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.


NEXT: Today in Supreme Court History: December 28, 1856

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  1. "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.""

    'And now that we've admitted that, we're going to pretend that none of that is true.'

    1. Does the imputed activity have to be illegal to reach that standard? If not, what fraction of the population must look askance and want to avoid them, causing harm? And what if the target population might as well be in 1954?

      1. There are ten states which mandate concealed carry on campus -- where properly licensed individuals can legally carry a gun.

        Now imagine a target audience of professors being told that a specific individual -- student or professor -- was carrying but who wasn't. It's a clearly legal activity that's imputed here, and yet I somehow think that would be interpreted a tad differently in the context of harm caused....

        1. There are ten states which mandate concealed carry on campus — where properly licensed individuals can legally carry a gun.

          The word you are looking for is "permit" or "allow," not "mandate." I feel confident that no states require people to carry weapons on campus, concealed or otherwise.

        2. Are you saying that you think falsely stating that a person is carrying a gun should be considered defamation per se? That seems unusually stupid, even for you.

    2. Defamation per se means the statement is always injurious.

      It simply isn't always injurious anymore. In some communities, an imputation of homosexuality might even benefit a plaintiff.

      Because you are homophobic and bigoted, and hate gays and lesbians, you can't stand the fact that this change has occurred. But it has, in fact occurred, and this is one more example of why we should be thankful that Brett Bellmore's views have nothing to do with what the law actually is.

      1. Then being accused of homophobia is now always injurious.


      2. By this weak logic, there is no statement that is defamation per se - you can always find someone that is willing to accept themselves or others being called any insult you can think of - murderers, tax cheats, child rapists, whatever.

        If even one person, under some set of circumstances however limited, is willing to find the statement beneficial or even just non-harmful, then it isn't "always injurious".

        1. The fallacy of the excluded middle.

  2. The man is a church elder in a religion where homosexuality is banned. Additionally, he was publicly accused of viewing the pornography on his work computer.

    This is not only an accusation that he is committing a serious sin in the church, but that he performs inappropriate activities at his job. This will prevent him from obtaining employment both at the church but also anywhere that would find viewing porn at work as a fireable offense, which is a significant fraction of professions

    I do not understand how the judge could rule in this way given how clearly this falls under item 2 of the defamation per se.
    "tends to injure the plaintiff in her or his trade, business, or profession".

    1. I was thinking that too. If a church teaches that homosexuality is a sin, the court doesn’t need to answer the religious question of whether homosexuality actually is a sin to conclude that a false statement that someone is gay injures him within that community.

      And while my employer has a non discrimination policy that includes sexual orientation, I’m quite certain that any employee caught using a company computer to watch gay porn (or any other kind of porn) would find his job in jeopardy.

    2. The judge is wishcasting (AKA "motivated reasoning") his own view of what SHOULD be offensive, at the plaintiff's expense.

    3. I agree - and it would have been one thing to say that he "views porn" but to add "on the church's computer" implies a knowledge of specific incidents, with the related knowledge of specifically what and when he viewed it.

      I see it as the distinction between saying "he's gay" and "he performed sex act X with Y on date Z."

      1. What do you think the distinction is?

        The court didn't hold that these statements couldn't be defamatory. It held that they weren't so injurious that the the plaintiff didn't have to prove that they harmed him, just as with the vast majority of other false accusations.

    4. I do not understand how the judge could rule in this way given how clearly this falls under item 2 of the defamation per se.
      “tends to injure the plaintiff in her or his trade, business, or profession”.

      I thinks (someone can correct me) that to fit into that, the statement has to relate to the trade, business or profession, not merely indirectly affect his business.

      If someone is a financial advisor, and someone else says he tortures little puppies and kittens for fun, and he loses half his clientele, I don't think that is defamation per se.

      1. You have a point. However, this isn't just a general accusation. It's direct

        A clear example would be saying that your financial advisor was insider trading or stealing money. Even a rumor of that would cause the advisor to lose business.

        This isn't quite as bad, but it still seems directly aimed at making him unemployable.

    5. It seems to me this decision fails to take into account the audience these statements were directed to. This group would seem to view homosexuality and porn as at least serious character flaws if not dangerous immoral actions.

    6. That was my take as well - the "gay" part is nearly irrelevant compared to the "viewed porn on the church computer" part.

      But in fairness, damages can't merely be presumed from that accusation. It shouldn't have been hard to claim damages but apparently the plaintiff didn't do it. For example, it would only "tend to injure [you] in your profession" if you had a profession. Is the former church elder retired? Or did the complaint simply miss that step?

      1. "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."

        This doesn't constitute damages?

        1. Once you are out of defamation per se, you have to quantify your damages specifically, and show economic loss. I doubt he can do that, and don't think he did that in his complaint.

        2. No, being an elder is a voluntary thing, you aren't employed as one. Membership is a church matter and a court wouldn't be qualified or able to assess damages solely on that. Same for the elder bit, but I felt it was worth clarifying that it's not related to employment.

    7. Generally speaking, church elders are not employees of the church.
      The are a volunteer, part time, governing council.

      So no, he wasn't accused of performing "inappropriate activities at his job".

    8. He can still prove all that as special damages.

  3. Seems wrong to me. While public opinion in general may have shifted on this topic, it's obvious that opinion within the SDA church has not shifted nearly as much, and therefore falsely accusing someone of homosexuality within that church should continue to be subject to the old rule.

    Also, "imputing unchastity to a woman"?! Really?! If the old rule about homosexuality is no longer operative, how can that rule still apply? Public opinion has shifted far more on that subject than it has on the other one.

    1. If you start getting into specific contexts then that should be where you could find damages. Defamation pro se is the wrong tact in that situation.

  4. Is being gay a negative and defamatory if falsely accused of such? They are rich, privileged, and successful.

    1. except for the ones that aren’t.

  5. There used to be cases about whether it was defamatory as a matter of law to call someone a communist. They went both ways, depending upon such transitory things as whether Stalin was our gallant ally in the fight against Hitler (not defamatory) or the monstrous ruler of an expansionist adversary (defamatory). I've always thought they were both wrong and the the question should have been, and still should be, one for the jury. Likewise with homosexuality. Juries are more attuned to what the larger community thinks than judges, whose intuitions in these cases reflect, at best, elite opinion.

    1. Elite opinion is the best opinion, much better than the views of some random collection of clingers on a jury.

  6. "the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual"

    Doesn't it matter that it is shameful and disgraceful to the specific individual -- and not to society as a whole?

    I draw an analogy to hunting -- another perfectly legal practice (if done legally) with visceral opposition in certain quarters.

    If someone were to say that I'd gone hunting last fall and bagged a 10-point buck, my response would been "I wish..." and that'd been the end of it. It'd be something very different were I a vegan PETA member and my fellow vegan PETA members were told this.

    Furthermore, it would be a different thing if someone were to say that I had been out hunting last night -- that's illegal, in violation of laws against both night hunting and hunting season. That's what I see the using church computer to view porn accusation as being -- there are laws against misusing the computer resources of others.

    While society may decree that it is not shameful or disgraceful to be described as gay, I know quite a few men who would be truly mortified. Possibly driven to suicide. And then what?

    I also note that the judges names were "Cheryl, Sheri, Sylvia, and Colleen" and wonder how these enlightened women would have ruled had the issue instead been a woman accused of being sexually promiscuous. Fornication and adultery are no longer criminal offenses, yet many women would be equally mortified to be publicly accused of having slept with the entire football team. (Others might not be...)

    1. As I have always understood it, it isn't enough that the individual find it shameful or disgraceful. On the other hand, you don't need to show that everyone, or a majority of people, would find it shameful or disgraceful. There's an old case in which only a narrow set of specialists would even understand that the statement, if believed, would affect the plaintiff's reputation. The case was allowed to proceed because the defamatory sting would be felt in a relevant subclass of society.
      But it can't be just any group, however antisocial its values. Nazis would think less of someone falsely identified as a Jew. The usual language is something like a "considerable and respectable minority" is required.
      I have been uneasy with this for years, and have long advocated allowing defamation actions if an identifiable group of people would think less of the plaintiff and the plaintiff has some legitimate interest in having a good reputation among that group. Thus, it might be possible for an officer in a neo-Nazi group to sue people falsely identifying him as a Jew because that damages his ability to serve as an officer in a Neo-Nazi group. Or, to take a commonly-litigated example, false allegations that X reported to the authorities the illegal activities of Y. A private detective, for example, would have hard time doing his job if it got around that he reported on all the illegal activity he came across in the course of his investigations. A prison inmate, to take an actual litigated case, might get killed if he was believed to be informing.

  7. "'Are you Gay?'

    'Gay?! I wish! If I were gay they'd be no problem! No, what I have is a romantic abnormality, one so unbelievable that it must be hidden from the public at all cost. You see...'"

  8. I thought homosexuality was a positive sexual orientation that brought with it great things such as diversity and the ability to decorate. Why would anyone view being gay as potentially libelous?

  9. How about watching pornography? Is that defamation per se? (Even if not homosexual)?

  10. Wait a minute... a libel case about homosexuality? So, for the first time in all of my internet travels, I've come across something that's literally fake and gay?

  11. I suppose that we cannot have it both ways. We want to have social equality which suggests that being gay is not a social liability.

    On the other hand what if s/New\ York/Alabama/ ? Or Mississippi or even Florida? (We are Alabama with Miami Beach and Disney World.)

  12. What wasn’t adequately pleaded?

    The special circumstaces were the pastor was fired.

    They can’t tell the church to unfire thepastor. But if a false accusation led to this, how specific do you need to be here? It seems obvious enough here. The other aide has notice of what the case is about.

    1. Elders (he wasn't a pastor, the pastor was the defendant) are not normally paid for their work. It's a volunteer position.

  13. What if he turned around and said "I'm not gay -- but the pastor is -- and he sexually assaulted me."

    That would be interesting, would it not?

    Although the more effective one would be "yes, and I was having an affair with the pastor, but he dumped me for a younger man."

    So you have a libel in response to a libel, with actual damages to the latter because the pastor is out of a paying job. Yet he also libeled -- and I'm not sure how this could get sorted out consistent with the four women's view that it's not libelous to say that one is gay nor that one engaged in gay acts (i.e. porn on the computer).

    Having a gay trist is also legal.

    1. I’m not sure how this could get sorted out consistent with the four women’s view that it’s not libelous to say that one is gay nor that one engaged in gay acts (i.e. porn on the computer).

      If the "four women" had said that, you might be within spitting distance of a point, for once.

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