Alabama’s first openly gay state legislator, State Rep. Patricia Todd has created a stir this week by declaring that she intends to publicly reveal the adulterous affairs of colleagues who oppose same-sex marriage on the basis of family values. The threat raises the prospect of potential tort liability and some interesting questions of privilege.
The confrontation occurred after a court struck down the state’s ban on same-sex marriage last Friday. Alabama Speaker of the House Mike Hubbard and Attorney General Luther Strange reacted by denouncing the decisions and calling for a stay of the judge’s order. Hubbard called the ruling “outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians” and pledged to “continue defending the Christian conservative values that make Alabama a special place to live.” Strange filed a motion over the weekend seeking a stay of the judge’s ruling.
Todd, D-Birmingham, shot back on Facebook that she was preparing to out adulterous colleagues who argue against the lifting of the ban:
“This (is) a time where you find out who are accepting, loving people. To say I am disappointed in Speaker Hubbard comment’s and Attorney General Strange choice to appeal the decision is an understatement. I will not stand by and allow legislators to talk about ‘family values’ when they have affairs, and I know of many who are and have. I will call our elected officials who want to hide in the closet OUT.”
Todd told the media that her threat is real: “Don’t start throwing bricks at my window when yours is already cracked as well.” I am not sure of what the line will be for Todd in releasing information. It is not clear whether just defending the ban is enough or mentioning family values would be the trigger for an outing.
For his part, Hubbard was conciliatory in response and said “I consider Rep. Todd a friend, and we have always enjoyed a good and cordial relationship, so I am sorry that she is upset about my remarks. We do have a fundamental disagreement on allowing same sex marriages in Alabama, and I will continue to voice my opinion on this important social issue, just as I expect she will continue to voice hers, but we can disagree without being disagreeable.”
If Todd is serious, she had better to take care where she carried through on this threat. There is an absolute legislative privilege afforded to federal and state legislative officials in making defamatory statements while on the floor of the legislatures or in committee sessions. See Tenney v. Brandhove, 341 U.S. 367 (1951). However, outside of that protected forum, including repeating such statements in the media, can be actionable. In those forums, she had better be right. Adultery has been traditionally treated as a per se category of defamation (with some things as imputing a “loathsome” disease). As such, the plaintiffs generally does not have to prove special damages and the statement is viewed as per se damaging. Of course, truth remains the primary defense to defamation.