The Volokh Conspiracy

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Not "Defamation Per Se" to Falsely Accuse Someone of Being Gay

But it could be defamation, if special damages are proved (e.g., if there is evidence that someone has lost business opportunities because prospective business partners disapproved of his sexual orientation).


From Laguerre v. Maurice, decided Wednesday by the New York Appellate Division (Justice Sheri S. Roman, joined by Justices Cheryl E. Chambers, Sylvia O. Hinds–Radix, and Colleen D. Duffy):

[P]laintiff alleges that he was defamed by the pastor of the defendant church when the pastor told members of the congregation that the plaintiff was a homosexual who viewed gay pornography on the church's computer…. The plaintiff is a former elder in the Gethsemane SDA Church …. The defendant Pastor Jean Renald Maurice is the pastor in charge of the church, which allegedly is operated by the defendant The Greater New York Corporation of Seventh Day Adventist….

As set forth in the complaint, Pastor Maurice stated before approximately 300 members of the church that "the [p]laintiff was a homosexual," and that "the [p]laintiff disrespected the church by viewing gay pornography on the church's computer." The complaint alleged that these statements constituted defamation per se, inasmuch as they falsely portrayed the plaintiff "as a homosexual man with no self-control who uses the church's computer to view gay porn." The complaint further alleged that Pastor Maurice used these statements to influence the church to vote to relieve the plaintiff of his responsibilities at the church and to terminate his membership….

Some defamation cases within religious organizations can't be resolved by secular courts, because they require determination of religious doctrine (e.g., if the allegations are that someone has departed from orthodox teachings, or is a Satanic influence). But here the court said that the matter could be resolved "by application of neutral principles of law," so the Religion Clauses would be no obstacle:

The allegedly defamatory remarks at issue, i.e., that the plaintiff is a homosexual who viewed gay pornography on the church's computer, may be evaluated without reference to religious principles. The defendants point out that the church manual provides that "[f]ornication," which includes "homosexual activity," and the use of "pornographic material" are reasons for which members may be subject to discipline. However, the plaintiff does not challenge his expulsion from the church, or request reinstatement as a church elder. Thus, under the circumstances of this case, resolution of the issues raised would not involve an impermissible inquiry into religious doctrine or practice.

Other defamation cases within organizations are dismissed because of a privilege for "a communication made by one person to another upon a subject in which both have an interest." But this is a "qualified" privilege, which could be defeated by a showing of "either common-law malice, i.e., spite or ill will, or … actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth," and here the plaintiff had alleged that the defendant was motivated by both kinds of malice:

[Plaintiff had] alleged … that the plaintiff had a disagreement with Pastor Maurice which initially centered around church-related issues, and that Pastor Maurice stated that, if the plaintiff "[did] not submit to him," Pastor Maurice would "crumble" the plaintiff.

As further set forth in the complaint, Pastor Maurice allegedly stated that he would make false statements against the plaintiff, and have the church membership vote to relieve the plaintiff of his responsibilities at the church. Accepting the facts as alleged in the complaint to be true, and according the plaintiff the benefit of every possible favorable inference, it sufficiently alleged that Pastor Maurice made false statements of fact with malice so as to overcome the common-interest qualified privilege.

But ultimately the court threw out the lawsuit because mere allegations of homosexuality were no longer so socially or professionally harmful as to warrant a presumption of damages, even the absence of proof of damages:

The elements of a cause of action to recover damages for defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se. "Special damages [under New York law] contemplate the loss of something having economic or pecuniary value." A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business, or profession; (3) imputes that the plaintiff has a loathsome disease; or (4) imputes unchastity to a woman. "When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven." …

In 1984, this Court decided Matherson v. Marchello. In Matherson, the plaintiffs, husband and wife, commenced an action to recover damages for defamation based upon certain statements made during a radio interview by the defendants, members of a singing group [The Good Rats, it turns out -EV]. The plaintiffs alleged, in pertinent part, that the statement directed at the plaintiff husband—"I think it was when somebody started messing around with his boyfriend that he really freaked out"—constituted an imputation of homosexuality which should be recognized as defamatory.

This Court noted that "[i]t cannot be said that social opprobrium of homosexuality does not remain with us today," and that "[r]ightly or wrongly, many individuals still view homosexuality as immoral." Additionally, we observed that "[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service [had] recently been reaffirmed." Thus, we concluded that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored," and "that the imputation of homosexuality is reasonably susceptible of a defamatory connotation … and is actionable without proof of special damages." …

[But this and other similar past precedents are] "inconsistent with current public policy and should no longer be followed." … "[T]he prior cases categorizing statements that falsely impute homosexuality as defamatory per se [were] based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual," and that "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." …

"[I]n light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of … legal sanctions …[,] 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 disease." … [T]he decades since Matherson "have seen a veritable sea change in social attitudes about homosexuality," including [the Supreme Court's decisions protecting same-sex sexual conduct and same-sex marriage and New York statutes barring sexual orientation discrimination] ….

Based on the foregoing, we conclude that the false imputation of homosexuality does not constitute defamation per se. Matherson's holding to the contrary should no longer be followed. Furthermore, the additional allegation that the plaintiff viewed gay pornography on the church's computer likewise does not fit within any of the categories of defamation per se.

Therefore, the plaintiff was required to allege special damages. He failed to do so, and, consequently, his cause of action alleging defamation per se must be dismissed.

Sounds right to me.