Thursday, June 28, 2012

New York State: False Imputation of Homosexuality No Longer Slander per se

A unanimous four-judge panel of the New York Appellate Division, 3rd Department, rejected old precedents on May 31, 2012 and ruled that “falsely describing a person as lesbian, gay or bisexual” is no longer regarded as “slander per se” under New York tort law. Yonaty v. Mincolla, 2012 WL 1948006. “Given this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se,” wrote Justice Thomas Mercure.

The plaintiff alleged that the defendant’s action in telling the plaintiff’s girlfriend’s mother that the plaintiff was gay “caused the deterioration and ultimate termination of his relationship with his girlfriend,” wrote Justice Mercure. Plaintiff alleged slander per se, intentional infliction of emotional distress and prima facie tort. The plaintiff did not allege any pecuniary damages (i.e., “special damages”) as a result of the statement that he was gay. Broome County Supreme Court Justice Phillip Rumsey granted summary judgment to defendant on the IIED and prima facie tort claims, but denied summary judgment on the slander claim, finding himself bound by 3rd Department precedent and a large accumulation of prior decisions holding that falsely calling somebody gay is presumed to be harmful to an individual’s reputation.

Under New York precedents, the question whether a particular statement about somebody could be considered defamatory is a question of law. The trial judge has to decide, based on the Complaint, whether a statement has “defamatory connotations” by considering whether “it tends to expose a person to ‘public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or to induce an evil opinion of [a person] in the minds of right-thinking persons,’” according to the old New York cases that set out the essential elements of the tort. In cases of slander, a verbal rather than a written communication, the common law rule required an allegation of “special damages” unless the words fell into one of the recognized categories of slander “per se” that are presumed to be harmful to reputation. Traditionally, New York courts have regarded a false imputation of homosexuality as being one of those categories.

“We agree with defendant and amici that these Appellate Division decisions are inconsistent with current policy and should no longer be followed. . . Defendant and amici argue – correctly, in our view – that the prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessary equates the individuals who are lesbian, gay or bisexual with those who have committed a ‘serious crime’ – one of the four established per se categories. That premise is inconsistent with the reasoning underlying Lawrence v. Texas, in which the [U.S. Supreme] Court held that laws criminalizing homosexual conduct violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”

The court also noted developments in New York law that undercut the traditional rule, not least the passage in June 2011 of the Marriage Equality Act opening up the right to marry to same-sex couples in New York. The court also noted the Sexual Orientation Non-Discrimination Act, and the “myriad of ways” that New York law had begun to recognize same-sex partners even prior to the passage of marriage equality. The court also noted that “the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago,” and at that time relied in part on federal laws excluding gays from serving in the military or immigrating to the United States as justification for the presumption that falsely calling somebody gay would be harmful to them. The court noted that both of those federal policies have changed. (The immigration ban was repealed in 1990, and the military service ban ended in September 2011.)

“While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated,” wrote Justice Mercure, “the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals,” quoting from a federal court ruling that disputed the rationale for the traditional New York rule. “In short, the disputed statements in this case are not slanderous per se and, thus, plaintiff’s failure to allege special damages requires that the remaining cause of action for slander be dismissed.”

Lambda Legal filed an amicus brief by its staff attorney Thomas W. Ude, Jr., in support of defendant’s appeal.

1 comment:

Gary Freedman said...

Presumably, at all times relevant to my employment at Akin Gump (1988-1991) and subsequent litigation (1992-1998), rumors of homosexuality that I was subjected to constituted slander per se under the common law prevailing in the District of Columbia.