What is More Defamatory? A False Accusation of Homophobia or of Homosexuality?

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

1In July 2014, Judge Barbara Jaffe of the New York Supreme Court dismissed the defamation claims in Kramer v. Skyhorse Publications. Kenny Kramer, the real life inspiration for the beloved eponymous Seinfeld character, had sued comedian Fred Stoller and his publisher because Stoller had written that a guide on the “Kramer Reality Tour” was shouting the catch phrase “not that there’s anything wrong with that” at passersby in Greenwich Village, “like some sort of deranged cheerleader.”  According to Kramer, by reporting his tour experience in this way, Stoller had falsely implied that Kramer was “hostile to gay people.”

Judge Jaffe dismissed the case, in part because deriving the allegedly false import (that Kramer was homophobic) from such an oblique statement by Kramer’s employee required too many inferential steps, and thus the accused statement was not reasonable susceptible to a defamatory meaning. However, Judge Jaffe did appear to entertain the possibility that a more clear and direct accusation of homophobia might have been defamatory.

Judge Jaffe’s opinion thus raises an interesting question.  When did we cross over? That is, when did we reach the point where it was no longer defamatory to be falsely called gay, but it was defamatory to be falsely called homophobic?  As it turns out, we actually haven’t reached that point yet. . . but we’re getting there.

Accusations of Homosexuality as Defamation

2The first published opinion discussing a false accusation of homosexuality appears to have been the 1944 Eighth Circuit decision in McCoy v. Pescor, in which an indictment for extortion was upheld against a soldier who threatened to falsely accuse his fellow soldier of being a “queer.” However, the first opinion on the issue in a civil defamation context appears to be the 1952 case of Neiman-Marcus Co. v. Lait, in which the Southern District of New York refused to dismiss a department store’s defamation claim against the authors of New York Confidential, which had reported, among other things, that “most of the sales staff are fairies.”

During this period, there was no question that a false accusation of homosexuality could be defamatory.  The issue rather was whether or not it was per se defamatory. “Per se” refers to certain categories of slander (i.e., spoken defamation), and in many states also libel (i.e., written defamation), that are considered so “grave” and damaging that a plaintiff doesn’t have to show that actual harm occurred. In other words, just the fact that it was said or written is harmful enough. The traditional categories of per se defamation were false statements about (1) the commission of a serious crime; (2) anything negatively affecting one’s trade or business; (3) having a “loathsome disease,” and (4) “unchaste behavior in a woman.”

In most states, a false accusation of homosexuality was considered per se defamation because it implicated one or more of these traditional categories.  For example, in 1959 in Buck v. Savage, the Texas Court of Civil Appeals observed that the “vile, vindictive and untrue” accusation that the plaintiff was “queer on” another man was slanderous per se, because it essentially imputed to him the “crime of sodomy.” By contrast, in states where such laws did not exist (such as Illinois, where the sodomy law was repealed in 1961), a false accusation of homosexuality was not actionable unless it caused actual harm, for example, if the plaintiff lost his job because of it.

Only in New York

The New York experience with regard to false accusations of homosexuality is somewhat unique. In 1962 in Stein v. Trager, a college professor was accused of referring to a student as, among many other things, a “psychopath,” “intellectually incompetent,” “immoral” and a “homosexual.”  New York Supreme Court Judge William Lawless, referring to the state’s sodomy law, held that “the only word spoken which might remotely constitute a punishable crime is the allegation that the plaintiff is a homosexual.” However, Judge Lawless, unlike the courts in some other states, distinguished between simply being gay — which was not a crime — and committing specific acts proscribed by the statute. Since the false statement at issue accused the plaintiff only of the former, not the latter, the plaintiff had not been accused of a crime and therefore the statement was not slanderous per se.

In 1980, the New York Court of Appeals struck down the New York sodomy law as unconstitutional. You might think, following that decision, that going forward there could no longer be any possibility that a false accusation of homosexuality was defamatory per se. However, that’s not what happened at all.

3In 1981, in a defamation opinion having nothing to do with accusations of homosexuality, Judge Richard Simons of the New York Appellate Division listed the categories of per se slander in his routine statement of the law. In addition to the four traditional categories, Judge Simons added a new category: “homosexual behavior.” Where he got this new category from is open to debate, since he didn’t cite precedential case law and since New York appears to be the only jurisdiction ever to use this category.  Nevertheless, this apparently unique formulation persisted and became New York law.

But as the decades passed, and especially following the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, some New York judges became reluctant to apply this fifth per se category. In 2004, Southern District of New York Judge Charles Haight, in dicta in a footnote, questioned whether homosexuality should still be considered a per se category, given “welcome shifts in social perceptions.”

4Then, in 2009 in Stern v. Crosby, a defamation suit against the publishers of the book Blonde Ambition, Southern District of New York Judge Denny Chin declared that, since the New York Court of Appeals had never decided the issue, he could and would ignore the per se category of “homosexual behavior.” Judge Chin cited with approval District of Massachusetts Judge Nancy Gertner’s 2004 opinion in Albright v. Morton (the first full-throated rejection of homosexuality as a per se defamation category) and held that contemporary public opinion no longer supported “the notion that New Yorkers view gays and lesbians as shameful or odious.” Judge Chin further quoted Judge Gertner: “If this Court were to agree that calling someone a homosexual is defamatory per se — it would in effect validate that sentiment and legitimize relegating homosexuals to second-class status.”

Although Judge Chin perhaps pointed the way towards some distant future, nevertheless his opinion was binding on no other judges, and at least two New York state courts have already rejected his holding.  Homosexuality is, by most accounts, still a per se category in New York.

Accusations of Homophobia as Defamation

5By contrast, there is a far shorter and less prolific history of false accusations of homophobia as the basis for defamation claims.  The first published opinion on the issue appears to be the Maine Supreme Judicial Court’s 1991 order in Lester v. Powers, in which a Colby College faculty member unsuccessfully sued a student for reporting that he was homophobic. The handful of “homophobia” defamation cases that have been brought have been dismissed, for the most part on the grounds that the accused statements were mere opinion. In 1993 in Vail v. Plain Dealer, both the trial court and Ohio Appeals Court refused to dismiss libel claims against a Cleveland Plain Dealer columnist who wrote that a political candidate was “anti-homosexual” and “doesn’t like gay people,” but the Ohio Supreme Court reversed, holding that such statements were protected opinion not susceptible to being proven true or false. A federal judge in the District of Columbia, in coming to a similar result earlier this year, observed that “to the Court’s knowledge no decision has found statements claiming that a person is anti-gay or homophobic to be actionable defamation.”

Could New York be different in this regard? The Court’s decision in Kramer v. Skyhorse Publications appears to at least entertain the possibility that a false accusation of homophobia (perhaps one based on more specific facts capable of being proven false) could be actionable as defamation in some future case.

Where No Court Has Ever Gone Before  . . . Except One

But would it be consistent for any jurisdiction to simultaneously hold that being falsely labeled homophobic and being falsely labeled homosexual are both defamatory? Before a court can pronounce that a false accusation of homophobia is actionable, will logic and common sense compel that it first pronounce that a false accusation of homosexuality is not actionable? I mean not just that a false accusation of homosexuality is not defamatory per se, but that it’s not defamatory at all.  After all, which one would you rather be called?

To date, only one court has gone that far. In Murphy v. Millennium Radio Group LLC, Judge Joel Pisano of the District of New Jersey held that New Jersey courts “would [not] legitimatize discrimination against gays and lesbians by concluding that referring to someone as homosexual” could be susceptible to a defamatory meaning.  The Third Circuit reversed on other grounds, expressly declining to reach the defamation issue, and the case is still ongoing.  It remains to be seen whether Judge Pisano’s decision is an outlier, or the harbinger of things to come.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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