This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
         If you have questions about this paper, please contact the author
directly. If you have questions about the archives, email
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(Feb 2006)
Thank you.
Elliott Parker
====================================================================

DIVISION CORRECTION

====================================================================

Out of the Closets and into the Courtroom: The Evolving Law of Outing

Outing, the forced disclosure of a person's lesbian, gay, bisexual or 
transgendered (LGBT) orientation, has long been understood as a kind 
of modern-day Coliseum--a site of collision between incompatible and 
opposing interests. In our civic dialogue, it is the place where free 
speech is pitted against privacy interests, individual autonomy 
against community responsibility, and social change against personal 
security. It is the sociological equivalent of an arena for the 
performance of blood sport, a place where irreconcilable interests 
meet and clash.

 From its beginnings in the early 1990s to its equally-heated 
present, outing has meant controversy. These controversies have been 
playing out in our court system since shortly after the practice of 
outing was introduced. The law provides targets of outing with two 
principal avenues of legal redress: Outing targets may bring a 
lawsuit for defamation if the imputation of being LGBT is false or 
bring a lawsuit for the publication of private facts if the 
imputation is true.[1] This paper focuses on both torts, and it 
provides an overview of the case law on the question of whether the 
imputation of being LGBT may be considered the basis for a finding of 
defamation or may satisfy the offensiveness requirement under the 
private facts tort.

The case law provides overwhelming support for the viability of the 
imputation of being LGBT as a cause of action. Most of these cases, 
however, were decided in the shadow of Bowers v. Hardwick, the 1986 
case in which the Supreme Court upheld the constitutionality of 
Georgia's sodomy law, and the subsequent case law reflects the idea 
that the imputation of being LGBT is defamatory or offensive because 
it suggests criminal sexual conduct. The law, however, is changing. 
In 2003, the Supreme Court's decision in Lawrence v. Texas overruled 
Bowers. This decision removed the rationale for anti-LGBT 
presumptions both in case law and legislation. Yet some legal 
scholars have argued for the viability of calling a person LGBT as a 
cause of action not because of the imputation of criminality, but 
because LGBT citizens have few existing legal protections. These 
scholars argue that to deprive LGBT individuals of those legal 
avenues available to them and deny them compensation in the event of 
injury would be to further disadvantage these citizens. The paper 
will analyze these arguments, and will instead suggest that the 
imputation of being LGBT should be disallowed as the basis for a 
defamation suit or for a finding of offensiveness under the tort of 
the publication of private facts.  Finally, the paper will consider 
legal solutions to the issues that outing raises, and will propose a 
restructuring of the private facts to provide a new basis for the 
initiation of lawsuits to recover for the disclosure of intimate 
information while keeping faith with Lawrence's legacy of sexual 
orientation's "presumed irrelevance" under the law."[2]


Outing: A Brief History

The strategy of outing was developed in the late 1980s in response to 
government inattention and inaction to the AIDS crisis that was 
decimating gay communities. Lesbian and gay activists began targeting 
politicians, and later other public figures, known to be lesbian or 
gay in order to spur them to support funding for AIDS research and to 
challenge their silence in the face of the crisis. Mathieu Shapiro 
writes that activists targeted powerful, closeted gay men and 
lesbians "who either used their power to hurt gay people or declined 
to use their power to help gay people."[3] Outing disclosures were 
largely confined to the lesbian and gay alternative press until the 
posthumous outing of billionaire publisher Malcolm Forbes by Outweek 
Magazine in 1990. The story was picked up by larger news 
organizations, placing the debate over the controversial practice on 
the nation's radar screen. Activist, journalist and prominent outing 
proponent Michelangelo Signorile argued:

if lesbians and gay men are truly a "minority" with the same rights 
as other oppressed minorities, then we must also accept that each of 
us has responsibilities to our community […] outing is merely our 
calling to account those members of our community who are rich, 
famous, and powerful, much the way that blacks, Jews, and women hold 
their powerful members accountable.[4]


The argument by Signorile and his fellow outing proponents of 
community responsibility was also linked with other justifications of 
the practice. Outing was understood as an invaluable means of 
increasing lesbian and gay visibility, which was viewed as a critical 
step towards the ultimate goals of eliminating homophobia and 
achieving social and political equality. Closeted lesbians and gay 
men were not entitled to lives in the closet, which, practitioners 
claimed, harmed the gay community by creating the false impression 
that "America is straight."[5] Signorile drew no distinction between 
what John Elwood would come to coin "political outing" in reference 
to the outing of public figures involved in a public controversy, and 
what Elwood coined "role model outing" of public figures unconnected 
to any controversy in order to provide positive role models for the 
LGBT community.[6] Every outing, Signorile reasoned, was an aid to 
social progress, serving to "remove one stone from the wall" that 
stood between LGBT citizens and political and civil equality.[7]


Outing in the Courts

It is unsurprising that outing controversies soon spilled over into 
the court system. As mentioned, the law provides targets of outing 
with two principal avenues of legal redress: Outing targets may bring 
a lawsuit for defamation if the imputation of being LGBT is false or 
bring a lawsuit for the publication of private facts if the 
imputation is true.
The two causes of action have much in common. Both are intended to 
provide compensation for "injurious speech acts"[8]  and to offer 
civil remedies for civil wrongs. The elements of the two causes of 
action differ, however, and they occupy different places within the 
body of outing jurisprudence.


Defamation: Background and Definitions

The law of defamation, with its origins in the common law, evolved 
from two separate causes of action for libel and slander. A cause of 
action for defamation is comprised of the following elements:
a)	a false and defamatory (injurious) communication concerning 
another person. Ware writes that the falsity of a statement is a 
"doctrinal prerequisite" for defamation.[9]

b)	"an unprivileged publication to a third party": Eric Yatar writes 
that the communication "must actually be 'published' to others", that 
is, to a third party or to a person other than the plaintiff herself.[10]

c)	Fault in communicating the alleged defamation to a third party

d)	 "either actionability of the statement irrespective of special 
harm or the existence of special harm caused by the publication"[11] 
Said differently, an injury must have occurred.


Defamation involves the idea of "disgrace" or the diminution of 
"esteem, respect, goodwill or confidence in which the plaintiff is 
held, or to incite adverse, derogatory or unpleasant feelings or 
opinions against him…"[12] In short, defamation may be usefully 
summed up as "a false statement that tends to harm an individual's 
reputation in the eyes of his or her community."[13] Alternatively, 
Lidsky defines the tort as "the complex interaction between 
defamation, reputation, and community values."[14] The critical 
difference between a cause of action for defamation and a cause of 
action for the publication of private facts is the truth of the 
communication at issue. The truth of a communication is an absolute 
defense to a cause of action for defamation; thus, when outspeech is 
true, the target of that speech may initiate legal action through the 
alternative avenue of a claim for the publication of private facts.

Patrice Arend enumerates three categories of defamation:  The first 
includes those allegations that are defamatory per se (as a matter of 
law); the second includes allegations that are "reasonably 
susceptible of a defamatory meaning;" and the third covers those 
which are not defamatory and cannot carry a defamatory meaning.[15]

For the second category of statements, those which may or may not be 
defamatory, courts require the plaintiff to show proof of injury. 
Arend states that the plaintiff must prove material injury arising 
from reputational loss, and she must further prove that the 
allegation at issue directly caused the material loss.[16] Arend says 
"the loss of customers or business, or a particular contract or 
employment, or of an advantageous marriage is sufficient to make the 
slander actionable."[17] The law of defamation provides no legal 
remedy for mental distress or emotional anguish in the absence of 
proof of material loss.
These categorical differences within defamation law are significant 
as applied to outing cases, with the arc of case law in this area 
reflecting changing social norms as well as larger legal patterns in 
LGBT jurisprudence.




Tort for Publication of Private Facts

Where the imputation being LGBT is true, a target of outing or 
outspeech has no recourse under defamation law, but may initiate an 
action for the publication of private facts. The tort of publication 
of private facts provides an avenue for recovery against the 
disclosure of truthful information, even in instances where that 
information has been lawfully obtained. It is this aspect of the tort 
-- that a defendant in a publication of private facts case may incur 
liability by publishing truthful information – that implicates the 
right to free speech. The Supreme Court, in the case Cox Broadcasting 
Corp. v. Cohn, described the "face-off" between the First Amendment 
and the right to privacy. The Court stated, "It is here that claims 
of privacy most directly confront the constitutional freedoms of 
speech and press."[18] If the information that is disclosed, however, 
is newsworthy, a plaintiff cannot prevail on a private facts claim. 
Just as the truth of a communication is an absolute defense to a 
cause of action for defamation, a finding of newsworthiness is an 
absolute defense to a claim for publication of private facts.


In order for a communication to be actionable under the tort, the 
communication must be 1) highly offensive to a reasonable person and 
2) not of legitimate concern to the public.
A third element of the tort for outing cases is the privacy or 
intimacy of the information. In other words, for a plaintiff to 
prevail on a private facts claim, the facts disclosed must be 
private. An LGBT person must have made efforts to keep her sexual 
orientation a secret. Yatar defines private facts as "those intimate 
details of a person's life that are normally not in the public gaze."[19]


Referencing Social Norms

Both defamation and the tort of publication of private facts, by 
including as a requisite element either community opinion (for 
defamation) or offensiveness (for the private facts tort), reference 
social norms or standards of behavior. A successful claim for either 
cause of action depends on the values and standards of the 
plaintiff's community.[20] Lidsky writes that in order to make such a 
determination a court must engage in a "sociological inquiry to 
discover the attitudes and beliefs of the community."[21] Lidsky was 
writing only of defamation and not of the tort for publication of 
private facts, but the necessity of inquiry and sociological 
discovery on the part of the court applies to both causes of action. 
A court will first conduct an inquiry into community values, evaluate 
those values, and, in pronouncing judgment, act as "a spokesperson 
for the community."[22] The goal of defamation law, Lidsky argues, is 
to establish what constitutes "socially reasonable communication."[23]

In addition, both Lidsky and Yatar suggest that what is defamatory is 
subject to social change. Likewise, this reasoning could apply to a 
finding of offensiveness. Yatar notes the refusal of our present-day 
courts to accept imputations or race or ethnic identity as 
defamatory.[24] Lisdky declares,

all defamation is based on social prejudices. One has only to look at 
the range of statements that courts have labeled defamatory to 
confirm this observation. For example, various courts have held that 
it is defamatory to say of a plaintiff that she is unchaste, an 
adulterer, a homosexual, a racist, a communist, or a fascist. The 
question then becomes whether and how courts should validate all such 
prejudices and how they should distinguish among them.[25]


The court's job of adjudging socially reasonable communication and 
affirming community values is made more difficult when the values of 
that community are in a state of transition. "Community values," 
Lidsky says, "are a moving target." This is especially so in the case 
of public attitudes towards LGBT people, who have met with increasing 
social acceptance over the past few decades and who have been 
mainstreamed into all walks of our national life.


Outing in Private Facts Cases: How Courts Have Ruled

Cases claiming the disclosure of private facts on the basis of a 
revelation of sexual orientation have been relatively few in number. 
These few cases include Sipple v. Chronicle Publishing, Diaz v. 
Oakland Tribune, Inc. and Cinel v. Connick.

Sipple v. Chronicle Publishing

In 1975, a former Marine named Oliver Sipple became the focus of 
media attention after he foiled an assassination attempt on the life 
of President Gerald Ford. Two days after the assassination attempt, 
the San Francisco Chronicle published an article discussing Sipple's 
role as a prominent member of San Francisco's gay community. Sipple 
lived as an openly gay man in San Francisco: He went to gay bars, 
marched in gay pride parades and was well-known to leaders of the gay 
movement in the city. The story of Sipple's sexual orientation was 
widely reported elsewhere, and it fed speculation that President 
Ford's failure to thank Sipple may have been attributed to bias by 
the President. Sipple sued The San Francisco Chronicle for 
publication of private facts on the grounds that while he was an 
active participant in San Francisco's gay community, he had kept his 
sexual orientation a secret from relatives. Sipple's parents and 
siblings first learned of Sipple's homosexuality through the press 
which, Sipple claimed, resulted in his family rejecting him. He 
asserted that he had been subjected to "contempt and ridicule causing 
him great mental anguish, embarrassment and humiliation."[26]

The San Francisco County Superior Court rejected Sipple's claims and 
ruled in favor the newspaper. The appellate court affirmed, reasoning 
that the facts disclosed by the newspaper were not private facts 
since Sipple's sexual orientation was already known to "hundreds of 
people."[27] Sipple's sexual orientation, the court ruled, was 
"already in the public domain"; therefore the disclosure of his 
sexual orientation by The Chronicle "did no more than give further 
publicity to the matter which (Sipple) left open to the eye of the 
public."[28] Second, the Court held that Sipple's sexual orientation 
was newsworthy for revealing a possible prejudice on the part of 
President Ford. Finally, the Court ruled that the disclosure of 
Sipple's sexual orientation was not "so offensive […] as to shock the 
community notions of decency."[29]

Diaz v. Oakland Tribune, Inc.

This 1983 case centered on the disclosure by The Oakland Tribune of 
the transsexuality of Toni Diaz, the first woman student body 
president of a California college. Diaz had guarded her sex-change 
surgery as a closely-held secret, and brought suit for publication of 
private facts. A lower court ruled in Diaz' favor and the appeals 
court affirmed, finding that because Diaz had safeguarded the 
information about her operation, her sexual identity was a private 
and not a public fact. The court further rejected the newspaper's 
claims that Diaz' sexual identity was newsworthy as a result of her 
involvement in a public controversy. Diaz had accused the college 
administration of misusing student monies. The Diaz court found the 
revelation of Diaz' sexual identity to be irrelevant to the public 
controversy at issue and therefore not newsworthy. The court ruled 
that "the fact that she is a transsexual does not adversely reflect 
on her honesty or judgment. Nor does the fact that she was the first 
woman student body president, in itself, warrant that her entire 
private life, be open to public inspection."[30]

Cinel v. Connick

In a third case, Cinel v. Connick, a former Catholic priest filed 
suit against both the news media and the state of Louisiana over the 
broadcast of a video showing the plaintiff  having sexual contact 
with another man. The Fifth Circuit asked whether the plaintiff's 
videotaped actions were an issue of legitimate public concern. The 
Court concluded that, despite its finding of the offensiveness of the 
disclosure, the disclosure of the videotape was of legitimate public 
concern insofar as they "related to the plaintiff's guilt or 
innocence of criminal conduct."[31] Sodomy was criminalized in the 
state of Louisiana until 2003.

In his discussion of the private facts tort, Ronald Wick notes that 
LGBT outing targets face an uphill fight in prevailing on a private 
facts claim. He writes, "Plaintiffs will have difficulty proving 
their sexual orientation was a private fact, and those plaintiffs who 
overcome that hurdle are likely to be stopped by the newsworthiness 
defense"[32] The First Amendment Center, in its discussion of the 
tort, supports this analysis, writing, "The make-or-break issue in 
these cases is whether the disclosed information is really 
private."[33] In the last analysis, Wick argues, the tort provides 
little protection to outing targets.  If Wick is correct, the 
difficulty of prevailing on a private facts claim may account for the 
relative paucity of private facts lawsuits, especially in comparison 
with the far greater numbers of outing-based defamation suits.


Outing as a Basis for Defamation: How Courts Have Ruled

The case law shows a striking uniformity on the issue of whether the 
imputation of being LGBT may be the basis for a defamation suit. An 
"overwhelming majority" of courts that have addressed the issue have 
held a false imputation of being LGBT is defamatory.[34] Yatar cites 
a string of both state and federal courts decisions in Minnesota, 
Missouri, Ohio, Maryland, and Delaware to support this conclusion. 
While some courts have ruled that calling a person LGBT is defamatory 
per se, others have required that a plaintiff provide proof of 
reputational injury. Until 2004, when Judge Nancy Gertner presided 
over the first defamation case following the Supreme Court's landmark 
decision in Lawrence v. Texas, no court in the nation had held that 
the imputation of being LGBT is incapable of carrying a defamatory meaning.

Courts' Reasoning: A Presumptive illegality: Bowers v. Hardwick

In recognizing a false imputation of being LGBT as defamatory, courts 
have reasoned that the imputation connotes criminal sexual conduct. 
In the case Buck v. Savage, the court held that an allegation that 
the plaintiff was "queer" was defamatory per se because "it imputed 
to the plaintiff commission of the crime of sodomy", which was 
illegal under state law.[35] Similarly, in Mazart v. State, the court 
ruled that the plaintiffs were defamed by the false identification of 
them in a student newspaper as "members of the gay 
community."[36]  The identification was defamatory, the court held, 
because the plaintiffs' community would make the assumption that the 
plaintiffs were engaged in criminal sexual conduct.[37]

In holding that calling a person LGBT is defamatory, the courts have 
thus held that an LGBT sexual orientation carries a presumptive 
illegality. The courts' reasoning in these cases relies on the 
Supreme Court's ruling in the case Bowers v. Hardwick, the 1986 case 
in which the Supreme Court upheld as constitutional the state of 
Georgia's sodomy law.

The case arose after Hardwick was discovered by police having sex 
with another man in the privacy of his home. The police had visited 
Hardwick's home to serve a warrant for an unrelated matter. The 
police arrested Hardwick, who was charged with violating the state's 
sodomy law. Hardwick then brought suit challenging the 
constitutionality of the statute. The District Court dismissed the 
case, but the U.S. Court of Appeals for the 11th Circuit reversed, 
ruling that the state law violated Hardwick's right to privacy, 
protected by the Ninth Amendment and by the due process clause of the 
14th Amendment. The Supreme Court reversed.

Writing for a 5-4 majority, Justice White framed the constitutional 
issue before the Court as whether "the Federal Constitution confers a 
fundamental right upon homosexuals to engage in sodomy."[38] The 
Constitution conferred no such right, Justice White wrote, and he 
dismissed the claim that lesbian and gay citizens have a privacy and 
liberty interest in private sexual conduct as "facetious at best."[39]

Four justices dissented. In his dissenting opinion, Justice Blackmun 
criticized the majority's reasoning and its construction of the 
constitutional issues presented.
By narrowly framing the question as whether the Constitution confers 
a fundamental right to engage in sodomy, the Court had failed to 
grasp the larger issue. That issue, Blackmun declared, is not the 
right to engage in sodomy, but the right of person to control her 
intimate relations.  The majority, Blackmun wrote, "really has 
refused to recognize […] the fundamental interest all individuals 
have in controlling the nature of their intimate associations with 
others."[40]  Georgia's sodomy law, Blackmun said, infringed upon 
Hardwick's constitutional rights to privacy and to "freedom of 
intimate association."[41] "Indeed," Blackmun wrote, "the right of an 
individual to conduct intimate relationships in the intimacy of her 
of her own home seems to me to be the heart of the Constitution's 
protection of privacy."[42]

The Bowers ruling has had far-reaching, and for LGBT citizens, 
disastrous, effects. Many states have relied on Bowers to justify a 
range of discriminatory policies, in areas including family law, 
state employment and public education. William Eskridge writes, 
"indeed, many state anti-gay presumptions and discriminations were 
expressly grounded upon the illegal conduct that defined the 
class."[43] Courts in outing cases have been no less reliant upon 
Bowers in consistently ruling that calling a person LGBT is 
defamatory because it imputes criminality. Bowers however, is no 
longer good law. When the Supreme Court revisited Bowers territory by 
considering the constitutionality of Texas' sodomy law in the case 
Lawrence v. Texas in 2003, it struck down the law and overruled 
Bowers. The Lawrence ruling has fueled intense speculation over its 
reach and impact and how far it may go towards wiping away the web of 
discriminatory policies which Bowers had enabled.
Lawrence v. Texas

Houston police, responding to a claim from a neighbor that "a 
suspicious black man" had entered Lawrence's apartment, discovered 
Lawrence and his partner (the supposedly suspicious man) having 
sex.[44] The officers arrested and jailed the two men. Under Texas 
law it was a misdemeanor for two consenting adults of the same sex to 
engage in "deviate sexual intercourse."[45] When Lawrence and his 
partner challenged their conviction in court, their challenge was 
rejected. The Court of Appeals in Texas affirmed the men's conviction 
on the grounds that the state law was constitutional and that Bowers 
was controlling in the case.

The Supreme Court reversed. The Court declared that Texas' sodomy law 
was unconstitutional for infringing upon the plaintiffs' rights to 
liberty and privacy. This was the same claim that the Court had 
rejected as "facetious" in Bowers v. Hardwick. The ruling not only 
struck down the Texas law, but finding that sodomy laws "demean the 
lives of homosexual persons,"[46] the ruling voided all of the 
nation's remaining sodomy laws, which were on the books in thirteen 
other states.[47] Writing for the majority, Justice Kennedy declared 
that the petitioners are "entitled to respect for their private 
lives. The state cannot demean their existence or control their 
destiny by making their private sexual conduct a crime."[48]

The Court overruled its decision in Bowers v. Hardwick.  "Bowers was 
not correct when it was decided, and it is not correct today," 
Justice Kennedy wrote.[49] "Bowers v. Hardwick should be and is now 
overruled."[50] The Court's reversal was stunning. Eskridge 
commented, "Never in its history has the Supreme Court so pointedly 
repudiated a precedent."[51] Justice O'Connor did not join the 
majority of five in overruling Bowers, but she  provided a sixth vote 
for declaring the Texas statute unconstitutional on the grounds that 
it violated the constitutional guarantee of equal protection. In her 
concurring opinion, O'Connor wrote, "the Texas statute makes 
homosexuals unequal in the eyes of the law."[52]

The Lawrence ruling effected a radical shift in the Supreme Court's 
treatment of sexual orientation from the presumptively criminal to 
"the presumptively irrelevant"[53] and its impact will likely be felt 
throughout the legal system. As noted earlier, many states relied on 
the Court's ruling in Bowers v. Hardwick to justify a range of 
discriminatory policies. The repudiation of Bowers signals the 
arrival of a new "jurisprudence of tolerance" and removes an enormous 
roadblock to the equality of LGBT citizens under the law.[54]
By rejecting the idea that LGBT citizens are presumptive "outlaws" 
and by invalidating all of the nation's remaining sodomy laws, the 
Lawrence ruling established the doctrine that LGBT sexuality cannot 
be classified as criminal.[55]  At the heart of Lawrence is the 
creation of a new constitutional baseline, one in which the Court, as 
Eskridge writes, discarded "the prior constitutional regime of 
Hardwick and initiated a new constitutional regime where tolerance of 
LGBT people is a floor below which state policy cannot fall."[56]

The Impact of Lawrence v. Texas

The first indication of Lawrence's impact on defamation law for 
targets of outspeech was felt in June, 2004, when U.S. District Judge 
Nancy Gertner of the U.S. District Court for the District of 
Massachusetts, citing the Lawrence ruling, found that calling a 
person homosexual cannot be the basis of a defamation suit. In the 
case James Albright v. Andrew Morton, Gertner dismissed a lawsuit by 
Morton, a former boyfriend of singer Madonna, who had claimed that he 
was defamed when he was mistakenly named in a photo caption in a book 
about Madonna. The photo showed Madonna walking with a gay man. 
Gertner wrote, "In 2004, a statement implying that an individual is 
homosexual is hardly capable of a defamatory meaning."[57]

Gertner's ruling is not only the first post-Lawrence defamation case 
involving a purported target of outspeech, it is also the first in 
the nation to hold that calling a person LGBT is incapable of 
carrying a defamatory meaning.[58]  Gertner wrote,

this court may well be the first to have the opportunity to assess 
plaintiffs' claims in the light of recent decisions giving legal 
force to homosexuals' ongoing quest for legal rights. In this day and 
age recent rulings by the Supreme Court and the Supreme Judicial 
Court of Massachusetts undermine any suggestion that a statement 
implying that an individual is homosexual is defamatory.[59]


Is Lawrence the Last Word?

Gertner's opinion voices the view that the Lawrence ruling concludes 
the legal discussion as to whether being called LGBT may be 
defamatory. By extension, the opinion also suggests that Lawrence may 
serve as the last word as to whether being called LGBT may meet the 
"offensiveness" requirement for the private facts tort. But Gertner's 
expectation may be premature, and the Lawrence ruling may not prove 
to be the panacea that LGBT advocates and allies have been banking 
on. Yatar cites Justice Scalia's statement that "The society that 
eliminates criminal punishment for homosexual acts does not 
necessarily abandon the view that homosexuality is morally wrong and 
socially harmful."[60] Social stigma may persist even in the absence 
of criminal statutes; the removal of one stone may not bring down the 
entire wall. In the case Murphy v. Pizarrio, Arend notes that despite 
the abolition of New York's anti-sodomy law, a federal district court 
still ruled that the false imputation of homosexuality was defamatory 
per se. Similarly, in Head v. Newton, 596 S.W.2d 209, 210 (1980), the 
Civil Court of Appeals of Texas cited Buck v. Savage in holding that 
calling a person homosexual or queer is defamatory per se even though 
"under the new Penal Code, the offense is no longer punishable by 
imprisonment."[61]  Gertner's prediction that the edifice of 
discrimination supported by Bowers may implode with Bowers' 
invalidation may be soberingly mistaken. The lesson of the Murphy 
ruling is that the decriminalization of LGBT sexuality does not imply 
wholehearted acceptance or equal social standing between LGBT 
citizens and their straight counterparts. The elusiveness of equality 
and the continuity of social stigmatization has consequences for 
defamation law and for the tort for publication of private facts as 
areas of law that include social norms and community values as core 
elements for causes of action.


Pandemic Discrimination

Discrimination on the basis of sexual orientation is pandemic within 
our society and legal system and it spans areas of law as diverse as 
employment, housing and public accommodations, legal recognition of 
LGBT relationships and LGBT family rights.

Title VII of the Civil Rights Act of 1964 proscribes employment 
discrimination by private and government employers on the basis of 
race, color, religion, sex, or national origin. This employment 
protection does not extend to sexual orientation. No federal 
protection against workplace discrimination based on sexual 
orientation exists. The Employment Non-Discrimination Act, which has 
been proposed in Congress, would provide such protection, but the 
bill has been treading water for years.[62] At the state level, only 
15 states ban discrimination on the basis of sexual orientation. In 
the remaining 35 states, it is still legal to fire or discriminate 
against an employee solely on that basis. The statistics on 
employment discrimination against LGBT people are nothing if not 
alarming. In a recent report by the Kaiser Family Foundation on the 
experiences of LGBT people, fifty-five percent of respondents stated 
that they had either experienced discrimination directly or knew 
someone who had been discriminated against in applying for or keeping 
a job.[63]

Mary Beth Heinzelmann also cites the serious problem of harassment of 
LGBT people in the workplace.  As Heinzelman discusses, statistics 
also indicate that the incidence of anti-LGBT violence in the 
workplace is linked with the relative openness of LGBT employees 
about their sexual orientation. In one survey, a large majority of 
LGBT people (78%) expressed some degree of concern over being 
targeted and subjected to physical violence on account of their 
sexual orientation.[64] Heinzelmann cites data suggesting that such 
concerns "are not unfounded."[65] Heinzelmann also asserts that LGBT 
people have a harder time than do their straight counterparts in 
prevailing on claims about a hostile work environment. Even in states 
that ban workplace discrimination on the basis of LGBT orientation, 
such claims are difficult because of a lack of any consensus as to 
what constitutes a hostile work environment for LGBT people.


Title VIII of the Civil Rights Act of 1968, also known as The Fair 
Housing Act, outlaws discrimination in the sale, rental, advertising 
for sale or rental, or provision of brokerage services on the basis 
of race, religion, color, sex, disability, familial status, or 
national origin. LGBT citizens are not considered a protected class 
and are not covered by the Fair Housing Act. Lambda Legal reports 
that discrimination in housing is a "prevalent barrier" for LGBT 
citizens.[66] Lambda cites the study conduced by the Kaiser Family 
Foundation which found that thirty-four percent of LGBT people have 
either been discriminated against directly in the rental or purchase 
of a home on account of their sexual orientation or are acquainted 
with someone who has been the target of discrimination.


The only federal legislation pertaining to LGBT primary relationships 
is the Defense of Marriage Act (DOMA), which defines marriage as a 
union between one man and one woman and allows states to "ignore 
their full faith and credit obligations" under the U.S. Constitution 
when a same-sex marriage is performed in another state.[67] DOMA is 
legislation by exclusion , and there is no affirmative recognition of 
LGBT relationships at the federal level. DOMA laws have also been 
passed in several states. The only state which allows for same-sex 
marriage is Massachusetts, where the landmark ruling in the case 
Goodridge v. Department of Public Health in May, 2004 sparked the 
current national controversy over same-sex marriage. In the 2004 
election, voters in 11 states, anxious to safeguard against the 
possibility of similar rulings, approved ballot initiatives to amend 
their state constitutions to forever disallow same-sex marriages.


While only Massachusetts offers LGBT couples full marriage rights, a 
handful of
other states provide alternative forms of legal recognition. Vermont 
and California provide the option of civil unions; eight states offer 
domestic partnership heath care benefits to state employees.[68] 
Lambda Legal reports that an estimated 60 cities and counties 
nationwide have domestic partnership provisions.[69] Even these 
alternative legal arrangements, which provide some important 
protections such as visitation rights in municipal hospitals and 
facilities, provide none of the over 1000 federal rights and benefits 
available through marriage.

Family law, traditionally the province of state legislation, 
addresses such issues as the eligibility to adopt a child, child 
custody, parental visitation and the availability of second-parent 
adoption. State policies in this area are a wildly inconsistent 
patchwork, with some states broadly supportive of LGBT families and, 
at the other end of the spectrum, others that disable LGBT couples 
from building or sustaining families.[70]


In sum, no protective or affirmative legislation for LGBT citizens in 
the areas of employment, housing and public accommodations, 
relationship recognition and family rights exists at the national 
level, and at the state level, such protections are scarce, indeed. 
The twin evils of a pandemic level of discrimination against LGBT 
citizens and the complete absence of legal protection in the face of 
such discrimination provide painful evidence of the ongoing social 
stigmatization of LGBT citizens; they speak to
the social values of what Patricia Beattie Jung and Ralph F. Smith 
call our heterosexist and "heterocentric" system that "shapes our 
legal, economic, political, social, interpersonal, familial, 
historical, educational, and ecclesiastical institutions."[71] Our 
heterosexist society –  our "communities" for the purposes of the 
defamation and private facts causes of action -  privilege 
heterosexuality over alternative, LGBT sexualities and assigns to 
LGBT sexualities a low social value.


What the Law Should Be: Arguments for and Against the Imputation of 
LGBT as a Basis for Defamation or for a Finding of Offensiveness in 
the Private Facts Tort

Most of the analysts cited in this paper argue that the imputation of 
being LGBT should remain a viable basis for a finding of defamation 
or for a finding of offensiveness under the private facts tort. Yatar 
cites the continuing social stigmatization of LGBT people and the 
lack of legal protections to counter this stigmatization to argue 
that "one cannot expect the famed 'reasonable person' to not also 
think that an imputation of homosexuality is defamatory and highly 
offensive."[72] Similarly, Arend argues

the time has not yet arrived where falsely stating that someone is 
gay or lesbian leaves his or her reputation intact. Removing 
homosexuality from the legal system's list of "offensive" language 
may send a message to gays that the legal system is on their side, 
but it does not protect an individual, living in a bigoted community, 
whose livelihood is ruined by someone's name calling.[73]

Arend contends that eliminating sexual orientation as a basis for a 
defamation suit only serves to deprive LGBT citizens, who are already 
significantly disadvantaged, of the few legal options they may have 
at their disposal and strip them of any means of recourse.

While Arend and Yatar were both writing in the shadow of Bowers v. 
Hardwick, they did not base their arguments on the presumptive 
illegality of LGBT sexualities, but upon the idea that in a 
homophobic society, the forced disclosure of a person's same-sex 
orientation is harmful to that person, and that a refusal to 
recognize that harm by denying a basis for compensation hurts LGBT 
citizens more than it helps them. Anne Hydorn makes a similar point. 
Citing the case Sterling v. Borough of Minersville, in which a police 
officer's threat to forcefully disclose a gay teenager's sexual 
orientation to the teenager's family resulted in the teenager's 
suicide, Hydorn argues that outing only exacerbates LGBT people's 
existing marginalization.[74] Arend goes so far as to argue "that the 
court should never find defamation in such cases is to deny the 
extent to which homophobia exists. To deny the existence of prejudice 
because acknowledging it seems politically incorrect does a 
disservice to society."[75]  Likewise, Shapiro charges outing 
proponents with ignoring outing's "the real world effects."[76] The 
argument is well-intentioned but ultimately short-sighted, betraying 
an inadequate understanding the judiciary's role in the formation of 
social attitudes and social values and its institutional power to 
effect "positive outcomes" in society.[77]

Sociological inquiry in defamation and private facts torts
As argued above, by including as a requisite element either harm to 
community opinion (for defamation) or a finding of offensiveness (for 
the private facts tort), both causes of action reference social norms 
or standards of behavior. A court in either type of case is compelled 
to initiate a "sociological inquiry" into community values. The aim 
of this inquiry, Lidsky declares, is to arrive at a determination of 
what constitutes "socially reasonable communication."[78]

Said differently, courts are forced to make value judgments. The 
irony is that while Arend and fellow critics charge that "politically 
correct" reformers seem be thinking in a vacuum by failing to realize 
the toll that outspeech takes in the real, bricks and mortar, 
workaday world, these critics themselves fail to adequately 
appreciate the influence that these value verdicts exercise far 
beyond the confines of the courtroom.[79]

In other words, what happens inside the courtroom has an impact what 
happens outside of it. Lidsky writes, "a community is in a very real 
sense defined, created, affirmed and enforced by the process of 
identification, of inclusion and exclusion. The law is a powerfully 
constitutive force in this process."[80]  Thus, in determining what 
is defamatory or offensive, and deciding what constitutes a "socially 
reasonable communication", the courts are, in effect, "setting the 
boundaries of community."[81]

Understood thus, courts in these cases do not serve as simple, honest 
brokers engaged in a detached process of discovery, but are instead 
key actors in the choice, affirmation, and reinforcement of community 
values. Courts wield tremendous institutional power, not only to 
"shape outcomes" of controversies, as described by Lidsky, but to 
advance or retard normative and social change.[82] David Pollock 
voiced this view when he wrote, "how people perceive homosexuals is 
tied directly to how they are treated by […] social 
institutions."[83] Pollock further suggests, "as long as the law 
continues to reinforce the notion that being a homosexual is 'bad' or 
'offensive' […] gay people will continue to suffer institutional and 
psychological oppression."[84]

Judge Gertner certainly agreed. In her recent ruling in James 
Albright v. Andrew Morton, Gertner declared that calling a person gay 
cannot be the basis for a defamation suit. In dismissing Albright's 
claim, Gertner said, "a finding that such a statement is defamatory 
requires this Court to legitimize the prejudice and bigotry that for 
too long have plagued the homosexual community."[85] In a nutshell, 
judicial recognition that the imputation of being LGBT is defamatory 
or "offensive" places a judicial stamp of authority on homophobia and 
amounts to a declaration that homophobia is "both acceptable and 
'right-thinking'."[86] This the courts should not do. Citing the 
Supreme Court decision in Palmdore v. Sidoti, Lidsky writes, 
"Although the law may not be able to control 'private biases', 
neither may it 'directly or indirectly […] give them effect."[87]  To 
disagree is to deny the institutional and normative power of the 
courts in our society.



Concluding Remarks; Legal Solutions

The paper has argued that the imputation of being LGBT should be 
disallowed as the basis for a defamation suit or for a finding of 
offensiveness under the tort of the publication of private facts. 
Such a move in both areas of law would raise the baseline of the 
inquiry into community values. It would serve as a healthy and candid 
acknowledgment of the courts' role in the choice, affirmation and 
reinforcement of values. More importantly, it would produce a 
meaningful normative change by preventing the future complicity of 
the court system in giving effect to "private biases."[88] In his 
discussion of the Lawrence decision, Eskridge wrote that the Supreme 
Court had introduced a new doctrine which held that sexual 
orientation "ought to be treated as presumptively irrelevant as a 
matter of law."[89] This new doctrine of the irrelevance of sexual 
orientation is a justly-hailed aid to progress in LGBT jurisprudence, 
and no area of the law, including those discussed here, should be 
exempt from its reach.

If, however, Lidsky is right in declaring that bias is the source of 
defamation law, then eliminating the imputation of being LGBT as a 
basis for a defamation suit is only a surface solution that ignores 
the glaring moral shortcomings of defamation law at large. As Yatar 
and Lidsky have both noted, it was once possible to prevail on a 
claim of defamation for calling a person unchaste, a communist or a 
fascist. It was possible to prevail on a claim on the basis of an 
imputation of race or national identity. An area of law which exists 
principally to provide an arena for the validation of biases, both 
private and social, is fundamentally flawed. Given this history, 
perhaps the time has come to make defamation law itself part of the 
historical record.

The tort for publication of private facts is perhaps different. Aside 
from the basic distinction of the truth or falsity of a statement 
between these causes of action, the focus of those outing cases 
brought under the private facts tort is somewhat different from the 
focus of outing cases alleging defamation. The private facts cases 
reviewed for this article appear to place a greater emphasis on 
either the true privacy of the information disclosed or on the 
newsworthiness of the information or the tension between privacy and 
newsworthiness. In the cases studied here, the 'offensiveness' of the 
information disclosed appeared to be a secondary concern. The private 
facts tort also appears to have a much cleaner track record. Wick has 
discussed the difficulty of prevailing on a private facts claim, and 
the case history of outing indicates that far fewer lawsuits are 
launched under this tort than as defamation suits.[90] The tort's 
greater obscurity may have worked to its advantage, translating into 
a brighter history with fewer tainted episodes.

The private facts tort may therefore perhaps be more readily 
restructured. To recap, there are currently two elements to the tort. 
The plaintiff must prove that the communication at issue was 1) 
highly offensive to a reasonable person and 2) not of legitimate 
concern to the public. A third, "make or break" element of the tort 
is the privacy or intimacy of the information. [91] In other words, 
for a plaintiff to prevail on a private facts claim, the facts 
disclosed must be private or secreted.
One possibility for the tort's restructuring would be to remove the 
offensiveness element and to substitute in its place a new element, 
copied from defamation law, of proof of material harm. The remodeled 
tort would leave intact the existing elements of the intimacy of 
information and the critical issue of the information's relevance to 
public affairs. The improved tort's core elements would thus be 1) 
the intimacy of the information disclosed 2) the relevance or 
irrelevance of that information to public affairs and 3) proof of 
material harm resulting directly from the unauthorized disclosure of 
the intimate information.

This restructuring would accomplish several objectives: First, 
eliminating the troublesome 'offensiveness' element would get the 
court system out of the unwholesome business of validating private 
biases. In outing cases, specifically, the removal of the 
'offensiveness' requirement would neutralize sexual orientation, 
taking it off the table (and out of the nation's courtrooms) as a 
basis for a civil action and rendering it "presumptively irrelevant 
as a matter of law."[92]


The second proposed alteration to the tort is to require proof of 
material loss directly caused by the unauthorized disclosure. The 
inclusion of this element is critical to maintaining the tort's 
current balance between the right to free speech and the right to 
privacy. This can be understood as follows: If the tort were to be 
altered solely by the removal of the "offensiveness" element, the 
category of speech actionable under the tort would exponentially 
expand. The problem, however, with broadening the category of 
protected speech is that you are narrowing the boundaries of free 
speech; such an expansion, therefore, could not withstand First 
Amendment scrutiny. Daniel Solove has written that "Broader 
information privacy rules are not easily defensible under existing 
free speech law."[93] Restructuring the tort to include proof of 
material loss would serve to redraw the boundary of the tort to 
provide for its accommodation within a free speech framework, and to 
restore a "workable balance" between privacy and the First Amendment.[94]

Finally, the inclusion of this element in a restructured private 
facts tort would preserve the principal aim of tort law, which is to 
provide a civil remedy for civil wrongs.
Outing targets would enjoy continued access to an avenue for legal 
redress and compensation. If a workable balance between privacy and 
the First Amendment can be struck, then other workable balances may 
also be realized, and ostensibly competing concerns accommodated 
within the same legal framework. Lawrence's "jurisprudence of 
tolerance" and its legacy of "the presumed irrelevance of sexual 
orientation under the law" may be readily reconciled with a revised 
tort authorizing private actions for the disclosure of intimate 
information.[95]  This is not a zero-sum game. LGBT citizens and 
their allies can work to build the legal infrastructure that advances 
social change without failing to serve and protect individual citizens.





Bibliography

Patrice S. Arend, Defamation in an Age of Political Correctness: 
Should a False Public Statement that a Person is Gay be Defamatory, 
18 N. Ill. U.L. Rev. 99 (Fall, 1997)

Todd Brower, Of Courts and Closets: A Doctrinal and Empirical 
Analysis of Lesbian and Gay Identity in the Courts, 38 San Diego L. 
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John P. Elwood, Outing, Privacy and the First Amendment, The Yale Law 
Journal, Vol. 102, No. 3, pp. 747-776, (December, 1992)

William N. Eskridge, Jr., Lawrence's Jurisprudence of Tolerance: 
Judicial Review to Lower the Stakes of Identity Politics, 88 Minn. L. 
Rev. 1021 (May, 2004)

Jon E. Grant, Outing and Freedom of the Press: Sexual Orientation's 
Challenge to the Supreme Court's Categorical Jurisprudence, Cornell 
Law Review, 77 Cornell L. Rev. 103 (November, 1992)

Mary Beth Heinzelmann, The "Reasonable Lesbian" Standard: A Potential 
Deterrent Against Bias in Hostile Work Environment Cases, 12 Law & 
Sex. 337 (2003)

David L. Hudson, Jr., "Privacy & Newsgathering", published by The 
First Amendment Center, available online at www.firstamendmentcenter.org

Anne C. Hydorn, Does the Constitutional Right to Privacy Protect 
Forced Disclosure of Sexual Orientation?, 30 Hastings Const. L.Q. 237 
(Winter, 2003)

Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of 
Community, 71 Wash. L. Rev. 1 (January, 1996)

David H. Pollack, Forced Out of the Closet: Sexual Orientation and 
the Legal Dilemma of "Outing", 46 U. Miami L. Rev. 711, (1992)

Lisa Power & Michelangelo Signorile, "Head to Head: Public 'Outing of 
Lesbians and Gays", The Guardian, March 8, 1992

Mathieu J. Shapiro, When is a Conflict Really a Conflict? Outing and 
the Law, 36 B.C. L. Rev 587 (May, 1995)

Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy 
Protections Against Disclosure, 53 Duke L.J. 967, (December, 2003)

Hilary E. Ware, Celebrity Privacy Rights and Free Speech: 
Recalibrating Tort Remedies for "Outed Celebrities", 32 Harv. 
C.R.-C.L. L. Rev 449 (Summer, 1997)

Ronald F. Wick, Out of the Closet and Into the Headlines: "Outing" 
and the Private Facts Tort, 80 Geo. L.J. 413, (December, 1991)

Eric K.M. Yatar, Defamation, Privacy and the Changing Social Status 
of Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, 
12 Law & Sex. 119 (2003)

[1]  The other tort remedies, false light and the intentional 
infliction of emotional distress, are not treated in this paper. Both 
were excluded as a result of the difficulty a plaintiff faces in 
prevailing on a claim under either of these alternative remedies and 
the consequent lack of outing cases in both areas of law. Hilary Ware 
has observed that the elements of the false light tort render it 
"virtually unavailable as legal recourse," while the requirements for 
establishing emotional distress are likewise "virtually 
insurmountable." See Ware, Celebrity Privacy Rights and Free Speech: 
Recalibrating Tort Remedies for "Outed Celebrities", p.12
[2]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.8
[3]  Shapiro, When is a Conflict Really a Conflict? Outing and the Law, p.1
[4]  Power and Signorile, "Head to Head"
[5]  Shapiro, When is a Conflict Really a Conflict? Outing and the Law, p.8
[6]  Elwood, Outing, Privacy and the First Amendment, p.770
[7]  Elwood, Outing, Privacy and the First Amendment, p.774

[8]
  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.2
[9]  Ware, Celebrity Privacy Rights and Free Speech: Recalibrating 
Tort Remedies for "Outed Celebrities", p.9
[10]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.3
[11]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.3
[12]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.3
[13]  Lidsky, Defamation, Reputation, and the Myth of Community, p.1
[14]  Lidsky, Defamation, Reputation, and the Myth of Community, p.1
[15]  Arend, Defamation in an Age of Political Correctness: Should a 
False Public Statement that a Person is Gay be Defamatory?, p.1
[16]  Arend, Defamation in an Age of Political Correctness: Should a 
False Public Statement that a Person is Gay be Defamatory?, p.3
[17]  Arend, Defamation in an Age of Political Correctness: Should a 
False Public Statement that a Person is Gay be Defamatory?, p.3
[18]  Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
[19]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.6
[20]  A finding of defamation does not require reputational harm 
within an entire community or even a majority of the plaintiff's 
community, but only with a "substantial and respectable minority" of 
the plaintiff's community. See Lidsky. The U.S. Supreme Court 
established this substantial and respectable minority doctrine in the 
case Peck v. Tribune Co.
[21]  Lidsky, Defamation, Reputation, and the Myth of Community, p.1
[22]  Lidsky, Defamation, Reputation, and the Myth of Community, p.8
[23]  Lidsky, Defamation, Reputation, and the Myth of Community, p.4
[24]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.2
[25]  Lidsky, Defamation, Reputation, and the Myth of Community, p.9

[26]  Sipple v. Chronicle Publishing, 201 Cal. Rptr. 665, 670 (Ct. App. 1984)
[27]  Sipple v. Chronicle Publishing
[28]  Sipple v. Chronicle Publishing
[29]  Sipple v. Chronicle Publishing. Note: my analysis and summary 
of this case relies on Elwood.
[30]  Diaz v. Oakland Tribune, Inc. 188 Cal. Rptr. 762 (Ct. App. 1983)
[31]  Cinel v. Connick, 15 F. 3d 1338 (1994)
[32]  Wick, Out of the Closet and Into the Headlines: "Outing" and 
the Private Facts Tort, p.8
[33]  Hudson, "Privacy & Newsgathering", available online at 
www.firstamendmentcenter.org
[34]  Lidsky, Defamation, Reputation, and the Myth of Community, p.11
[35]  Buck v. Savage, 323 S.W. 2d 363, 369
[36]  Mazart v. State, 441 N.Y.S. 2d 600
[37]  Mazart v. State, 441 N.Y.S. 2d 600
[38]  Bowers v. Hardwick, 478 U.S. 186
[39]  Bowers v. Hardwick
[40]  Bowers v. Hardwick
[41]  Bowers v. Hardwick
[42]  Bowers v. Hardwick
[43]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.5
[44]  Lawrence v. Texas, 123 S. Ct 2472 (2003)
[45]  The Texas Homosexual Conduct Law, Tex. Penal Code 21.06(a)
[46]  Lawrence v. Texas
[47]  These thirteen states were: Alabama, Florida, Idaho, Kansas, 
Louisiana, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, 
South Carolina, Utah and Virginia
[48]  Lawrence v. Texas
[49]  Lawrence v. Texas
[50]  Lawrence v. Texas
[51]  Eskridge, Lawrence's Jurisprudence of Tolerance
[52]  Lawrence v. Texas
[53]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.8
[54]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.3
[55]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.2
[56]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.8
[57]  James Albright v. Andrew Morton, 321 F. Supp 2d 130 (D. Mass, 2004)
[58]  Note Patrice Arend's statement that at least one court has 
ruled that the imputation of being LGBT cannot be defamatory per se 
because sodomy was not "deserving of social approbation." This case 
was Hayes v. Smith (832 P.2d 1022)
[59]  James Albright v. Andrew Morton
[60]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.16
[61]  Head v. Newton, 596 S.W.2d 209, 210 (1980)
[62]  See Lambda Legal's Out at Work report, available online at 
www.lambdalegal.org
[63]  Kaiser Family Foundation, Inside Out: A Report on the 
Experiences of Lesbians, Gays and Bisexuals in America and the 
Public's Views on Issues and Policies Related to Sexual Orientation 
(2001), available at http://www.kff.org
[64]  Kaiser Family Foundation, Inside Out: A Report on the 
Experiences of Lesbians, Gays and Bisexuals in America and the 
Public's Views on Issues and Policies Related to Sexual Orientation 
(2001), available at http://www.kff.org
[65]  Heinzelmann, The "Reasonable Lesbian" Standard, p.6
[66]  Information obtained from Lamdba Legal's web site, www.lambdalegal.org
[67]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.11
[68]  According to Lambda Legal's Marriage Project, these eight 
states are: California, Connecticut, New Jersey, New Mexico, New 
York, Oregon, Rhode Island, and Washington.
[69]  See Lambda Legal's Marriage Project at www.lambdalegal.org
[70]  see Lambda Legal's Overview of State Adoption Laws, available 
online at www.lambdalegal.org
[71]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.11
[72]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence, p.1
[73]  Arend, Defamation in an Age of Political Correctness: Should a 
False Public Statement that a Person is Gay be Defamatory?, p.6
[74]  Hydorn, Does the Constitutional Right to Privacy Protect Forced 
Disclosure of Sexual Orientation?
[75]  Arend, Defamation in an Age of Political Correctness: Should a 
False Public Statement that a Person is Gay be Defamatory?, p.7
[76]  Shapiro, When is a Conflict Really a Conflict? Outing and the Law, p.10
[77]  Lidsky, Defamation, Reputation, and the Myth of Community, p.13
[78]  Lidsky, Defamation, Reputation, and the Myth of Community, p.1
[79]  Arend, Defamation in an Age of Political Correctness: Should a 
False Public Statement that a Person is Gay be Defamatory?, p.1
[80]  Lidsky, Defamation, Reputation, and the Myth of Community, p.15
[81]  Lidsky, Defamation, Reputation, and the Myth of Community, p.3
[82]  Lidsky, Defamation, Reputation, and the Myth of Community, p.13
[83]  Pollack, Forced Out of the Closet: Sexual Orientation and the 
Legal Dilemma of "Outing"
[84]  Pollack, Forced Out of the Closet: Sexual Orientation and the 
Legal Dilemma of "Outing"
[85]  James Albright v. Andrew Morton
[86]  Yatar, Defamation, Privacy and the Changing Social Status of 
Homosexuality: Rethinking Supreme Court Gay Rights Jurisprudence
[87]  Palmdore v. Sidoti, 466 U.S. 429 (1984)
[88]  Palmdore v. Sidoti
[89]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.8

[90]  Wick, Out of the Closet and Into the Headlines: "Outing" and 
the Private Facts Tort, p.8
[91]  Hudson, "Privacy & Newsgathering", available online at 
www.firstamendmentcenter.org
[92]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.8
[93]  Solove, The Virtues of Knowing Less, p.1
[94]  Solove, The Virtues of Knowing Less, p.5
[95]  Eskridge, Lawrence's Jurisprudence of Tolerance, p.3, 8