This portion of the instruction permitted the jury to read the alleged libel as accusing Guccione of committing adultery “only” in 1983, in which event the jury was not to consider whether his past adultery made the statement substantially true. Though such a consequence would follow from such a reading of the statement, that reading is not within the range of reasonable interpretations requiring the jury’s resolution. The statement was not an allegation of a specific act, like robbing a bank, that might in some circumstances be fairly interpreted either to mean that the act was committed at a time immediately prior to the publication or to mean that commission occurred at some time considerably earlier. The statement about Guccione alleged ongoing relationships – marriage to his wife and cohabitation with his girlfriend. There is not the slightest indication from the statement, or from any evidence offered that might aid in interpreting the statement, that it may fairly be read to mean that the marriage and the cohabitation existed simultaneously only at a moment or brief interval just prior to the article’s publication. The statement can be read to mean only that the marriage and the cohabitation existed simultaneously throughout an undefined span of time that included the period immediately prior to publication.
On this reading, the undisputed facts establish the defense of substantial truth as a matter of law. New York law recognizes that an alleged libel is not actionable if the published statement could have produced no worse an effect on the mind of a reader than the truth pertinent to the allegation. See Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934). The published statement read, “Considering he is married and also has a live-in girlfriend, Kathy Keeton . . . we wonder if he would let either of them pose nude with a man.” Substituting the truth for the false statement yields the following: “Considering that from 1966 to 1979 he was married and also had a live-in girlfriend, Kathy Keeton . . . we wonder if he would let either of them pose nude with a man.” The only difference in effect between the two statements worked in Guccione’s favor; as printed, the statement merely points out the fact of his adultery, without calling attention to its duration for thirteen of the preceding seventeen years.
This is not to suggest that every person guilty of even a single episode of marital infidelity has no recourse if, years after the fact, he is accused in print of currently committing adultery. However, the undisputed facts of this case – the extremely long duration of Guccione’s adulterous conduct, which he made no attempt to conceal from the general public, and the relatively short period of time since his divorce – make it fair to say that calling Guccione an “adulterer” in 1983 was substantially true. Of course, “former long-time adulterer” would have been more precise. But on the facts of this case, to require such a level of accuracy is unreasonable. The article labels Guccione an adulterer. The average reader would understand that term to include a man who unabashedly committed adultery for thirteen of the last seventeen years and whose adulterous behavior ended only because his wife ultimately divorced him. Where, as here, “the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.” Cafferty v. Southern Tier Publishing Co., 226 N.Y. 87, 93, 123 N.E. 76 (1919).
The undisputed facts also establish that Guccione’s libel complaint fails because Guccione was “libel-proof” with respect to the accusation of adultery printed in the Hustler article. We have recognized that a plaintiff’s reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject. See Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 639-40 (2d Cir. 1975). It has also been recognized that a plaintiff may have had his reputation so badly damaged by true statements in a particular publication that minor false accusations within the same publication cannot result in further meaningful injury. See Simmons Ford, Inc., v. Consumers Union, 516 F. Supp. 742 (S.D.N.Y. 1981) (Weinfeld, J.). The libel-proof plaintiff doctrine is to be applied with caution, see Buckley v. Littell, 539 F.2d 882, 889 (2d Cir. 1976), cert. denied, 429 U.S. 1062, 97 S. Ct. 785, 50 L. Ed. 2d 777 (1977), since few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements, even if their damages cannot be quantified and they receive only nominal damages. But in those instances where an allegedly libelous statement cannot realistically cause impairment of reputation because the person’s reputation is already so low or because the true portions of a statement have such damaging effects, even nominal damages are not to be awarded. Instead, the claim should be dismissed so that the costs of defending against the claim of libel, which can themselves impair vigorous freedom of expression, will be avoided. See generally Note, The Libel-Proof Plaintiff Doctrine, 98 Harv. L. Rev. 1909 (1985).
Guccione argues that the libel-proof plaintiff doctrine may not be applied to him with respect to the subject of adultery because he has not been convicted of the crime of adultery. Though criminal convictions were the principal basis for the low reputation of the libel-proof plaintiff in Cardillo, the doctrine is not limited to plaintiffs with criminal records. See Simmons Ford, Inc. v. Consumers Union, supra.
In Wynberg v. National Enquirer, Inc., 564 F. Supp. 924, 928-29 (C.D. Cal. 1982), the Court recognized that a plaintiff may be rendered libel-proof by evidence apart from criminal convictions. In Wynberg, the National Enquirer published an article stating that the plaintiff had used his relationship with Elizabeth Taylor for financial gain. In finding Wynberg libel-proof, the District Court first noted the plaintiff’s string of convictions for crimes that damaged his reputation for his treatment of women in general. The Court then relied equally, however, on Wynberg’s “specific reputation for taking financial advantage of Elizabeth Taylor,” citing numerous articles, printed prior to the National Enquirer piece, that ascribed to Wynberg a profit motive in his relationship with Taylor. Id. No criminal convictions related to Wynberg’s dealings with Taylor. The non-criminal evidence was perhaps the more appropriate basis for the determination that Wynberg was libel-proof, since it showed that his reputation was already severely damaged with respect to the precise point of the alleged libel.
In the present case, the District Court based its ruling that Guccione was not libel-proof on the absence of criminal convictions and the lack of publicity regarding Guccione’s adultery. 632 F. Supp. at 323-24. We have rejected the first basis and also conclude that undisputed evidence sufficiently established that Guccione’s reputation regarding adultery rendered him libel-proof on this subject. Guccione testified that from 1966 until 1979 his relatives, friends, and business associates knew that he was living with Keeton while still legally married. He acknowledged that he never hid either his marriage or his relationship with Keeton from anyone. Guccione on several occasions told reporters both that he was separated from his wife and that he was living with Kathy Keeton.
Defendants offered magazine and newspaper articles as evidence of Guccione’s poor reputation on the subject of adultery. These articles, which describe both Guccione’s marital status and his contemporaneous relationship with Keeton, appeared in widely circulated publications such as Newsweek, New York magazine, and the Washington Post. With one exception, a 1978 article in Maclean’s, a Canadian magazine, the District Court excluded this evidence, apparently because it viewed the publications, printed in the early-to mid-1970’s, as being too remote in time to be relevant to the state of Guccione’s reputation in 1983.
In our view, this evidence, the authenticity of which is undisputed, was improperly excluded. The articles were extremely probative of Guccione’s notoriety for adultery during the period when his adultery was most newsworthy – while it was occurring. The articles, in combination with Guccione’s testimony, show wide dissemination of the information that Guccione was living with Keeton while still married. The damage to Guccione’s reputation occurred a decade before Hustler published its November 1983 article and stemmed from truthful reporting of facts freely admitted by Guccione himself. Any subsequent reporting accusing Guccione of adultery prior to his 1979 divorce could not further injure his reputation on the subject.
Nor is it tenable to maintain that Guccione, though libel-proof as to adultery from 1966 to 1979, somehow succeeded in restoring his reputation during the four years prior to the Hustler statement. As with the defense of substantial truth, the pertinent circumstances are the long duration of a widely known adulterous relationship combined with the relatively short period between its end and the article’s publication. Moreover, the evidence provided no adequate basis for concluding that those who knew of the adulterous relationship from 1966 to 1979 became aware that the divorce occurred in 1979, thereby ending the adultery. Guccione’s reputation for adultery could not have been further damaged by the publication of the alleged libel in 1983.
