In a beautifully written opinion by Justice Thomas E. Mercure, the New York Supreme Court, Appellate Division, Third Judicial Department has held that referring to someone as “gay” does not constitute defamation per se. Yonaty v. Mincolla, N.Y. Sup. Ct., App. Div. 3rd Jud. Dept. (May 31, 2012). Justices Leslie E. Stein, Elizabeth A. Garry, and John C. Egan Jr. joined Justice Mercure on the panel.
In its opinion, the Court identified the four consistent categories of defamation per se in New York: “(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. (quoting Liberman v. Gelstein, 80 NY2d 429, 434-435 (2003)). Though the categories of defamation per se vary from state to state, the foregoing represent four typical categories found consistently across states.
The Court then acknowledged that it and other New York courts had at times recognized a fifth category in falsely imputing someone to be homosexual. In preparing to reverse its prior opinion on this issue, the Court quoted from a 1947 opinion stating that “[b]ecause the defamatory tendency of a statement depends ‘upon the temper of the times [and] the current of contemporary public opinion,’ a statement that is ‘harmless in one age . . . may be highly damaging to reputation at another time.'” Id. (citing Mencher v Chesley, 297 NY 94, 100 ).
Through Justice Mercure’s pen (and, from a former judicial law clerk to those law clerk(s), if any, who contributed, well done), the Court then eloquently articulated a significant shift in jurisprudence:
We agree with defendant and amici that these Appellate Division decisions are inconsistent with current public policy and should no longer be followed. Defamation “necessarily . . . involves the idea of disgrace”
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.
That premise is inconsistent with the reasoning underlying the decision of the Supreme Court of the United States in [Lawrence v Texas, 539 US 558 2003], in which the Court held that laws criminalizing homosexual conduct violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court stated that people who are homosexual “are entitled to respect for their private lives” [emphasis added], but “[w]hen homosexual conduct is made
criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination in both the public and in the private spheres”. These statements of the Supreme Court simply cannot be reconciled with the prior line of Appellate Division cases concluding that being described as lesbian, gay or bisexual is so self-evidently injurious that the law will presume that pecuniary damages have resulted.
Yonaty , N.Y. Sup. Ct., App. Div. 3rd Jud. Dept. (citations omitted). The Court then examined the changed legal landscape within New York as applied to gay, lesbian, and bisexual individuals.
The Court continued:
In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, 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
While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, “the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation,
belong in the same class as criminals.”
Id. (citations omitted).
The Court’s opinion represents a well-articulated position on why the term “gay” no longer can be recognized as defamatory per se. Moreover, it also carefully explains why changes in society must be considered in determining whether a term can constitute defamation per se.
Mudd Law Offices represents individuals and corporations in defamation litigation as well as provides information about defamation, libel, and slander. Additionally, it has begun to write a serious of posts on defamation law on its blog.