New York Court - Gay Is Not Slander

"This appeal presents the issue of whether statements falsely describing a person as lesbian, gay or bisexual constitute slander per se. 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.

After a nonparty allegedly told defendant that plaintiff was gay or bisexual, defendant relayed that information to third party defendant, a close family friend of plaintiff's long-time girlfriend, with the hope that the girlfriend would be told. Plaintiff maintains that defendant's actions caused the deterioration and ultimate termination of his relationship with his girlfriend. He commenced this action against defendant, alleging slander, intentional infliction of emotional distress and prima facie tort. Defendant then commenced the third-party action, seeking indemnification based upon the republication of the statements.

Supreme Court subsequently denied third-party defendant's motion for summary judgment dismissing the third-party complaint, and partially granted defendant's motion for summary judgment by dismissing plaintiff's claims of intentional infliction of emotional distress and prima facie tort. The court denied defendant's motion insofar as she sought dismissal of plaintiff's slander claim. As relevant here, the court concluded that it was bound to follow prior appellate case law holding that statements falsely imputing homosexuality constitute defamation per se and, thus, plaintiff's slander claim need not be dismissed despite his failure to allege special damages. The parties cross-appeal, and we now modify by dismissing the complaint and third-party complaint in their entirety.

Whether particular statements are susceptible of a defamatory meaning – and therefore actionable – presents a question of law. Only "[i]f the contested statements are reasonably susceptible of a defamatory connotation [does] it become[] the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average [person]." A statement has defamatory connotations if 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." Because the defamatory tendency of a statement depends "upon the temper of the times [and] the current of contemporary public opinion," a statement that is "harmless in one age... may be highly damaging to reputation at another time."

Generally, a plaintiff asserting a cause of action sounding in slander must allege special damages contemplating "the loss of something having economic or pecuniary value." Plaintiff has not done so and, thus, he cannot maintain his slander claim unless the challenged statements constitute "slander per se" – those categories of statements that are commonly recognized as injurious by their nature, and so noxious that the law presumes that pecuniary damages will result. The four established "per se" categories recognized by the Court of Appeals are "statements (i) charging [a] plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that [a] plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman" (id.). As Supreme Court noted, the Appellate Division Departments, including this Court in dicta, have recognized statements falsely imputing homosexuality as a fifth per se category.

We agree with defendant and amici1 that these Appellate Division decisions are inconsistent with current public policy and should no longer be followed. Defamation "necessarily . . . involves the idea of disgrace." 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 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.

That premise is inconsistent with the reasoning underlying the decision of the Supreme Court of the United States in Lawrence v Texas, in which the Court held that laws criminalizing homosexual conduct violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution . The Court stated that people who are homosexual "are entitled to respect for their private lives", but "[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination in both the public and in the private spheres." These statements of the Supreme Court simply cannot be reconciled with the prior line of Appellate Division cases concluding that being described as lesbian, gay or bisexual is so self-evidently injurious that the law will presume that pecuniary damages have resulted.

In regard to New York in particular, we locate "the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider[ing] the prevailing attitudes of the community." Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing. Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act in June 2011, which was strongly supported by the Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage, including "the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State." Even prior to the Marriage Equality Act, this Court had previously explained that "the public policy of our state protects same-sex couples in a myriad of ways" – including numerous statutory benefits and judicial decisions expressing a policy of acceptance. Similarly "evidenc[ing] a clear commitment to respect, uphold and protect parties to same-sex relationships[,] executive and local orders extend[] recognition to same-sex couples and grant[] benefits accordingly."

We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago. In that case, the Second Department concluded that it was "constrained... at this point in time" to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing "social opprobrium of homosexuality" and "[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service." Ultimately, the Court held that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored." In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 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. While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, "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."

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. Inasmuch as the complaint did not adequately allege extreme and outrageous conduct sufficient to support plaintiff's claim of intentional infliction of emotional distress or special damages to support a prima facie tort claim, Supreme Court properly dismissed those causes of action. Accordingly, the complaint and third-party complaint should be dismissed in their entirety."

J.P. Mercure, with Garry Stein and J.J. Egan Jr. concurring, State of New York, Supreme Court, Appellate Division, Third Judicial Department, May 31, 2012; Opinion 512996.

9th Circuit Denies En Banc Rehearing of Prop 8 Case

"A majority of the panel has voted to deny the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. The petition for rehearing en banc is DENIED. The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

"O’Scannlain, Circuit Judge, joined by Bybee and Bea, Circuit Judges, dissenting from the order denying rehearing en banc: A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports samesex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way." Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia. Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court. For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.

"Reinhardt and Hawkins, Circuit Judges, concurring in the denial of rehearing en banc: We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time."

U.S. Court of Appeals for the Ninth Circuit, June 5. Perry v. Brown, Nos. 10-16696, 11-16577 - order to deny a rehearing en banc [before the entire court or equivalent, rather than the panel who issued the previous opinion] regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgment.