THE TIDES OF TRANSGRESSIONS: AN ANALYSIS OF DEFAMATION AND THE RIGHTS OF THE LGBT COMMUNITY.

• Author: Milosevic, Ashley

There is an apparent and ever-growing trend of acceptance of the LGBT community (Lesbian, Gay, Bisexual and Transgender) (1) in present-day American society. (2) LGBT activism has led to numerous legal and societal victories for LGBT rights in a relatively short period of time. (3) However, discrimination remains a pervasive threat. More work needs to be done to protect the rights and needs of the LGBT community. One recognized area in need of reform is within the legal realm of torts, in particular, defamation. (4) False accusations of homosexuality have historically been recognized as grounds for defamation. (5)

Many question whether this precedent should be allowed to persist given the rapid societal progress of the LGBT movement. (6) Arguments for and against each have nuanced and convincing points. (7) The main argument in favor of viewing an accusation of homosexuality as not defamatory is that being "gay" should not be considered something inherently wrong or an insult. (8) The opposing side posits that defamation for accusations of homosexuality is worthy of salvation because particular insular groups may suffer real and irreparable harm despite the growing acceptance of the LGBT movement. (9)

The purpose of this discussion is to examine the arguments, history, and possible solutions to considering a false imputation of homosexuality defamatory. It will show that the best solution is allowing this cause of action to continue under defamation per quod as opposed to defamation per se. In addition, it will examine whether a false accusation of being transgender or "mis-gendering" should be the basis of a defamation cause of action. The solution of defamation per quod will then be applied to determine if it will provide guidance in navigating these burgeoning transgender issues in defamation law.

1. THE HISTORY OF HOMOSEXUALITY AND DEFAMATION PER SE IN NEW YORK STATE

   In order for a statement to be considered defamatory, it must subject the person to scorn or ridicule. (10) Defamation can be simplified to "a false statement that harms... an individual's reputation in the eyes of his or her community." (11) But such a simple definition of defamation fails to strike at the heart of defamation. All intentional torts aim to reinforce and cement societal norms and mores while discouraging anti-social behaviors. (12) But unlike other torts, the immediate harm of defamation is not physical injury or direct psychological or emotional suffering. (13) Rather, the harm is more attenuated. It is hinged upon what the community will think about the statements and whether their views on the matter will cause the person emotional and psychological suffering. (14)

   The most basic formulation of defamation can be found in the Second Restatement of Torts:

   (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. (15) Harm in defamation exists in two forms: irrespective of special harm, known as defamation per se, or with special harm, (16) known as defamation per quod. (11)

   Defamation per se is based in specified categories and the party does not need to prove actual monetary damages. (18) These categories have historically included imputations: "(1)... of criminal behavior; (2)... of loathsome disease; (3)... of unchastity or that expose a plaintiff to public hatred, contempt or ridicule; and (4)... affecting a person in his or her business or profession." (19) Historically, homosexuality has either fallen under criminal behavior or exposure to public hatred. (20)

   New York has a rather interesting history with respect to whether homosexuality should be categorized as defamation per se. (21) Perhaps the earliest case in New York involving imputations of homosexuality was Stein v. Trager (22) in 1962. In that case, a research fellow at the University of Buffalo sued his professor for defamatory statements including "'psychopath', 'very destructive', 'anti-social', 'son-of-a-bitch', 'intellectually incompetent', 'immoral', 'liar', [and] 'homosexual...."' (23) The professor also accused him of making "up all the data for his Master's thesis." (24) The Supreme Court of Erie County began their analysis by noting the difference between a homosexual and a person engaging in the crime of sodomy, which included gay sex. (25) It recognized that only the latter can be the grounds for defamation per se because sodomy is recognized as a crime, while simply being homosexual is not. (26)

   This distinction is important. Although sodomy was illegal at the time, (27) the court recognized the humanity of the LGBT community by acknowledging that homosexuality itself is not a crime and calling someone a homosexual is not defamation per se. (28) This decision set New York apart from other states that recognized homosexuality as defamation per se because it was considered sexual perversion. (29) The decision in Stein was bolstered by People v. Onofre (30) which found the New York State sodomy law prohibiting homosexual sex unconstitutional more than twenty years before the Supreme Court in Lawrence v. Texas. (31)

   However, the Fourth Department, in Privitera v. Phelps, (32) included "homosexual behavior" as a new defamation per se category. (33) The facts in Privitera were unrelated to homosexuality and the creation of the category is dicta. (34) Creating homosexual behavior as a distinct category of defamation per se is in apparent disagreement with Stein v. Trager. (35) The origins of this new category lacked any legal citations or precedents. (36) Nevertheless, it appears to have been accepted in some New York courts as a new rule. (37) Most courts in New York, even today, adopt either the Privitera or Stein rule because there is no Court of Appeals decision to settle the matter. (38)

   Stern v. Cosby, (39) was the next significant case, and was decided by the Southern District of New York. (40) The facts of the case are sensational. A former boyfriend of Anna Nicole Smith sued the author of a book for accusing Anna Nicole Smith's former boyfriend and him of engaging in homosexual acts. (41) The Southern District refused to recognize the status of being homosexual or engaging in homosexual acts as defamation per se stating "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." (42) Because the Court of Appeals had not yet decided whether an accusation of "homosexual behavior" constitutes defamation per se, the Southern District chose not to follow Privitera. (43) Because Stern is a federal case, many New York courts have ignored this ruling and continue to follow the precedent set in Privitera. (44)

   The crowning jewel of New York jurisprudence in this line of defamation per se cases is the recent Yonaty v. Mincolla. (45) In this 2012 case, the defendant spread rumors that the plaintiff was gay or bisexual in hopes that his girlfriend would hear it and break up with him. (46) The Third Department refused to recognize homosexuality attributed to a person as defamation per se because:

   [T]he prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a "serious crime"--one of the four established per se categories. (47) The Third Department's decision was directly contrary to the Fourth Department's ruling in Privitera and its categorization of "homosexual behavior." (48) The Third Department continued to be consistent with its reasoning in Stein v. Trager and the federal court in Stern v. Cosby. (49) The Third Department's reasoning in Yonaty is clear: allowing a defamation per se category based on homosexual behavior is demeaning to the LGBT community because it essentially constitutes judicial affirmation of their existence as "shameful" or "disgraceful." (50) This sentiment is in line with the growing trend of social acceptance of the LGBT community. (51)

2. ARGUMENTS FOR AND AGAINST THE CONTINUATION OF DEFAMATION BASED ON HOMOSEXUALITY

   1. Arguments Advocating for the End of Defamation Based on Homosexuality

      The argument for the end of defamation based on homosexuality generally shares the same rationale as Yonaty in that this cause of action is demeaning to the LGBT community. Those who argue for the end of this cause of action posit that harm to one's reputation in a community is inherent to the tort. (52) This means that being seen as homosexual is the harm itself and causes the plaintiff to suffer scorn in the community. (53) Those who follow this view believe that the tort cannot be reformed because the tort will inherently hurt the dignity of the LGBT community. (54) Their main arguments include: (1) the subjective community standard will adversely affect the LGBT community; and (2) the bias of the judges applying the standard may lead to judicial affirmation of homophobia. (55)

      1. The Community Standard Is Unreliable, Inequitable, and Discretionary

         The "community" in a defamation case is shaped by a judge. (56) This results in one person determining the defining social mores and beliefs of a community. (57) The judges, in a sense, speak for the communities that sit within their jurisdictions. (58) The judge is also able to pick out subsets of the community to speak for the whole community under the "'right-thinking' members of the community or in the eyes of a 'substantial and respectable minority' of the community." (59) However, judges rarely reach out to the community at large or any particular...