Law - Gay, LGBT | New York

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Gays, Straights, And Slander

GavelAndrew Belonsky reported on Thursday that New York courts will no longer consider it "slanderous" to falsely accuse someone of being gay.

The story Andrew linked to didn't go into detail on the ruling -- who had been accused of what, when, or why. But it turns out Towleroad has covered this before.

The situation was this: Four years ago, Jean Mincolla of upstate New York falsely accused told Mark Yonaty of being a closeted gay man. She said this, it seems, because she wanted Yonaty's girlfriend to break up with him -- possibly because Mincolla wanted Mr. Yonaty for herself. Ms. Mincolla told her lie to Ruthanne Kaufman, who repeated it to the mother of Yonaty's girlfriend, who then broke up with Mr. Yonaty, just as Ms. Mincolla had hoped.

This probably doesn't say much for the integrity of Mr. Yonaty's relationship, but never mind -- Mr. Yonaty was aggrieved, and sued Ms. Mincolla. A judge decided the case in 2009, and another reaffirmed it in 2011, when Andy first reported the story. Mark Yonaty had indeed been slandered.

As Andrew explained Thursday, a "mid-level appeals court" has now reversed that decision, citing shifting public perceptions of gayness. It now seems Mr. Yonaty was not slandered by Ms. Mincolla, because slander requires defamation, and calling someone gay isn't defamatory. From the New York Daily News:

“These [previous] appellate division decisions are inconsistent with current public policy and should no longer be followed,” stated the unanimous decision written by Justice Thomas Mercure of the Appellate Division’s Third Department based in Albany. While the decision sets new case law in New York now, it could still go to a definitive ruling by the state’s highest court, the Court of Appeals.

... With Thursday’s decision and similar ones in several other states, calling someone gay is eliminated as defamation, just as being called black is no longer grounds for slander, said Jonathan L. Entin, law and political science professor at Case Western Reserve University Law School in Ohio.

“It doesn’t mean this is the universal view of the country,” he said. “The traditional view of being called gay was like being called an evil person. The state of public opinion has changed, but there are still people who feel that way.”

Nice as it is that courts no longer think being called "gay" is so awful, it still seems that Mr. Yonaty was treated poorly. So far as I've seen, media aren't reporting why, in this case, the "gay" allegation doesn't count as "defamation per se," which traditionally includes charges of "unchastity." Insinuating that someone in a heterosexual, monogamous relationship is gaying it up on the DL would seem to apply. Anybody have any insight?

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Comments

  1. First of all, our courts do not exist to provide redress to each and every person who has been "treated poorly." Second, the societal costs of having our courts decree that being called gay is a slanderous offense far outweigh the costs incurred by any individual who happens to be harmed by such a statement and is denied a remedy in court. You think that being called gay remains something which in fact could really damage someone? Then all of us, including this plaintiff, should work strenously to change that in order to save the teenaged kids who are killing themselves, not to ensure that guys like him don't lose their girlfriends.

    Posted by: Patric | Jun 2, 2012 1:46:19 PM


  2. I don't like this decision. Like it or not, being considered to be gay has the potential to do great damage to someone in many environments, whether or not one is actually gay. Particularly in one's place of employment. I have seen the "gay card" be used as a weapon against people in the workplace and have had it used against me, personally.

    The point is not that it is an inherent insult, but that in the eyes of many--including many with the power to damage someone--it is a legitimate reason to treat someone unfairly.

    The analogy the professor tries to draw with race is obviously absurd, since race, like gender, is a trait that is easily observed visually, while sexual orientation is not. (Just another example why these ridiculous analogies between the issues facing gay people and those that have faced racial minorities are bogus and should be avoided).

    Posted by: Rick | Jun 2, 2012 2:02:24 PM


  3. Lots of problems with this legal analysis - Ari to the rescue please? Without reading the decision, I doubt that any court would hold that falsely accusing someone of being gay is never defamatory (any false statement of fact can be defamatory). However, just because a statement is defamatory doesn't mean you can sue based on that statement - the statement generally has to have caused you monetary damages. Here, this guy (other than a broken heart) doesn't seem to have monetary damages, so even though the accusation of being gay was false, it couldn't form the basis of a defamation suit. Historically, certain types of particularly egregious types of defamatory statements were considered defamation "per se" which means that you COULD sue for defamation despite not being able to show you suffered monetary damages. These categories traditionally included being accused of having a sexually transmitted disease, being gay, etc. Courts in recent years (like this one) have decided that an accusation of being gay is not egregious enough to be considered defamation per se.

    However, you can still sue for defamation if someone falsely accuses you of being gay (or straight for that matter) as long as you can show that it caused you to suffer a financial loss. Proving that loss might be difficult, but it would still be possible I would imagine.

    Posted by: JPinWeHo | Jun 2, 2012 2:03:03 PM


  4. Well considering that a Pastor in North Carolina thinks that gays (and "queers") should be put inside electrified fences, I'd say that there is something wrong with being called gay.

    Posted by: Oliver | Jun 2, 2012 2:09:16 PM


  5. The decision said that being called gay is not "per se" defamation. What that means is that being called gay is not automatically defamation and something that entitles you to damages. You can still bring a lawsuit, but you now have to prove that you were damaged, e.g., your reputation in the community was hurt, or that you indeed lost a job as a result.

    Posted by: Rae | Jun 2, 2012 2:19:51 PM


  6. There needs to be more reporting on the ruling itself, including a link.

    In my humble opinion, in the context of a heterosexual relationship, labeling either party as homosexual [and therefore lacking good faith] certainly attacks that person's integrity within that relationship. And, this has nothing to do with employment or other areas of life.

    But I think that the media have over-simplified the ruling. It may very well be the case that the courts are not going to get involved in personal romantic issues, but the poor reporting done thus far is not helpful to anyone in understanding whether this is even news.

    Posted by: Anonymous for a reasonous | Jun 2, 2012 3:02:56 PM


  7. I think what the judge mostly did was properly observe this case involved jealousy, lying, mean-spiritedness, gossip, and petty bickering. As another noted, he lost nothing but a girlfriend who believed what was said even though it wasn't true.

    I think there is a legitimate question of how Mr. Yonaty was damaged, and what remedy the judge could order -- that his ex-girlfriend be his girlfriend again; that the offending gossips issue public apologies? He would be well advised to put all these people out of his life.

    Had Mr. Yonaty lost his business because a competitor had spread a falsehood about his sexual orientation, the case might have had a different outcome.

    Posted by: james | Jun 2, 2012 3:07:11 PM


  8. Agree with Rae.

    This ruling does not seem to preclude that being called gay MIGHT be defamatory. It appears to depend on the context and the actual damage. If someone is applying for a retail sales position in the Castro, it will have no impact on the job selection process if someone is gay. (Heck, in this case, it will probably help.) But, if applying for a job in a school run by Christian conservatives, being gay might result in not being hired. In that case, being called gay might still have both professional and monetary consequences; that might still be actionable.

    I like this ruling. It seems like social progress that "gay" is no longer an inherent criticism of someone. Being called tall or short is not inherently an insult; now, no longer is being gay.

    Posted by: gr8guyca | Jun 2, 2012 3:23:44 PM


  9. I think you can sue for emotional distress in NY, though proving it might be a bit difficult. What the appeal court basically said was that the suit was not properly structured or thought out and claims made were too tenuous to prevail.

    Posted by: anon | Jun 2, 2012 3:40:16 PM


  10. Interesting.

    It's still defamation in my state. I'm an attorney who represented a high school health/phys ed/gym teacher/basketball coach/ volleybll coach.

    In her health class she showed a 15yo 48 Hours segment about AIDS and gay bashing. The point of the 40 minute class was to discuss health issues that a homosexual may face during his lifetime.

    You guessed it. One parent wrote the school board because he was upset that the gay bashers were shown in a negative light. Seriously. In a 6 page fire and brimstone letter to the school board, he accused her of recruiting kids to be gay, pederasty, and all kinds of unseemly behavior (praise jesus).

    Being a gay man I found it difficult to represent her. Was I being hypocritical? Perhaps, but case wasn't about me, it was about her. Because of the letter, the Board removed her from her teaching and coaching positions until the issue died down. Good for them, bad for her.

    During the trial, the judge told me I was going to lose and we didn't stand a chance. The Defendant laughed at her in open court. But the jury came back with an award of over $300K, all very collectable (thank you homeowner's insurance!). The verdict stands today as the largest defamation award against a private plaintiff in Kentucky.

    Good guys 300,000
    Religious Bigot 0

    Posted by: sp8ce | Jun 2, 2012 6:33:37 PM


  11. RICK: "(Just another example why these ridiculous analogies between the issues facing gay people and those that have faced racial minorities are bogus and should be avoided)."

    That is ridiculous. Plenty of parallels can be drawn between them; disenfranchisement, physical violence, social abuse, etc...

    Posted by: Lance | Jun 2, 2012 7:50:39 PM


  12. You still can't call Tom Cruise gay unless you can afford a good lawyer.

    Posted by: simon | Jun 2, 2012 10:38:16 PM


  13. I don't see how whether something is OK with most of the public has anything thing to do with defamation. If someone spreads a lie about someone to damage them, why does it matter if that something is OK with SOMEONE ELSE?

    I wouldn't want someone spreading the lie that I'm a fundamentalist Christian BECAUSE I'M NOT and would be appalled if anyone thought I was.

    Posted by: BobN | Jun 2, 2012 10:44:13 PM


  14. I tend to agree with BOBN -- I think that any untrue claim about an individual can be considered defamatory. I think that untrue claims should be treated equally -- if a straight man can sue someone for calling him gay, I should be able to sue someone for calling me straight (presuming similar context, intent, etc). Basically: I don't think that "not being inherently an insult" is a defense when the claim was false and intended to defame or discredit.

    Posted by: Patrick | Jun 3, 2012 2:58:31 AM


  15. @Rick: "race, like gender, is a trait that is easily observed visually"

    You have no idea what you're talking about. http://en.wikipedia.org/wiki/One-drop_rule

    Posted by: JJ | Jun 3, 2012 4:30:58 AM


  16. The Boy and Girl have been dating for some time, and when a third party says that the Boy is Gay' the Girl drops the Boy. If the Girl did not know that the Boy was not Gay, Exactly what were they doing when in private?

    Posted by: Jerry6 | Jun 4, 2012 10:09:28 PM


  17. I've been falsely called gay most of my life by people that don't even know me. In most cases, the sole basis for being called gay was the way I look at people. It was always guys who said it.

    Posted by: Gary | Aug 29, 2012 10:22:00 AM


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