Variable Nature of Defamation
THE VARIABLE NATURE OF DEFAMATION:
SOCIAL MORES AND ACCUSATIONS OF HOMOSEXUALITY
by
Elizabeth M. Koehler
Ph.D. student,
University of North Carolina at Chapel Hill
100 Rock Haven Rd. #G-204
Carrboro, NC 27510
Phone: 919-962-1204 (office); 919-969-8183 (home)
Fax: 919-962-0620
email: [log in to unmask]
A student paper submitted to the Law Division
Association for Education in Journalism and Mass Communication
Annual Convention: Anaheim, Calif., August 10-13, 1996
ABSTRACT: "The Variable Nature of Defamation: Social Mores and
Accusations of Homosexuality"
by Elizabeth M. Koehler, University of North Carolina at
Chapel Hill
[log in to unmask]
This paper explores the fluid and variable nature of defamation
through the example of defamation suits arising from accusations of homosexual
and bisexual orientation. What is considered defamatory is inexorably tied to
the attitudes of the community. Because defamation is tied so closely to
societal norms and mores, its meaning is quite fluid, changing with the times
and, one might suppose, the characteristics of the community in which any given
case is litigated. Part of what is notable in the historical development of
defamation is not only the remarkable stability of its definition, but also the
remarkable instability of its interpretation.
An interesting and timely illustration of this interdependency of
legal interpretation and social norms involves allegedly false accusations of
homosexuality and bisexuality. At least 52 such cases have been litigated -- 18
at the appellate level in the last decade alone. Negative attitudes toward
homosexual orientation (mostly arising from the notion that homosexual activity
is illegal and/or immoral) have varied over time, as well as among different
types of communities. Cases arising from accusations of non-heterosexual
orientation might therefore illustrate well the interdependence of social
standards and the meaning of defamation.
Variable Nature of Defamation
The Variable Nature of Defamation:
Social Mores and Accusations of Homosexuality
The generally accepted definition of defamation is a fairly
straight-forward one: defamatory statements are those statements tending to
"expose another to hatred, ridicule or contempt."[1] The plaintiff must prove
"the community in which publication occurred, in fact, deemed the statement . .
. sufficiently authoritative and disparaging to warrant their lowered esteem
for
the plaintiff."[2] As must be obvious from this definition, what is considered
defamatory is inexorably tied to the community and there would seem to be an
intimate intertwining of social standards and the meaning of defamation.
Because defamation is tied so closely to societal norms and
mores,[3] its meaning may be quite fluid, changing with the times and, one might
suppose, the characteristics of the community in which any given case is
litigated. There are examples of such change in cases involving accusations of
communist sympathies[4] and in cases involving false accusations concerning skin
color.[5]
An interesting and timely illustration of this interdependency of
legal interpretation and social norms involves allegedly false accusations
homosexuality and bisexuality. At least 52 such cases have been litigated -- 18
at the appellate level in the last decade alone.
Negative attitudes toward homosexual orientation (mostly arising
from the notion that homosexual activity is illegal and/or immoral) have varied
not only over time, but also between different locations (some regions of the
country have earned a reputation for being more tolerant than others) and among
various sizes and types of communities (e.g., rural areas have commonly tended
to be less tolerant of such deviation from the norm than big cities with their
more diverse mix of inhabitants).
A temporal shift in attitudes can be tracked somewhat with opinion
polls. For instance, a 1970 Harris Poll asked 3,949 American adults whether
they felt "homosexuals" were "more helpful or more harmful to American life, of
whether you think they don't help or harm things much one way or the other."
Only 2 percent felt gay persons were helpful to American life, while 54 percent
felt they were more harmful to American life, and 33 percent said they neither
helped or harmed. Five years later, 1 percent said gay persons were helpful to
American life, but only 40 percent said they were more harmful to American life.
Nearly 50 percent said it didn't matter one way or the other.
In what would appear to be a continuation of this trend, 72 percent
of those responding to a 1978 Harris poll said they believed "homosexual
relations in private between consenting adults" was an activity that should be
left to the individual instead of being regulated by law. Only 19 percent felt
such activity ought to be totally forbidden by law. On the other hand, a 1990
Harris poll posing the same question found perhaps a slight shift in opinion in
the other direction, 67 percent responding such activity ought to be left to the
individual and 24 percent saying it ought to be totally forbidden by law. But
perhaps this is merely an indication of the currently volatile nature of
opinions regarding homosexuality. In a 1992 Harris poll that asked respondents
whether George Bush or Bill Clinton had the better policies regarding "gay
rights and law to prohibit discrimination against gays and lesbians," 45 percent
chose the more liberal, gay-tolerant policies of Clinton while 30 percent chose
Bush's policies.
It is possible that shifts in public opinion about homosexuality
might be reflected in court decisions in cases arising from allegedly false
accusations of homosexuality and bisexuality. If so, this would illustrate the
interdependence of social norms and the interpretation of the definition of
defamation. The purpose of this paper, then, is to explore the possibly fluid
and variable nature of defamation via the example of actions arising from
accusations of non-heterosexual orientation.
Literature Review
The investigation in this paper implies the intersection of at
least two distinct fields in the study of law: the law of defamation and the
law associated with gay and lesbian issues. As the former is the primary focus
of this paper, it will be addressed in greater depth than the latter. To allow
a better understanding of the various issues that arise in litigation concerning
accusations of homosexuality, a very basic and simplified account of the
literature concerning the historical development of defamation law will be
presented first, including a look at literature describing the reliance of
defamation law on society and vice versa. The pertinent literature from lesbian
and gay legal studies will be addressed at the end of the literature review,
concluding with a study by Randy M. Fogle that addresses the question of whether
it is defamatory to call someone gay and explores ways to assist courts in
making such determinations.
Historical development and social aspects of defamation. The
individual's reputation has had social value as long as societies have existed;
over time, it also has acquired moral and legally enforceable value, as well.
The Bible said that "a good name is to be sought above all else," and William
Shakespeare, in the tragedy "Othello," wrote that "he that filches from me my
good name/Robs me of that which not enriches him,/And makes me poor indeed."[6]
Early English ecclesiastical courts believed defamation was a sin, but the state
entered the picture when it was feared citizens would surely take the law into
their own hands to defend their tarnished honor.[7]
From the beginning of defamation law, the courts relied heavily on
social norms in determining what was to be considered defamatory. Instead of
attempting to define "reputation" in the abstract, the courts "have inquired
whether such statements would be likely to elicit certain specific responses
from those to whom the statements were published."[8] In a sense, the courts
have used society as a kind of mirror, observing personal reputation and dignity
only by way of their reflection in the reactions of reasonable persons within
the community. While the determination of what is defamatory and what is not
may change along with those reasonable persons, the definition of defamation has
remained constant since at least the 1933 case of Kimmerle v. New York Evening
Journal Inc.[9] A defamatory statement, it was determined, is one "tending to
expose one to public hatred, shame, obloquy, contumely, odium, contempt,
ridicule, aversion, ostracism, degradation, or disgrace."[10]
Yet part of what is notable in the historical development of
defamation is not only the remarkable stability of its definition, but also the
remarkable instability of its interpretation. For instance Judge Learned Hand
stated in Grant v. Reader's Digest[11] that, judging from opinions handed down
in New York, it seemed to be a condition that an allegedly defamatory statement
must arouse "hatred, contempt, scorn, obloquy or shame" from "'right-thinking'
people" to be actionable. Even so, he went on to say, it has been decided that
the "imputation of extreme poverty might be actionable, although certainly
'right-thinking' people ought not shun, despise or otherwise condemn one because
he is poor . . . . It is enough there be some, as there certainly are, who would
feel [it was disgraceful to be an agent for the Communist Party], even though
they would be 'wrong-thinking' people if they did."[12] Even acknowledging the
more considered position that it was not an inherently bad thing to be a
communist, Hand had to acknowledge that many would feel it was a bad thing.
Some 15 years earlier, this was not necessarily true.[13] Nor was it
necessarily true nearly 30 years later.[14] Yet strictly because of social
mores at the time, Hand felt compelled to decide that an accusation of communist
involvement was, in fact, defamatory.
The editors of Harvard Law Review in 1956 offered another
definition of what it means to be defamed, one that perhaps more clearly reveals
the connection between defamation and community standards. A statement is
defamatory, they wrote, "if it tends to expose the plaintiff to 'contempt,
aversion, disgrace, or induce an evil opinion of him or deprive him of friendly
intercourse in society.'"[15] As already discussed, this rather blatant appeal
to social mores is no accident; in a very practical sense, it is the only
measure by which courts can interpret defamation.
A 1989 California Law Review article critically explored the
complex relationship between the individual and the society in which he or she
lives. It noted that communities large and small, north and south differ in
what they require from their members in the way of "civility, decency, and
morality . . . . Together such norms will constitute the practices and the way
of life that make each community the distinctive social entity that it is."[16]
Arguably, one's sense of dignity and self-respect often arise from whether one
is accepted and appreciated within one's community. And the community as a
whole ceases to be a community when its members cease to seek such approval and
affirmation from their peers. Therefore, as noted by Prof. Robert Post in his
Social Foundations of Defamation Law, not only does defamation law protect an
individual's sense of self-worth and dignity, but also the "enforcement of
society's interest in its rules of civility, . . . its interest in defining and
maintaining the contours of its own social constitution."[17] In this way,
defamation and societal mores become profoundly and fundamentally intertwined.
Because of the interdependence of societal mores and defamation --
and especially, for the purposes of this paper, the reliance of the latter upon
the former -- it would be logical to assume that cases discussing the defamatory
or non-defamatory nature of an accusation of homosexuality might change over
time, both in terms of their outcomes and their reasoning.[18]
Lesbian and gay legal studies. Most of the recent legal research
on issues of concern to lesbians and gay men, as well as to bisexual,
transsexual and transgendered persons,[19] has focused on the various legal
aspects of the gay rights struggle -- gay marriage;[20] the discharge and
reinstatement of gay soldiers;[21] the custody battles of lesbian mothers,[22]
the effect of the AIDS crisis on employers' insurance concerns and employees'
job security;[23] the constitutionality of anti-gay-rights initiatives and
ordinances;[24] and the dismissal of teachers who are (or are suspected to be)
gay men or lesbians.[25] Underlying all these issues is the more basic issue of
discrimination against and general contempt for non-heterosexual members of U.S.
society. Yet, with the exception of "outing"[26] and hate speech,[27] the legal
aspects of the stigma attached to lesbians and gay men are not normally
discussed.
Specifically, the question of whether it is defamatory and thus
possibly libelous to be called "gay" or "lesbian" (or some scurrilous variation
thereon) remains virtually unaddressed in the literature. It is possible that
part of the reason for this omission is that when the issue arises as part of a
libel suit (as it often does), it is usually alleged the charge is false. If
the accusation of homosexuality in these cases really is false, then the
concern, of course, belongs to a heterosexual person, not a lesbian or gay
man.[28]
There is one very recent article in the journal Law & Sexuality
that has addressed the issue head-on. Randy M. Fogle, in his Is Calling Someone
"Gay" Defamatory?: The Meaning of Reputation, Community Mores, Gay Rights and
Free Speech,[29] briefly addressed litigation of accusations of homosexuality.
He concluded the courts have avoided the question of whether such accusations
are defamatory by not creating a separate category of per se defamation for
accusations of homosexuality.[30] His approach suggests both an assumption that
such accusations ought to be considered defamatory and a reluctance to
acknowledge the sometimes slow-moving and deliberate development of the common
law. Fogle suggested that decisions based upon the existence of sodomy laws
avoid the question of reputation altogether because it equates homosexuality
with the commission of the crime of sodomy. However, Fogle chooses only to
discuss cases that have been decided on such grounds in his analysis. This
study, on the other hand, suggests that the diversity of reasoning in these
defamation cases is much broader than Fogle has acknowledged.
In his study, Fogle dismissed what he perceived to be a complete
failure by the courts to address the issue of whether it is injurious to one's
reputation to be called gay or lesbian. He recommended the courts view the
existence of sodomy and gay rights laws in a given community as indicators of
the community's attitudes toward gay men and lesbians, and therefore as
indicators of whether it would injure one's reputation to be called lesbian or
gay.
Without addressing the strengths and weaknesses of his proposal,
this paper departs from Fogle's expectation of judicial activism and his
normative approach to the topic. Instead, this paper examines the "tough
decisions" the courts have already attempted to make about defamation and
homosexuality without passing judgment on the propriety of those decisions.
Instead of suggesting a new way for the courts to interpret the question, this
paper merely examines the evolution of the interpretation of the issue within
the constraints current interpretation of the common law has already established
for the courts. It observes to what extent decisions of whether it is
defamatory to call someone gay are already possibly reflective of social norms
-- including those decisions in which the imputation of criminality is the
central issue.
Research Questions and Method
This paper will address the following research question: When and
where has it been considered defamatory to call someone a homosexual?
This study will undertake a critical examination of defamation
cases involving such accusations. A LEXIS search under the terms (libel! or
slander! or defam!) and numerous variations on the terms "gay" and "lesbian" and
"bisexual"[31] yielded at least 700 cases and 300 A.L.R. annotations. In all,
52 cases proved to fit the parameters of this study. The earliest case is
Malone v. Stewart,[32] decided in 1846. The most recent case, Lancer Insurance
Co. v. D.W. Ferguson, was decided in January 1995.[33]
A related topic is that of AIDS and defamation. A search on LEXIS
yielded a couple dozen cases and one or two A.L.R. annotations. A brief
investigation revealed that many of these cases dealt with "false positive" HIV
test results.[34] At least one case deals with the distinction between having
AIDS and merely testing positive for exposure to the HIV virus, which causes
AIDS.[35] The cases found in this category will not be examined more fully in
this study because of space and time constraints.
The focus of the analysis in this paper will be two-fold: the
decision of whether the statements at issue were defamatory and the reasoning
used to explain that decision. These two elements will be compared and
contrasted over time and from region to region of the country.
Analysis of Cases
The accusation of homosexuality is a very serious one to some
people. In 1954, for instance, a short-tempered seaman considered such an
accusation serious enough to take a meat cleaver to the head of the shipmate who
had leveled that claim at him, murdering the ship's cook.[36] On the other
hand, defamation cases tend to be a bit more tame, sometimes even confusingly
subtle. Take, for instance, the claim of David Logan, a gay man and owner of a
hair salon in Alabama in the mid-'80s. He sued Sears, Roebuck & Co. for
defamation because one of their credit card phone operators called him "queer"
to a coworker. "[T]he word 'queer' just bothers me," he said in his deposition,
"because I am not 'queer.'"[37]
Nevertheless, the general feeling among those filing suit because
they've been accused of being gay or lesbian (or one of several dozen related
epithets) is that homosexuality, if not sinful, is certainly despicable. The
feelings of one former Secret Service agent are quite typical. He thought he
would "no longer be regarded as 'heterosexual, moral, law-abiding, sexually
normal, disease-free, blackmail proof, free from public ridicule and worthy of
respect.'"[38]
The nature of the claims. Most of the defamation cases resulting
from accusations of homosexuality are cases arising from alleged slander and
deal with employment -- primarily any job that involves teaching, working with
children, or working in the clergy.[39] Often, someone will inform an employer
that an employee is a lesbian or a gay man out of spite or ill-will, hoping to
get the employee fired or demoted. For instance, a Colorado schoolteacher's
career was effectively derailed in 1991 by a spiteful former female business
partner. After disagreements arose between the two, the business partner went
to the schoolteacher's superintendent and charged the teacher with having
attempted "to establish a homosexual relationship" with her and with having
"proposed marriage."[40] Also, whether or not their fears are unfounded,
parents will frequently turn to school officials out of concern for their
children's safety when they suspect a teacher is gay.[41]
Important, too, are those working with children, though not
necessarily as teachers. In a 1974 case, the plaintiff was enjoined by the Boy
Scouts of America from affiliating his "Sea Scouts" with Boy Scouts because of
suspicions he was a gay man. Boy Scouts also steered two parents away from his
"Sea Scouts" by implying that he was homosexual. In its opinion the court
observed that,
. . . there is no doctrine of law which would require a responsible
organization like the Boy Scouts to accept individuals in leadership roles who
have questionable character . . . . The future of its youth is a nation's most
precious asset; yet by definition the young are frail, vulnerable and
malleable. Their future strength may well be dependent upon whether they are
exposed to positive leadership or abusive exploitation . . . . I do not find
that those civil rights cases assuring blacks equal options have any
precedential value in establishing for a purported homosexual any
constitutional right to run a Boy Scout Troop. Bluntly, blackness and
homosexuality are not the same phenomenon.[42]
Members of the clergy are the third category of individuals
frequently accused of homosexuality explicitly in connection with their
employment. One minister in Illinois was accused of luring members of his
congregation into homosexual encounters.[43] In another case, a woman was
denied priesthood in the Episcopal Church because she was accused of being
"engaged in a homosexual liaison" with another woman, among other things.[44]
Relatedly, businesses and careers are often perceived to be
devastated by accusations of homosexuality. A typical example is that of a male
model whose picture was used in an ad published in a gay periodical. In that
case, in which the defendant was the popular gay magazine The Advocate, the
court determined that "the imputation of unchastity is libelous per se
regardless of whether a man or a woman is involved." Furthermore, "it implies
he endorses the views and conduct described therein."[45]
Even large corporations can suffer harm from accusations of the
homosexuality of their employees. In 1952, Neiman-Marcus Corp. claimed to be
hurt by a book that contained the claim that all the department store's male
employees were "faggots" and "fairies." According to the appellate court's
decision, representatives of the corporation had said in a deposition that
"prospective customers have been deterred from doing business with plaintiff
Neiman-Marcus for fear of coming in contact with immoral, unchaste and indecent
personnel." The company also suffered a "lowered morale" among its employees
and found it "difficult to recruit personnel of high calibre and reputation," in
addition to having gone to great expense to overcome "the adverse publicity and
the demoralizing effect" of the book.[46]
Another body of cases deals with name-calling and vulgarity.
Sometimes judges dismiss these as frivolous.[47] Other times they take them
seriously, as in the 1941 case of Morrissette v. Beatte.[48] A close decision
at a horse show in Rhode Island resulted in an altercation, during which one of
the two men involved used "a filthy term allegedly addressed to the plaintiff,
meaning coition by one man with another per os." The judge in this case
chastised the offending gentleman, calling such language "inexcusable" and
deserving of "the severest condemnation." As if to prove his point, he wrote
his entire opinion without once mentioning what he called the "vile expletive."
In another case of this genre, an amateur baseball player was
called a "damn fat fag" by another player. The case was dismissed on procedural
grounds (the plaintiff never informed the defendant of his intent to file suit),
but a footnote described the player's self-professed disgust at having been
called a "fag": "[It was] the lowest blow that was ever struck at me . . . . I
have nothing but detest for homosexuals, just -- the mere mention, if I shook
hands with a homosexual, then somebody told me that, I'd go out and wash my
hands rights away."[49]
Relatives of decedents accused of being gay have also attempted to
sue for defamation on behalf of the deceased (unsuccessfully, though, as
reputation often is said to die with the individual). Perhaps the most
interesting case of this kind was brought in 1979 by the parents of a young man
reported in a news broadcast to have been involved in a homosexual relationship
with his employer at the time he and his boss were murdered. His parents sued
because, they claimed, he was not actually involved in the reported relationship
and because they had been subjected to humiliation and ridicule as a result of
the broadcast. The court rejected their argument, deciding that "[a] libel upon
the memory of the deceased person that does not directly cause any personal
reflection upon his relatives does not give them any right of action."[50]
The issue of criminal imputation. One of the more common issues
used by courts to determine whether an accusation of homosexuality is defamatory
is that of criminality. Does an accusation of homosexuality imply homosexual
conduct? In at least four cases, the courts decided it did not.[51] In three
others, they decided it did impute criminal conduct to the plaintiff.[52]
Interestingly, the imputation of criminality is not always based on whether
there is a sodomy law on the books in a particular state. For example, in
Mazart v. State,[53] a lower court in New York decided an accusation of
homosexuality did impute crime to those accused, even though the sodomy law was
no longer on the books in that state. On the other hand, in Hayes v. Smith,[54]
the Colorado Court of Appeals determined an accusation of homosexuality was not
slander per se expressly because there was no longer a law in that state making
homosexual conduct a crime.[55]
The issues of perversion and unchastity. Imputations of
perversion, unnatural sex and unchastity constitute the next largest topic on
judge's minds when they address these defamation suits. The very earliest case
found for inclusion in this study was decided on this point. The accusation in
that case was that a "young girl" was called a hermaphrodite by an adult
neighbor. In an impassioned opinion, the judge said such an accusation against
a young girl "unsexes her; makes her a thing to be stared at; converts her into
a monster, whose very existence is shocking to nature; and excludes her from
social intercourse, and all hopes of marriage."[56]
Since then, the accusations of both male homosexuality and
lesbianism have been added to the list of accusations that imply "unchastity and
abnormal sexual behavior."[57] In one fairly recent case, a deputy sheriff in
New York sued a newspaper for publishing a personals ad listing his name and
telephone number as the contact for "further information regarding the meetings
of a . . . Gay Community Center.'"[58] Apparently the same thing had happened
to this same deputy sheriff a year and a half earlier, at which time he called
the newspaper to inform the publisher that the ad was "false and unauthorized by
him." The judge for the New York Supreme Court, Appellate Division, said the
advertisement was libelous per se because it imputed "homosexual behavior" to
the plaintiff, which, "[r]ightly or wrongly, many individuals still view . . .
as immoral."[59]
The issue of the social acceptability of homosexuality.
Deliberations concerning the ramifications of social acceptance or
non-acceptance of homosexuality were among the most interesting. While many
judges expressed the opinion that defamation decisions ought to reflect societal
norms and sentiment, their interpretation of those norms and that sentiment
varied dramatically. In New York in 1984, the defendants in one case claimed
that the imputation of homosexuality was no longer defamatory in U.S. society
because so many public officials had acknowledged their homosexuality that there
was no longer any stigma attached to being gay. The New York Court of Appeals
sent back a resounding rejection of that argument:
Rightly or wrongly, many individuals still view homosexuality
as immoral. Legal sanctions imposed upon homosexuals in areas ranging from
immigration to military service have recently been reaffirmed . . . . In short,
despite the fact that an increasing number of homosexuals are publicly
expressing satisfaction and even pride in their status, the potential and
probable harm of a false charge of homosexuality, in terms of social and
economic impact, cannot be ignored.[60]
And ironically, one year before Colorado voters passed "Amendment
2," a law attempting to deny equal protection from discrimination to lesbian and
gay residents, a Colorado appeals court judge handed down the following
decision:
. . . A court should not classify homosexuals with those miscreants
who have engaged in actions that deserve the reprobation and scorn which is
implicitly a part of the slander/libel per se classifications. For a
characterization of a person to warrant a per se classification, it should,
without equivocation, expose the plaintiff to public hatred or contempt.
However, there is no empirical evidence in this record demonstrating that
homosexuals are held by society in such poor esteem. Indeed, it appears that
the community view toward homosexuals is mixed [referring to the recent repeal
of the state's sodomy law].[61]
Two years later and two states away, the Missouri Supreme Court
expressed a very different opinion:
The harm inflicted by defamation is particularly sensitive to
the characteristics and situation of the injured party and of the society that
surrounds him or her. Attitudes change slowly and unevenly among different
groups. Despite the efforts of many homosexual groups to foster greater
tolerance and acceptance, homosexuality is still viewed with disfavor, if not
outright contempt, by a sizeable portion of our population....Matters of
sexuality and sexual conduct are intensely private, intensely sensitive, and a
false public statement concerning them is particularly harmful. In this
society, an untruthful declaration concerning homosexual orientation must be
considered as damaging to reputation as one concerning adulterous
conduct."[62]
Generally, the courts seem quite cognizant of a role for the
reflection of societal attitudes and norms in defamation cases concerning
accusations of homosexuality. It is applying that role and interpreting what it
means that raises questions and disagreement.
What is addressed when defamation is not. In 13 of the 52 cases
included in this study, the plaintiff's defamation claim is simply not addressed
in terms of whether it is exposes him or her to "hatred, ridicule and contempt."
When not addressing these issues, judges have decided these cases on one of
various libel defenses.[63] For instance, in 1985 the Massachusetts Supreme
Court based its decision in Appleby v. Daily Hampshire Gazette[64] exclusively
on the wire service defense, entirely avoiding any discussion of the defamation
claim in that case. In the Pennsylvania Boy Scouts of America case mentioned at
the outset of this analysis, the court discussed at length the issue of whether
an accusation of homosexuality was defamatory. But without deciding whether it
was, in fact, defamatory, the court decided in favor of the defendant under the
qualified privilege defense.[65] In the same way, courts have also decided
cases in favor of defendants under the defenses of opinion or fair comment[66]
and truth,[67] without deciding whether the accusation at issue was defamatory.
The issue also has been ignored in cases dismissible on procedural
grounds. In King v. Burris,[68] for example, an amateur baseball player brought
suit when he was called "a damn fat fag" by another player. Ignoring the
question of defamation altogether, the Colorado judge in this case instead
launched into a lengthy eulogy of America's favorite pastime, eventually
dismissing the case on procedural grounds because the plaintiff failed to inform
the defendant of his intent to sue at least five days before bringing action.
In still other cases, the judge has remanded the case for further
proceedings without any discussion of the issue of defamation, usually when one
party had appealed a lower court decision pertaining to another aspect of the
case. For instance, Major Marsha Lutz, a highly regarded soldier in the U.S.
Air Force, brought suit in 1991 when three subordinates stole (and circulated
amongst the troops) a letter from her office that "could be read to imply that
Lutz was involved in a lesbian relationship with her civilian secretary." She
argued the men had passed the letter around "in an attempt to harm or ruin her
reputation and career." The Secretary of the Air Force attempted to have the
case dismissed as being "incident to military service," and thus a case which
belonged in military, not civilian, courts. The Ninth Circuit Court of Appeals
disagreed, remanding the case for further proceedings in the civil courts,
without determining whether the implication of homosexuality was defamatory in
this case.[69]
The possible implications of decisions not addressing the "hatred,
ridicule and contempt" standard in any way will be addressed in the concluding
section of this paper.
Discussion and Conclusions
The question of whether it is defamatory to accuse someone of being
lesbian or gay remains largely an open one, and one that is still receiving
varied interpretation. It is difficult to discern any trend in decisions over
time, or within jurisdictions. No one portion of the country seems to have
litigated significantly more or fewer cases than any other, although the lion's
share of cases decided on the issue of criminal imputation seem to have been
decided in the state of New York. There seems to be a slight lean toward
deciding accusations of homosexuality are defamatory in the Northeastern and
Midwestern United States and an even split on the decision of whether such
accusations are defamatory in the South.
A more noticeable trend is the inclination of courts to decide
whether the statement in question was defamatory or not defamatory -- one way or
the other -- prior to 1970, and their seeming reluctance to do so since then.
In all 10 cases included in this study before 1970, the courts articulated a
decision as to whether the accusation was defamatory. Since then, about half
the cases have gone through the appellate level without any determination as to
whether the plaintiff had been subjected to "hatred, ridicule or contempt."
These cases were largely decided in favor of the defendant on other grounds. It
is unclear whether this trend might be due to developments in libel law,
developments in the gay and lesbian liberation movement and the increased
visibility of gay men and lesbians as a minority group, or to some other factor
entirely. The courts' opinions themselves offer no explanation for recent
avoidance of the defamation issue.
What is most interesting about the cases in this study is the
reasoning found within them. The wording of the opinions themselves seems to
indicate a reliance on societal norms, or at least an acknowledgement that the
interpretation of what is defamatory will or should change along with societal
temperament. There is, of course, no reliable gauge by which to measure this
temperament. Any reflection of societal mores to be detected may not be as
obvious as the existence of a trend on a time-line or a clearly intolerant
region of the country. Therefore, it is possible that the written opinions in
these cases primarily reflect only judges perceptions of social norms, and not
the norms themselves. Or perhaps the rather mixed reaction of the courts simply
reflects a profound ambivalence on the part of U.S. society as to whether
homosexuality is despicable or not-so-bad, normal or abnormal.
In 1981, a New York judge observed that the impact of an accusation
of homosexuality on "the collective mind" of a university community was
undoubtedly considerably less than on that of a "conservative rural American
village."[70] Further research on this topic should attempt a more in-depth
analysis of these cases, examining not only region of the country, jurisdiction
and time-frame, but also the size of the communities in which these offenses
occurred. The decisions might further be analyzed by searching for parallel
developments in the resolution of other lesbian and gay legal issues, such as
sodomy laws, custody battles and gay rights ordinances.
Table of Cases Cited
Anderson v. Strong Memorial Hospital, 151 Misc.2d 353, 573 N.Y.S.2d
828 (1991).
Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721, 11
Media L. Rep. (BNA) 2372 (1985).
Beason v. Harcleroad, 105 Ore.App. 376, 805 P.2d 700 (1991).
Boehm v. American Bankers Insurance Group, 557 So.2d 91 (Fla.App.
1990).
Boudin v. Tishman, 264 App.Div. 842 (1943).
Boy Scouts of America v. Teal, 374 F. Supp. 1276 (E.D.Pa. 1974).
Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App. 1959).
Buendorf v. National Public Radio Inc., 822 F. Supp. 6, 21 Media L.
Rep. (BNA) 1842, (D.D.C. 1993).
Church of God Inc. v. Shaw, 194 Ga.App. 694, 391 S.E.2d 666 (1990).
Cramton v. Brock, No. CA91-05-011, 1992 Ohio App. LEXIS 1285 (Mar.
12, 1992).
Dally v. Orange County Publications, 497 N.Y.S.2d 947 (N.Y. App.
Div. 1986).
Davis v. Keyston Printing Service, 155 Ill.App.3d 309, 507 N.E.2d
1358, 14 Media L. Rep. (BNA) 1225 (1987).
Donovan v. Fiumara, 114 N.C.App. 524, 442 S.E.2d 572 (1994).
Dworkin v. L.F.P. Inc., 839 P.2d 903, 20 Media L. Rep. (BNA) 2001
(Wyo. 1992).
Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal.Rptr. 145 (1983).
Fudge v. Penthouse International Ltd., 840 F.2d 1012, 14 Media L.
Rep. (BNA) 2353 (1st Cir. 1988).
Garriga v. Richfield, 174 Misc. 315 (1936).
Grant v. Reader's Digest, 148 F.2d 462 (2d Cir. 1945).
Hammett v. Times-Herald Inc., 227 F.2d 328 (4th Cir. 1955).
Hayes v. Smith, 832 P.2d 1022 (Colo.App. 1991).
Hays v. American Defense Society, 252 N.Y. 266, 169 N.E. 380 (1929).
Head v. Newton, 596 S.W.2d 209 (Tex.Civ.App. 1980).
Justice v. Belo Broadcasting Corp., 472 F. Supp. 145 (N.D.Tex.
1979).
Key v. Ohio Dept. of Rehabilitation and Correction, 62 Ohio Misc.2d
242, 598 N.E.2d 207 (1990).
Keys v. Interstate Circuit Inc., 468 S.W.2d 485 (Tex. 1971).
Kimmerle v. New York Evening Journal Inc., 262 N.Y. 99, 186 N.E. 217
(1933).
King v. Burris, 588 F. Supp. 1152 (D. Colo. 1984).
Kirschner v. Broadhead, 671 F.2d 1034 (7th Cir. 1982).
Lancer Insurance Co. v. D.W. Ferguson, 46 F.3d 1142 (9th Cir. 1995).
Levy v. Gelber, 175 Misc. 746 (1941).
Linn v. United Plant Guard Workers of America, Local 114, 383 U.S.
53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).
Logan v. Sears, Roebuck & Co., 466 So.2d 121 (Ala., 1985).
Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir. 1991).
Malone v. Stewart, 15 Ohio 319 (1846).
Manale v. City of New Orleans, Department of Police, 673 F.2d 122
(5th Cir. 1982).
Martin v. Municipal Publications, 510 F. Supp. 255 (E.D.Pa. 1981).
Matherson v. Marchello, 100 A.D.2d 233, 473 N.Y.S.2d 998 (1984).
Mazart v. State, 109 Misc.2d 1092, 441 N.Y.S.2d 600 (1981).
McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d 345, 609
N.E.2d 216 (1992).
Monahan v. Sims, 163 Ga.App. 354, 294 S.E.2d 548 (1982).
Moricoli v. P&S Management Co. Inc., 104 Ill.App.3d 234, 432 N.E.2d
903 (1982).
Morrissette v. Beatte, 66 R.I. 73, 17 A.2d 464 (1941).
Moye v. Gary, 595 F. Supp. 738 [S.D.N.Y. 1984].
Natchez Times Publishing Co. v. Dunigan, 221 Miss. 320, 72 So.2d 681
(1954).
Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993).
Neiman-Marcus v. Lait, 107 F. Supp. 96 (S.D.N.Y. 1952).
Nowark v. Maguire, 22 A.D.2d 901, 255 N.Y.S.2d 318 (1963).
Palmisano v. Modernismo Publs. Ltd., 948 A.D.2d 953, 470 N.Y.S.2d
196, 10 Media L. Rep. (BNA) 1093 (1993).
Raible v. Newsweek Inc., 341 F.Supp. 804 (W.D. Pa. 1972).
Rejent v. Liberation Publs., 197 A.D.2d 240, 611 N.Y.S.2d 866, 22
Media L. Rep. (BNA) 1826 (1994).
Schomer v. Smidt, 113 Cal.App.3d 828, 170 Cal.Rptr. 662 (1980).
Stein v. Trager, 36 Misc.2d 227, 232 N.Y.S.2d 362 (1962).
Thompson v. Coastal Oil Co., 119 F. Supp. 838 (D.N.J. 1954).
Tollett v. U.S., 485 F.2d 1087 (8th Cir. 1973).
VanStraten v. Milwaukee Journal Newspaper-Publisher, 151 Wis.2d 905,
447 N.W.2d 105, 16 Media L. Rep. (BNA) 2408 (1989).
Wetherby v. Retail Credit Co., 235 Md. 237, 201 A.2d 344 (1964).
Table of Cases Analyzed
Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721, 11
Media L. Rep. (BNA) 2372 (1985).
Beason v. Harcleroad, 105 Ore.App. 376, 805 P.2d 700 (1991).
Boehm v. American Bankers Insurance Group, 557 So.2d 91 (Fla.App.
1990).
Bohdan v. Alltool Manufacturing Co., 411 N.W.2d 902 (Minn.App.
1987).
Boy Scouts of America v. Teal, 374 F. Supp. 1276 (E.D.Pa. 1974).
Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App. 1959).
Buendorf v. National Public Radio Inc., 822 F. Supp. 6, 21 Media L.
Rep. (BNA) 1842, (D.D.C. 1993).
Church of God Inc. v. Shaw, 194 Ga.App. 694, 391 S.E.2d 666 (1990).
Cramton v. Brock, No. CA91-05-011, 1992 Ohio App. LEXIS 1285 (Mar.
12, 1992).
Dally v. Orange County Publications, 497 N.Y.S.2d 947 (N.Y. App.
Div. 1986).
Davis v. Keyston Printing Service, 155 Ill.App.3d 309, 507 N.E.2d
1358, 14 Media L. Rep. (BNA) 1225 (1987).
Diaz v. Oakland Tribune Inc., 139 Cal.App.3d 118, 188 Cal.Rptr. 762,
9 Media L. Rep. (BNA) 1121 (1983).
Dolmar Broadcasting Co. v. Matar, 32 Conn.App. 906, 632 A.2d 720
(1993).
Donovan v. Fiumara, 114 N.C.App. 524, 442 S.E.2d 572 (1994).
Dworkin v. L.F.P. Inc., 839 P.2d 903, 20 Media L. Rep. (BNA) 2001
(Wyo. 1992).
Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal.Rptr. 145 (1983).
Fudge v. Penthouse International Ltd., 840 F.2d 1012, 14 Media L.
Rep. (BNA) 2353 (1st Cir. 1988).
Hammett v. Times-Herald Inc., 227 F.2d 328 (4th Cir. 1955).
Hayes v. Smith, 832 P.2d 1022 (Colo.App. 1991).
Head v. Newton, 596 S.W.2d 209 (Tex.Civ.App. 1980).
Justice v. Belo Broadcasting Corp., 472 F. Supp. 145 (N.D.Tex.
1979).
Key v. Ohio Dept. of Rehabilitation and Correction, 62 Ohio Misc.2d
242, 598 N.E.2d 207 (1990).
Keys v. Interstate Circuit Inc., 468 S.W.2d 485 (Tex. 1971).
King v. Burris, 588 F. Supp. 1152 (D. Colo. 1984).
Kirschner v. Broadhead, 671 F.2d 1034 (7th Cir. 1982).
Lancer Insurance Co. v. D.W. Ferguson, 46 F.3d 1142 (9th Cir. 1995).
Logan v. Sears, Roebuck & Co., 466 So.2d 121 (Ala., 1985).
Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir. 1991).
Malone v. Stewart, 15 Ohio 319 (1846).
Manale v. City of New Orleans, Department of Police, 673 F.2d 122
(5th Cir. 1982).
Martin v. Municipal Publications, 510 F. Supp. 255 (E.D.Pa. 1981).
Matherson v. Marchello, 100 A.D.2d 233, 473 N.Y.S.2d 998 (1984).
Mazart v. State, 109 Misc.2d 1092, 441 N.Y.S.2d 600 (1981).
McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d 345, 609
N.E.2d 216 (1992).
McCoy v. Pescor, 145 F.2d 260 (8th Cir. 1944).
Monahan v. Sims, 163 Ga.App. 354, 294 S.E.2d 548 (1982).
Moricoli v. P&S Management Co. Inc., 104 Ill.App.3d 234, 432 N.E.2d
903 (1982).
Morrissette v. Beatte, 66 R.I. 73, 17 A.2d 464 (1941).
Moye v. Gary, 595 F. Supp. 738 [S.D.N.Y. 1984].
Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993).
Neiman-Marcus v. Lait, 107 F. Supp. 96 (S.D.N.Y. 1952).
Nowark v. Maguire, 22 A.D.2d 901, 255 N.Y.S.2d 318 (1963).
Palmisano v. Modernismo Publs. Ltd., 948 A.D.2d 953, 470 N.Y.S.2d
196, 10 Media L. Rep. (BNA) 1093 (1993).
Q-Tone Broadcasting Co. v. Musicradio of Maryland Inc., No. 427,
1994, 1994 Del. LEXIS 388 (Dec. 1, 1994).
Rejent v. Liberation Publs., 197 A.D.2d 240, 611 N.Y.S.2d 866, 22
Media L. Rep. (BNA) 1826 (1994).
Schomer v. Smidt, 113 Cal.App.3d 828, 170 Cal.Rptr. 662 (1980).
Shannon v. Rado, 200 Ga.App. 495, 408 S.E.2d 441 (1991).
Stalnaker v. Crawford, No. WD-79-49 (Ohio App. April 18, 1980).
Stein v. Trager, 36 Misc.2d 227, 232 N.Y.S.2d 362 (1962).
Tollett v. U.S., 485 F.2d 1087 (8th Cir. 1973).
Veazy v. Blair, 86 Ga.App. 721, 72 S.E.2d 481 (1952).
Wetherby v. Retail Credit Co., 235 Md. 237, 201 A.2d 344 (1964).
Bibliography
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Homosexual Parents Are Unfit -- The New Burden of Proof." 15 Cap. U.L. Rev.
43-58 (1985).
Carey, Jana, and Megan Arthur. "The Developing Law on AIDS in the
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Case, Barbara. "Repealable Rights: Municipal Civil Rights
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Some Aspects of the Dynamics of a Social Problem." 32 Soc. Probs. 72-86
(1984).
Cullem, Catherine M. "Fundamental Interests and the Question of
Same-Sex Marriage." (Note) 15 Tulsa L.J. 141-63 (1979).
"Developments in the Law: Defamation." 69 Harv. L. Rev. 875-960.
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171-223 (1989/1990).
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Discrimination?" (Commentary) 8 J. Contemp. Health L. & Pol'y 429-53 (1992).
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Discrimination and the Right to Refuse." 11 Dalhousie L.J. 581-611.
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Reputation and the Constitution." 74 Calif. L. Rev. 691-742 (1986).
Prosser, William. Torts. (1971).
Restatement (Second) of Torts (1977).
Riley, Marilyn. "Avowed Lesbian Mother and Her Right to Child
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Process in Teacher Disqualification." (Comment) 6 Hastings Constit. L.Q.
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[1] Restatement (Second) of Torts _ 559 cmt. b (1977). See
also the oft-cited Kimmerle v. New York Evening Journal Inc., 262 N.Y. 99, 186
N.E. 217, 218 (1933).
[2] Kimmerle, 186 N.E. 217 (1933).
[3]
A "norm" is defined as: "a standard of conduct that should or
must be followed" or "a way of behaving typical of a certain group." The term
"mores" is commonly defined as: "folkways that are considered conducive to the
welfare of society and so, through general observance, develop the force of law,
often becoming part of the formal legal code." See Webster's New World
Dictionary 970 and 926 (2d college ed. 1986).
[4]
Garriga v. Richfield, 174 Misc. 315 (1936), in which an
accusation of communist advocacy was considered not to be libelous; Levy v.
Gelber, 175 Misc. 746 (1941), in which it was determined an accusation of
Communist Party involvement was libelous; and Boudin v. Tishman, 264 App.Div.
842 (1943), in which, again, it was decided an accusation of communist
involvement was libelous.
[5]
Natchez Times Publishing Co. v. Dunigan, 221 Miss. 320, 72
So.2d 681 (1954), in which a white man was falsely identified as a "Negro" and
won a libel judgment because many people, at the time, associated color with
character. One might argue no cause of action would hold in the same case
today.
[6]
Both as quoted in William B. Spong, Jr., Defamation and the
First Amendment: New Perspectives, 25 Wm. & Mary L. Rev. 743, 744 (1983-84).
[7]
Developments in the Law: Defamation, 69 Harv. L. Rev. 875, 877
(1956).
[8]
Id.
[9]
186 N.E. 217 (1933).
[10]
Id.
[11]
148 F.2d 462, 465 (2d Cir. 1945).
[12]
Id. at 466-467.
[13]
See, e.g., Hays v. American Defense Society, 252 N.Y. 266, 169
N.E. 380 (1929), wherein it was decided a pamphlet entitled
"LaFollette-Socialism-Communism" was held to be not libelous even though the
plaintiff had been accused of "advocating, promoting and inciting revolt"
against various government institutions, and thereby with "fostering communism."
[14]
See, e.g., Raible v. Newsweek Inc., 341 F.Supp. 804 (W.D. Pa.
1972), wherein it was noted that calling someone a "Red" or a "Pinko" will not
always give rise to a cause of action for libel.
[15]
Developments in the Law: Defamation, supra note 7.
[16]
Jeremy Waldron, Particular Values and Critical Morality, 77
Calif. L. Rev. 561, 574 (1989).
[17]
Robert C. Post, The Social Foundations of Defamation Law:
Reputation and the Constitution, 74 Calif. L. Rev. 691, 711 and 715 (1986).
[18]
For example, Sylvia Law, in her article, Homosexuality and the
Social Meaning of Gender (1988 Wis. L. Rev. 187), suggested that the root of
social contempt for lesbians and gay men actually lies in gender stereotypes.
By filling the social roles they fill, lesbians do not fit the traditional
American concepts of femininity, and gay men do not fit the traditional American
concepts of masculinity. According to law, this is perceived (generally) as a
threat to the natural order. Homophobia, in Law's theory, "serves primarily to
preserve and reinforce the social meaning attached to gender" (187). If this is
true, one might posit a shift in decisions of whether an accusation of
homosexuality is defamatory during the 1960s and 1970s, when feminism was
encouraging a change in gender roles in America. For further discussion of this
theory, see Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling,
Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U.
Miami L. Rev. 511, 617-24 and 631-33 (1992).
[19]
For simplicity's sake, the author will henceforth refer mainly
to "lesbians and gay men," as lesbians and gay men comprise arguably the largest
organized and most politically active and vocal group of the five categories
named. Of course, most of the issues discussed in this paper pertain also to
bisexuals, transsexuals and transgendered persons, as well as many other social
"outcasts" (such as AIDS patients).
[20]
See, e.g., John C. Beattie, Prohibiting Marital Status
Discrimination: A Proposal for the Protection of Unmarried Couples, (Note) 42
Hastings L.J. 1415 (1991); Catherine M. Cullem, Fundamental Interests and the
Question of Same-Sex Marriage, (Note) 15 Tulsa L.J. 141 (1979); and Andrew H.
Friedman, Same-Sex Marriage and the Right to Privacy: Abandoning Scriptural,
Canonical, and Natural Law Based Definitions of Marriage, 35 How. L.J. 173
(1992).
[21]
See, e.g., Gisela Caldwell, The Seventh Circuit in Ben-Shalom
v. Marsh: Equating Speech with Conduct, (Note) 24 Loy. L.A. L. Rev. 421 (1991);
Seth Harris, Permitting Prejudice to Govern: Equal Protection, Military
Deference, and the Exclusion of Lesbians and Gay Men from the Military, (Note)17
N.Y.U. Rev. L. & Soc. Change 171 (1989/1990); Troy R. Holroyd, Homosexuals and
the Military: Integration or Discrimination? (Commentary) 8 J. Contemp. Health
L. & Pol'y 429 (1992); and Randy Shilts, Conduct Unbecoming: Gays and Lesbians
in the U.S. Military (1993).
[22]
See, e.g., Courtney R. Baggett, Sexual Orientation: Should It
Affect Child Custody Rulings, 16 L. & Psych. Rev. 189- (1992); Gary L. Cardwell,
Doe v. Doe: Destroying the Presumption That Homosexual Parents Are Unfit -- The
New Burden of Proof, (Comment) 16 U. Rich. L. Rev. 851 (1982); and Marilyn
Riley, Avowed Lesbian Mother and Her Right to Child Custody: A Constitutional
Challenge That Can No Longer Be Denied, (Note) 12 San Diego L. Rev. 799 (1975).
[23]
See, e.g., Jana Carey and Megan Arthur, The Developing Law on
AIDS in the Workplace, 46 Md. L. Rev. 284 (1987); John F. Dudley, The Medical
Costs of AIDS: Abandoning the HIV-Infected Employee, 30 Duq. L. Rev. 915
(1992); and J. Scott Kenney, AIDS in the Workplace: Termination, Discrimination
and the Right to Refuse, 11 Dalhousie L.J. 581 (1988).
[24]
See, e.g., Mark David Agrast, Being Gay in America: The Push
for Recognition, 18 Hum. Rts. 12 (Spring 1991); Barbara Case, Repealable Rights:
Municipal Civil Rights Protection for Lesbians and Gays, 7 Law & Ineq. J. 441
(1989); and S.F. Cohn and J.E. Gallagher, Gay Movement and Legal Change: Some
Aspects of the Dynamics of a Social Problem, 32 Soc. Probs. 72 (1984).
[25]
See, e.g., Joshua Dressler, Gay Teachers: A Disesteemed
Minority in an Overly Esteemed Profession, 9 Rut.-Cam. L.J. 399 (1978); Jeanne
LaBorde Scholz, Out of the Closet, Out of a Job: Due Process in Teacher
Disqualification, (Comment) 6 Hastings Const. L.Q. 663 (1979); and Merri
Schneider-Vogel, Gay Teachers in the Classroom: A Continuing Constitutional
Debate, 15 J.L. & Educ. 285 (1986).
[26]
See, e.g., Jon E. Grant, 'Outing' and Freedom of the Press:
Sexual Orientation's Challenge to the Supreme Court's Categorical Jurisprudence,
(Note) 77 Cornell L. Rev. 103 (1992).
[27]
See, e.g., William B. Rubenstein, Since When Is the Fourteenth
Amendment Our Route to Equality? Some Reflections on the Construction of the
'Hate Speech' Debate from a Lesbian/Gay Perspective, in Henry Louis Gates, Jr.,
et al., Speaking of Race, Speaking of Sex 280 (1994).
[28] According to at least one author, however, even the truth
can hurt when it comes to accusing someone of being gay. With regard to issues
of homosexuality, a 1946 libel handbook specifically pointed out that when it
comes to "sexual and marital irregularity and immorality the truth is, for
practical purposes, always libelous." The author goes on to say that it is
libelous per se "to call a woman a Lesbian, [sic] a prostitute, a nymphomaniac,
an adulteress, a cradle-snatcher, a grave-digger, or a gold-digger," or to call
a man "a homosexual, a lecher, an adulterer, a gigolo, or a pervert." He said
the principle behind the law was that such matters, "however out of the
ordinary, are so tremendously important to one's self-respect that it's well to
make sure that they remain as private as possible . . . . This rule is both safe
and decent." Charles Angoff, Handbook of Libel 2, 21 (1946).
[29] 3 L. & Sexuality 165, 180-184 (1993).
[30]
This is a suggestion first advanced by Dean William Prosser in
Torts, 760 (4th ed., 1971).
[31]
The exact terms used were: "gay or lesbian or fag or faggot or
lezzie or lesbo or homo or homosexual or feminist or spinster or fop or
effeminate or sphincter or amazon or queer or sapphite or sexual deviate or
pervert or sodomite or fairy or faery or androgyn or unnatural sex acts or
epicene or pansy or swish or limp-wristed or bisexual or third sex or
mannishness or freak or hermaphrodite or nance or sapphic or sapphist or
gynandroid or gynandrous or transvestite or transsexual or butch or femme or
dikey or dykey or dike or dyke." The search terms "queen" and "fruit" were
attempted, but abandoned when the response to the request was that it was
probable more than 1,000 cases would be brought up and there would be a charge
for the search. Several unsuccessful attempts were made to narrow each of these
two search terms into workable categories.
[32]
15 Ohio 319 (1846).
[33]
46 F.3d 1142 (9th Cir. 1995).
[34]
See, Anderson v. Strong Memorial Hospital, 151 Misc.2d 353, 573
N.Y.S.2d 828 (1991).
[35]
VanStraten v. Milwaukee Journal Newspaper-Publisher, 151 Wis.2d
905, 447 N.W.2d 105, 16 Media L. Rep. (BNA) 2408 (1989).
[36]
Thompson v. Coastal Oil Co., 119 F. Supp. 838, 840 (D.N.J.
1954).
[37]
Logan v. Sears, Roebuck & Co., 466 So.2d 121, 123 (Ala., 1985).
[38]
Buendorf v. National Public Radio Inc., 822 F. Supp. 6, 21
Media L. Rep. (BNA) 1842, 1847 (D.D.C. 1993).
[39]
Another -- very widely cited -- case is that of Moricoli v. P&S
Management Co. Inc., 104 Ill.App.3d 234, 432 N.E.2d 903 (1982), in which a
singer was called a "fag" and was no longer allowed to perform at the club at
which he regularly performed.
[40]
Hayes v. Smith, 832 P.2d 1022 (Colo.App. 1991). See also,
Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993), wherein the
vice-president of a small college in Missouri attempted to discredit the
Director of Teacher Education in the Missouri Department of Elementary and
Secondary Education by asserting to reporters that she was a lesbian.
[41]
For instance, in McCartney v. Oblates of St. Francis deSales,
80 Ohio App.3d 345, 609 N.E.2d 216 (1992), the contract of a man who had been
high school teacher and school yearbook advisor for eight years was suddenly not
renewed after rumors circulated through the small community where the high
school was located. See also Cramton v. Brock, No. CA91-05-011, 1992 Ohio App.
LEXIS 1285, at *1 (Mar. 12, 1992).
[42]
Boy Scouts of America v. Teal, 374 F. Supp. 1276, 1280 (E.D.Pa.
1974).
[43]
Davis v. Keyston Printing Service, 155 Ill.App.3d 309, 507
N.E.2d 1358, 14 Media L. Rep. (BNA) 1225 (1987).
[44]
Monahan v. Sims, 163 Ga.App. 354, 294 S.E.2d 548 (1982).
Somewhat related to these cases involving church personnel is a case in which
defendant told a search agent that plaintiff was probably a homosexual after
search agent had emphasized the "religious" and "moral" character of the
prospective employers (Boehm v. American Bankers Insurance Group, 557 So.2d 91
[Fla.App. 1990]). See also, Church of God Inc. v. Shaw, 194 Ga.App. 694, 391
S.E.2d 666 (1990).
[45]
Rejent v. Liberation Publs., 197 A.D.2d 240, 611 N.Y.S.2d 866,
22 Media L. Rep. (BNA) 1826, 1828 (1994). See also, Palmisano v. Modernismo
Publs. Ltd., 948 A.D.2d 953, 470 N.Y.S.2d 196, 10 Media L. Rep. (BNA) 1093
(1993), wherein both a picture and "false and imaginary first person statements"
in an advertisement were taken to convey the impression that plaintiff male
model was a gay man; and Wetherby v. Retail Credit Co., 235 Md. 237, 201 A.2d
344 (1964), wherein two women who were engaged in the real estate and mortgage
business and lived with a third woman were turned down for life insurance (for
business purposes), apparently as a result of reports by private investigators
that there were "strong suspicions 'of Lesbian action between those women' " and
that they " 'definitely do no act like the feminine sex if they are.' "
[46]
Neiman-Marcus v. Lait, 107 F. Supp. 96, 100 (S.D.N.Y. 1952).
[47]
One such case is the case of Hammett v. Times-Herald Inc., 227
F.2d 328 (4th Cir. 1955), wherein a candidate for public office distributed a
self-laudatory brochure which was mockingly criticized by defendant newspaper.
The newspaper ended its scathing article with: "Anybody like to go with him
steady?" Plaintiff claimed this sentence implied homosexuality by innuendo.
The court disagreed, calling his claim "frivolous." See also, Fudge v.
Penthouse International Ltd., 840 F.2d 1012, 14 Media L. Rep. (BNA) 2353 (1st
Cir. 1988); and Logan, 466 So.2d 121 (1985).
[48]
66 R.I. 73, 17 A.2d 464 (1941). See also, Nowark v. Maguire,
22 A.D.2d 901, 255 N.Y.S.2d 318 (1963); and Manale v. City of New Orleans,
Department of Police, 673 F.2d 122 (5th Cir. 1982).
[49]
King v. Burris, 588 F. Supp. 1152, 1153 (D. Colo. 1984).
[50]
Justice v. Belo Broadcasting Corp., 472 F. Supp. 145 (N.D.Tex.
1979). See also, Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal.Rptr. 145 (1983);
and Keys v. Interstate Circuit Inc., 468 S.W.2d 485 (Tex. 1971).
[51]
See Moricoli, 432 N.E.2d 903 (1982); Morrissette, 17 A.2d 464
(1941); Donovan v. Fiumara, 114 N.C.App. 524, 442 S.E.2d 572 (1994); and Stein
v. Trager, 36 Misc.2d 227, 232 N.Y.S.2d 362 (1962).
[52]
See Nazeri, 860 S.W.2d 303 (1993); Head v. Newton, 596 S.W.2d
209 (Tex.Civ.App. 1980); and Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App. 1959).
[53]
109 Misc.2d 1092, 441 N.Y.S.2d 600 (1981).
[54]
832 P.2d 1022 (Colo.App. 1991).
[55]
Incidentally, the federal government, in an amicus curiae brief
in 1966, urged the Supreme Court to limit liability in defamation cases to
"grave" defamations, which it denoted as "those which accuse the defamed person
of having engaged in criminal, homosexual, or other infamous conduct." (Linn v.
United Plant Guard Workers of America, Local 114, 383 U.S. 53, 56, note 12, 86
S.Ct. 657, 15 L.Ed.2d 582 [1966]).
[56]
Malone, 15 Ohio 319 (1846).
[57]
Schomer v. Smidt, 113 Cal.App.3d 828, 170 Cal.Rptr. 662, 663
(1980). See also Regent, 611 N.Y.S.2d 866 (1994).
[58] Dally v. Orange County, 497 N.Y.S.2d 947, 947-948 (N.Y.
App. Div. 1986).
[59] Id. at 948.
[60]
Matherson v. Marchello, 100 A.D.2d 233, 241-242, 473 N.Y.S.2d
998 (1984).
[61]
Hayes, 832 P.2d 1022 (1991).
[62]
Nazeri, 860 S.W.2d 303 (1993).
[63]
Besides those mentioned in the text, courts have also relied
upon: the inability to prove actual malice (Buendorf, 822 F. Supp. 6 [1993]);
the nonexistence of a relational right (see cases cited supra note 50); and the
fact that communication was not made to a third party (Moye v. Gary, 595 F.
Supp. 738 [S.D.N.Y. 1984] and Monahan, 294 S.E.2d 548 [1982]).
[64]
395 Mass. 32, 478 N.E.2d 721, 11 Media L. Rep. (BNA) 2372
(1985).
[65]
See Boy Scouts of America, 374 F. Supp. 1276 (1974). Qualified
privilege has also been used by defendants to overcome a finding that their
accusation of homosexuality was libelous or slanderous per se. See McCartney,
609 N.E.2d 216 (1992); Key v. Ohio Dept. of Rehabilitation and Correction, 62
Ohio Misc.2d 242, 598 N.E.2d 207 (1990); Wetherby, 201 A.2d 344 (1964).
[66]
See Dworkin v. L.F.P. Inc., 839 P.2d 903, 20 Media L. Rep.
(BNA) 2001 (Wyo. 1992); and Martin v. Municipal Publications, 510 F. Supp. 255
(E.D.Pa. 1981).
[67]
See Dworkin, 839 P.2d 903 (1992); Logan, 466 So.2d 121 (1985);
and Beason v. Harcleroad, 105 Ore.App. 376, 805 P.2d 700 (1991).
[68]
King, 588 F. Supp. 1152 (1984).
[69]
Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir.
1991). See also King, 588 F. Supp. 1152 (1984); Kirschner v. Broadhead, 671
F.2d 1034 (7th Cir. 1982); and Tollett v. U.S., 485 F.2d 1087 (8th Cir. 1973).
[70]
Mazart, 441 N.Y.S.2d 600 (1981).
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