Thursday, December 30, 2010

When Is It Risky To Write That Someone Is "Gay"?

There are two starkly different varieties of lawsuits that have arisen from statements that someone is gay:  libel cases in which the statement is alleged to be false; and privacy cases in which the statement is acknowledged to be true.  Both types of claims may become rarer as a result of America's changing values and changing laws.

As to libel claims, there is an argument (indeed, a persuasive one, in my view) that it should no longer be regarded as libelous to call someone gay, even if the statement turns out to be false.  Libel requires a "false and defamatory statement of fact," which is typically defined as a statement that "tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace" among right thinking people.  Not only is it indisputable that the opprobrium formerly associated with homosexuality has diminished, but two major legal developments have taken place in recent years.  First, in 2003, the Supreme Court ruled in Lawrence v. Texas that laws criminalizing private, consensual same-sex sexual activity are unconstitutional.  Second, at least twenty states and the District of Columbia have outlawed employment discrimination against persons based on their sexual orientation, not to mention those states that have recognized same-sex marriages.

In the midst of this changing legal and social climate, it's not surprising that a federal court in Massachusetts stated as early as 2004 that, under Massachusetts Law, a false imputation of homosexuality was no longer defamatory.  And, earlier this year a New Jersey federal court reached the same conclusion, finding, in a case involving two radio "shock jocks," that a statement arguably implying that someone is a homosexual is no longer capable of defamatory meaning under New Jersey law.  

Regrettably, it is by no means clear that other courts will rapidly fall in line; indeed, these cases may not be the last words on the law in Massachusetts and New Jersey.  In fact, earlier this year, a federal court in Texas reached a conclusion opposite to that of the New Jersey court, in rather similar circumstances, holding that a radio personality's statement that an airport security guard was "gay," gave rise to a cause of action because "the imputation of homosexuality might, as a matter of law, expose a person to public hatred, contempt, or ridicule."  The Texas decision is reported here.

While the legal times may be a-changin', it is still far too early to conclude that they have, in fact, reliably changed.  So, as a writer, you should be aware that if you publish a statement that an identifiable living person is gay, you could still be held liable for it, if you turn out to be wrong.   (Provided, of course, that the plaintiff can prove all of the other elements of a defamation claim.)

But what about the flip side?  Can there be liability for publishing a true statement that someone is gay when that fact is not already generally known?

Many -- but not all -- states recognize a legal cause of action for "public disclosure of private facts."  A plaintiff in a "private facts" case must prove that the defendant published highly personal information about plaintiff's life that has not previously been publicly revealed, that is not of legitimate public interest, and the disclosure of of which would be offensive to a reasonable person. A terrific short summary of the law pertaining to public disclosure of private facts is available on the outstanding Citizen Media Law Project site.

The most famous lawsuit involving "outing" was brought by ex-Marine Oliver Sipple, the hero who intervened to save President Ford's life, when Sara Jane Moore attempted to assassinate him in 1975.  Subsequent press coverage of the assassination attempt, including articles in the San Francisco Chronicle, reported that Sipple had been a campaign worker for Harvey Milk and a figure in San Francisco's gay community.  Sipple was distressed by the coverage of his personal life, in part because he had never disclosed his sexual orientation to his parents, brothers, or sisters, who learned about it for the first time from the news accounts.  But Sipple lost his case because the fact that he was gay was not deemed "private," given that his sexual orientation and gay rights activism were already known "to hundreds of people in a variety of cities."  Moreover, his personal life was "newsworthy" because, by his actions in saving the President's life, he had become -- albeit involuntarily -- a public figure.  The same newsworthiness arguments might conceivably lead to a similar result in a case of outing a closeted elected official who has hypocritically railed and voted against gay rights.

But change the facts a bit and you could easily get a different outcome.  Assume that the person being outed is not a public figure.  And assume further that only a relatively small number of people were aware of his or her sexual orientation.  In that circumstance, the outed person might have a claim for public disclosure of private facts.  For example, in Diaz v. Oakland Tribune, a California court found that a student political leader could maintain a claim for public disclosure of private facts against a newspaper and a columnist for reporting that she had undergone a sex change operation -- a fact that was previously known only to her immediate family and closest friends. 

By analogy to the Massachusetts and New Jersey libel cases, it could be argued that the waning stigma associated with homosexuality in 2011 makes it less likely that a truthful statement that someone is gay would be deemed highly offensive to a reasonable person, even if he or she has not widely disclosed his or her sexual orientation.  That said, it can be difficult to see the ethical justification for publicizing the sexual orientation of a non-newsworthy, private figure who has not openly acknowledged it himself/herself, particularly when so many young people struggle mightily with the question of whether and how to make the disclosure to their friends and family.  I  realize this response is, to some degree, inconsistent with my view of the private figure libel cases. Maybe it's because reported instances of private figure outing often seem to arise in the context of alleged teen bullying, as in this haunting case, rather than in the context of well-intentioned journalism.

So, writers, if you are going to publish a statement that someone is gay, make very sure you are right, and, make very sure that the person has already publicly disclosed his or her sexual identity or that there is a compelling public interest in doing so.

Difficult questions arise in the context of memoirs, when telling your own story truthfully sometimes requires disclosing intimate facts about those you are close to.  There are some important cases that deal with this dilemma, and some courts have cut writers some slack -- a subject to which I will return in a later post.

Postscript:  Of course, writers should not feel legally inhibited about referring to openly gay public figures as gay.  And, of course, in openly gay communities, and in the publications that cover them, discussion of non-public-figures' sexual orientation is entirely commonplace.  In communities where people freely and frankly make known their own sexual orientations, the public discussion of sexual identity is unlikely to offend and unlikely to give rise to legal disputes.

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