The libel trick where a plaintiff can only win by admitting the insult fits — and lawyers say it barely works
Give a fictional villain an embarrassing trait and the real target won't sue, because suing means standing up in court to claim the humiliating portrait is him. HN argues over whether that's clever game theory or legal folklore.
The "small penis rule" traces to a 1998 NYT piece: authors deter libel suits by attaching a demeaning detail to a thinly-veiled character. Michael Crichton allegedly used it on a critic; a law professor argues it's mostly ineffective.
The thread reframes it — the point is exaggerating low-status traits, not anatomy — and questions the logic, before a former estates lawyer drops the will-drafting version of the exact same trap.
A libel shield built out of embarrassment
The "small penis rule" is an informal defense against libel suits: give a thinly-veiled fictional villain an embarrassing trait — classically, a small penis — so the real-life target is deterred from suing, because a suit means publicly identifying himself with the humiliating portrait. The term comes from a 1998 New York Times article quoting libel lawyer Leon Friedman, and it leans on a real doctrine: for a fictional portrayal to be defamatory, it has to be identifiable as the real person. Michael Crichton reportedly deployed it against a journalist who'd panned him; a Nebraska Law Review analysis argues the tactic is actually weak — the statements can themselves be defamatory, and a plaintiff needn't openly self-identify to win.
The thread treats it as a game-theory puzzle, and improves on the framing.
From anatomy to game theory
The first reframe: the anatomy is incidental, the mechanism is status.
"it's not meant to be taken literally, like those are magic words. You say "he failed upwards, funded by family wealth and connections…" The point is to emphasize, even exaggerate, low-status negative qualities." — a commenter reframing the rule as low-status signaling
The second: does the deterrence logic even hold? A reader argues the target can sue without conceding anything:
"If I (or any average reader) read a passage dissing a public figure… which describes them with a small penis, I wouldn't consider the description as not fitting … So him suing the author based on this would not mean he admits" — a commenter attacking the identification logic
Then the best contribution — the same trap, from a completely different corner of law:
"'To my daughter Susan, I leave $1,000. She always said that she wanted to be financially independent from me…' … If Susan fights the will … the judge will say: but she clearly left you something." — a former wills-and-estates lawyer
Why it's really a story about self-identification
What connects the novelist and the estate lawyer isn't smut — it's a structural move: build the attack so that contesting it requires publicly claiming the shoe fits. The legal scholars are probably right that it's a shaky shield in a real courtroom. But as folk game theory it's durable precisely because it shows up wherever a challenge forces the challenger to incriminate themselves — which, the thread shows, is a lot further than fiction.
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