Court Ruling: ’Gay’ No Longer Defamatory

by Kilian Melloy

EDGE Staff Reporter

Friday April 2, 2010

A New Jersey court ruled that two radio hosts' having allegedly implied that a man was gay did not constitute defamation, reversing an earlier precedent.

An April 2 article reported that Peter Murphy, a New Jersey photographer, had brought suit against two radio hosts, "Jersey Guys" Craig Carton and Ray Rossi, saying that the two had defamed him by suggesting that he was gay.

The suit marked the second time that Murphy had gone after the radio hosts. Previously, Murphy's lawyer had notified the hosts and their station, Millennium Radio Group's WKXW 101.5 FM, to "cease and desist" using a photo of the two hosts that Murphy had taken. In the image, Caron and Rossi appear to be naked except for a banner ad for the radio station that obscures their groins. The photo was used in a magazine ad, but it was then also posted online. The radio show welcomed listeners' own versions of the image, which also appeared at the station's website.

The image was taken down after the "cease and desist" order, but subsequent to that, Murphy alleged, the radio hosts denigrated him on air, suggesting that he was gay and calling him untrustworthy.

The case had a precedent from 2001, when a former TV star successfully sued a radio host for calling her a lesbian. However, the U.S. District judge in the case, Joel Pisano, ruled that in contemporary New Jersey saying that someone is gay--even if untrue--does not constitute defamation. Pisano opined that were such a case to go to the state supreme court, the justices would most likely not view claims that a person is gay to be derogatory.

U.S. District Judge Joel Pisano predicted the state Supreme Court, which insisted on equal protection for same-sex couples in 2006, would be unlikely to "legitimize discrimination against gays and lesbians" by treating a homosexual reference as a slur. Pisano also referenced the 2006 New Jersey court case that led to the creation of civil unions there, Lewis v. Harris.

"Given the decision in Lewis and the recognized evolution of the societal landscape, it appears unlikely that the New Jersey Supreme Court would legitimize discrimination against gays and lesbians by concluding that referring to someone as homosexual 'tends to so harm the reputation of that person as to lower him in the estimation of the community as to deter third persons from associating or dealing with him,' " Pisano wrote in his opinion.

"Happily, in today's climate, most right thinking people do not think less of you because of your sexual orientation," Thomas Cafferty, the lawyer for the radio hosts, told the media.

From Garden State to Lone Star State

Though the Garden State may have evolved socially since 2001, calling someone gay in Texas may well still be legally considered as defamation, reported OnPoint in a Feb. 26 article. In another case involving a radio show host, Henry Robinson, an airport security guard who was referred to as gay by Dallas radio host Rickey Smiley, brought suit against Smiley.

Smiley sought to have the case thrown out in light of the 2003 case Lawrence v. Texas, a Supreme Court Case that struck down anti-gay state laws banning sexual practices between consenting adults of the same gender. But the judge in the case, U.S. District Judge Reed O'Connor, declined the motion, noting that precedent had not been established. "No case appears to address whether imputation of homosexuality continues to be defamatory as a matter of law in the wake of Lawrence," said O'Connor. "At a minimum," he concluded, "judicial caution requires the Court to acknowledge that the imputation of homosexuality might as a matter of fact expose a person to public hatred, contempt or ridicule."

If a sea-change is indeed underway in some parts of the country with regard to how gays are viewed, the legal precedents reflecting this may have begun last year with a much-publicized case in which the author of an explosive tell-all book about the late Anna Nicole Smith was accused by Smith's lawyer, Howard K. Stern, of, among other things, having defamed him by claiming in the book that Stern and Larry Birkhead--who had a child with Smith--had had sex with one another.

Rita Cosby, author of Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death, included a number of allegations about Stern in the book, one of them being a claim to the effect that Smith hired Stern out for sexual services. Judge Denny Chin ruled that Stern could pursue his suit before a jury, but also said that the allegations about Stern having had gay sex did not constitute defamation.

Cosby defended herself in the $60 million suit by declaring that, ""the fact that Howard and Larry videotaped a sexual encounter does not make the acts any more negative," and went on to argue, "In recent history, numerous stars had sex videotapes leaked to the Internet, including Pamela Anderson, Paris Hilton, Rob Lowe and others. A possible sex videotape was hardly something that would raise an eyebrow in the milieu of Anna and Howard's life."

"I respectfully disagree that the existence of... continued prejudice leads to the conclusion that there is a widespread view of gays and lesbians as contemptible and disgraceful," Chin said.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.