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Thursday, December 8, 2005

Tom Cruise’s Legal Options

Posted by on December 8 at 15:08 PM

Thanks to the good folks at Defamer, I was led to this fascinating legal rumination on Tom Cruise’s legal options regarding a recent episode of South Park, wherein a cartoon Cruise flees into a closet, inspiring cartoon friends and peers and ex-wives to beg Cruise to “please come out of the closet!”

Not only does the story shed fascinating light on the legality of parody/satire, it brings up a fascinating question: Is calling someone gay defamatory?

Check it out here.


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I've been wondering if calling someone gay is defamatory myself. It seems to me to be obviously "No". However, Robbie Williams just won a big settlement with a British tabloid over that very topic. I read about it this week and wondered why on earth the tabloid would pay out when this very week gay folks started applying for partnership (marriage, in essence) certificates?

At common law, calling someone a homosexual was a defamation per se, along with calling the person a thief, a woman unchaste, or accusing someone of having a "loathsome communicable disease." Truth is a defense. A defamation per se means that if the defamation is proved, the plaintiff need not prove specific damages.

Times are changing. As one federal judge in Massachusetts said:

"2. Is a Statement That an Individual is a Homosexual Capable of a Defamatory Meaning?

Even if I were to find that the photograph and caption somehow state or imply that Albright is a homosexual, I could not find that such a statement is capable of a defamatory meaning. Looking at any "considerable and respectable class of the community" in this day and age, I cannot conclude that identifying someone as a homosexual discredits him, that the statement fits within the category of defamation per se. See Smith, 374 Mass. at 529.

While courts outside this jurisdiction are split on whether a statement wrongfully identifying someone as homosexual is defamatory per se, their decisions rely on statutes criminalizing same sex sexual acts (statutes which may well be unconstitutional), and fail to incorporate more recent decisions recognizing homosexuals' equal rights. n7

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Murphy v. Pizarrio, 1995 U.S. Dist. LEXIS 13920, 1995 WL 565990, *3 (S.D.N.Y. 1995)n7 See Plumey v. Landmark Chevrolet, Inc, 122 F.3d 308, 311 (5th Cir. 1997) (finding remark that plaintiff was a "faggot" was slander per se under Texas law because imputed crime of sodomy); Miles v. Nat'l Enquirer 38 F. Supp.2d 1226, 1228-29 (D. Colo. 1999) (holding "merely accusing one of being a homosexual is not defamatory per se," but accusation of pedophile and sex offender raised statement to defamatory per se); (finding published statement imputing homosexuality to another is defamatory per se under New York law); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 312 (Mo. 1993) (finding false allegation of homosexuality defamatory because homosexuality still viewed with disfavor, deviant sexual intercourse is misdemeanor in Missouri, and allegation imputes unchastity); Donovan v. Fiumara, 114 N.C. App. 524, 442 S.E.2d 572, 575-76 (N.C. Ct. App. 1994) (holding reference to plaintiff as "gay" or "bisexual" was not slander per se; statement did not allege plaintiff had "loathsome disease" or impute commission of crime); Boehm v. American Bankers Ins. Group, Inc, 557 So.2d 91, 94-95 (Fla. Dist. Ct. App. 1990) (statement by employer implying that employee was homosexual did not show malice (or slander per se) to overcome employer's claim of privilege); Head v. Newton, 596 S.W.2d 209 (Tex. Civ. App. 1980) (finding plaintiff made prima facie showing of slander sufficient to maintain venue where defendant stated she believed plaintiff was homosexual or "queer" because statement imputed crime of sodomy); Schomer v. Smidt, 113 Cal. App. 3d 828, 170 Cal. Rptr. 662, (Cal. Dist. Ct. App. 1980) (finding false imputation of homosexual act slander per se because equaled accusation of unchastity where defendant's alleged sexual activity was between unmarried individuals); Moricoli v. Schwartz, 46 Ill. App. 3d 481, 361 N.E.2d 74, 76, 5 Ill. Dec. 74 (Ill. App. Ct. 1977) ("fag" was not slander per se but was basis for defamation action).

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[*137] First, the large majority of the courts that have found an accusation of homosexuality to be defamatory per se emphasized the fact that such a statement imputed criminal conduct. See Plumley v. Landmark Chevrolet,, 122 F.3d 308 (5th Cir. 1997); Nazeri, 860 S.W.2d 303; Head, 596 S.W.2d 209. This rationale is extinguished by the Supreme Court's recent ruling in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), finding a Texas statute criminalizing same sex sexual conduct unconstitutional under the Due Process Clause because individuals have a right to privacy to engage in sexual acts in their homes. The Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), and concluded that continuing that precedent "demeans the lives of homosexual persons." Lawrence, 123 S. Ct. at 2482. Continuing to characterize the identification of someone as a homosexual defamation per se has the same effect.

Plaintiffs argue that sodomy is still considered a violation of Mass. Gen. Laws c. 272 § 35, n8 criminalizing unnatural and lascivious acts. HN8The statute, however, is inapplicable [**15] to private, consensual, conduct between adults. See Commonwealth v. Balthazar, 366 Mass. 298, 302, 318 N.E.2d 478 (1974). Nor does an accusation of homosexuality necessarily implicate the act of sodomy. See Donovan 442 S.E.2d at 575-76.

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n8 M.G.L. c. 272 § 35 states:
HN9Whoever commits any unnatural and lascivious act with another person shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years.

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Second, I reject the offensive implication of plaintiffs' argument that, even without the implicit accusation of a crime, portions of the community "feel [homosexuals] are less reputable than heterosexuals," as plaintiffs allege in this Complaint. Plaintiffs cite various state statutes to illustrate societal contempt for homosexuals, including legislation against gay marriage and court decisions specifically denying [**16] same-sex marriage. Defendants counter with examples of Massachusetts statutes prohibiting discrimination on the basis of sexual orientation. See, e.g., Mass. Gen. Laws c. 151B § 4 (outlawing sexual orientation discrimination in employment, housing, credit, and services); Mass. Gen. Law. c. 265 § 39 (providing penalties for hate crimes based on sexual orientation).

Plaintiffs' arguments are especially unavailing in light of the Supreme Judicial Court's recent decision in Goodrich v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (November 18, 2003), finding limitations on same sex couples' ability to marry unconstitutional. See also In Re Opinions of the Justices to the Senate, 440 Mass. 1201, [*138] 802 N.E.2d 565 (Mass. February 3, 2004). n9 The Court recognized that "many people hold deep-seated religious, moral, and ethical convictions that . . . homosexual conduct is immoral." Goodrich, 440 Mass. at 312. However, the Court emphasized HN10"the Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, [**17] give them effect." See Goodrich, 440 Mass. at 341-42 (quoting Palmore v. Sidoti, 466 U.S. 429, 433, 80 L. Ed. 2d 421, 104 S. Ct. 1879 (1984) (construing Fourteenth Amendment)). In its subsequent advisory opinion, the Court went on to state that it would not allow homosexual couples to endure "second-class" status, finding that the differences between the terms "civil marriage" and "civil union" were not innocuous but rather intended to relegate same-sex couples to lesser status. 802 N.E.2d at 570.

Albright v. Morton, 321 F. Supp. 2d 130, 138 (D. Mass. 2004)

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