Calling Someone Homosexual Is Not Defamation Per Se, Judge Rules in Suit by Anna Nicole Smith Lawyer

Mark Hamblett

New York Law Journal

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.

"Second, in 2009, the 'current of contemporary public opinion' does not support the notion that New Yorkers view gays and lesbians as shameful or odious," he said, citing the movement to legalize gay marriage and a poll showing that gay marriage is favored by 51 percent of New Yorkers and there was a two-thirds majority in favor of civil unions.

"Finally, the New York Court of Appeals has not, in its most recent opinion touching on social attitudes toward homosexuality, given any indication that it perceives widespread disapproval of homosexuality in New York," he said.

In Hernandez v. Robles, 7 N.Y. 3d 338 (2006), he said, while the Court rejected the claim that the "New York Constitution compels recognition of same-sex marriage," the Court's plurality opinion "clearly recognized, however, that social attitudes toward gay and lesbian New Yorkers had changed dramatically in the past few years" and "the New York legislature could permit same-sex marriage if it chose to."

Chin's ruling on homosexuality runs counter to an opinion by one of his Southern District colleagues as well as state Appellate Division rulings.

Southern District Judge Colleen McMahon last year ruled the other way in Gallo v. Alitalia-Linee Aeree Italiane-Societa Per Azioni, 585 Supp. 2d 520, writing that her decision "is based on the fact that the prejudice gays and lesbians experience is real and sufficiently widespread so that it would be premature to declare victory."

As to the "several" Appellate Division cases holding imputation of homosexuality to be defamatory per se, Chin said, "The rulings of intermediary appellate courts are 'helpful indicators of how the state's highest court would rule,' but they are not binding on me."

Still, Chin said that while the statements that Stern and Birkhead had had sex and that Smith watched their actions on tape were not defamatory per se, they "are nonetheless susceptible to a defamatory meaning."

"A reasonable jury could find that engaging in oral sex at a party is shameful or contemptible, and the fact that this conduct may not be illegal does not alter this conclusion," he said.

Chin went on to cite "substantial evidence" that would allow a jury to find that Cosby acted with actual malice: Two sources accused her of "trying to get them to say untrue things, and two deny what she attributed to them entirely."

He added that Cosby relied on sources who were "obviously biased against Stern, and the record also contains evidence that Cosby tried to bribe two other sources."

The judge said he found Cosby's actions "extremely troubling."

Cosby's publisher, Hachette Book Group USA, Inc., was granted summary judgment because Chin found insufficient evidence of actual malice.

Douglass B. Maynard of Akin Gump Strauss Hauer & Feld represents Hatchette. "We are pleased that Judge Chin dismissed the case against Hachette and reaffirmed a book publisher's right to rely on the reputation and experience of its authors," Maynard said in a statement.

L. Lin Wood of Bryan Cave in Atlanta, who represents Stern, called Wednesday's ruling a "major victory."

"I've been involved in defamation practice for a number of years and while I represent both plaintiffs and defendants, I am well aware of the difficulty facing a public figure plaintiff in getting his or her case to a jury and beyond summary judgment," Wood said. "Here, Judge Chin has allowed Mr. Stern to proceed to a jury trial on 11 of the 19 statements initially listed in the complaint. That's a major win for Howard K. Stern."

Elizabeth A. McNamara of Davis Wright Tremaine represents Cosby. In a statement, McNamara said, "We are gratified that the judge dismissed so many of the statements at issue and has fundamentally narrowed the case. As to the remaining statements, we are fully confident that a jury will dismiss them as well once it hears all the evidence surrounding Howard K. Stern's life with Anna Nicole Smith."