Sticks and stones may break your bones, but the wrong words may land you in court.
After Us Weekly published an article alleging that Britney Spears had made a "secret sex tape," with her soon to be ex-husband Kevin Federline, Spears hit the magazine with a $10 million dollar defamation suit, claiming the allegation was a "false and outrageous fabrication" that portrayed the her in a "despicable...light." Meanwhile, during a recent appearance on Larry King Live, comedian Bill Maher announced that Republican National Committee Chairman Ken Mehlman is gay. CNN responded by cutting that portion of Maher's comments from its rebroadcast and omitting it from the show's transcript, reportedly for fear of being held "legally responsible" for the charge.
The tort of defamation refers to a false statement that injures someone's reputation and exposes him or her to public contempt, hatred, ridicule, or condemnation. Donald Trump, for example, recently threatened to sue Rosie O'Donnell for defamation, for suggesting that he had once filed for bankruptcy. Perhaps the most interesting thing about defamation suits is that they tend to serve as litmus tests for where we are as a society. For example, at one time in our nation's history, it was considered defamation to be falsely accused of being black. Also, there was a time when women once had a basis for defamation, if they were wrongly referred to as victims of rape, because society often blamed them for "participating" in the crime.
But all of this begs the question: in this day and age, do allegations of making private sex videos or being gay really amount to defamation? According to one poll, about 14 percent of sexually active adults have either videotaped themselves having sex or posed for pictures in the nude (and if Pamela Anderson and Paris Hilton are any indication, that number may be higher for celebrities). As for any stigma that might still go with being gay, it is interesting to note that Rosie O'Donnell, Ellen DeGeneres, Lance Bass, Grey's Anatomy's T.J. Knight, and Doogie Howser's Neil Patrick Harris (to name a few) all seem to be doing just fine.
In the case of Britney Spears, Judge Lisa Hart Cole threw out her defamation claim, reasoning that in contemporary America, the idea of a married couple taping themselves having sex for private purposes is no longer sufficiently at odds with public standards to be considered defamatory. In any case, the judge concluded, it was certainly not defamatory for a couple who has put their sexuality so "squarely, and profitably, before the public eye."
As for Ken Mehlman, he has yet to file suit, but a potential defamation claim in his case could be especially complicated. On the one hand, being accused of homosexuality may still carry enough of a stigma that many courts would find the allegation defamatory (assuming, of course, that it was proven false). There is certainly precedent for that sort of finding. For example, defamation was the charge when Tom Cruise sued a gay porn star in May of 2001 for alleging he'd had an affair with a man. Cruise argued at the time that being called gay exposed him to "hatred, ridicule, and humiliation," and a judge awarded him $10 million. Tom Selleck and Liberace are among the celebrities who have also made defamation claims after being called gay.
On the other hand, numerous changes in the law suggest society is inching closer to regarding homosexuals as equals. False accusations of being gay may be regarded, at least by some courts, as being no more damaging than say, being falsely accused of preferring apples to oranges. Consider this: over 12 states, one district, and over 120 municipal jurisdictions now prohibit employment discrimination, based on sexual orientation. In 2003, the landmark Supreme Court case Lawrence vs. Texas effectively held that laws which criminalize "homosexual sodomy" are unconstitutional, despite the fact that 51 percent of the country still opposes gay marriage — a number that is down from 63 percent just two years ago, and experts predict the trend will continue.
It is interesting to note that after a recent episode of the television series South Park, where an animated version of Tom Cruise adamantly refused to "come out of the closet," Cruise elected not to file suit. It is also interesting that when gay rumors began to surface about talk show host Oprah Winfrey and her longtime friend Gayle King, neither one of them seemed particularly bothered. Yes, Oprah conceded, she and King are both unmarried, vacation together, and "talk on the phone four times a day." But there's nothing sexual or even unusual about their closeness; according to Oprah, it's just that "there isn't a definition in our culture for this kind of bond between women." Added King, "If we were gay, we would so tell you, because there is nothing wrong with being gay."
To paraphrase Bob Dylan, the times may be a changin' — allegations of private, consensual sex between adults may be losing its historical stigma, and an increasing number of Americans could not be happier.
• Over 12 states, one district, and over 120 municipal jurisdictions now prohibit employment discrimination based on sexual orientation; See Lexis or Westlaw: 37 VUWLR 249, ictoria University of Wellington Law Review, July 2006
"I'm not gay-Not That There's Anything Wrong With That!": Are Unwanted Imputations of Gayness Defamatory? Dean R. Knight.(Scroll through text to FN 139)
Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.