Federal Judge Says Calling Somebody Gay is Not Necessarily Harmful to Reputation

U.S. District Judge Denny Chin has ruled in Stern v. Cosby, 2009 WL 2460609 (S.D.N.Y.) that under New York State’s defamation law, the court should not presume that falsely calling somebody gay is damaging to that person’s reputation.

Chin’s August 12 ruling contradicts several decisions by New York Appellate Division panels and state trial judges, as well as a recent ruling by another judge of the federal district court in New York.

Judge Chin was ruling on motions for summary judgment by author Rita Cosby and publisher Hachette Book Group USA, who are being sued for defamation by attorney Howard K. Stern, the former lawyer for and companion of the late Anna Nicole Smith. Cosby wrote and Hachette published a best-selling book, Blonde Ambition: The Untold Story Behind Anna Nicole Smith’s Death, which prominently mentions Stern in ways that he contends have harmed his reputation.

Under the common law of defamation, publishing falsehoods about a person may subject the writer and publisher to liability for injury to the subject’s reputation. Because of the First Amendment’s protection for freedom of speech, the courts have made it very difficult for plaintiffs to win such cases, especially when the plaintiff can be considered to be a "public figure," somebody whose prominence and involvement in newsworthy activities makings them interesting to the press and the public. The U.S. Supreme Court has ruled that when public figures sue for defamation, they must prove that the alleged defamatory statements were made with "actual malice," a legal term of art meaning that the maker of the statement either knew it was false or published it with reckless disregard as to the truth. Of course, under modern defamation law, only a false statement about the plaintiff can give rise to legal liability. Truth is a complete defense.

In this case, Stern conceded that he would be considered a public figure. His involvement with Smith, a subject of much media interest, had brought media attention to him. Consequently, he would have to surmount the actual malice test in order to win at trial.

Stern’s lawsuit itemizes nineteen different statements in the book that he claims to have defamed him. Two of them pertain to homosexuality. As summarized by Judge Chin in his opinion: "Statement 1: Stern and Birkhead had oral sex at a party at a private home in Los Angeles. Smith discovered them, laughed, and later remarked that Stern was gay. Statement 2: Smith, in front of her nannies in the Bahamas, used to regularly watch a video of Stern and Birkhead having sex."

Based on these statements, Stern alleges that Cosby and Hachette defamed him by falsely asserting that he was gay, engaged in oral sex with Birkhead, and participated in a sex video with Birkhead that was made available to Smith. Stern asserts that under New York defamation law, such statements are presumed to be harmful to his reputation, entitling him to monetary damages.

Chin rejected this assertion, even though many New York trial and appellate division judges have ruled over many decades that falsely calling somebody gay is presumptively damaging to their reputation. This lawsuit is in federal court under "diversity jurisdiction," which means that Stern and Cosby are residents of different states, and Stern is not a resident of the state in which Hachette is incorporated or headquartered. Although Stern is suing in federal court, in a diversity case based on state law principles, the federal court is supposed to apply the law of the appropriate state, as declared by its highest court. In New York, that is the Court of Appeals.

Surprisingly, the New York Court of Appeals has never addressed the question whether falsely imputing homosexuality to a person is defamatory per se. This is surprising because New York is a major media center, and one would expect a substantial amount of litigation about defamation arising from media activities - newspapers, magazines, books, television and radio and movies, all produced by companies headquartered here and thus subject to New York defamation law. But a thorough review by the court of New York defamation cases shows that only lower courts have dealt with the question. Thus, Judge Chin concluded, his job was to predict what the New York Court of Appeals would do if confronted with this question today, and the lower court opinions were not binding on the court.

"The question, then, is whether the New York Court of Appeals, in 2009, would hold that a statement imputing homosexuality connotes the same degree of ‘shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace’ as statements accusing someone of serious criminal conduct, impugning a person in his or her trade or profession, implying that a person has a ‘loathsome disease,’ or imputing unchastity to a woman," all circumstances where New York courts have traditionally found per se defamation, wrote Chin. "I conclude that it would not."

"The past few decades have seen a veritable sea change in social attitudes about homosexuality," he continued. "First, and perhaps most importantly, in 2003 the United States Supreme Court, in a sweeping decision, invalidated laws criminalizing intimate homosexual conduct, holding that such laws violate the Fourteenth Amendment’s Due Process Clause. Thus, to the extent that courts previously relied on the criminality of homosexual conduct in holding that a statement imputing homosexuality subjects a person to contempt and ridicule, Lawrence [v. Texas] has foreclosed such reliance," he asserted.

"Second," he continued, "in 2009, the ‘current of contemporary public opinion’ does not support the notion that New Yorkers view gays and lesbians as shameful or odious. A movement is currently afoot in the state to legalize gay marriage, and according to a recent opinion poll from Quinnipiac University – an independent polling institute – New York State residents support gay marriage 51 to 41 percent, with 8 percent undecided. The same poll found that New York State residents support civil unions 68 to 25 percent. The fact that a majority of New Yorkers supports some sort of government recognition of same-sex relationships belies the notion that these same New Yorkers regard gays and lesbians with ‘public contempt, ridicule, aversion or disgrace.’"

Chin also noted that the New York Court of Appeals, in its 2006 ruling rejecting a claim for same-sex marriage, had nonetheless, not "given any indication that it perceives widespread disapproval of homosexuality in New York." Although the court rejected the marriage claim, "the plurality opinion clearly recognized, however, that social attitudes toward gay and lesbian New Yorkers had changed dramatically in the past few years, and that the New York legislature could permit same-sex marriage if it chose to. The concurring opinion went even further, and suggested that the New York legislature should take up the issue." Chin found this inconsistent with the traditional grounds for treating imputations of homosexuality as per se defamatory.

In 2008, another judge of the federal district court, Colleen McMahon, had faced the same question in Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F.Supp.2d 520 (S.D.N.Y. 2008), and reached the opposite conclusion from Chin. "Her carefully-considered decision was based largely on the fact that prejudice still exists against gays and lesbians in our society," Judge Chin commented. "While I certainly agree that gays and lesbians continue to face prejudice, I respectfully disagree that the existence of this continued prejudice leads to the conclusion that there is a widespread view of gays and lesbians as contemptible and disgraceful. Moreover, the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians, merely because of their sexual orientation, belong in the same class as criminals."

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Chin rejected Stern’s argument that the court was bound by the contrary Appellate Division rulings, pointing out that most of them did not consider the question in any depth, merely citing to earlier rulings, predating the significant factors he had noted in his discussion.

However, while holding that Statements 1 and 2 were not defamatory per se, he held that they were nonetheless "susceptible to a defamatory meaning," not for suggesting that Stern was gay but rather because they depicted him as engaging in oral sex with Birkhead at a party and with participating in a sex video with Birkhead.

"A reasonable jury could find that engaging in oral sex at a party is shameful or contemptible, and the fact that this conduct may not be illegal does not alter this conclusion," wrote Chin. "Moreover, it also appears from the record that, at the time this alleged incident took place in 2005, Smith was dating Birkhead and/or still involved in a relationship with Stern. Thus, to the extent that the Statement implies that Stern was unfaithful to Smith, this would be further reason for a jury to find that the statement is defamatory."

Chin also observed that a jury might find it defamatory to publish that Stern made a sex tape with Birkhead. "This allegation would expose Stern to contempt among most people – even if, arguably, not among the social circles in which he and Smith traveled." In a footnote, Chin rejected "as absurd, Cosby’s argument that Statement 2 is not susceptible to a defamatory meaning because sex tapes are commonly made by celebrities, and do not expose those celebrities to contempt."

Thus, Chin refused to dismiss the defamation claim based on these two statements, finding that although there would be no legal presumption that the statements were harmful to Stern’s reputation, he would have to prove that he had actually suffered some financial injury attributable to those statements in order to hold Cosby liable for making them.

Chin found that the publisher, Hachette, could not be sued by Stern for defamation because Hachette had reasonably relied on Cosby, an experienced journalist and previously-published author, to get the facts correct in her book, and therefore could not be found to have published falsehoods with "actual malice." Thus the author, Rita Cosby, remains as the sole defendant.

Over all, Chin found that eleven out of the nineteen statements identified in Stern’s complaint – including allegations about criminal drug use, pimping, and other sensational charges - could give rise to liability for defamation so that, although he did grant summary judgment to Hachette on all claims and to Crosby on several of the claims, Stern still has a live defamation case against Crosby.

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