DEFAMATION NATION — While California wages war over whether gay men and women should continue to be second-class citizens under the law, another debate is rearing its head again: Does calling someone “gay” defame him? A quick Westlaw search yields a string of libel lawsuits against a person or publication for calling someone a homo. But defamation law and court precedent, while not black and white, make one thing pretty clear: In order for a defamation charge to hold up, one must prove a false statement damaged your reputation to a “substantial and respectable minority” of your community. And that’s where things are very, very gray.
Because it begs the question: Is it an egregious insult — the type that causes irreparable shame and embarrassment and damage to your reputation — to be called gay? If the answer is no, this matter is settled right now, and you can’t be libeled when someone calls you gay.
But it’s not that simple, since the positives and negatives of being called “gay” differs between communities — geographic, religious, political, and so on.
Being labeled “gay” — like Tom Cruise was by a porn star who alleged the two had a sexual relationship, and was handed a $10 million bill by the court — isn’t history’s only superlative with a negative connotation worth suing over. Slate points out calling someone a “Communist” at one time was considered defamation, as was accusing a white person of having “Negro blood.” But society’s stance on these terms, and whether false allegations about them truly damage one’s reputation, change with the times. A judge will laugh a white guy out of court if he tries suing somebody for claiming his tan skin is because of mixed race.
Which means the coming court ruling in New York — where Anna Nicole Smith hanger-on Howard K. Stern sued former MSNBC talking head Rita Cosby and her book’s sources for he is gay — will be the latest litmus test for whether having your sexual orientation speculated about is grounds for legal action. There, a judge will soon decide whether Stern’s defamation suit can move forward.
And I think we can all agree: it shouldn’t. Stern’s laughable attempt at celebrity aside, it’s ridiculous to think he was materially harmed by the accusation of being gay. But public figures, who make bank playing a straight guy, will argue that’s not the case — that any assertion they’re anything but opposite-sex lovers impacts their livelihood. That was Cruise’s assertion.
Except if we let people sue over being called gay, we’re letting the judicial system brand homosexuality as disparaging and pejorative way of life, so demeaning that to be identified as such warrants a cash apology. And while gay men and women may not be able to marry, we certainly deserve the civil right of not being equated with real, true defamation — like accusing someone of being a murderer or a child molester when they clearly are not.
After all, we’re not about to ring up our attorney when you mistakenly call us … straight.
Of course, the ultimate defense against defamation is the truth. And should Stern’s gay defamation lawsuit, or any other, move forward, there will be a witch hunt to find actual evidence that he’s a big ‘mo. And chances are, it’s out there. Fag.