First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Friday, July 19, 2013

The label "gay" should not be defamatory

Last week, Pennsylvania journalist Hal Marcovitz sued lawyer William Roshko for, among other things, falsely calling Marcovitz gay.  A news report about the defamation lawsuit can be found here.

The Marcovitz case raises the question:  should the label "gay," even if false, be considered defamatory?  The answer should be "no".  As a matter of law and good public policy, calling someone gay should not be considered defamatory.

The law should not endorse homophobia.

A defamation plaintiff must prove that an allegedly false statement injured his or her reputation.  Not just any falsity will suffice.  For example, falsely saying that a lawyer wore a blue suit instead of a black suit to court could not reasonably hurt that lawyer's reputation.

But, that is a simple example.  Let's get more complex.

In order for a publication to hurt someone's reputation, a line of cases dating back to 1909 suggests that the statement must injure the plaintiff in a "respectable" or "right thinking" segment of society.  Whatever that means.

I know from a defamation case I once handled that no court in American history has ever held it defamatory to call someone a "narc".  Why?  Because assisting law enforcement is socially constructive behavior, so "respectable" and "right thinking" people would not think less of you for being a police informant ... even if you weren't really a narc and you were beaten to within an inch of your life for the false label.  That actually happened in one case.  No defamation claim.

As recently as 1957, some courts still considered it defamatory to call a white person black.  In 1989, a Georgia court wisely rejected such a claim holding that, "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."  Well put, and well worth applying here.

Courts assessing defamation law in New York, New Jersey and Massachusetts state outright (or at least strongly suggest) that calling someone gay is not defamatory. 

On the other hand, courts in California, Colorado, Connecticut, Delaware, Florida, Illinois, Kansas, Louisiana, Maryland, Minnesota, Oklahoma, Ohio, Rhode Island and Texas have held that the label may support a defamation claim.  Note that several of those States now permit gay marriage: California, Connecticut, Delaware, Maryland, Minnesota (as of next month) and Rhode Island.

Following the Supreme Court's recent DOMA and Prop. 8 decisions, as well as polls showing that a majority of Americans support gay marriage, it is time for this unsightly vestige of defamation law to change. 

I don't mean to diminish the very real contempt, hatred, and sometimes violence that people experience from being labeled gay, whether that label is accurate or not.  The question is moving forward as a society.  Moving away from the notion that there something "wrong" with being gay.

Further reading.  Check out this excellent article on the subject: Matthew D. Bunker, Drew E. Shenkman and Charles D. Tobin, Not That There's Anything Wrong With That: Imputations of Homosexuality and the Normative Structure of Defamation Law, 21 Fordham Intell. Prop. Media & Ent. Law L.J. 581 (Spring 2011).

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