Is it possible for a person's reputation to be so bad the he is, in effect, "libel-proof" and not at risk of "incremental harm" from allegedly defamatory statements? A recent lawsuit, between two former New York Mets teammates, addressed that question.
Lenny Dykstra, a former Major League Baseball player, sued his former Met's teammate Ron Darling, and the publishers St. Martin's Press, LLC and Macmillan Publishing Group LLC, for defamation and intentional infliction of emotional distress, based upon allegedly defamatory statements about him in the Darling's book.
In 2019, Darling and his ghostwriter David Paisner, through St. Martin's and Macmillan, published a book entitled 108 Stitches: Loose Threads, Ripping Yarns, and the Darndest Characters from My Time in the Game. The book contained a story regarding an alleged interaction between Dykstra and Boston Red Sox pitcher Dennis Ray "Oil Can" Boyd during Game 3 of the 1986 World Series, at which time Dykstra and Darling were teammates.
In the book, Darling made the following reference about Dykstra:
I only played a few hot minutes with Dennis `Oil Can' Boyd, the momentarily great Red Sox pitcher who featured significantly in the team's turnaround in the late 1980s. We were teammates on the Montreal Expos for a couple weeks in 1991 — but we had a history before that, of course. Dennis was one of the workhorse stars of the Red Sox 1986 pitching staff. He'd won 16 games that year for Boston and was slated to start Game 7 of the World Series against yours truly, before a rainout pushed the game back another day and left-hander Bruce Hurst, on closer-to-full rest, was tabbed instead — here again, against yours truly. In Game 3 of the 1986 World Series, though, Oil Can was on the receiving end of the ugliest piece of vitriol I've ever heard — in a bar, on a baseball diamond ... anywhere. It was right up there with one of the worst, most shameful moments I ever experienced in the game, and one of the great shames of the exchange was that I sat there with my teammates and didn't do a damn thing about it. In fact, it resulted in a momentum shift that probably turned the Series around for us, and like most of the other guys on the bench, I stood and cheered at the positive outcome. Recall, the Mets had dropped the first two games at home in that Series — a nailbiter and a laugher. Going into Game 3 at Fenway Park, on the heels of that lopsided loss at Shea, we were feeling the pressure. I was tempted to write that we were really feeling the pressure, but this team wasn't like that. This team was arrogant, always believed it would win it all, never mind what it said on the scoreboard or in the box score. Still and all, it was a must-win for the good guys, only we didn't exactly come across as good guys on this. The hero of Game 3 for us was also the asshole of the game — Lenny Dykstra, one of baseball's all-time thugs. You know how there always seems to be a guy in every organization, in every walk of life, who gets away with murder — murder being a figurative term in this case? That was Lenny. He was a criminal in every sense, although during his playing days his crimes were mostly of an interpersonal nature. He treated people like shit, walked around like his shit didn't stink and was generally a shitty human being — and, just maybe, the most confident, cocky player I would ever encounter. It was after he left the game, though, that his behavior took a truly criminal tum; he ended up being sentenced to house arrest on a bankruptcy fraud indictment, and he was also up on drug possession and grand-theft-auto charges, for which he received a three-year prison sentence. Not exactly the poster boy for America's game, huh? Lenny was leading off for us that night, as he did most nights when he was in the lineup, and as Oil Can was taking his final warmups on the mound, Lenny was in the on-deck circle shouting every imaginable and unimaginable insult and expletive in his direction — foul, racist, hateful, hurtful stuff. I don't want to be too specific here, because I don't want to commemorate this dark, low moment in Mets history in that way, but I will say that it was the worst collection of taunts and insults I'd ever heard — worse, I'm betting, than anything Jackie Robinson might have heard, his first couple times around the league. Way worse than the Hollywood version of opposing players' mistreatment of Jackie that was on display in The Jackie Robinson Story. Way worse than whatever Kevin Garnett had famously said to get under Carmelo Anthony's skin the night Melo went looking for KG in the locker room after a Celtics-Knicks game in 2013.And yet whatever Lenny shouted at Oil Can out there on the mound that night might have had the desired effect, because Dennis looked rattled. It's amazing to me, looking back, that there's no footage from the game revealing Lenny's treachery. He was out here shouting this stream-of-unconscionable shit in plain sight, in earshot of anyone in one of the front rows and certainly in range of the cameras and microphones that had been set up to record the game, but I guess the attention was elsewhere. To be clear, bench-jockeying has a long and fine tradition in the game, and there's a fine art to it, but there are lines that are not meant to be crossed. Wives and girlfriends are usually off-limits, except if a taunt is offered in a benign, nonspecific way — as in, Tell your wife to stop calling my room! (In popular usage, offered by a beer-soaked fan taunting you from the stands.) Racial or religious or sexual slurs are typically out-of-bounds as well. For the most part, the razzing is limited to the target's physical appearance or his skills as a ballplayer — as in, You can't even run to first without getting gassed. Or, on an attempted bunt: Who's gonna run for you. Or, apropos of pretty much anything: You ain't got shit today. But this stuff coming out of Lenny's mouth was beyond the pale. Unprintable, unmentionable, unforgettable. And, like I said, he was landing his punches: First at-bat of the game, Lenny smoked a 1-1 pitch deep down the right-field line for a home run, igniting a four-run rally and setting us up to take back some of the momentum we'd lost in the opening games at Shea. Lenny came back to the dugout and collected the high-fives and huzzahs that came his way, and for all I know, I was right there with my teammates, thrilled to be back in this thing. It's only in retrospect that I started to feel somewhat complicit and that by accepting the gifts that fell Lenny's way as a result of his ugly treatment of the opposing pitcher, I was an accomplice of a kind.
Dykstra alleged that the reference tarnished "the New York Mets' 1986 World Series championship, by falsely claiming that [Dykstra's] legendary home run that sparked the Mets' comeback was the result of racist taunts." Dykstra also alleged that the reference had "forever branded [him] a racist" and that it was "maliciously stated to attack [him] and his abilities as a professional athlete, person, and ability to earn a living going forward." And Dykstra further alleged that the reference subjected him to "emotional distress, mental anguish, shame, disgrace, ridicule, loss of standing in the entertainment community, and irreparable harm to his professional reputation." He sought an unspecified monetary sum to compensate him for "loss of opportunities, financial damages, emotional distress and mental anguish," as well as attorney fees and punitive damages.
Darling moved to dismiss the complaint for failure to state a cause of action. The basis of Darling's motion was not whether the statements were defamatory in nature but rather whether Dykstra's reputation precluded the action. Darling argued that Dykstra was a "classic libel-proof plaintiff, whose reputation [was] so bad that he simply cannot be defamed." Darling also argued that "the [r]eference is substantially true, and any alleged incremental harm would be nominal and non-actionable."
More specifically, Darling argued that the record showed "overwhelming and uncontradictable public record evidence, by authors, journalists, and Dykstra himself in an autobiography and in interviews" that, prior to the publication of the book, Dykstra's reputation was that of a "convicted felon, a liar, a fraud, ... a drug abuser ... cheat and extortionist who ha[d] publicly bragged, in his 2016 autobiography and in interviews, that he used steroids and blackmail to enhance his baseball performance."
Further, Darling argued that "Dykstra ha[d] also been repeatedly referred to in public as a violent person and a sexual predator. ... Dykstra ha[d] been publicly referred to for years as a homophobe, misogynist, and racist whose bigotry [was] undeniable." Specifically, Darling argued that Dykstra's reputation for abusive conduct and racially charged language was well-documented before the publication of the book.
Additionally, Darling argued that Dykstra's misconduct, foul mouth and bigotry were detailed by two of his former employees who worked closely with him.
Moreover, Darling argued that the reference was substantially true because it "truthfully and accurately described Dykstra as a foul-mouthed, drug-abusing thief, fraud, and convicted felon, none of which is challenged or actionable." And that "even if the challenged portion [of the reference] characterizing Dykstra's insults to Boyd as a racist was maliciously false, and even if Dykstra was not libel-proof, Dykstra could not suffer any incremental harm" due to his already tarnished reputation.
In opposition, Dykstra argued against the application of the libel-proof plaintiff doctrine, reasoning that "there [was] no definitive record ... sufficient to establish that as a matter of law [his] reputation could suffer no harm[.] "Specifically, Dykstra argued that his reputation was not as poor as Darling made it out to be and that the assertions from his two former employees were not "representative of the entire universe of reputation evidence available[.]" And Dykstra argued that even assuming his reputation was as poor as the assertions by his two former employees made it seem, the book further tarnished his reputation in the following ways: It delegitimized the 1986 New York Mets' World Series' championship, sullied his reputation all around the country as a racist, exposed Dykstra to public ridicule and disgrace as a racist, and resulted in the loss of business opportunities and standing in the entertainment and sports communities.
Further, Dykstra argued that the application of the incremental harm doctrine was unsuitable to resolution at the pleadings stage, reasoning that the doctrine required a court to measure the harm flowing from the challenged statement as compared to the harm flowing from the unchallenged statement.
And Dykstra added that, while Darling and the publishers "invoked the words `substantial truth' in the context of their incremental harm arguments, they did not argue that the [book] itself was true or substantially true; instead they to sought compare the relative impact of truth and falsity, i.e. the incremental harm defense."
Lastly, Dykstra argued that his damages from the intentional infliction of the emotional distress claim were separate and apart from the damages that were "narrowly attributable to the [book]" and cover more extensively those assertions that are non-actionable.
In reply, Darling reiterated that the libel-proof plaintiff and incremental harm doctrines applied to the case, explaining that he had a long, detailed and eminently public reputation for bigotry and unsportsmanlike conduct. And much of this public image was created and actively shaped by Dykstra himself. In many instances, he appeared to enthusiastically detail his misbehavior in an effort to create a `bad-boy' image." Darling added, "Dykstra's tarnished reputation is the product of his own public actions and statements."
Darling argued that "to the extent the statements . . . . may have suggested to some readers that Mr. Dykstra's Game 3 home run was attributable to his taunting, that was impossible for anyone to know and clearly a matter of conjecture or non-actionable opinion[.]
Further, Darling stated that to the extent Dykstra argued that he was "harmed by the reference's implications for his reputation with regards to sportsmanlike conduct[,]" that argument should be rejected, as his reputation was "already ruined by numerous public record findings and admissions of steroid use and blackmailing umpires." Darling argued that Dykstra wanted the Court to allow him to go on "a fishing expedition, in which Dykstra issued subpoenas to third parties to see if he could (a) find someone who thinks less of him because of the book than they did because of his crimes and foul-mouthed and bigoted conduct, and in the unlikely event that he could find such a person, (b) show how he was somehow damaged by the change in the person's view of him."
Moreover, Darling asserted that the reference was limited to "an anecdote that is clearly described as occurring in 1986" and did not make "any representations whatsoever about the present-day Lenny Dykstra."
Darling asserted that the Court was presented with "a wealth of statements from Dykstra himself as well as other broadly-circulated and uncontested news reports that illustrated Dykstra's ubiquitously negative reputation." Darling argued that Dykstra should not be able to "state a defamation claim for alleged damages caused by an anecdote that depicted him in a fashion that was entirely consistent with that public image."
Defamation is the making of a false statement that tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society. An action for defamation seeks to compensate the plaintiff for the injury to his or her reputation caused by the defendant's written expression, which is libel, or oral expression, which is slander.
To state a claim for defamation, a plaintiff must allege: (1) a false statement that is (2) published to a third party (3) without privilege or authorization (4) constituting fault as judged by, at a minimum, a negligence standard and that (5) causes harm, unless the statement constitutes defamation per se (in which case damages are presumed).
There are four categories of statements that constitute defamation per se: "(1) statements charging plaintiff with a serious crime; (2) statements that tend to injure plaintiff in his trade, business or profession; (3) statements that plaintiff has a loathsome disease; or (4) imputing unchastity to a woman. The allegedly defamatory passages must be considered in the context of the entire article and the words taken as they are commonly understood.
Defamation actions require courts to balance the individual's interest in guarding his good name with cherished First Amendment considerations. In seeking to protect free speech interests, courts require that a public figure suing for defamation must plead that the allegedly defamatory statements were made with actual malice.
Actual malice means that the statement was made knowing its falsity or with reckless disregard for the truth. Reckless disregard for the truth has been interpreted to mean a high degree of awareness of probable falsity, or that the defendant must have entertained serious doubts as to the truth of his publication.
Accordingly, actual malice could not be established merely because reliance on a source's information was negligent. And the mere failure to conduct further investigation is insufficient to establish actual malice. The focus of inquiry is on the subjective state of mind of the defendant.
The libel-proof plaintiff doctrine bars relief in a defamation action, as a matter of law, to a plaintiff whose reputation with respect to a specific subject has already been so badly tarnished that he cannot be further injured by allegedly false statements on that subject.
Although criminal convictions were the first recognized basis for declaring plaintiffs to be libel-proof, the doctrine is not limited to plaintiffs with criminal records. The libel-proof and the incremental harm doctrines have been applied in a non-criminal context at the motion to dismiss stage.
The rationale behind the doctrine is that free speech interests should prevail over the interests of an individual who, due to an already soiled reputation, would not be entitled to recover anything other than nominal damages. Whether a plaintiff is libel-proof is a question of law for the Court to decide.
The substantial truth defense dismisses a libel claim because a statement is not false and, therefore, an element of the cause of action has not been met. A statement is substantially true if the statement would not have a different effect on the mind of the reader from that which the pleaded truth would have produced.
Under the incremental harm analysis, a viable claim is dismissed, even though the statement it is based on may be maliciously false, because a court determines that the incremental benefit to plaintiff from continuing a suit was outweighed by the harm to the defendant and society.
The incremental harm defense is also different from the libel-proof plaintiff doctrine. A libel-proof plaintiff cannot be further harmed due to his or her already tarnished reputation with regard to a particular subject. The incremental harm defense differs in that a plaintiff is harmed, but the question is whether the ability to recover for that harm, when it is incremental to nonactionable harm, is justified. The rationale behind this doctrine is that the society is better off avoiding the costs associated with litigation where the harm suffered is incremental.
The Court noted that neither Darling nor the publishers argued that the reference was not defamatory as a matter of law based on the content of the reference alone. Rather, they both argued that notwithstanding the reference's presumably negative nature, it was non-actionable because Dykstra's reputation for bigotry and unsportsmanlike conduct was so poor that his reputation could not suffer further damage from the publication. The publishers further argued that the defamation action must be dismissed because they did not publish the reference with actual malice. Lastly, both Darling and the publishers argued that Dykstra's second cause of action for intentional infliction of emotional distress must be dismissed.
Dykstra conceded that he was a public figure, so he was required to set forth sufficient factual allegations to support a claim of actual malice.
The complaint alleged that the publishers knew that: (1) any comparison to the racist threats that were made against Jackie Robinson would be false due to the alarming nature of the remarks against Jackie Robinson; (2) Darling had previously published another book entitled Game 7 in which he discussed Game 3 of the 1986 World Series against Boston Red Sox that was the subject of the book yet without any mention of any of the subject racist statements; and (3) there was no video evidence of these racist statements.
Dykstra further alleged that Darling (1) knew that there was no video evidence "given his position at SNY, the television network indirectly owned by the New York Mets," and (2) conspired with Paisner to defame Dykstra to sell books and took revenge against Dykstra for some previous dispute between them. And further alleged that St. Martin's and Macmillan failed to independently investigate and verify the assertions in the reference and were grossly irresponsible by not following the proper standards for information gathering.
Those allegations alone were found insufficient to constitute actual malice. Failure to investigate before publishing, even when a reasonably prudent person would have done so, was not sufficient to establish reckless disregard. The publishers had no independent duty to investigate an author's story unless the publisher had actual, subjective doubts as to the accuracy of the story.
Dykstra argued that publishers purposefully avoided the truth because, as the book acknowledged, "[i]t's amazing to me, looking back, that there's no footage from the game revealing Lenny's treachery." However, the mere fact that there was no video footage documenting the alleged "treachery," did not mean that the publishers acted with actual malice. To the contrary, the book acknowledged that discrepancy and offered an explanation for it: that the attention of the cameras and the crowd might have been elsewhere. By doing so, the doctrine allowed the reader to take the discrepancy into account when determining whether to believe Darling or Dykstra. Furthermore, even if Dykstra's "treachery" was captured by some cameras, FCC regulations and societal taboos could explain why it was not part of the broadcast.
Furthermore, the fact that publishers published a previous book by Darling in 2017 and there was some reference to the same "unprintable" insults consisting of "hateful, hurtful declaration[s]" and "unsuitable comments" by Dykstra toward Boyd in the same Game 3 and that there was no response by Dykstra was all the more reason for publishers to have accepted what Darling wrote in the book. Dykstra's vague and conclusory allegations as to Darling's desire to take revenge rested only on surmise and conjecture, not evidentiary facts. Moreover, Dykstra failed to allege that publishers had any knowledge of Darling's supposed motivation to take revenge.
And that Dykstra already had such a poor reputation for bigoted behavior and unsportsmanlike conduct further militated against a finding that the publishers acted with actual malice. A reasonable publisher in the position of the publishers would have determined that the reference would cause virtually no further damage to Dykstra's already soiled reputation.
Accordingly, the Court granted the publishers' motion to dismiss the first cause of action for defamation as against them, based on Dykstra's failure to plead actual malice.
Darling argued that, assuming there was actual malice on his part, Dykstra was still barred from recovery under the libel-proof plaintiff doctrine even though the doctrine is applied only in rare circumstances. The Court found that the case at hand was one of those rare circumstances.
Prior to the publication of the book, Dykstra was infamous for being, among other things, racist, misogynist, and anti-gay, as well as a sexual predator, a drug-abuser, a thief, and an embezzler. Further, Dykstra had a reputation— largely due to his autobiography—of being willing to do anything to benefit himself and his team, including using steroids and blackmailing umpires.
Considering this information, which was presumably known to the average reader of the book, the Court found that, as a matter of law, the reference in the book did not expose Dykstra to any further public contempt, ridicule, aversion or disgrace, or evil opinion of him in the minds of right-thinking persons.
Dykstra was a former baseball player who had admitted to pushing the boundaries of sportsmanship and crossing the line into gamesmanship to gain a physical and psychological advantage. For instance, he bragged about blackmailing umpires. He admitted to revealing umpires' private information out on the field to manipulate them—in one occasion, threatening to out an umpire about being in a gay club the night before. The book portrayed him just as that—an athlete who used psychological manipulation to his advantage. From a sportsmanship perspective, Dykstra hurling insults at an opposing pitcher to ultimately throw him off his game was hardly as disgraceful as his self-portrayal of abusing steroids or blackmailing umpires.
Darling pointed out that Dykstra was known for making racially offensive comments long before the book was published. In a 2009 GQ magazine article, Dykstra's former employee Kevin Coughlin wrote about his time working for Dykstra and asserted that Dykstra would use the obscene terms to refer to African-American athletes featured in Dykstra's magazine the Players Club.
Those claims were also reported by other media outlets such as ESPN.com, the New York Daily News and the Philadelphia Inquirer.
Moreover, in a 2013 book, Dykstra's former magazine editor for the Players Club Christopher Frankie detailed his account of working with Dykstra and asserted that Dykstra described Willie Mays and Venus and Serena Williams, and Celtics coach Doc Rivers in racist terms.
Dykstra never brought a libel suit against Coughlin, Frankie, or other media outlets for such reporting.
Further, Darling, in his previous book in 2017, recounted the same game, Game 3, and detailed how Dykstra hurled at Boyd "unprintable" insults consisting of "hateful, hurtful, declaration[s]" and "unsuitable comments."
Other than referring to the rant as "racist" and comparing it to attacks that Jackie Robinson had endured, the book's reference were similar to the earlier reference from 2017. Neither listed the insults, but both described them as too offensive to be shown in print.
In addition, Dykstra's disreputability extended beyond the field. Reportedly, he had been the subject of "at least 24 legal actions, including 18 [within a year]" for nonpayment and breach of contract. In one instance, it was reported that he asked his former driver Paul Lee to "rough up" and "hurt" his former pilot and "shut him up" about his non-payments.
Further, in 2012, Dykstra pleaded no contest to charges of lewd conduct and assault with a deadly weapon relating to an incident with a female employee.
The nature and seriousness of Dykstra's criminal offenses, which include fraud, embezzlement, grand theft, and lewd conduct and assault with a deadly weapon, and notably the degree of publicity they received, had already established his general bad reputation for fairness and decency far worse than the alleged racially charged bench jockeying in the reference could.
Given the itany of stories concerning Dykstra's poor and mean-spirited behavior particularly toward various groups including racial minorities, women, and the LGBTQ community—the Court found that, as a matter of law, the reference could not "induce an evil opinion of [Dykstra] in the minds of right-thinking persons" or "deprive him of their friendly intercourse in society," as that "evil opinion" had long existed.
In reaching the conclusion, the Court balanced Dykstra's reputational interest against society's interest in promoting free expression, while keeping in mind that New York provides some of the strongest protections for the latter.
Moreover, Dykstra failed to state how he has been damaged other than in conclusory fashion. As Darling argued, Dykstra asked the Court to entertain a "fishing expedition" to see if there was anyone who thought less of Dykstra because of the book. The Court found that Dykstra's inability to point to any monetary losses further militated in favor of having his dispute with Darling litigated in the "court of public opinion," rather than an actual, taxpayer-funded court of law.
Given Dykstra's celebrity and apparent attraction to the spotlight, Dykstra's remedy was in telling his own story to the public. In fact, according to the motion papers, Dykstra has already enlisted the likes of baseball greats Dwight "Doc" Gooden, Daryl Strawberry, and even Dennis "Oil Can" Boyd to dispute Darling's story, and the Court took notice of the considerable attention that this dispute has garnered in sports and entertainment media.
As such, the Court found no legal basis for why it should use its very limited time and resources litigating whether Dykstra engaged in yet another example of bigoted behavior over thirty-years ago in a court of law. There are sports commentators, bloggers and legions of baseball fans to litigate this issue in a public space. The Court, however, had cases involving lost livelihoods, damaged and lost lives, as well as plaintiffs that have suffered very real reputational injuries. Accordingly, Darling and the publishers' motions to dismiss the first cause of action for defamation, pursuant to the libel-proof plaintiff doctrine, was granted.
Dismissal of the first cause of action for defamation was not to be construed as a finding that Dykstra's alleged "treachery" did in fact occur or that any of the accusations by Coughlin or Frankie were true. It was only to say that Dykstra's reputation for unsportsmanlike conduct and bigotry was already so tarnished that it could not be further injured. It was possible that Dykstra had been falsely maligned by numerous individuals over the years, including Darling, and that he had been maliciously prosecuted and wrongfully convicted of various crimes in various different courts. Whether or not that was the case was not an issue before the Court.
The question before the Court was only whether or not Dykstra asserted a cause of action for defamation. In order to do so, Dykstra must have had a reputation capable of further injury when the book was published. The Court found that Dykstra lacked such a reputation at the time of publication.
Originally published 02 July, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.