New Defense in Celebrity Libel Cases – It Ain’t Me Babe

One of the interesting (or bizarre, depending on your perspective) arguments in Hulk Hogan’s recently concluded privacy trial against Gawker was that “Hulk Hogan” is a character separate and distinct from Terry Bollea.  Hogan/Bollea made this argument to address the evidence presented by Gawker that Hogan had routinely bragged about his sex life – size, technique, etc. – in plenty of public settings, including multiple appearances on the Howard Stern show.   

Gawker contended not only was Hogan’s sex life a matter of public concern, it was made so by Hogan himself.  But Terry Bollea argued that the comments by Hulk Hogan were not about Terry Bollea and essentially couldn’t be used to incriminate Bollea.  The jury apparently bought this crap  analysis, in light of its $140 million verdict.   

It now appears country music star Blake Shelton is using the a similar tactic in a libel suit against “In Touch” magazine. Shelton sued over reports in In Touch that he’d hit rock bottom due to excessive drinking.  One of the magazine’s defenses is that Shelton is “libel proof” when it comes to reports about his alcohol use.  

A plaintiff is libel proof when that person’s reputation is so damaged by truthful reports that a subsequent false report doesn’t cause any marginal damage.  A leading case in this area involved Bob Guccione, the publisher of Penthouse, who brought a libel suit against Hustler Magazine for reporting that Guccione had engaged in an adulterous affair (I swear I am not making this up).  The court found that Guccione had for a significant period of time truly been involved with a woman not his wife. It also noted that Guccione actively advocated for open marriages and a “swinging” lifestyle.  So he simply couldn’t claim reputational harm over an erroneous report on that topic.  

In Touch contends that there has been so much written about Shelton’s drinking that its story doesn’t harm his reputation any more than it has already suffered.   And the interesting twist here is that much of the reporting has come from Shelton himself.  In Touch introduced 50 pages of Tweets from Shelton detailing drinking exploits and hangovers.  The Tweets go back to 2009 and were shared with 15 million followers (he has a few more followers than me).  

In response, Shelton claims that the tweets are “part of my schtick with my fans.”  “It is part of my act, part of my performance, but in no way indicates that I have an actual problem with alcohol,” according to Shelton.

In other words, Blake Shelton the artist is a high functioning but loveable alcoholic, while Blake Shelton the person is sober as a judge.  Or something like that. Confused? So am I.  And it seems like a really slippery slope here.

Sports and entertainment history is full of examples where the real person was markedly different from the media’s portrayal.  Shoeless Joe Jackson – so often portrayed as an illiterate boob was in fact a highly successful businessman after his banishment from baseball.  Ty Cobb probably was not as evil as he was portrayed in Al Stump’s fanciful biography.  Johnny Cash’s first wife was, according to many reports not nearly the shrew portrayed in “Walk the Line.”  I get that. And no one is contending that a celebrity should be defined by what others write about them.

But Hogan and Shelton actively created their personas by their own words.  The law shouldn’t let them walk away from that when it gets uncomfortable.