The Incremental Harm Doctrine: Is There Life after Masson?

Abstract

A defamation is a statement that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Harm to reputation is the linchpin of American libel law.

The incremental harm doctrine applies in libel litigation where the challenged statement causes no significant damage to the plaintiff's reputation beyond the harm caused by the remainder of the publication. If the defendant can show that the publication would have had exactly the same effect on the plaintiff's reputation had the challenged portion been excised, then the incremental harm defense compels judgment for the defendant. The doctrine is currently not in good health, and some might even say that it is beyond hope. This article is an effort to breathe some life into it. Even though federal courts have rejected the doctrine, state courts are free to adopt it, as a matter of state tort or even state constitutional law.

This article discusses the early cases which accepted the incremental harm doctrine as a matter either of constitutional law, common law, or merely logic; how it (along with its evil twin, the libel-proof plaintiff doctrine) were rejected by then-Judge Scalia; but how it finds support in traditional theories of state libel law, and comports with the limitations on recovery imposed by the Supreme Court under the First Amendment.

Keywords: defamation, libel, incremental harm

JEL Classification: K13