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Posted by on Aug 15, 2009 in Society | 5 comments

Judge Says Gay Claims Not Defamatory

That in the libel case by Howard K. Stern, Anna Nicole Smith‘s former lawyer, against Rita Crosby. Crosby claimed in a book that Stern is gay. The judge ruled that the gay sex claims could not be libelous because homosexuality is no longer viewed as contemptible:

Stern claimed the book, which was published six months after Smith’s death, contained 19 libelous statements, including that he had engaged in oral sex at a Los Angeles party with Larry Birkhead, the father of Smith’s child, and that Smith had later called Stern gay.

[U.S. District Judge Denny] Chin dismissed Stern’s claims that statements implying he was homosexual were defamatory, although he acknowledged that gays and lesbians still suffered 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,” the judge said.

Via Emily Bazelon in the Slate Gabfest. Bazelon also points to a Slate piece by Gabriel Arana from last February:

[G]ay libel suits abound. In December, Joseph Farah, founder of the conservative news site WorldNetDaily, threatened a libel suit against Wikipedia, which had listed him as “an Evangelical Christian American journalist and noted homosexual.” And in 2003, a Los Angeles judge awarded Tom Cruise $10 million in a gay libel suit against a porn star who claimed he and Cruise had been lovers. When he sued, Tom Cruise said that he had nothing against gay people. But these cases inevitably send the message that it’s shameful to be gay.

Wikipedia fixed Farah’s entry and while Tom Cruise won in 2003, in 2005 he declined to sue over the notorious Trapped in the Closet South Park episode.

Arana walks us through a history of how shifting attitudes stopped courts from recognizing certain labels — that a person “had negro blood” in the 1840s or was a Communist during the Red Scare and the McCarthy era — as defamatory:

That’s where we should be in the timeline of gay rights. Gay marriages or partnerships are recognized in 11 states. President Obama recently set up a task force to look at dismantling “don’t ask, don’t tell.” The Supreme Court’s 2003 decision in Lawrence v. Texas struck down laws criminalizing sodomy, which often served as a basis for gay libel suits (because accusing someone of participating in criminal activity is one standard for defamation). Roughly three-fourths of Americans think that gays should be protected against employment discrimination and about half think gays should be able to enter into civil unions and adopt children. The numbers reflect a dramatic shift in attitude over the last decade, and young people support gay rights at especially high rates. As Christopher Hayes, an editor for The Nation, commented, “Every time an ambulance passes it is either someone who opposes gay rights dying or someone who supports them being born.”

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  • pacatrue

    Hey, Joe, do you know how this compares to claims about hetero sex? Is it defamatory to publish an article that, I don’t know, pick a famous woman, Hillary Clinton did a make gigolo after Obama’s inaugaration in the back of a Ford Pinto and then add in salacious details to make it sound really gross? Is that fair game legally? I know it’s slimy morally, but I don’t know about legally. (Not that I have plans to do so…. 🙂 )

  • JWindish

    No, I don’t know. I wonder whether any of our other readers do?

  • Lit3Bolt

    I guess it would depend on how salacious the details of said sexual acts are, pacatrue. The burden is on the accuser to prove that his or her reputation has suffered tremendous damage from the slur of the defendant, but there’s also a burden on the defendant to prove the claim is NOT libelous and is in fact, “true.” If the NYT printed such an article as truth, then BO and HRC could sue and win, because then the NYT would have to come clean about all the sources for the “details.” If you have falsely claimed to have seen the President’s um, “stimulus package” then you’re in trouble I think.

    On the other hand, if it’s clearly presented as fiction or parody, then I think you’re protected by the First Amendment.

    That said, the power structure is often inverted in these cases, because the defendant is usually the one with the big big bucks and that makes the cost of suing worthwhile.

  • Silhouette

    No, it isn’t fair game. Prevailing thoughts about the etiology of homosexuality are still in the “juror’s box”. A judge cannot decide that homosexuality is normal in this way to try to set a precident….which is what he was up to. So if judge “A” decides that everyone thinks homosexuality is normal then case “B” can be found that homosexuals can marry.

    I get where this is going…

    Homosexuality is a fetish b-e-h-a-v-i-o-r. There are no homosexual people. There are no homosexual people [it needed repeating]. There is not one person more or less predisposed to the associative conditioning of sexual imprinting than another. What is true is that we as a majority still have the opinion that homosexual behavior is not a behavior that we want to condone and promote to future generations.

    We recognize, [as, by their vernacular, do the those afflicted with it] that it can be both taught and learned. Don’t challenge me on this because I will cite “bi-curious” again and the oft used “chicken” [young hetero men who are by nature hyper-sexual and who therefore can have their lust redirected to homosexual behavior in adolescence, the critical age for imprinting] aspects to show that homosexuals actively seek recruits from the overall heterosexual population. Which is not only deviant but deviant-predatory. That is, a deviance that seeks to replicate and expand itself throughout a given population.

    Ergo, one judge declaring, wrongly, that homosexuality isn’t seen by the majority of people as a deviant condition is misleading to say the least.

  • belicoso

    I’m sure Howard was counting on the Cosby lawsuit money to pay for his legal team to keep him out of jail ever since the police picked him up for being a part of the illegal acquisition of the prescription drugs that were ultimately the cause of Anna Nicole’s death. Howard must have been incredibly short-sighted, totally missing the point that his exploitation of Anna by keeping her in a daze to try and benefit from her active estate claim did harbor the risk of her suffering from an overdose thereby killing his golden goose.

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