New York Court Rules That Calling Someone Gay Is No Longer Defamatory

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

19 thoughts on “New York Court Rules That Calling Someone Gay Is No Longer Defamatory”

  1. Gene H — I am only asking this question because I honestly do not understand: what does it mean when you say:

    “a carrier can’t download and remotely execute code to a phone”? What is the context?

  2. ID707,

    I knew a nurse years ago, not the ex, who said she was helping a gentleman who needed a catheter inserted. Poor guy got a stiffy. She told him not to worry, happens all the time.

  3. Matt Johnson,

    If they could show erections they might just get serviced when getting their weekly washdown.
    A nurse girlfriend confessed to having done so, but she did not say he was old, he was just getting his heart repaired.

    Course if they are cheating with blue pills then bets are off.

  4. My ex-wife works at a hospital. She said (while we were still on speaking terms) some of the senile old guys would try to grab the nurses on the ass. Some of them would also intentionally expose themselves. Is that defamatory?

  5. Rcampbell et al,
    Does that mean we can say the N-word again. It too was derogatory as I remember, tho’ not called slander. I was born in ’36 and never heard it in my school years.
    But that is only one sample of a large cohort.

    Gay does appear, at least from here, as an upscale choice.

  6. Mike A and especially Gene H have, I believe, fully and correctly analyzed the issue. The ruling acknowledges an acceptance of rather than a stigma attached to the word and is the flip side of the growing acceptance of gay people in our society. Is “tit for tat” an inappropriate phase?

  7. I think ANON should be encouraged to show us what an ass he is by his “mooning” in all directions. The receiver of the “full moon” should be accorded applause for causing the monkey to do new tricks.
    Just as long as all understand that ANONs brain is like his arsle, divided, pimply, and ugly. The resemblance continues in that the defecation opening is his mouth.

  8. I agree with Gene on this issue. The greatest strength of the common law is its ability to evolve with societal change. Of course, that means the law is always behind the curve, but that’s understandable. The sensitivities of the 18th and 19th century no longer apply, and the law should reflect that fact. And when it comes to the First Amendment, I pretty much adhere to the “sticks and stones” rule.

  9. I thought it was funny when I first heard the rumors that my business was run by and for gay people, but I changed my mind when I heard that one of the ministers in town was actively telling his congregants to boycott us. I countered his lies by posting my husband’s and my wedding pictures in a prominent place in our establishment. Problem solved, I hope.

  10. What about “bent”? Joebob is bent. Is the word “Retard” going in the opposite direction such that use of that word is now defamatory when in the past it was perfectly ok to call anyone from New York a retard? How about Punk or Punked? The term use to be employed to say that a Punk was someone who like to have sex with males and be the arse recipient and to be Punk’d one had been the victim of an arse rape by another inmate in the penitentiary. Then this guy comes along on tv whose name should have been Wiener but was Kutcher and they show the Punk with a backward cap on his head and a deranged look and call the tv show Punk’d. So I guess lady Ashton put the name into the mainstream. Then there is Republican. In the days of Lincoln it was a respectable name for a political party and a person of that persuasion. Since the senility President it has become close to becoming a term for a near Nazi which is kind of like being called “sor tof gay”. The Koch Brothers with their little racist cons have morphed it into the generic word for right wing racist: RepubliCon. Soon calling someone that will be defamatory. One of my dogs works at the nursing home and the old farts who are getting senile called themselves Reaganites. The nurse says that name is defamatory. We have a dog in the dogpack who is mean as hell and behind his back we call him Bushie because he is thinks Texas is a separate country and that Iraq is Iran. Bushie is always invading the wrong territory.

  11. Awww. Is the anonymous misogynistic idiot Internet troll starved for attention this morning? Is that why you’re waxing romantic? Sorry, but I prefer human females – preferably as far removed from your lineage’s gene pool as possible.

    Seriously, get a life. Oh, that’s right. You can’t get real girls to talk to you (without laughing) because of your sterling personality and IT career advancement is limited for someone so stupid as to think a carrier can’t download and remotely execute code to a phone.

    Run along now.

    I’m sure someone is waiting for you to install their cable poorly and to have their house plants molested.

  12. Interesting to this layman, the wiki says:

    Defamation per se
    The four (4) categories of slander that are actionable per se are (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person’s fitness to conduct their business or trade; and (iv) imputing serious sexual misconduct. Here again, the plaintiff need only prove that someone had published the statement to any third party. No proof of special damages is required.

    Which is amusing because I am reminded how my pet goats react violently when I leave them in the barn alone with Gene, and the vet says two of them now have have tested positive for simian immunodeficiency virus, all of which leaves me wondering why his last bill was for more hours than there actually are in a week, and just last night I found the lock on the barn broken and laying on the ground.

  13. I agree with the court’s ruling. As a friend to the LGBT community, I think one of the steps toward equality necessitates a certain change in the use of language. Since many if not most in that community don’t feel the word “gay” is defamatory but rather simply descriptive, this ruling is in line with the evolution of society and its language. Just so, this raises the question of other terms. For example, many transgendered people find the word “tranny” offensive. Should this be per se defamation? What about the term “switch hitter” for bisexuals? While I agree with the ruling, it leaves room for interpretation either as too narrow or too broad, but that in holding the accusation of “gay” isn’t per se defamation the court has taken a big step in removing/reducing the stigma attached to the word is unquestionable.

  14. Hap…..Hap…… Happy…… The rain in Spain goes mainly on the plaine…….

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