Defamation and Homosexuality: Gay Per Se
U.S. District Court, Southern District of New York: Howard K. Stern v. Rita Cosby et. al.
When trying to understand the tenor of the times, the writing on the wall is often hidden in the small print. And depending on where you live (red state / blue state – the coast or the heartland) the fine print reads and is received differently. The fine print about homosexuality and how it is viewed is what makes the Stern case noteworthy.
Rita Cosby is a well-known TV reporter. After the death of Anna Nicole Smith, Ms. Cosby decided to write a book about her. That book, Blonde Ambition, the Untold Story Behind Anna Nichol Smith’s Death, was published on September 4, 2007, just seven months after Ms. Smith died from a prescription drug overdose.
Cosby rushed to do her book while Anna Nichol Smith was still hot news. Smith had grabbed headlines for years because of The Anna Nicole Show, because of her marriage at age 26, to 89-year-old- billionaire J. Howard Marshall III and because of the death of her son Daniel just days after Smith gave birth of her daughter Dannielynn in 2006.
While publishers were eager to run with any news about Anna Nicole, co-defendant Hatchette Book Group was not interested in Cosby’s idea for a book “unless it contained previously unreported information.” Cosby promised the book would have “a number of previously unreported explosive news items.” As part of the sales pitch, Cosby’s agent told Amy Einhorn, an editor at Hatchette, two “facts” that would seal the deal. Einhron listened, then told her colleagues she had just heard two "holy shit" items. The next day, Hatchette offered Cosby a $405,000 advance plus royalties for the book.
After the book was published, Howard Stern, former Nicole Smith lawyer, boyfriend, alleged father of her daughter for a time and confident of Ms. Smith, sued Cosby and Hatchette for libel. Hatchette and Cosby moved for summary judgment. Hatchette prevailed. Cosby, not so much.
There were 19 Statements in the book that Howard Stern claimed were libelous (they’re described at pages 10 -13 of the decision). Cosby’s motion for summary judgment was granted as to 8 of those statements. It was denied as to 11 others (see page 48 of the decision). So part of the case will go forward. For our purposes, however, we will deal with statements 1 and 2, the two "holy shit" items that closed the deal for Cosby and Hatchette.
Statement 1: “Stern and Birkhead [Nicole Smith’s boyfriend] 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.”
Limiting our focus to Statements “1” and “2”, Cosby’s defense was that Howard Stern’s reputation through all the Anna Nicole Smith years was so bad prior to publication of her book, that he could not have been further damaged by the statements, and that he was therefore “libel proof.” The court did not agree.
Cosby also argued that Statements “1” and “2” which “impute homosexuality to Stern, are not defamatory...and are therefore not actionable.” Stern claimed they are defamatory per se (i.e.,the allegation alone is presumed to cause damages).
Here’s where the blue state - urban - northeast view of the world is contained in the fine print, a view that is either a great progressive step forward, an inconsequential footnote on the law of New York State, or a confirmation that the homosexual agenda has quietly vanquished one of the Judeo-Christian foundations upon which much of our culture stands.
Writing for the Court, Justice Chin concluded that “Statements 1 and 2 are defamatory, but not defamatory per se” even though the 1st and 2nd Departments of New York’s Appellate Division have held that the “false imputation of homosexuality is reasonably susceptible of a defamatory connotation.” Noting that the New York’s Court of Appeals had never ruled on the subject, Justice Chin took it upon himself to “predict what New York’s highest court would do were the issue before it.”
According to Justice Chin,
The New York Court of Appeals has held that the following four categories of statements are defamatory per se: (1) those that accuse the plaintiff of a serious crime; (2) those that ‘tend to injure another in his or her trade, business or profession’; (3) those that accuse the plaintiff of having a ‘loathsome disease’; or (4) and those that impute ‘unchastity to a woman”
The Court went on to find that whether a statement is defamatory per se depends on “the temper of the times, the current contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.”
Based on this analysis, Justice Chin framed the issue thusly:
“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 of 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. I conclude that it would not.” [Some Bible-toting alleged homophobes, or "breeders" as they are non-defamatorily referred to, may not agree.]
To further support his view, the Judge looked to what he sees as the “veritable sea change in social attitudes about homosexuality” including laws decriminalizing homosexual conduct, the movement to legalize gay marriage, that a Quinnipiac poll found that New York State resident support gay marriage 51 to 41 percent with 8 percent undecided and finally, that New York’s Court of Appeals “has not, in its most recent opinion touching on social attitudes toward homosexuality, given any indication that it perceives widespread disapproval of homosexuality in New York."
Justice Chin then relied on his brethren in Massachusetts for this (questionable) conclusion: “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.”
OK. Statements 1 and 2 are therefore not defamatory per se. “They are, however, susceptible to a defamatory meaning. Therefore a jury will decide whether they are defamatory.
Here’s the fine line the learned judge has drawn: It’s not defamatory to be called a homosexual. But it might be defamatory to say someone's a homosexual who also engaged in oral sex at a party in the home of another. That, apparently, is conduct that “ a reasonable jury could find...is shameful or contemptible...” (it is not clear whether the accusation of boorish party behavior offended the judge's sensibilities, or the assertiion that the sex occurred at someone else's house). Moreover, since the statement suggests that Howard Stern was having sex with a man while he was intimately involved with Anna Nicole, it implies unfaithfulness to her, and this would be “further reason for a jury to find that the Statement is defamatory.”
Accordingly, the court found that homosexuality no longer holds any opprobrium, at least in the abstract, but reckless homosexuality (with respect to time and place) that is compounded by unfaithfulness can be defamatory because faithfulness is still considered a virtue, as is not coveting your neighbor's bedroom to engage in homosexual acts.
I reserve opinion on this matter—not that there’s anything wrong with that—and leave it to other legal and culture pundits to figure out if this is good for the body politic or not.
As a footnote, it might not be defamatory to call someone a homosexual, but according to today's New York Post, you better think twice before you say someone looks like a "skank." It's not clear how this ruling would affect Judge Chin's decision, but clearly, any name callers out there should think twice before saying a homosexual looks like a skank.
To be on the safe side and pending further clarification by the courts, it's probably best to restrict all potential defamatory remarks toward commonly accepted libel-proof targets, such as Christians, far-right conservatives, global-warming deniers, "birthers" and trial lawyers.
