In today's society, at least in New Jersey, homosexuality has lost its stigma, so a false statement that someone is gay isn't slanderous, a federal judge in Trenton said Wednesday in dismissing a suit against two radio shock jocks.
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.
The ruling, in Murphy v. Millenium Radio Group, 08-cv-1743, is a loss for freelance photographer Peter Murphy, who complained that Craig Carton and Ray Rossi, hosts of the "Jersey Guys" show on WKXW 101.5 FM, "derogatorily inferred" he was a homosexual during a 45-minute segment.
The on-air lambasting arose from a photograph of Carton and Rossi that Murphy had taken for New Jersey Monthly magazine, which named the pair the state's top shock jocks for a "Best of 2006" issue. Murphy posed them standing side by side and apparently naked except for a placard, with the station's name, covering their midsections.
The photo was posted on 101.5 FM's Web site and on the hosts' myspacetv.com page, without a copyright notice in either place. The station invited Web site visitors to send in altered versions and many did. One put bikini tops on Carton and Rossi and changed the placard to read "2007 Jersey Girls Calendar." Others added images like Michael Jackson and Gov. Richard Codey.
The station posted the altered pictures but removed them after Murphy's lawyer sent a cease-and-desist letter in June 2007, claiming copyright infringement and demanding compensation.
Shortly afterward, Murphy alleged, Carton and Rossi spent about 45 minutes bashing him on their show, talking about how he had them pose for the photo and suggesting he was homosexual.
They also impugned his personal integrity, describing him as "a man not to be trusted" in a business environment, a man who "will sue you" if you have business dealings with him and someone with whom "a person should avoid doing business," Murphy alleged in his defamation and copyright suit against Carton, Rossi and Millenium Radio Group, owner of the radio station.
In claiming he was slandered by the implication he was gay, he had support from the leading New Jersey case on the issue, Gray v. Press Communications, 342 N.J. Super. 1 (App. Div. 2001). Sally Star Gray, who had a children's television program from 1950 to 1972, sued Jeff Diminski, host of a call-in radio show on 101.5 FM, for calling her "the lesbian cowgirl." A trial court judge dismissed the case but the Appellate Division reversed, finding a false accusation of homosexuality is defamatory.
The issue was a novel one in New Jersey but the Gray court noted that most other states found such words actionable. "Although society has come a long way in recognizing a person's right to freely exercise his or her sexual preferences, unfortunately, the fact remains that a number of citizens still look upon homosexuality with disfavor," wrote Appellate Division Judge Isaiah Steinberg.
Society has come a bit further since then, in Pisano's view. He cited Lewis v. Harris, 188 N.J. 415 (2006), which held committed same-sex couples are constitutionally entitled to the same rights and benefits as married couples, though not necessarily to the institution of marriage. The decision resulted in the enactment of the N.J. Civil Union Law.
"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,'" wrote Pisano, quoting Gray.
The inference of homosexuality, as well as the other allegedly defamatory comments, were "nothing more than rhetorical hyperbole, name calling or verbal abuse" of the kind that would be expected on "Jersey Guys," a show of "controversial and humorous character."
Pisano also rejected the copyright claims, holding the fair-use doctrine applied to use of both the original photograph and the altered versions.
And he dismissed Murphy's claim under the Digital Millenium Copyright Act of 1998, or DMCA, which bars the intentional removal of "copyright management information."
The photograph appeared in New Jersey Monthly with no copyright notice, only a credit in fine print in the gutter of the printed page that was inserted by a magazine employee using Adobe InDesign software.
The fine-print gutter credit was not "copyright management information," held Pisano. There was no circuit precedent interpreting the DMCA's language, but Pisano said he was persuaded by the opinion of fellow New Jersey District Judge Joseph Greenaway Jr. in IQ Group Ltd v. Wiesner Publishing, 409 F. Supp. 2d 587 (2006). Greenaway is now a judge on the 3rd Circuit.
The DMCA applies to automated systems of copyright management, not that "performed by people," wrote Pisano. Otherwise, every reproduction of a magazine photograph without its original credit would run afoul of the law, converting "garden-variety copyright claims" to DMCA claims and "supplanting the original Copyright Act."
The defendants' lawyer, Thomas Cafferty of Scarinci Hollenbeck in Lyndhurst, says Pisano properly decided that the test for defamation should not be what bigoted people think. "Happily, in today's climate, most right thinking people do not think less of you because of your sexual orientation," he says.
Murphy's lawyer, Michael Kassak of White & Williams in Cherry Hill, did not return a call.