There is an interesting ruling expected in L.A. Superior Court where Judge Gregory Keosian has handed down a tentative decision that would dismiss Richard Simmons’ defamation suit against the National Enquirer and Radar Online. Those papers published a story that Simmons was transitioning to a woman. Simmons denied the account and sued for defamation. The decision is part of a trend away from such allegations as a per se form of defamation.
Simmons sued the publications in May.
The complaint alleges that the allegation was part of a blackmailing scheme that was later recanted by a Mauro Oliviera:
“Starting from around May 2015, Mauro Oliveira, an individual who has blackmailed, extorted and stalked Mr. Simmons for several years with the intention of destroying the career and reputation of Mr. Simmons, contacted several press outlets, including the National Enquirer and Radar, and offered information on Mr. Simmons’ disappearance in exchange for a fee. . . . All of these assertions were untrue, and were merely attempts by Mr. Oliveira to gain a profit in exchange for providing a false narrative about Mr. Simmons’ leave of absence. While pitching around these ideas, Mr. Oliveira was simultaneously blackmailing Mr. Simmons, sending him emails and threatening to destroy his reputation with damaging press coverage unless Mr. Simmons paid Mr. Oliveira to stop.”
The case reflects a changing in status of homosexual and transgender individuals in our society. There was a time when homosexuality was treated as a per se category of slander under common law torts. 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 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, 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. Consider the statement of Keosian decision that being misidentified as transgender does not inherently expose someone to “hatred, contempt, ridicule or obloquy,” and therefore does not rise to the level of defamation.
Some courts may still challenge the view that a transgender allegation cannot constitute defamation, particularly in other states. Nevertheless, the decision shows the considerable progress made by the transgender community in its incorporation into society.
What do you think? Is an allegation of transitioning to the opposite sex a legitimate basis for defamation?