Is it defamatory to call someone gay?

The law, lawyers, and the court.
Feb. 27 2009 1:42 PM

Queer Eye for the Libel Guy

Should stars really be able to sue for libel if someone says they're gay?

Howard K.Stern. Click image to expand.
Howard K. Stern 

In October 2007, Howard K. Stern, co-star of The Anna Nicole Show, filed a lawsuit claiming that he was defamed when the author of a tell-all book said he was gay. A Manhattan judge will soon decide if the suit should go to trial. Stern (not the host of the Howard Stern Show) has asked for $60 million in damages.

This may seem like a throwback, but gay libel suits abound. In December, Joseph Farah, founder of the conservative news site WorldNetDaily, threatened a libel suit against Wikipedia, which had listed him as "an Evangelical Christian American journalist and noted homosexual." And in 2003, a Los Angeles judge awarded Tom Cruise $10 million in a gay libel suit against a porn star who claimed he and Cruise had been lovers.

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When he sued, Tom Cruise said that he had nothing against gay people. But these cases inevitably send the message that it's shameful to be gay. Increasingly, that's an anachronism: Millions of Americans lead openly gay lives and hardly think being gay is a stain on their reputations. Why should courts rule otherwise? And shouldn't gay rights groups, which have largely ignored these lawsuits, instead put pressure on plaintiffs like Cruise, Farah, and Stern to drop them?

To win a defamation suit, a plaintiff must show that the false statement in question has hurt his or her reputation among at least a "substantial and respectable minority" of the community. That's often a moving target. In the past, statements implying a person was black or Communist were ruled to be defamatory. In Scott v. Peebles in 1844, the Mississippi Supreme Court upheld the lower court's finding that it was defamatory to say that a white person "had negro blood." The Louisiana Times-Democrat was sued successfully in 1900 after a telegraph operator employed by the paper accidentally transcribed the phrase cultured gentleman as colored gentleman.

Defamation suits also used to succeed based on accusations of being a Communist. During the first Red Scare, in 1924, a D.C. court ruled that a story by the Washington Times accusing a woman of having Soviet connections was defamatory. Then, during the period of warmer U.S.-Soviet relations in the lead-up to World War II, courts moved away from such findings. In 1940, the New York Supreme Court reasoned that since the Communist Workers Party of America was open and legal, calling someone a Communist was no more defamatory than saying he or she was a Republican or a Democrat.

The legal landscape shifted again during the McCarthy era. When the leader of Utah's Farm Bureau called the Farmers Union "Communist dominated" in a 1950 publication, the U.S. Court of Appeals for the 10th Circuit affirmed that "in these times" the accusation crippled the union's ability to do business. The court awarded damages. Communist defamation suits wound down for good in the waning days of McCarthyism as Americans tired of blacklists and as the Supreme Court began to overturn the convictions of accused Communists. In light of changing attitudes, court after court across the country stopped finding in favor of plaintiffs. And so plaintiffs stopped filing claims.