Posted On: June 1, 2012 by Mark A. Eskenazi

Slander Per Se: Gay New World?

New York Appellate Division, Third Department: Yonaty v. Mincolla

It’s difficult to keep up with the changes overtaking our culture. Health care, immigration policy and technology all shape the landscape and intersect with our lives in ways we barely understand, but perhaps the most influential, least understood and frequently most divisive issue that commands our attention is homosexuality. Even trying to articulate fair comment leaves one apprehensive, knowing that attacks will come from those for and against any further extension or limitation of gay rights in our culture. But this seems to be a banner week for the issue, and all I’m willing to say is that the jury is still out on the impact of all these changes.

What is a seeming victory for the homosexual community may prove to be something else for the nation at large because in all changes, there are unintended consequences. Who knows what is being wrought right now? A great utopia where tolerance and brotherly love have taken their rightful place in the panoply of values we cherish, or a great unraveling of the foundations which are at the very heart of who we are as a people. Like I said, the jury is still out, but here’s the latest from the court:

Plaintiff, presumably a committed heterosexual in a long-term relationship with his girlfriend, sued defendant. Defendant claimed he heard that plaintiff was gay or bisexual. He then told a close friend of the girlfriend in the hope that it would get back to her, which it apparently did. That led to the deterioration of the boyfriend-girlfriend relationship. Plaintiff sued defendant for slander per se. And defendant sued the close friend for repeating the gay accusation.

It used to be that calling a heterosexual a homosexual was slander per se, that is, in a class of accusations that are “commonly recognized as injurious by their nature, and so noxious that the law presumes that pecuniary damages will result.” In New York, there were four such categories of slanderous utterances long held to be injurious by nature, and then a fifth, which is the subject of our discussion. The Third Department describes it this way:

The four established "per se" categories recognized by the Court of Appeals are "statements (i) charging [a] plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that [a] plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman" (id.). As Supreme Court noted, the Appellate Division Departments, including this Court in dicta, have recognized statements falsely imputing homosexuality as a fifth per se category [citations omitted].

Since the homosexual rights’ debate has been reframed from a question of whether it is morally right to a question of whether it is a civil right, great inroads have been made extending protection to everything gay. Recognizing this apparent cultural shift, the court was loathe to treat the accusation of homosexuality as a defamatory statement per se, holding instead that all precedent to the contrary should be ignored, and from here on damages must be proved if any gay slander (can there even be a gay slander in light of this decision?) is to be considered actionable. Here’s its reasoning:

We agree with defendant and amici that these [prior] Appellate Division decisions are inconsistent with current public policy and should no longer be followed. Defamation "necessarily . . . involves the idea of disgrace" (Bytner v Capital Newspaper, Div. of Hearst Corp., 112 AD2d at 667). Defendant and amici argue — correctly, in our view — that the 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 (see Liberman v. Gelstein, 80 NY2d at 435).

The court concluded that “it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease [citations omitted]."

Of course this misses the moral point altogether, which may be the very point the court was making. If one objects to homosexuality on moral or Biblical grounds, it is not the “serious crime” like nature of the allegation that is defamatory, it is the moral opprobrium that results. Since the debate is being stripped of its moral component, even the court had to focus on a straw argument about criminality to reach its conclusion (the better comparison would have been to accusations about being an unchaste woman, still considered a moral slur on a woman's character). But whether the court likes it or not, nearly half the nation still has moral objections to homosexuality and its attendant issues, including gay marriage, and the slander alleged is based on that premise, not on some criminal equivalency the court preferred to focus upon. Nevertheless, the court chose to read the times as it sees them and dismissed plaintiff’s case.

But the greater debate is far from over. The very week that this decision was published, DC comics outed the Green Lantern. Is that a good thing in a children's comic strip? Some think it’s wonderful. Others are appalled. Like always, it depends on your perspective.

And as for the law of unintended consequences, it’s never quite clear where the civil rights argument on sexual issues will lead or where it will end. Utah's polygamous family stars of TV’s Sister Wives have also won a legal victory in their civil rights’ claim to live how they choose, and for now, authorities seem to agree. You want more than one wife? Have at it. The State has declined to prosecute for polygamy.

We are either watching a revolution of rights unprecedented in world history, or a devolution of moral values unprecedented in American history.

Either way, the times they are a-changin...

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