I recently had a seven-part series titled ‘On Insults’ and the first one dealt with the question of what constitutes an insult and who gets to decide whether something is a slur or not. It is not an easy question to answer. Are insults and slurs inherent in the words themselves? Does it depend on the intent of the person using those words? Or does it depend on the perception of the person at the receiving end?
Via Gawker I learned of an interesting ruling by a New York state appeals court in which the judges said that what constitutes defamation depends on contemporary community perceptions. The case involved a man who sued a woman for passing on a rumor that he was gay. This rumor reached his girlfriend, thus causing tensions with her that resulted in eventual break up.
In the course of reading the unanimous opinion dismissing the man’s claim that he had been slandered, I learned some interesting facts as to what constitutes a defamation injury that one can sue for.
The judges summarized the legal precedents on what constitutes defamation. (Citations omitted)
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.”
But the judges recognized that what constitutes defamation can change with time.
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”
In general, a person must show that he or she has suffered loss of something having economic or pecuniary value in order to sue for damages for slander. The exception is for those statements that are considered ‘slander per se’ which is defined as statements “that are commonly recognized as injurious by their nature, and so noxious that the law presumes that pecuniary damages will result.”
There are five kinds of statements that precedent had established met this criterion of being slander per se and thus required no proof of actual monetary harm being experienced. They consisted of 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
(iv) imputing unchastity to a woman
(v) falsely imputing homosexuality
It was the last one that was the basis for this lawsuit. In ruling against the plaintiff, the judges overruled precedent, saying that times had changed and that being called gay can no longer be considered a slur. The three-judge panel ruled that “prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.”
The judges said that it had been the case so far that “statements falsely imputing homosexuality constitute defamation per se” but that this view needed to be reversed in light of changed attitudes.
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.
It is undoubtedly a sign of progress when judges think that social attitudes have progressed so much that falsely being called gay is no longer is a slander, even though people who casually toss that word around may intend it as a slur. However, the idea that the wider community no longer views homosexuality with opprobrium may be of little comfort to those people who live in narrow-minded communities where being accused of being gay (whether it be true or false) carries serious negative repercussions.
The fourth category of slander per se, that of “imputing unchastity to a woman”, is interesting in the light of my original series of posts that was triggered by Rush Limbaugh calling Sandra Fluke a slut and a prostitute. I argued then that although Limbaugh’s intent was clearly to cast a slur on her, we should not unquestioningly accept his premise that being a slut or a prostitute was a character deficiency.
If Fluke had filed suit against Limbaugh on the basis that he had committed slander per se, I wonder how these same judges would have ruled. Is it the case that being accused of ‘unchastity’ is nowadays not as damaging a charge as being accused of a serious crime or having a loathsome disease? And is being called a slut or a prostitute somehow worse than being accused of unchastity? These are interesting questions.
(New York Law Journal had an article on this case here.)