No Defamation in Word “Gay”

Federal judges in Massachusetts, New York cast doubt that false identification

still actionable

In the first such case to be decided since the U.S. Supreme Court invalidated laws against consensual gay sex last year, a United States district judge in Boston has ruled that it is not automatically defamatory to falsely call somebody gay.

Ruling on a motion to dismiss defamation claims in a case brought by James Albright, a former bodyguard who was once Madonna’s lover, Judge Nancy Gertner wrote in her May 28 decision that it would be “outrageous” to adopt the plaintiff’s arguments.

Just a few days later, a federal district judge in New York, Charles Haight, ruling in another defamation case involving falsely calling somebody gay, found that the claim was filed too late, but suggested that if it had been timely, there still would be some question whether calling somebody gay could be considered defamatory today.

Albright worked as a bodyguard for Madonna in 1992, and subsequently had a brief affair with her. Several years later, Albright was interviewed for a book about Madonna published by St. Martin’s Press. In both the book, and in an excerpt published by Time, Inc.’s People magazine, a photo of Madonna with her out gay bodyguard Jose Gutierez incorrectly identified him as Albright.

In his lawsuit, Albright claimed that the mislabeled caption would lead readers to conclude incorrectly that he was gay. He sought damages for defamation, invasion of privacy, and negligent and intentional infliction of emotional distress, among other grounds.

Gertner found Albright’s argument implausible. The caption did not state that the man pictured was gay, though the judge noted that he was dressed in a black leather jacket, tinted glasses, a string necklace with a pendant, and an earring. The caption in the book said the pictured man had “overwhelming love” for Madonna, and the magazine caption identified Albright as Madonna’s “secret lover.”

Gertner went on to consider the question whether it would be defamatory if a reader could draw the conclusion that Albright is gay.

“I cannot conclude that identifying someone as a homosexual discredits him, that the statement fits within the category of defamation per se,” she wrote.

Numerous past rulings in the U.S. have held that a false imputation that somebody is gay is defamatory per se, mainly because it carried the implication that the individual engaged in criminal sexual activity. Even after sodomy laws began their decline, courts continued to base decisions on the grounds that public opinion still stigmatizes homosexuality.

Albright’s lawyers cited the Massachusetts sodomy law in support of their claim, even though the Supreme Judicial Court of Massachusetts had already ruled that it was inapplicable to private, consensual gay sex. Since Albright filed his case, the U.S. Supreme Court struck down all sodomy statutes, and the Massachusetts high court ruled in favor of same-sex marriage.

“I reject the offensive implication of plaintiffs’ argument that, even without the implicit accusation of a crime, portions of the community ‘feel [homosexuals] are less reputable than heterosexuals,’ as plaintiffs allege in this Complaint,” Gertner wrote, comparing this case to one in which a white person claims to have been defamed by being wrongly labeled as an African American. Such a case would have been treated as per se defamatory 50 years ago, but it would be laughed out of court today.

“What has not changed in the case law is the conclusion that the category ‘defamatory per se’ should be reserved for statements linking an individual to the category of persons ‘deserving of social disapprobation’ like a ‘thief, murderer, prostitute, etc.,’” wrote Gertner, quoting a 1991 Colorado appellate decision from 1991. “To suggest that homosexuals should be put into this classification is nothing short of outrageous.”

As Gertner noted in her opinion, courts applying New York law have continued to apply the old precedents treating a false imputation of homosexuality as automatically defamatory. But in his opinion published in the New York Law Journal on June 4 in the case of Lewittes v. Cohen, Judge Haight suggested that might no longer be the case.

Plaintiff Michael Lewittes is a journalist and editor, whose brother, David, was going through a divorce from Marilyn Blume. According to Lewittes’ complaint, Blume got her brother, Joshua Cohen, to post her divorce papers on a website, which also contained a reference to “that closeted editor of a certain paper.” Michael Lewittes claimed that the reference was to him and that he is not gay, so he sought damages for defamation.

Haight found that the time allowed for Lewittes to file his legal claim, one year, began when the statement appeared on the website, and had run out. But, in a footnote, he commented on the merits of the claim.

Haight agreed that the website reference could reasonable imply that Lewittes is gay, but added, “It does not necessarily follow from this, however, that an implication of homosexuality is defamatory.”

“Given welcome shifts in social perceptions of homosexuality, however, there is good reason to question the reliability of these precedents,” Haight stated, citing several law journal articles for support.

Two federal judges in the space of a week may not exactly be a stampede, but certainly this is evidence of a trend in the law reflecting the changed public attitude springing from the Lawrence v. Texas decision and the recent surge in same-sex marriage activity.

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