Is Britney ‘libel-proof’?

From the Winter 2007 issue of The News Media & The Law, page 21.

Some courts will consider plaintiffs to be “libel-proof” if their reputation is such that it cannot be damaged any further; the underlying theory is that the plaintiff has so damaged his or her own reputation that there is nothing left for others to damage.

Traditionally, the libel-proof doctrine has applied almost exclusively to criminals. For example, an appeals court in Denver ruled in 2004 that a convicted murderer and kidnapper could not recover for defamation when it was falsely reported that he had also been convicted of rape.

In that case, the court reasoned that the murderer’s public reputation regarding crimes was so diminished that he was “libel-proof” as to statements imputing violent crimes.

But can the libel-proof doctrine be applied to someone’s sexuality?

Professor Lisa Pruitt of the University of California at Davis School of Law suggested that since she has so openly marketed her sexuality, Britney Spears’ reputation regarding sexual behavior is so diminished that she might be “libel-proof with respect to her sexuality.”

Although the libel-proof doctrine wasn’t mentioned by name in the case, the judge implied that since Spears has so aggressively touted her sexuality, it would be very difficult — if not impossible —
to damage her sexual reputation.

However, Pruitt pointed out that “there is a significant distinction to be drawn from wearing provocative clothing or making a reality TV show and producing a pornographic video and worrying that it will become public.” — ES