Federal Judge Rules Homosexuality Not Per Se Category of Defamation

Southern 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.

Cosby 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.