In my torts class, we often discuss the per se categories of slander and how they can evolve with societal norms. In particular, we discuss whether calling someone gay should remain per se defamatory as a category of moral turpitude (it once was also viewed as falling under alleged criminal conduct). Now, a court in New York has ruled that being called gay, lesbian or bisexual is no longer defamatory. Justice Thomas Mercure of the Appellate Division’s Third Department based in Albany handed down the significant ruling.
The decision found that the prior case law is “based on a false premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.”
The case involved an incident where Mark Yonaty sued over such an allegation that he said destroyed his relationship with a woman. The court found that he had sued over what is now common name-calling.
I have long believed that courts should reexamine the common law approach to the homosexuality slur. In the past, such a slur was viewed as clearly defamatory when homosexuality was not just viewed as immoral but was a crime. For example, In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end store sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the store 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, the question is whether this view would change with circumstances. For example, such an allegation against a religious person or religious figure or politician opposed to homosexuality might present a different question. Yet, the question is whether it should be a per se category. The same question of changing social values is raised by calling a woman “a slut” and whether that is just common trash talk or a defamatory statement.
What do you think?
Source: NY Times