Is falsely being called ‘gay’ defamatory?

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.)


  1. Alverant says

    I would say the court’s decision was wrong since the false rumors did do him harm. They caused an end to his romantic relationship and would likely damage any future romantic relationships once the woman he would be dating heard about what happened. He was lied about which did cause him harm. It doesn’t get more simple than that.

  2. Mano Singham says

    The point is that harm alone is not sufficient as far as the legal case goes. He has to show that he suffered ‘economic or pecuniary’ harm to claim damages. The loss of a girlfriend or future girlfriends would not meet that standard. Now if he was fired from his job because of the rumor, that would be different.

  3. Ruth says

    “They caused an end to his romantic relationship”

    Did they really? What kind of person would break off a GOOD heterosexual relationship because a third party told them that their partner was gay? What kind of person would believe the word of the third party over their partner’s word (and, presumably, actions)?

    Obviously I don’t know the details, but I would think it far more likely that either –

    A. The relationship was on the ropes anyway, and the girlfriend used the rumour as an excuse to break it off.
    B. The girlfriend had stronger reasons than just the rumour itself to believe that the rumour was true, presumably reasons arising from the relationship.
    C. The relationship broke up for reasons that were nothing to do with the rumour, but the plaintiff needed to point to some ‘damage’ to make his case, and latched on to the coincidental break up.

    Quite honestly, if his girlfriend actually dumped him purely because of an unsubstantiated, and presumeably denied by him, rumour that he was gay, then the rumour-monger probably did him a favour, by exposing her shallow-ness.

  4. Alverant says

    You’re right we don’t know all the details. So assuming there is a different underlying cause or making a value judgement on the quality of the relationship would be presumptious of us.

  5. Alverant says

    I guess he could say that if they got married they would be able to take advantage of some tax breaks. And by living together they could combine incomes for paying the bills. That would be economic damage the same way a roommate who was paying have the rent just up and left without warning due to a rumor. How do you define the monitary worth of a relationship?

    On a different note, what if someone who heard the rumor attacked him for being gay? Would that make a difference?

  6. says

    “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?”

    I think it’s a bit of both, really. But words, in and of themselves, are never inherently bad or insulting. You know, it’s like George Carlin said, “there are bad thoughts, bad intentions, and words.”

  7. says

    I’ve never really understood taking offence at being called gay. I am very much heterosexual, but on those occasions where someone calls me gay, either as just a generic insult or actually implying that I am homosexual, I simply shrug it off. What someone else thinks of me is irrelevant in this case as it doesn’t change who I am attracted to. If someone hears someone claim I am gay and would shun me because of it without speaking to me (even if it were true that I was gay), then that is not someone I want to associate with anyway.

  8. prochoice says

    you are a grown-up male, are you?
    Still I think I better congratulate for being as sure of yourself as George Clooney (
    -I do not know why the linking does not work, so I put it here that way-
    BUT would you please think of males in vulnerable positions, in schools and such groups, where slander is nothing but incitement to beat this young man up!
    True or not does not matter.
    For a female situations where she can shrug off being called something from “unchaste” to “prostitute” are rare.
    USUALLY anything like that diminishes to ruins her choice in sexual relationships (beginning from to have one or not)
    and enhances her risk to be raped.

    @ Mano: I was shocked to read that the list does NOT include the risk to become a victim of violence enhanced by slurs; German laws, where I had 28 years and a burnout in rape crisis center has such laws too, just leaving out the worst.
    Seems all countries on this little planet have still an ERA to go?!?!?!?

  9. says

    Yes, I do understand that there are situations where it can cause problems, but in my experience the problems arise from other issues and not from simply being called gay. Being called gay should not be a cause for offence. A cause for worry? Sure, but so could being called lots of things if small minded people are going to use it as an excuse to attack someone.

    I realize that while I am comfortable in my sexuality, not everyone is there yet. I see that more a problem of society where we have people who still believe that being anything other than a stereotypical manly man or the perfect chaste princess makes a person somehow worse than others. Still this is more a problem with bigots who are thankfully on the decline as more and more people now understand there is nothing wrong with being gay, bi, or any other way a person chooses to describe their sexuality.

    As for being called “unchaste” or “prostitute” for women, while I still have a hard time seeing why they *should* be insults -I’ve always hated the double standard of promiscuity being a virtue for males and a vice for females-, I do understand that we’re not anywhere near a point where people will see it as anything but an insult and/or incitement to violence and so there is still good reason to be wary of people saying these things to women.

  10. left0ver1under says

    Defamitory lawsuits shouldn’t just be limited to financial losses or damage. A person who is falsely branded a rapist or pedophile might suffer physical assault or vandalism of their property. There are plenty of people who don’t check facts or wait for a trial and choose violence instead.

    For example, the “ritual satanic abuse” case of the 1980s, in which all the accused were innocent and released after the victims recanted. The lives, marriages, friendships, careers, homes and savings of the falsely accused were all destroyed. They may have gotten compensation, but nothing makes up for the damage caused, and the taint of the false accusation is still with them.

    Or more recently, a man in Texas accused of molesting a child was murdered by the father of the victim. Granted, the accused was almost certainly guilty, but a premeditated revenge murder is as bad as the crime. Instead, the murderer isn’t being charged. What about cases where the accused didn’t commit the crime and suffered violence as a result of the accusation?

  11. left0ver1under says

    Yes, my mistake. I heard it third hand from someone who reported it inaccurately. I was too revolted to research yet another sick individual’s crimes.

    While trying to research it properly, I encountered another case in Texas molestation and murder case that I didn’t know about, this one from March.

    I didn’t know about it, didn’t want to know about it, and now wish I could unsee it.

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