There is a firestorm of controversy this morning over a piece that ran on the CBS blog by Ben Domenech, a former Bush administration aide and Republican Senate staffer. In his blog, Domenech alleged that Solicitor General (and possible Supreme Court nominee) Elena Kagan is a lesbian. The White House went ballistic and called the story false. CBS stood by the blogger and then issued an apology, saying that it was based on pure speculation.
In his online column Domenech said that Kagan’s selection would please Obama’s base as the “first openly gay justice.”
Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, attacked Domenech as someone “with a history of plagiarism” who was “applying old stereotypes to single women with successful careers.”
Domenech has a short lived stint (three days) as a Washington Post blogger when he quit after allegations of plagiarism.
After the White House called the story false, Domenech added an update to the post: “I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.”
CBS finally withdraw the column after receiving an email from Domenech. Dan Farber, editor in chief of CBSNews.com, wrote that “after looking at the facts we determined that it was nothing but pure and irresponsible speculation on the blogger’s part.”
Domenech added his own apology: “I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post.”
When I teach defamation, we often discuss allegations that someone is gay under the common law. It is an example of part of the evolving social standards of what constitutes a per se category of defamation. At one time, it was considered such a category, but, as society has increasingly accepted homosexuality (and after criminal laws on homosexuality were struck down after Lawrence v. Texas), that is changing. Certainly an Obama official is unlikely to claim that being gay is defamatory — even though this blog would likely meet the test under New York Times v. Sullivan and the actual malice test (requiring knowing falsity or reckless disregard).
Domenach is the co-founder of the RedState blog and writes for Human Events, and other conservative publications.
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