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Friday, March 19, 2010

Homosexuality as Defamation: When Will It End?

My previous post on cyberbullying involved, among other things, a claim by the plaintiff that his reputation was injured by being called gay.  Just last month, a district court judge decided that a reasonable jury might determine that it is defamatory to call someone gay. Robinson v. Radio One, 2010 Westlaw 606683, (N.D. Texas, Feb. 19, 2010)  I find cases like this fascinating because they expose the public policy choices that underlie the decision whether to treat a statement as defamatory or not.

Thirteen years ago, I lamented in print that  "[c]ourts have been slow to embrace a progressive view by declaring that an allegation of homosexuality cannot be libelous.  The courts act as if they are not in a position to pick and choose but must accept social prejudices as they find them."  I wrote then, and I still believe, that the defamation cases involving a false attribution of homosexuality are comparable to the pre-1960s cases finding it defamatory to call a white person black, and I concluded by expressing the "hope that one day the modern homosexuality cases will seem as anachronistic as the pre-1960s race cases."  I hold this view despite the fact that I understand that being falsely labelled homosexual can result in real harm.  And I am sure some will contend that ignoring the reality of homophobia won't make it go away but will instead leave a plaintiff who has been falsely labeled homosexual without compensation for  harm caused by a wrong-doer.  However, I would contend that defamation's symbolic function is as vital as its instrumental one.  Courts can, have, and should continue to declare the values of certain groups as too antisocial to be validated by law.    

Fortunately, some courts are beginning to share this view.  The U.S. District Court for the Southern District of New York rejected the claim that being called gay is defamatory, see  Stern v. Cosby, Case 1:07-cv-08536-DC, as did a federal district judge in Massachusetts in Albright v. Morton, 321 F.Supp. 2d 130 (D. Mass. 2004).  Indeed, the Massachusetts district judge wrote a ringing repudiation of the notion that homosexuality can be defamatory in the eyes of a “substantial and respectable community.”  In Albright, one of Madonna’s former bodyguards sued for defamation and other torts, claiming that a photo caption in a book about the singer misidentified Madonna’s companion as the plaintiff when in fact it was a gay man. The district judge dismissed the plaintiff’s defamation action, holding that a statement imputing homosexuality to an individual not only is not defamation per se, but is incapable of a defamatory meaning. “‘[D]efamation per se’ should be reserved for statements linking an individual to the category of persons ‘deserving of social approbation’ like a ‘thief, murderer, prostitute, etc.’ . . .  To suggest that homosexuals should be put into this classification is nothing short of outrageous.”  The judge further observed:

  "[I]f Albright claimed that he was a white person wrongfully labeled African-American, the statement would not be defamation per se, even if segments of the community still held profoundly racist attitudes.  In the 1900’s, such statements were regularly deemed defamatory in a number of decisions that seem anachronistic, if not offensive, to modern eyes.  For example, in Bowen v. Independent Publishing Co., 230 S.C. 509, 96 S.E.2d 564 (1957), the Supreme Court of South Carolina found that it was libelous per se to include a white person’s name in connection with a news item under the heading “Negro News,” because of the continued existence of social prejudice against African Americans. Citing cases stretching back to 1791, the Court concluded that neither the abolition of slavery, nor changes in the “legal and political status of the colored race” warranted a departure from South Carolina precedent.  Id. at 565.  What the Court was doing, in effect, as one commentator noted, was “assuming without question that the plaintiff’s community was a ‘considerable and respectable’ one whose values are worthy of the law’s attention, respect, and support,” and in doing so, “validate[d] racist views.”  Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L.Rev. 1, 30 (1996).  Recent opinions expressly reject the premises of the earlier law.  See  Thomason v. Times-Journal, Inc., 190 Ga.App. 601, 379 S.E.2d 551, 16 Med. L. Rptr. 2200 (1989)(refusing to concede that plaintiff may have suffered from social prejudice of others where plaintiff sued over the publication of a false obituary that gave a funeral home listing that catered to a primarily “black clientel [sic]”)."

Despite the district judge’s willingness to leverage the symbolic function of defamation law, the First Circuit ended up affirming the dismissal on narrower grounds, holding that the photo was not reasonably susceptible of a defamatory meaning, because readers who realized the man in the picture was homosexual would also realize that the man was not the plaintiff.  Moreover, the caption, which identified plaintiff as Madonna’s secret lover, and accompanying text made it clear that the plaintiff was heterosexual.  Therefore, the First Circuit concluded, “given the [district] court’s correct finding that the photograph and its caption make no imputation of homosexuality, we need not decide whether such an imputation constitutes defamation per se in Massachusetts.”  Amrak Production, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005). 

Posted by Lyrissa Lidsky on March 19, 2010 at 04:45 PM in Torts | Permalink


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There is a case coming up right now in Michigan in state court involving this. Grebner v. Lennox, involving one politician (Republican Lennox) changing the Wikipedia entry for Grebner (a Democratic politician) to say Grebner was gay. We'll see whether that court says being gay is defamatory per se.

Posted by: M Go Blue | Mar 22, 2010 6:07:03 PM

Of course, there is an Erie/Federalism problem here: The First Circuit or the District of Massachusetts are not the appropriate courts to declare, as a matter of policy, that an allegation of homosexuality is not (or cannot be) defamatory.

Posted by: Howard Wasserman | Mar 20, 2010 8:34:16 AM

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