dismissed the libel claim, finding that as a “convicted habitual criminal” Ray was “libel-proof.”[16]

Criticisms and Concerns

Some legal commentators have questioned the fairness of the libel-proof plaintiff doctrine. One legal commentator writes that [t]treating a person as beyond the scope and protection of the law is contrary to the basic tenets of our society.”[17] The commentator explains that even the worst rogues may have some “vestiges of honor” that deserve protection.[18]

Another commentator referred to the libel-proof plaintiff doctrine as a “misbegotten genie” that should be placed back in the bottle.[19] This commentator argues that the libel-proof plaintiff doctrine is an unnecessary shortcut and that the traditional elements of a defamation claim should be applied rather than “doctrinal expedients.”[20]

A concern with the libel-proof plaintiff doctrine is that courts may apply it too broadly to limit the ability of a broader range of individuals to seek redress for harm caused by false statements. Convicted murderers and certain inveterate criminals are one thing, but applying the doctrine to anyone with a felony on their record would be problematic. Some courts have applied the doctrine to other individuals. For example, the 2nd Circuit applied the doctrine to Penthouse publisher Bob Guccione, who sued Hustler Magazine for stating that he was an “adulterer.”[21]

Still, the libel-proof plaintiff doctrine must be applied narrowly.[22] As one court noted: “The First Amendment of the United States Constitution and the libel-proof doctrine do not give the media carte blanche to report inaccurate, incorrect statements about any person, whether or not the person is a habitual criminal, especially when additional research would have prevented the error.”[23]


  1. Rosenblatt v. Baer, 383 U.S. 75, 92 (1966)(J. Stewart, concurring).
  2. Robert D. Sack, Sack on Defamation, § 2:4.18.
  3. Note, “The Libel-Proof Plaintiff Doctrine,” 98 Harv. L. Rev. 1909, 1910-12 (1985).
  4. Cardillo v. Doubleday & Co., 518 F.2d 638 (2d. Cir. 1975).
  5. Id. at 639.
  6. Id.
  7. Davis v. The Tennessean, 83 S.W.3d 125 (Tenn. Ct. App. 2001).
  8. Id. at 126-27.
  9. Id. at 130.
  10. Id. at 131.
  11. Coker v. Sundquist, No. 01A01-9806-BC-00318, 1998 Tenn. App. LEXIS 708 (Tenn Ct. App. Oct. 23, 1998).
  12. Id. at * 3.
  13. Id. at *11.
  14. Ray v. Time Inc. 452 F.Supp. 618 (W.D. Tenn. 1976).
  15. Id. at 622.
  16. Id.
  17. Evelyn A. Peyton, Comment, “Rogues Rights: The Constitutionality of the Libel-Proof Plaintiff Doctrine,” 34 Santa Clara L. Rev. 179, 179 (1993).
  18. Id. at 212.
  19. Joseph H. King Jr., “The Misbegotten Libel-Proof Plaintiff Doctrine and the ‘Gordian Knot’ Syndrome,” 29 Hofstra L. Rev. 343, 346 (2000).
  20. Id. at 345.
  21. Guccione v. Hustler Magazine Inc., 800 F.2d 298, 302-03 (2d. Cir. 1986).
  22. Buckley v. Littell, 539 F.2d 882, 889 (2d. Cir. 1976); Lamb v. Rizzo, 391 F.3d 1133, 1140 (11th Cir. 2004).
  23. Dewitt v. Outlet Broadcasting Co., C.A. No. NC 98-0196, 1999 R.I. Super. LEXIS 39, *9-10 (12/17/1999)

David Hudson DAVID L. HUDSON JR. is the Newseum Institute’s First Amendment ombudsman, where he writes and speaks on a variety of First Amendment issues. He also serves as the director of academic affairs and professor of law at the Nashville School of Law. He also teaches classes at both the Nashville School of Law and Vanderbilt Law School.