Is Calling Someone Gay Defamation?

Gabriel Arana

January 11th, 2009

We are trying out Gabriel Arana as a possible new contributor to Box Turtle Bulletin. Gabriel is a graduate of linguistics from Cornell University, and he is now pursuing a career in journalism. Some of you may remember him as a former patient of ex-gay therapist Dr. Joseph Nicolosi. While he’s had a personal blog for some time, he’s new to the world of LGBT community blogging. He’s an Arizona native — specifically from Nogales on the U.S./Mexico border — but he now makes his home among the bright lights of New York City. Please welcome Gabriel to the pad. — Jim Burroway.

With the LGBT legal community’s eyes set on fighting for marriage rights, another important issue that reinforces negative attitudes toward gays has gone largely unmentioned: the law concerning defamation and false accusations of homosexuality.

Rulings vary by jurisdiction over whether it is defamatory to out someone falsely, reflecting the fragmented evolution of social and legal attitudes in different areas of the country.

Examples include the case of a Los Angeles judge who awarded Tom Cruise $10 million in a libel suit against a man who claimed Cruise was his lover. Other courts have ruled the opposite, including Boston judge Nancy Gertner, who in 2004 ruled that “a statement implying that an individual is a homosexual is hardly capable of a defamatory meaning.”

The issue here — and its significance for LGBT policy — is perhaps more easily understood by analogy to a schoolyard fight. If a kid calls another kid gay, should the teacher tell him to stop or, believing that there is nothing wrong with being gay and being identified as such, ignore the negative consequences that arise from the teasing?

Some background: According to libel (printed statements) and slander (typically oral statements) law, a plaintiff must prove the following in order to establish defamation:

  • that the information reached a third party;
  • that the person in question is identifiable from the information;
  • that the publisher is at fault;
  • and — most importantly — that the publication of the information caused harm or “[tended] to hurt the reputation of another so as to lower him in the estimation of the community.”

There are two countervailing positions to consider:

1. Courts should not recognize defamation lawsuits based on the (false) accusation of homosexuality.

This is perhaps the goal — to live in a society in which being gay is a neutral descriptor that has neither a positive nor negative connotation. Defamation lawsuits based on gay accusations enshrine the perception of homosexuality as something bad and further reinforce this belief. Courts are not in a position to define homosexuality as a stain on someone’s reputation.

2. Courts should recognize such lawsuits until the social mores of the society change.

No one wants to wait for social norms to change, but the standard for harm is subjective: whether or not calling someone gay “[hurts] the reputation” of a person depends on how the community feels about homosexuality. The function of the Court is not to determine whether a certain attribute is desirable or not, but merely establish that being labeled as such leads to diminished reputation/harm. Dismissing such suits leaves plaintiffs who have lost their jobs or suffered other damages with no recourse.

Of course the question of whether people who actually are gay should be outed or not (e.g. as in the case of gay politicians like Mark Foley who pass anti-gay legislation) is not a defamation issue — the one surefire defense against defamation is that the published information is true.

In any scenario, the solution to this problem from a policy standpoint involves changing public opinion, a task taken up by a good number of activist organizations. The more thorny issue is what the strategy among legal advocates should be. This may or may not be a case in which the law must trail — and not lead — social progress.

KipEsquire

January 11th, 2009

Just to be clear, reputational torts — including defamation — are state-based; there is no “the law” but rather 50+ laws, encompassing both statutes and court precedents.

So the point is to get the laggard states to “catch up” to the consensus view that merely calling someone homosexual is not, without more, defamatory.

Note also that the Cruise lawsuit (filed in the UK, which has an entirely different approach to defamation) was a bit more nuanced than someone printing “he’s gay.” As I recall, the lawsuit also concerned claims that Cruise was adulterous (i.e., with a man). That most certainly remains a defamatory statement, regardless of the sexual orientation involved.

Cheers.

Tavdy

January 11th, 2009

Welcome to BTB, Gabriel!

As KipEsquire notes, UK defamation law is different from US defamation law, the primary difference being that the defendant has to prove their claims were true, rather than the plaintiff having to prove the claims were false. This is why many high-profile cases get heard here in the UK rather than in the US – it’s in the plaintiff’s interests if they cannot prove their side of the story. In other words, Chad Slater’s claims regarding Tom Cruise could well have been true but Slater could only win if he could prove those claims to be true in court. Likewise I can only prove that Slater has dubious taste in men if he can prove he shagged Cruise ;-)

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