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.

The lesson is that as attitudes change, courts stop recognizing certain labels as defamatory, and then the well of plaintiffs dries up. That's where we should be in the timeline of gay rights. Gay marriages or partnerships are recognized in 11 states. President Obama recently set up a task force to look at dismantling "don't ask, don't tell." The Supreme Court's 2003 decision in Lawrence v. Texas struck down laws criminalizing sodomy, which often served as a basis for gay libel suits (because accusing someone of participating in criminal activity is one standard for defamation). Roughly three-fourths of Americans think that gays should be protected against employment discrimination and about half think gays should be able to enter into civil unions and adopt children. The numbers reflect a dramatic shift in attitude over the last decade, and young people support gay rights at especially high rates. As Christopher Hayes, an editor for The Nation, commented, "Every time an ambulance passes it is either someone who opposes gay rights dying or someone who supports them being born."

Given all of this, why should courts continue to buy the argument that to call someone gay is to harm his reputation? Amid the general softening of attitudes, certain enclaves are, of course, holding out—primarily conservative religious groups. The question for courts is whether these minority views are "substantial" and "respectable" enough to count for a defamation suit. Courts have enormous discretion here. A KKK member can argue that he was defamed by being called black, but if a court thinks that the Klansmen who agree with him hold "anti-social" views, the suit is out.

On homosexuality, the views of conservative religious groups are indeed veering on the antisocial. Think about TV and the movies. Ellen DeGeneres came out 10 years ago to an audience of 42 million; when Clay Aiken did so last year, no one blinked. Dozens of shows— Queer Eye, America's Next Top Model, How I Met Your Mother—have openly gay cast members. Movies like Milk and Brokeback Mountain are mainstream.

Some legal scholars contend that if courts do not recognize gay defamation suits, plaintiffs who have lost their job or who are threatened with violence after being labeled as gay will have no recourse. But this isn't true: Plaintiffs can sue for wrongful termination of employment. In some states, anti-discrimination laws go further, explicitly protecting people who have been discriminated against on the basis of sexual orientation. And people who are threatened with violence for being perceived as gay can turn to the police and to restraining orders, like anyone else.

In most instances, there are no real damages for plaintiffs to claim in gay libel suits. Farah, who ended up not filing suit after Wikipedia fixed his entry, might have been angry that he "spent hours" on the site trying to change his bio. But being the butt of a joke hardly constitutes real damage. Cruise claimed that false allegations of homosexuality subjected him to ridicule, and he won his case by default because the defendant couldn't pay for a lawyer. But speculation about a star's sexuality—including ridicule—is par for the course for a celebrity. It's increasingly hard to imagine Cruise suffering economic harm, by losing a film role, for example, because someone claimed he is gay.

And yet these suits continue, in part because gay rights groups have ignored them. Lambda Legal, one of the largest gay legal rights groups, has taken no position in any of the cases across the country involving defamation and accusations of homosexuality. That's partly because the group is busy with broader issues, like marriage rights. But Lambda should take the time to enter gay libel cases on the side of the defendants. These suits are a powerful chance for gay rights organizations to argue that there is nothing wrong with being gay. Also, they tend to be filed by wealthy public figures or celebrities who could be susceptible to pressure to drop the cases, especially if they're part of gay-friendly Hollywood. Gay rights groups should let the stars know that the real stain isn't being labeled gay. It's being called homophobic.

Gabriel Arana is a researcher at The Nation and a contributor to Box Turtle Bulletin.

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