Federal Judge Rules Homosexuality Not Per Se Category of Defamation

anna_nicole_smith_exposedSouthern District of New York Judge Denny Chin has handed down an important torts ruling. Lawyer (and former boyfriend of Anna Nicole Smith) Howard K. Stern sued tabloid journalist Rita Cosby for allegedly defaming him in her book “Blond Ambition: The Untold Story Behind Anna Nicole Smith’s Death.” Chin has ruled that being called a homosexual is not defamation per se.

I have long discussed this issue in my torts class. Common law torts has always treated statements alleging moral turpitude and unchastity as per se categories of defamation. Accusing someone of being gay was long treated as a per se defamatory statement. It was not only viewed as alleging sexual impropriety and immorality but it was a crime in many states. One of the leading cases occurred in 1952 in a New York lawsuit. In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end story sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the story and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.

However, this is an example of how common law definitions change with society. Not only has the Supreme Court struck down laws criminalizing homosexual relations, but gay and lesbian citizens are now open and accepted in most of our society.

Chin has now taken the long anticipated step of rejecting a claim of homosexuality as per se defamatory, citing “veritable sea change in attitudes about homosexuality.” While rejected a per se category, Chin allowed for the possibility that a jury could still find the statement to be defamatory.

150px-RitaCosbyCosby alleged that Stern had engaged in sex with Larry Birkhead, the man who was ultimately determined to be the father of Smith’s daughter, Dannielynn. Cosby will still face trial in the case. The book contains allegations of pimping Smith, perjury, and possible murder by Stern.

Chin also rules that Stern is not “libel-proof” — a character so notorious that defamation could not harm his non-existent reputation.

The issue of homosexuality as a per se category remains uncertain. Obviously, such a claim may have greater claim as a per se category for a deeply religious person or a minister for example.

Chin’s opinion is extremely well-done and convincing — and worth reading.

For the opinion, click here. The case is Stern v. Cosby, 07 Civ. 8536.

For the story, click here.

10 thoughts on “Federal Judge Rules Homosexuality Not Per Se Category of Defamation”

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  2. It is difficult to say what effect this determination will make in adjudicating future cases, as it creates a “gray area” that may be subject to much contention. The concept that being referred to as gay is not thought of as “per se” casting aspersions is morally right, but its real-world ramifications remain to be seen. I do take issue with the assertion that “gay and lesbian citizens are now open and accepted in most of our society.” While we are ever so slowly moving in that direction, the unfortunate fact is that a large segment of the population still regards gay men and women as second-class citizens – or worse. That is the salient point of my recently released biographical novel, Broken Saint. It is based on my forty-year friendship with a gay man, and chronicles his internal and external struggles as he battles for acceptance (of himself and by others). More information on the book is available at http://www.eloquentbooks.com/BrokenSaint.html.

    Mark Zamen, author

  3. QoS said “Instead, judgment regarding whether the designation is defamatory should be based on the beliefs regarding homosexuality of the person who is making the designation.”

    Interesting concept. Do we have mind readers on the bench?

    Who will be the judge of what one purportedly believed?

    If I believe the word “person” is derogatory, can I no longer call you a person?

    Where does it stop? What limitation is placed on one’s belief of what another believed that will now be held as fact in our courts?

    This is a door thru which our courts should not pass.

  4. Good on you Judge Chin.

    Equally important, Good on you America. As the Prof. says, this shows a great change in the common attitude about homosexuality.

  5. It’s about time a legal opinion was rendered which recognizes that designating a person as homosexual is not per se defamation. But I disagree that a distinction should be made on the basis of the object of the claim’s belief regarding homosexuality. Instead, judgment regarding whether the designation is defamatory should be based on the beliefs regarding homosexuality of the person who is making the designation.

  6. Isn’t she the one with the man-voice?

    Madonna should sue her for appropriating the name of her music tour.


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  8. It will be interesting to see the future of the per se category. Another example are military servicemembers. They all live in a world where it can not only hurt their feelings but hypothetically place a UCMJ cloud around them for the remainder of their assignment or careers.

  9. Judge Chin,

    Good on you. I must agree, a very well written and reasoned opinion.

  10. So Professor are you say Chin was Wong, or two Wongs don’t make a Chin?

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