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Calling Someone Homosexual Is Not Defamation Per Se, Judge Rules in Suit by Anna Nicole Smith Lawyer
New York Law Journal
August 13, 2009
A statement that someone is a homosexual is not defamation per se in New York state, a federal judge has ruled.
Southern District of New York Judge Denny Chin said in a ruling Wednesday that a "veritable sea change in attitudes about homosexuality" has led him to conclude that today the New York Court of Appeals would not hold that calling someone a homosexual was defamation per se.
However, the judge also said that statements asserting homosexual conduct might be found by a jury to be defamatory in Stern v. Cosby, 07 Civ. 8536.
The suit was brought by Howard K. Stern, the lawyer and former lover of tabloid sensation Anna Nicole Smith, who died in 2007 after being found unconscious in a Florida hotel room. An autopsy revealed that Smith died from an accidental prescription and over-the-counter drug overdose. In March, Stern and two doctors were charged in California with conspiring to furnish drugs to Smith.
Stern claims television journalist Rita Cosby defamed him at several points in her book "Blond Ambition: The Untold Story Behind Anna Nicole Smith's Death."
Stern said the book contains 19 defamatory statements, including the false suggestion that he had engaged in sex with Larry Birkhead, the man who was ultimately determined to be the father of Smith's daughter, Dannielynn, who was born in 2006.
Ruling on Cosby's motion for summary judgment, Chin allowed 11 allegedly defamatory statements to go to trial, including the Stern/Birkhead sex statement and another claim that Smith had a videotape of the men having sex and watched it repeatedly.
Additional statements Chin kept in the lawsuit in his 58-page ruling were that Smith's son, Daniel, said Stern "pimped" Smith to other men for money; that Stern "pimped" her at least 50 times a year, sometimes after drugging her; that Stern perjured himself in a Florida proceeding by claiming he was the father of Dannielynn; that he extorted Birkhead; and that people felt Stern was a threat to the life of Smith, thought he was involved in her death, and had a financial motive to kill her.
Chin first rejected the claim by Cosby that Stern was libel-proof. He then turned to the issue of defamation per se.
The New York Court of Appeals has held there are four classes of statements that constitute defamation per se: accusations that the plaintiff committed a serious crime, statements that "tend to injure another in his or her trade, business or profession," accusations that the plaintiff has a "loathsome disease," or statements that impute "unchastity to a woman."
But the state's high court has never confronted the issue of whether homosexuality would qualify, so Chin was faced with the task of predicting how the Court would rule. Several factors convinced him that it would not consider such statements defamation per se.
First, the U.S. Supreme Court's decision invalidating laws criminalizing homosexual conduct in Lawrence v. Texas, 539 U.S. 558 (2003).
"[T]o the extent that courts previously relied on the criminality of homosexual conduct in holding that a statement imputing homosexuality subjects a person to contempt and ridicule ... Lawrence has foreclosed such reliance," Chin said.
